COURT FILE NO.: CV-19-12436

DATE: 20220513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMIE GRELOWSKI, operating as JBG CARPENTRY

Plaintiff

– and –

DAVID KOEHLER

Defendant

R. Bonin, for the Plaintiff

J. Blozowski, for the Defendant

HEARD: April 6 – 9, 12, 14, June 14, August 19, 20, 2021

the honoUrable JUSTICE Robert B. Reid

REASONS FOR JUDGMENT

Introduction:

1The plaintiff seeks a judgment for $125,647.08. That claim is comprised of $121,408, representing the unpaid balance of demolition and reconstruction costs incurred by him for the benefit of the defendant pursuant to a construction contract plus interest in the amount of $4,239.08.

2The defendant counterclaims for a return of the sum of $128,326.12 which he asserts was overpaid to the plaintiff as well as the cost of correcting deficiencies of and accommodation costs arising from delay in construction.

3The evidence and submissions supporting the parties’ respective positions were carefully and cordially presented by both counsel. Despite the substantial amount of detail involved, counsel were well-organized and focused on the issues. Both counsel were hampered by the fact that no written contract was signed by the parties with the result that each party had a different view of the arrangement between them.

Background:

4The defendant, Mr. Koehler, inherited an old house on a desirable lot along the Niagara Parkway in Fort Erie overlooking the Niagara River. He and his wife eventually decided to sell their home in Georgetown and retire to the Fort Erie premises.

5Prior to his retirement, Mr. Koehler was a project manager for the design, building and repair of refineries. As such, he had experience with construction issues. Once it was decided that the premises was to be rebuilt, Mr. Koehler arranged its demolition and rebuilding, relying in part on his employment experience.

6The plaintiff, Mr. Grelowski is a licensed carpenter. He apprenticed with a local construction company engaged in building custom houses and renovations. After completion of his apprenticeship, he worked on jobs through the Carpenters’ Union in a variety of commercial and industrial building projects.

7Mr. Grelowski developed a sideline as JBG Carpentry from about 2010 doing custom carpentry. He built a two-car garage and constructed additions and decks to existing homes. Prior to engagement by Mr. Koehler, his biggest project had been the renovation of a farmhouse and major renovations to two other premises.

Issues:

8To resolve the dispute between the parties, the following questions must be answered:

a. Was there a contract between Mr. Grelowski and Mr. Koehler? If so, were its terms breached and what was the quantum of any resulting damages?

b. If there was no contract, is Mr. Grelowski entitled to payment on the basis of quantum meruit, and if so, how much?

c. Were there deficiencies or other problems with Mr. Grelowski’s work, the cost of which should be deducted from any amount paid or payable by Mr. Koehler, and if so, in what amount?

Progress of the construction project:

9In the fall of 2016, Mr. Grelowski was building a shed on a property neighbouring the Koehler premises. Mr. Koehler was introduced to Mr. Grelowski by the neighbour.

10Meetings between Mr. Grelowski and Mr. Koehler began in April 2017 when options for the premises were discussed including renovation or demolition and rebuilding on the existing foundation.

11Once a tear-down and rebuild became the preferred option, an architect was engaged by Mr. Koehler through Mr. Grelowski and preliminary drawings were prepared dated May 26, 2017.

12At trial, Mr. Grelowski testified that he proposed to build the house on a cost-plus basis. Mr. Koehler would be responsible for the cost of materials, subcontractors, and Mr. Grelowski’s labour costs plus a 15% markup plus HST. According to Mr. Grelowski, the agreement to that effect was reached on a handshake basis in May 2017.

13The evidence of Mr. Koehler was that while he did agree to compensate Mr. Grelowski on a cost-plus basis for preliminary work, it was his understanding in May 2017 that a written contract would be required if the job was to proceed beyond the exploratory phase.

14The preliminary drawings were modified in accordance with a design of June 29, 2017. Amendments took place thereafter including changes to windows, the placement of the master bedroom and relocation of the septic system.

15A first written estimate was provided by Mr. Grelowski dated July 9, 2017, showing a gross cost of $668,975. Mr. Koehler considered that amount to be too high and a further written estimate, noted as “an educated guess”, was provided by Mr. Grelowski dated July 10, 2017, in the amount of $414,000 with exclusions including (amongst other things) laundry and kitchen cabinetry, kitchen countertops, bathroom fixtures, electrical fixtures, hardwood flooring, and tile flooring which were to be secured by Mr. Koehler. The estimate included labour rates for Mr. Grelowski and for additional labourers as needed. It also provided that charges would be incurred for materials, labour and subcontracts plus a 15% markup plus HST. According to Mr. Koehler, there was agreement as to the contract terms based on a fixed price of $414,000, using Mr. Grelowski’s labour rates and including the 15% markup.

16No final decision had been made by Mr. Koehler to proceed with the project until sometime in August 2017. Once the project was a “go”, an application for a building permit was made by Mr. Grelowski to the Town of Fort Erie dated August 30, 2017.

17A demolition permit was issued by the Town, dated September 18, 2017, and an application for a septic permit was dated September 21, 2017.

18In early September 2017, Mr. Koehler listed his home in Georgetown for sale. The proceeds were needed to finance the Fort Erie project. The Georgetown property sold with a closing date in December 2017. Mr. Koehler and his wife stored their furniture after the sale and pending completion of the building project.

19According to Mr. Koehler, in early October of 2017 he prepared a written agreement incorporating much of the same job costing that appeared in Mr. Grelowski’s estimate of July 10, 2017. It also included the 15% administration fee and HST. The costs breakdown showed amounts as “maximum, not to exceed” with a construction budget of $418,000. With inclusion of the 15% markup plus HST, the total was to be $488,851. That amount was shown in the document as a “total maximum not to exceed budget”. He testified that the amount represented the most that he could afford to pay. That proposed contract was never signed. Mr. Grelowski denied seeing a copy of that document until sometime in February 2018 and that even then he said he did not review it.

20A minor variance was required to accommodate the proposed septic system and the rear deck size required by Mr. Koehler. The application was made dated November 8, 2017. Demolition began shortly thereafter. The building permit was issued November 27, 2017. There was a disagreement between the parties as to when construction of the new premises began: either immediately after the issuing of the building permit or after the hearing of the minor variance on December 14. That difference in dates is inconsequential to this decision.

21Prior to the commencement of framing, Mr. Grelowski had rendered four invoices to Mr. Koehler as follows:

June 7, 2017 (architect design fee, survey + 15%): $7,347.05;

October 30, 2017 (permits & masonry deposit + 15%): $17,030.15;

November 6, 2017 (architect fees, deposit for windows, permits, demolition + 15%): $33,936.59;

December 13, 2017 (foundation work & materials, permit, + 15%): $28,603.75.

All those invoices were paid by Mr. Koehler.

22The fifth invoice from Mr. Grelowski was rendered as follows:

January 19, 2018 (labour, materials, trusses, JPD revisions + 15%): $54,670.25.

Mr. Koehler requested and received supporting invoices and an explanation for the labour charges. Full payment was made.

23The sixth invoice from Mr. Grelowski was rendered as follows:

March 12, 2018 (labour, materials, foundation, septic, beam, crane rental + 15%): $62,353.36.

Full payment was made.

24The seventh invoice from Mr. Grelowski was rendered as follows:

April 15, 2018 (labour, materials, windows, roof, furnace deposit, gasoline + 15%): $69,184.10.

Mr. Koehler questioned the invoice because the framing costs appeared to be exceeding the estimate and he sought an explanation for the gasoline charge. In response, Mr. Grelowski explained that lumber costs had increased by 30% from the initial estimate. Gasoline charges were explained to be for use of the generator and to fuel Mr. Grelowski’s vehicles used to gather materials in order to save delivery costs. Mr. Koehler appeared satisfied with the explanations and accepted the lumber cost increases. Full payment was made.

25The 8th, 9th, 10th, 11th, 12th, and 13th invoices from Mr. Grelowski were rendered as follows:

May 23, 2018 (labour, concrete, delta wrap, electrician, furnace, framing, insulation + 15%): $74,494.17.

June 14, 2018 (inspection fees, insulation, septic, stairs, doors, siding, material + 15%): $66,407.27.

July 11, 2018 (paint, siding, electrical, material + 15%): $37,113.84.

August 7, 2018 (stone, drywall, hardware and material + 15%): $58,179.77.

August 20, 2018 (HVAC, stairs, material + 15%): $19,946.79.

October 19, and 2018 (HVAC + 15%): $9,638.82.

Full payment was made in each case. No labour costs were included after the May 23 invoice. The total paid to that point for all invoices was about $538,900.

26The final invoice dated November 22, 2018 is unpaid and in dispute in the amount of $125,862.23. It included labour from May 21 to November 2, 2018 ($63,000), storage fees ($3,000), tool rentals ($11,550), gasoline ($3,000), and 15% of the labour, storage, rentals, and gasoline ($12,082.50). It also included $18,750 which was 15% of the actual or estimated cost of the materials sourced and paid for directly by Mr. Koehler.

Requirements for a Contract:

27In the absence of a written contract or an acknowledgement of the oral agreement, one must look to the conduct of the parties to determine objectively whether a binding agreement was made.

28I accept the comments of Master Wiebe in Goulimis Construction Ltd. v. Jason Smith, Eva Klein and Bank of Montreal, 2014 ONSC 1239 at para. 17 that for an enforceable building contract to exist, there must be certainty about the scope of the work to be done, the timeline for completion and the price. In the absence of agreement on any one of those essential terms, no enforceable contract exists.

Scope of the work:

29I am satisfied that the scope of the work to be performed was established early in the relationship between the parties. The initial architectural drawings of May 29, 2017 were modified in accordance with the design of June 29, 2017. Although there were some subsequent changes from those drawings, the changes were not substantial. Likewise, the septic system was changed from a front yard, above-grade system to a rear yard system, the rear deck dimensions were changed, and a variety of other amendments occurred. None of the alterations represented a change in the scope of work that could have created uncertainty in terms of the contract.

Timeline for completion:

30Mr. Grelowski testified that around the time the architectural drawings of May 26, 2017 were circulated, he offered to build the proposed house based on a timetable that would take seven to eight months to complete. The anticipated start date for that timetable was not clear. If the time period started to run when the demolition permit was issued on September 18, 2017, the completion date would have been between April 18 and May 18, 2018.

31In the draft written contract prepared by Mr. Koehler in October 2017, the completion time was proposed to begin seven days after the necessary permits were issued and to end no later than 150 days after the work commenced. The demolition and septic permits had already been issued by that time and if those dates were to guide the completion time calculation, it is reasonable to assume a fixed date would have been included. It is more logical to assume that from Mr. Koehler’s perspective, the issuance of the building permit was contemplated to start the clock running, so that based on the draft contract the project was to be completed by about May 4, 2018.

32Based on the evidence at trial, there was a meeting of the minds on contractual terms for an approximate timeline for completion of the project, being late April to mid May, 2017. At the most, there was a discussion about an approximate completion timetable. As such, there is no uncertainty about the timeline for completion.

Price:

33There was an absence of certainty about price.

34As noted above, Mr. Grelowski provided what he specifically said was an educated guess about price in his estimate of July 10, 2017. He repeatedly denied ever agreeing to a fixed price contract where he would bear the risk of any costs over and above the initial quote. He denied seeing Mr. Koehler’s draft agreement until February 2018 and said he never reviewed it. For his part, Mr. Koehler testified that the agreement was always for a fixed price in order to keep the project cost within his budget. His position was supported most obviously in his draft written contract of October 2017.

35The project exceeded both Mr. Grelowski’s “educated guess” and Mr. Koehler’s “maximum, not to exceed” figure by a substantial amount.

36As a result of a variety of changes over the course of the project, Mr. Koehler authorized expenses greater than originally estimated. By way of example, Mr. Koehler acknowledged and accepted the changes that occurred because of the increase in price of lumber. The cost of the septic system changed dramatically when it became known that a front yard system would need to be built above-ground which was not acceptable to him resulting in the construction of a more expensive rear yard system. He agreed to additional expenses when, after demolition, it was discovered that the existing foundation required remedial work. He was aware of and approved the cost of windows over the amount of the original estimates. He authorized a substantial increase in the number of pot lights to be installed and added in-floor heating. A more expensive form of insulation was authorized using spray foam instead of fiberglass as well as other insulation upgrades for soundproofing purposes. Those changes augur against Mr. Koehler’s position that he needed a fixed price in order to keep the project within the fixed amount that he could afford. There was no allegation that Mr. Grelowski incurred unauthorized expenses.

37There is no doubt that Mr. Koehler was frustrated by the inability to keep the project within a specific cost ceiling. On one hand, Mr. Koehler wanted to control the cost of construction and ensure that it stayed within his anticipated budget but on the other hand, he wanted the premises to be built to his and his wife’s specifications. As noted, he authorized and sometimes instigated many of the additional costs that were incurred.

38The increased costs alone do not, however, mean that there was cost-plus agreement. It is possible for there to have been a fixed price contract subject to agreed increases for extras. That is the basis on which Mr. Koehler appears to have proceeded.

39For his part, Mr. Grelowski always treated the project as cost-plus and while he was aware of Mr. Koehler’s wish to contain costs, he never felt constrained by any pre-set maximum budget. He appears to have taken Mr. Koehler’s requests for extras and the payment of the interim invoices as an acknowledgement of the cost-plus deal. That said, it is difficult to believe that the draft written contract of October 2017 was never reviewed by Mr. Grelowski. It is more likely that he simply chose to ignore it rather than deal with the apparent conflict in positions.

40Having heard the evidence of both parties, I conclude that there was no clear evidence to support either party’s position about the basis on which the project was to be priced. The facts can be construed to support either position and there is no preponderance of evidence one way or the other. In effect, and for their own reasons, each of the parties chose to proceed along parallel tracks as if the other agreed with his view. There was no meeting of the minds as to calculation of price and therefore I find that there was no certainty and therefore no contract. As a result of that conclusion, it is unnecessary to determine whether the terms of the contract were breached and whether damages resulted.

Quantum meruit:

41Mr. Grelowski pleaded in the alternative that he is entitled to compensation from Mr. Koehler based on quantum meruit.

42As a matter of fairness, where a party receives a benefit in circumstances where the receipt of the benefit would be unjust without compensation, the court may grant recovery. As a prerequisite, the supply of services and materials must have occurred as a result of the request, encouragement or acquiescence of the receiving party and there must be a resulting deprivation to the party supplying the benefit.

43It is possible for there to be recovery on the basis of quantum meruit under the Construction Act, R.S.O. 1990, c. C.30 (the “Act”). The Act specifies, at s.14(1), that “a person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials.” In s.1 of the Act, in the absence of an agreement, “price” is the actual market value of the services or materials that have been supplied to the improvement under the contract or subcontract. However, in this case having found that there was no contract, there is no available claim under the Act.

44In the absence of a contract, Mr. Grelowski’s claim is for “restitutionary quantum meruit” based on unjust enrichment.

45It is clear that Mr. Grelowski provided services and materials to Mr. Koehler, and that subject to my comments below, those services and materials were provided at the request, encouragement or acquiescence of Mr. Koehler. There is no juristic reason why the benefit of those services and materials should accrue to Mr. Koehler without payment of compensation. He would otherwise be unjustly enriched. Therefore, it falls to this court to determine the actual market value of those services or materials.

46Since full payment was made for all the invoices prior to the final one, there is no quantum meruit claim except as to the final invoice dated November 22, 2018. No evidence was provided as to the value of those services and materials except through Mr. Grelowski’s own evidence.

Components of the November 2, 2018 outstanding account:

47As noted, the final invoice included charges for labour, storage fees, tool rentals, gas, and the 15% markup plus HST for a total of $125,862.23.

Labour:

48Throughout the relationship between the parties up to and including the May 23, 2018 account, labour charges by Mr. Grelowski at $45/hour and for assistants at $25/hour were billed and paid. The rate is not an issue. The final invoice included 1,250 hours from May 21 to November 2, 2018. Mr. Koehler did not challenge the number of hours billed and there was no evidence that any fewer number of hours were actually incurred.

49The key dispute was whether there was an agreement for Mr. Grelowski to bill a maximum of 600 hours (representing approximately $27,000) for labour charges incurred after the May 23 account. Mr. Koehler testified that because labour costs had been exceeding budget, Mr. Grelowski agreed in May to defer any further labour charges to the final account and to cap the amount at his estimate that the job required a further 600 hours. Mr. Grelowski testified that he did agree at Mr. Koehler’s request to defer labour charges until the final account in order to minimize the short-term financial cost to Mr. Koehler but with no cap.

50I have already referred to the lack of agreement about whether the construction terms provided for a fixed cost or a cost-plus basis. It is clear that up to the May 23 invoice, labour was included. The content of the subsequent five invoices (prior to November 22) supports a conclusion that substantial labour work was done. It may have been that in some respects, Mr. Koehler felt he had no option other than to pay accounts in amounts higher than he would have liked. That is not the case with the allegedly capped labour charges. Assuming there was an agreement as Mr. Koehler indicated, it would have been easy for him to have sought written confirmation, or even to have sent a confirming email as to the 600 hour cap, and he was clearly both experienced and particular enough to have done so. No such confirmation was conveyed. Mr. Grelowski (and his employees) performed work, and it would be unfair for Mr. Koehler to receive the benefit of that work without paying compensation. Mr. Grelowski would otherwise be deprived of fair compensation. The 15% administrative markup was a regular part of the billing arrangements between the parties and as such was a reasonable component of the labour charges.

51I accept the fact that labour valued at $62,950 was provided. With the addition of the usual 15% markup plus HST, the total is $81,803.53. There is no juridical reason why that benefit should be retained by Mr. Koehler without compensation.

Storage Fees:

52The November 22 invoice included, for the first time in the parties’ relationship, charges for storage fees ($3,000) plus the 15% markup and HST for a total of $3,898.50.

53The storage fees included six months of vehicle storage, the use of a 20-foot enclosed trailer for one year and the use of a 16-foot enclosed trailer for eight months. Charges also included six months of dry storage for materials ordered by Mr. Koehler pending installation.

54There was no dispute that materials were stored, however there was no evidence of any discussion about Mr. Grelowski’s intention to charge for those services or the amount to be charged. The sum was simply billed after-the-fact at a rate that Mr. Grelowski thought was fair. No out-of-pocket costs were incurred by Mr. Grelowski, and there was no evidence that the storage facilities were needed for other purposes. As such, no deprivation was experienced by Mr. Grelowski. Mr. Koehler testified that he had no expectation of being charged for the storage. The assumption by Mr. Koehler that the facilities were being provided as a gesture of goodwill during the large, expensive, on-going project was not unreasonable in the absence of any discussion to the contrary. It is noteworthy that the final invoice including the storage charges was rendered at a time when the relationship between the parties had soured.

55I conclude that under those circumstances, there was no unjust enrichment of Mr. Koehler in having received the benefit of the storage during the period of the construction project.

Gasoline:

56The final account included the sum of $3,000, plus 15% markup and HST for a total of $3,898.50 for gasoline used by Mr. Grelowski to power a generator, various tools, and vehicles during the construction project.

57When $262.83 for gasoline was included in the invoice of April 15, 2018, it was queried by Mr. Koehler and then accepted as relating to use of Mr. Grelowski’s truck. None of the subsequent six invoices prior to that of November 22, 2018 made any reference to gasoline charges.

58The invoices provided in Exhibit 6, Tab 16 were mostly indecipherable, and the sum billed was clearly an estimate. I do not accept the accuracy of the gasoline charges contained in the final invoice. However, there was some benefit received by Mr. Koehler through the provision of gasoline to vehicles and equipment on the project, giving rise to both a benefit and a corresponding deprivation. Based on the explanation provided following the April 15 invoice and the acceptance by Mr. Koehler that charges were appropriate for gasoline, some charge is appropriate. In the absence of detailed proof, I am prepared to allow the sum of $2,000 plus 15% plus HST totalling $2,599 as part of Mr. Grelowski’s quantum meruit claim.

Tool Rentals:

59The final account of November 22, 2018 included $15,009.22 for tool rentals. Mr. Grelowski owned certain tools and equipment which were used on the project. He justified the additional charges for those items based on the theory that had he not owned them, he would have had to rent them. He established the rent to be charged to Mr. Koehler based on his estimate of commercial rental cost. Other than Mr. Grelowski’s own estimate, there was no evidence to confirm the reasonableness of the owned-tool rental charges. Invoices for actual rentals totalling $264.42 were provided.

60There was no indication of any discussion between the parties about charges for tool or equipment rental and it was Mr. Koehler’s evidence that he would have expected to pay a rental charge only if the tools were rented by Mr. Grelowski from a third party. Since most of the tools and equipment were already owned by Mr. Grelowski, no cost to him was incurred connected with their use on the project.

61In the absence of any evidence to the contrary, I conclude that there was no request, encouragement or acquiescence by Mr. Koehler to bear responsibility for the equivalent of tool rental costs for equipment owned by Mr. Grelowski. Under those circumstances, Mr. Koehler was not unjustly enriched by the use of the tools and equipment on the project, there was no corresponding deprivation. In any event, there was no adequate evidence as to a reasonable rental cost equivalent. As a result, the sum of $264.42 plus 15% plus HST is allowed, for a total of $343.61 and the balance of the claim for tool rental is dismissed.

Outstanding 15%

62All invoices prior to November 22, 2018 included a 15% markup in favour of Mr. Grelowski. That percentage was consistently applied and all invoices were paid by Mr. Koehler with the exception of the final invoice. It is reasonable that the markup should also apply to the final invoice since otherwise Mr. Koehler would be unjustly enriched by being relieved of that cost and Mr. Grelowski would be deprived of the usual administrative charge. However, the percentage should be applied only to that portion of the invoice which I have found to be justified on a quantum meruit basis.

63In the invoice of November 22, 2018, the 15% markup was also applied to materials and services sourced and purchased directly by Mr. Koehler including kitchen and bathroom cabinets, countertops, hardwood flooring, garage doors, decking material, screening enclosures, an electrician’s bill, a backup generator, tile materials for the kitchen, bathrooms and foyer and final lot grading. Based on the known or assumed value of those materials, the markup claimed was $18,750.

64In their evidence, both parties acknowledged that the 15% administrative markup was a component of the project price to which Mr. Grelowski was entitled. It related in general to his overhead and reflected various aspects of the job which would otherwise not be compensated, such as project management responsibilities, sourcing and acquiring materials and suppliers, time incurred dealing with municipal authorities, etc.

65It was also acknowledged that Mr. Koehler, in his ongoing attempts to control costs, undertook to take responsibility for sourcing, acquiring, and paying directly for some of the construction materials and services (as noted above) based on his view that he could do so in a more cost-effective way than would be available to Mr. Grelowski.

66There was a disagreement at trial about whether the 15% markup should be included on those items and services secured by Mr. Koehler which did not require any involvement by Mr. Grelowski. It should be noted that the cost of installation of the materials by Mr. Grelowski was compensated through labour charges, plus the related markup.

67Had I found that a contract existed between the parties, the answer to whether the markup was to be added on these items would have been found in its terms. However, in the absence of a contract, the focus of the quantum meruit claim must be on unjust enrichment: did Mr. Koehler receive a benefit from Mr. Grelowski which created an unjust enrichment for which Mr. Grelowski should be compensated?

68I conclude that there was no unjust enrichment. Mr. Koehler provided and paid for the materials and services. He received no benefit from Mr. Grelowski that would justify the additional markup. In effect, he took upon himself the administrative burden that would otherwise have been borne by Mr. Grelowski. Therefore, that aspect of the final account will not be the responsibility of Mr. Koehler.

69In summary, of the outstanding account of $125,862.23 (inclusive of the 15% markup and HST), Mr. Koehler is responsible for $84,746.14.

Counterclaim:

70Mr. Koehler submitted that he overpaid Mr. Grelowski based on a comparison between the fixed price contract to which he agreed, and the amounts billed and paid in invoices. Based on my conclusion that there was no fixed price contract, that claim is dismissed.

71Mr. Koehler claims that he relied on the anticipated completion date to coincide with his return from an annual winter sojourn in Florida. Since the project was not completed by May 2018 and since his home in Georgetown had been sold, Mr. Koehler and his wife were required to arrange temporary accommodation at a cost of $4,052.34 until August 2018 when the premises was available to be occupied.

72For the accommodation claim to succeed, there would have to have been a binding agreement as to the completion date. There was no such agreement, and therefore that claim is dismissed.

73Mr. Koehler had various complaints about the work performed by Mr. Grelowski. Most related to work that was left incomplete such as the failure to caulk exterior windows and doors. There was no allegation that payment had been made for those aspects of the job. Other complaints, while identified, were not supported by actual or proposed costs for remediation, such as those related to ceiling beams or the fireplace wall in the living room. Still others, such as a complaint that the rear deck was slightly out of level, were not demonstrably outside a reasonable range of acceptable construction. Some alleged minor deficiencies were corrected personally by Mr. Koehler and no costs were identified.

74In sum, there was insufficient evidence as to most of Mr. Koehler’s complaints to support a claim for set-off.

75One deficiency was professionally remedied. It related to the removal and reconstruction of pocket doors. Mr. Grelowski did not think that the doors were improperly constructed or installed. I am satisfied, based on the evidence of Mr. Koehler, the photographs provided and the testimony of the carpenter hired to correct the problem, that the doors were not correctly constructed and installed by Mr. Grelowski. I allow a set-off in the amount of $9,732.59 inclusive of HST, paid by Mr. Koehler to remediate. That amount will be deducted from the amount owned to Mr. Grelowski.

76The remaining complaints as to the proper completion of the scope of work undertaken by Mr. Grelowski were insufficiently proved and are dismissed.

Pre-judgment interest:

77Interest is payable on the net amount of Mr. Grelowski’s claim from November 22, 2018 at the rate of 2% pursuant to s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Conclusion:

78For the foregoing reasons, the plaintiff Jamie Grelowski, operating as JBG Carpentry will have judgment against the defendant David Koehler in the amount of $84,746.14 less a set-off of $9,732.59. The net amount is $75,013.55 plus pre-judgment interest in the amount of $5,216.01 for a total of $80,229.56.

Costs:

79The parties are encouraged to resolve the issue of costs of the trial between themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than three pages in length to St.Catharines.SCJJA@ontario.ca according to the following timetable:

• The plaintiff is to serve his bill of costs and submissions by Friday, May 27, 2022.

• The defendant is to serve his bill of costs and submissions no later than Friday, June 10, 2022.

• The plaintiff is to serve his reply submissions, if any, no later than Friday, June 17, 2022.

• All submissions are to be filed with the court by Tuesday, June 21, 2022.

80If no submissions are received by the court by June 21, 2022, or any written agreed extension, the matter of costs will be deemed to have been settled.

Reid J.