COURT FILE NO.: CV-16-1171

DATE: 2022-06-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Vangar Properties Inc. Plaintiff

– and –

Belmar Roofing Inc. Defendant

Counsel: Matthew T. Kelly, for the Plaintiff Brian J. Kelly, for the Defendant

HEARD: September 13 – 17, and 21 – 24, 2021, by video conference

BEFORE: The Honourable Mr. Justice I.R. Smith

Corrected Reasons: Paragraph 52 has been corrected to remove an editing note which had been left in the judgment and the word ‘roofing’ in the first sentence of paragraph 114 has been changed to ‘plumbing’. The corrections were made on July 19, 2022.

REASONS FOR JUDGMENT

Introduction

[1] The plaintiff Vangar Properties Inc. (“Vangar”) owned an apartment building in London, Ontario that had a leaky roof. Vangar contracted with Belmar Roofing Inc. (“Belmar”) to have a new roof installed for the price of $100,000 plus HST. Belmar worked on the roof but after that work was complete, the roof continued to leak. Vangar says that Belmar’s work was negligently executed, and that Belmar breached its contract with Vangar. Vangar secured an expert report that said, among other things, that the roof was at risk of blowing off the top of the building. Because the roof was installed so poorly, according to Vangar, when it sold the building in 2021 to an unrelated third party, there was a reduction of $200,000 to its sale price. Vangar claims that its damages resulting from Belmar’s breach of contract and negligent work are $200,000 plus the costs of repairs after Belmar did its work and before the building was sold.

[2] Belmar says its work was competently performed and that Vangar has failed to prove that any continuing or new leakage issues were caused by any deficiency in Belmar’s work, or that the roof is at risk of blowing off. In the alternative, Belmar says that damages should be limited to the costs of the repairs done before the building was sold, or, in the further alternative, that damages should be limited to the $100,000 plus HST it charged for the roof plus the costs of the repairs.

[3] Belmar launched a counterclaim against Vangar but did not pursue it at trial. Belmar has invited me to dismiss the counterclaim.

Background Facts

(a) the Building

[4] Corry Van Iersel is the president and manager of Vangar. Mr. Van Iersel has been investing in real estate for roughly 25 years. He became a licensed realtor in 2009 and started a property management company around the same time, managing his own and other people’s properties, mostly multi-family residential properties.

[5] Vangar’s largest investment was a collection of eight apartment buildings on King Edward Avenue in London, Ontario, purchased in 2012. The building which is the subject of this proceeding is 80 King Edward Avenue (“the building” or “80 King Edward”). It has 65 apartments and was approximately 40 – 50 years old when it was purchased by Vangar.

[6] Vangar purchased the eight buildings in London in 2012 for $6,258,000 and sold them to the principal of Eagle Apartments Ltd., one T.S. Bedi, on February 1, 2021, for $18.8 million.

[7] At either end of 80 King Edward it is seven stories tall and, in the middle, it is 8 stories tall. Accordingly, the building has three flat rooves: two above the seventh floor at either end of the building, and one roof above the eighth floor in the middle. Viewed from above in an aerial photograph, the building appears as a long rectangle divided into three smaller rectangles. The sections at either end of the long rectangle are the same size and each represents roughly 20% of the long rectangle. In between those two end sections, the middle section makes up roughly 60% of the building. On that middle section there is a small structure which houses the equipment which runs the building’s elevators and is above the elevator shaft. It has been referred to in the evidence before me as the “elevator room” or the “maintenance tower.”

[8] At either end of the hallway on the eighth floor of the building there are doors which open onto one of the two lower rooves. From one of those lower rooves, there are outdoor stairs which lead up to the roof over the middle section. On that middle roof, there is a wooden walkway that runs from the top of the outdoor stairs to the elevator room. The walkway, which rests on the roof, is required so that the elevator room can be accessed without walking directly on the flat roof and to comply with certain safety regulations.

[9] Around the perimeter of the two lower rooves there is a wall, about two feet tall, which was referred to at trial as a parapet wall. There is no similar wall around the perimeter of the middle roof.

(b) Vangar contracts with Belmar

[10] Vangar began experiencing problems with the roof about a year after the building was purchased in 2012. There were small leaks and Mr. Van Iersel was told by the person who was called to repair those leaks that the roof was nearing the end of its life and would soon require significant repair or replacement.

[11] In 2014, Mr. Van Iersel started shopping around for quotes for that work. He got three quotes, one of which came from an acquaintance: Sam Celik, the principal of Belmar. Mr. Van Iersel understood Belmar to have a good reputation and decided to have them do the required work on the roof. He said that Belmar’s quote was for an amount that was between the other two quotes, and they were available to do the work relatively quickly. Moreover, Mr. Celik seemed like a “genuine guy.”

[12] The quote, dated September 2, 2014, refers to the “project” as “flat roof replacement” and provides as follows: “Description: Removal of existing flat roof system and replacement with new TPO roof system…” TPO is a short form for thermoplastic polyolefin, which is a membrane used on flats rooves. Some of the further details in the quote include the following:

• “Remove existing gravel on the roof system down [sic] and dispose of properly …”
• “Supply and install ½” … insulation, mechanically secured to the roof.”
• “Supply and mechanically install … roofing membrane. Installed as per manufacturer’s instruction and in accordance with Canadian Roofing industry guidelines.”
• “Supply and install new perimeter flashing”
• “Supply and install new drains and plumbing boots as required. Make waterproof around the new Plumbing boots and Drains … in accordance with Canadian Roofing industry guidelines.”
• “… Belmar 15 year warranty on all material and workmanship.”
• “Clean site of all roof related debris” and “All waste material will be haul [sic] off site…”

[13] Under the heading “Notes” the quote includes the following provision, among others: “All work to be completed in a timely manner according to standard practices.”

[14] The quoted price was $100,000 plus HST, which Vangar agreed to pay.[^1] Belmar did its work in October 2014, ending on or about October 17, 2014, and Vangar paid the agreed upon price.

(c) A new drain

[15] During the construction work, Belmar recommended to Mr. Van Iersel that a new drain or drains be installed on the middle portion of the roof. Belmar was of the view that the existing drain was insufficient to ensure that water did not collect or “pond” on the middle roof. Mr. Van Iersel thought any new drain was unnecessary since the roof had drained properly for 40 or 50 years with the drain it had, and neither of the other roofers he had consulted recommended a new drain. Nevertheless, he did contact a plumbing company and put it in touch with Belmar. That company was Duke Maintenance Inc. (“Duke”), which was added to this matter as a defendant by counterclaim, but which has now settled that claim and played no part in this trial.

[16] One new drain was installed by Duke on the middle roof. I will return to the controversies surrounding the drain but, for the purposes of this overview, it is sufficient to say that the new drain was installed on the upper roof and emptied onto one of the two lower rooves, presumably so that water from the higher roof would then flow out through the drain on the lower roof. As will become clear, this was not a good idea.

(d) New problems emerge

[17] After Belmar had completed its work, and no later than June of 2015, Vangar began to experience problems with the roof. Mr. Van Iersel communicated with Belmar employee Bob Pankratz about a leak in the first week of June. On June 8, 2015, at 10:46 p.m., he wrote to Mr. Pankratz by email:

There’s not much we can do about it tonight, but our ceiling on the top floor has caved in at 80 King Edward from the roof leak we called about last week. It has now ruined a tenants [sic] furniture, carpets and floors. It has leaked down to the 4th floor and ruined a few ceilings.

[18] There had been a period of heavy rain. With the newly installed drain, rainwater from the large middle roof emptied onto one of the two lower and smaller rooves where it did not drain further, the drain on the lower roof apparently being unable to accommodate the extra water from the middle roof. Because of the parapet wall around the perimeter of the lower roof, the water collected and, as Mr. Van Iersel described it, filled up like a two-foot-deep swimming pool. That lower roof is roughly 2,000 square feet in area. The fire department was called and there was concern that one side of the building should be evacuated because there was so much water on the roof. Mr. Van Iersel engaged a company called Winmar to do emergency restoration work and the fire department pumped the water off the roof.

[19] As a response to this event, the newly installed upper drain was removed, leaving just one drain on the top middle roof. On the lower rooves, Belmar cut holes at the bottom of the parapet wall so that water would not collect but would instead drain out and down over the brick exterior of the building. These holes were referred to at trial as scupper drains or overflow drains. Mr. Van Iersel testified that thereafter, in a heavy rain, the rainwater would run out the scupper drains and down the side of the building, occasionally causing ponding on the ground. In any case, these measures resolved the flooding issues and Belmar paid for the emergency work Winmar had done for Vangar ($2,288.26).

[20] There were, however, other issues after the June flood. Vangar continued to experience leaks and continued to report them to Belmar. Mr. Van Iersel testified that Belmar was good about coming out to attend to leaks and do repairs – one of their contractors spent two or three days on the roof repairing fasteners and flashing – but that after 6 or 8 visits he decided to turn to another company, Atlas-Apex Roofing (“Atlas”), to attend to future repairs to the roof. To his untrained eye, it seemed obvious that there were problems with the workmanship of the roof. In addition to repeated leaks, he observed that the fasteners used to secure the roof were poking through the TPO membrane or were coming loose and the flashing installed at the parapet wall was coming off. There was persistent pooling of water on the roof. Between June of 2017 and April of 2019, Atlas conducted repair work to address leaks at the building on six occasions. The total cost of the services rendered by Atlas to Vangar was $3,329.98.

[21] Vangar also retained an engineer, Michael Hensen, of IRC Building Sciences Group, to examine and report on the roof. Mr. Hensen concluded that the roof was not properly installed and ought to be replaced immediately as it represented a danger to the public. In a preliminary report which Mr. Van Iersel forwarded to Belmar on September 28, 2016, Mr. Hensen wrote that the “roofs observed on the three areas were not installed well with poor attention to detailing and installation practice.” He listed a series of problems with the roof and closed his report as follows:

In summary, it is my opinion from the items observed above and several other installation deficiencies, this roof lacks proper design and was installed with poor workmanship and does not provide assured protection to the building and its occupants. Also, I could not find evidence that these roofs were installed to meet with the current Ontario Building Code requirements to withstand prescribed loads.

My recommendation is to either have major corrections made to improve this roof to provide assured protection, or complete replacement of the roofs from the structural roof deck up utilizing proper roofing design and techniques.

[22] In his email to Mr. Celik, Mr. Van Iersel asked Belmar for a refund of the $100,000 fee, otherwise Vangar would have to sue. Mr. Celik responded saying that he was prepared to defend the matter in court.

[23] Atlas told Mr. Van Iersel that the roof on the building was not in good shape. Mr. Van Iersel decided to get a full expert report from Mr. Hensen. He also got quotes to replace the roof from Atlas ($245,746 + HST) and another roofing company, Flynn Canada Ltd. ($241,304 + HST). Mr. Van Iersel testified that Vangar did not have enough money to act on either of these quotes and instead decided to keep repairing the roof as needed while pursuing a claim against Belmar.

(e) Sale of the building

[24] In 2020, however, Vangar received an unsolicited offer to purchase the buildings on King Edward Avenue, including 80 King Edward, from the family of one T.S. Bedi, a real estate investor. The Bedi family, with whom neither Vangar nor Mr. Van Iersel had any prior relationship, offered Vangar $18.3 million for the buildings. Vangar signed that offer back at $19.0 million. The Bedi family accepted that proposal but required as a condition of the agreement that they have an opportunity to inspect the buildings. That inspection revealed to the Bedi family that there was evidence that the roof at 80 King Edward leaked. They demanded a further inspection of top floor units, which was accommodated, and then another visit which included an inspection of the roof.

[25] After these inspections, and because of the problems with the roof and other issues that the Bedi family had with the properties, they proposed to purchase them for $18.0 million. Mr. Van Iersel testified that he disagreed with all but two of the issues which the purchasers had raised. He agreed that the parking lot should be repaved and agreed to have that work done at Vangar’s expense rather than reducing the purchase price. He also agreed that the roof required repair. To account for that, Mr. Van Iersel proposed that the $19.0 million purchase price be reduced by $200,000. He said that he expected the Bedi family to make a counteroffer, but they accepted that proposal and the properties were sold for $18.8 million, the transaction closing on February 1, 2021.

[26] The following language was added by Mr. Van Iersel to the final version of the agreement of purchase and sale (“APS”), dated September 28, 2020 (grammatical and other errors in the original):

The Seller hereby discloses that the roof at 92 Edward has leaked approximately 2 times in the past year, but has been repaired in a workmanlike manner. Further, the roof at 80 King Edward was replaced in 2014, leaked approximately 8 times in the following 2 – 4 years. This roof was also repaired in a workmanlike manner and has not leaked for over 2 years to the best of the sellers knowledge, but the sellers feel they should disclose this to the Buyers. The credit or reduction in price is only for the roof at 80 King Edward Ave, not 92 King Edward Ave, as we acknowledge the roof at 80 is not done in a professional manner. (the roof at 92 is old and only leaked due to age, not poor workmanship).

The buyer accepts this reduction as full compensation on any roof issue at 80 King Edward building.

[27] Mr. Van Iersel did not provide the purchasers with either Mr. Hensen’s report or either of the two quotes he had received for the cost of the replacement of the roof.

Contested factual issues

[28] The chronology of events set out to this point is not controversial and the parties are largely agreed on its correctness. There are fundamental disagreements about almost all other factual issues in this matter, including the interpretation of the contract, the opinions expressed by Mr. Hensen about the quality of the roof and Belmar’s work, and the meaning of the APS. The parties also have opposed positions on the credibility and reliability of the key witnesses.

(a) Credibility

[29] I will make more specific comments about the substance of the evidence as I address the various factual issues but provide now the following general observations respecting the witnesses.

(i) Minor witnesses

[30] There were seven witnesses at this trial. Three of those witnesses (Beverly Lynch, Armindo Martins, and Mani Bedi), while giving evidence which was not unimportant, were less central to the key issues in this matter. It seemed clear to me that each of these three witnesses gave their evidence in a straightforward manner and were not dissembling in any way. They were credible, and, to the extent that the frailties of human memory allow, they provided evidence which I regard as generally reliable.

(ii) Expert witnesses

[31] Each party called an expert witness. The plaintiff called Mr. Hensen and the defendant called Tom Weber, a property inspector from Alder Creek Inspections and Consulting. In my view, both witnesses provided straightforward evidence in an honest way, respectful of their promises to give the court the benefit of their impartial opinions. Of course, the parties disagree significantly about which expert’s opinion can or should be accepted.

[32] There was no attack on the credibility of Mr. Weber, but the defendant did suggest that I should be concerned about Mr. Hensen’s credibility. The chief reason for that attack stems from a discrepancy between Mr. Hensen’s draft report dated July 27, 2017, and his final report dated November 21, 2019. In the earlier draft report, Mr. Hensen wrote that the roof was so unsafe that he considered it his ethical obligation as a professional engineer to report the condition of the roof to the London Building Department if no corrective measures were taken to secure the roof. Mr. Hensen’s final report, which in many respects simply repeats the draft, omits reference to this ethical obligation and the need to report the roof to the authorities in London.

[33] Confronted with this change, Mr. Hensen acknowledged that he had not at any time reported the condition of the roof to anyone other than Mr. Van Iersel but maintained that he had not acted unethically. He said that the draft report was just that, a draft, noted that the professional engineers’ code of conduct prescribed no timeline for reporting, and that he had, in any case, discharged his most important duty, which was to alert the property owner of the danger the roof posed.

[34] I accept Mr. Hensen’s evidence in this regard. The Code of Ethics for engineers in Ontario (found at RRO 1990, Reg. 941, s. 77) does not specifically address a duty to report, although it does impose a duty to act with “fidelity to public needs” and to “regard … duty to public welfare as paramount.” These broad duties undoubtedly include a duty to report dangerous circumstances (see Regina v. Wood, 2017 ONSC 3239, at paras. 17 – 20), but when and to whom such a report is to be made are not specified and will depend on the circumstances. Here, Mr. Hensen reported on the problems with the roof to the owner of the building, Mr. Van Iersel who had hired Mr. Hensen precisely because he was concerned with the state of the roof. I am satisfied in all the circumstances that Mr. Hensen was of the view that reporting to the owner of the building was the most important and effective way of complying with his duty to protect the public and that the amendment to his final report does not reflect any lack of concern about the poor state of the roof at 80 King Edward, or any flaw in his credibility.

[35] The more fundamental attack against the evidence of Mr. Hensen was that his opinions could not be measured against any standard that was in evidence. There were three main components to this attack. First, Mr. Hensen’s evidence was that there was no central repository of enumerated standards for roofing in Canada. Instead, his opinions were based on his years of learning and work in the field. Second, while Mr. Hensen referred to the TPO manufacturer’s installation manual, the version of that manual he had consulted when formulating his opinion was not in evidence. And third, Mr. Hensen testified that he did not do the calculations required by the Building Code to determine what wind load the roof should have been able to bear.

[36] As will become clear, I have accepted the evidence of Mr. Hensen and, for the most part, prefer it to that of Mr. Weber and of Mr. Celik where the evidence conflicts. Mr. Hensen comes to the court with a long history in the engineering profession and specifically in the roofing and waterproofing fields. His credentials were not questioned by the defendant.

[37] As an expert, Mr. Hensen is permitted to give his opinion to the court, in this case respecting the installation and state of the roof at 80 King Edward Avenue. His knowledge of standards of the roofing industry is precisely why he has been called as an expert. As an expert, in providing his opinion he is entitled to rely on his education, training, the literature in his area of expertise, and his experience (see Sopinka, et al., The Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis; 2014), at pp. 838 – 839). I am satisfied that this is what Mr. Hensen has done in this case. Such evidence is not standardless. On the contrary, it may be challenged on cross-examination. The defendant was, of course, entitled to challenge Mr. Hensen’s opinion by putting to him texts or articles or other materials which contradicted his views, but there was no instance of such a challenge in this case.

[38] More importantly, much of Mr. Hensen’s opinion in this matter is based on his own personal observations made on visits to the building and its three rooves. While it is true that the manual to which he made reference is not in evidence, most of Mr. Hensen’s opinions do not rely on non-compliance with the manual specifically, they rely on what he regarded as obvious flaws in the workmanship such that the installation of the roof did not comply with any standard.

[39] The same holds true with respect to the wind load calculations which Mr. Hensen conceded he did not do. He testified that he did not need to do the calculations to know that the roof was not adequately attached to the building because it was obvious from his observations of the roof that this was so. Doing the calculation was, quite simply, unnecessary.

[40] As will be explored in more detail below, I accept the evidence of Mr. Hensen, including his evidence of the obvious flaws in the building. His extensive knowledge and experience, and his personal observations of the roof in question, provide a more than adequate base upon which to draw conclusions respecting the roof at 80 King Edward.

[41] As I have said, I accept that the evidence of Mr. Weber was credible. However, the value of his evidence is limited by virtue of both his area of expertise and the method of investigation he used. As he acknowledged during his evidence, he is not an expert in roofing installation, he is an expert in the inspection of buildings. In this respect, the expertise of Mr. Hensen is to be preferred.

[42] Mr. Weber’s observations were focused (although not exclusively) on his assignment to see if the roof showed signs of leakage. As he put it, he was not looking at installation, he was looking for leaks. However, the parties were agreed that the roof had not leaked since the last time Atlas had attended to repair the roof in April of 2019. Mr. Hensen’s chief concern was, instead, that the roof was at risk of blowing off, not that it leaked (although he was concerned about leakage too). While Mr. Weber employed a thermal camera and moisture meter to determine if there were areas of concern on the roof, Mr. Hensen’s observations included the taking of test cuts at random locations on the roof so that he could actually see and touch the various layers of the roof beneath the membrane installed by Belmar and above the deck on which the roof rests. By contrast, the thermal imaging done by Mr. Weber relies on inferences drawn from photos which capture the temperature of the roof. Anomalies in temperature may be indicative of a problem which would have to be investigated. One means of investigating is to take test cuts, as Mr. Hensen did.

[43] For all these reasons, and those explored below, I prefer the evidence of Mr. Hensen to that of Mr. Weber.

(iii) Corry Van Iersel

[44] As for the principals of the parties, each questions the credibility of the other. As will become clear below, where the evidence of Mr. Van Iersel conflicts with that of Mr. Celik, for the most part, I prefer the evidence of Mr. Van Iersel.

[45] Mr. Van Iersel testified in a straightforward and understated manner. The defendant attacked his credibility on a number of fronts, but the most significant attack was that Mr. Van Iersel had purposely omitted from his employment history reference to the fact that he had previously owned a roofing company called Corry’s Roofing. The defendant argues that this omission was purposeful and intended to hide the fact that Mr. Van Iersel was knowledgeable about matters relating to roofing and that he made decisions respecting the work which he had hired Belmar to do with the benefit of that expertise. I do not accept either that the omission was deliberate or that Mr. Van Iersel was especially knowledgeable with respect to roofing because he had some prior involvement with a roofing company.

[46] Mr. Van Iersel testified that he been the owner of a roofing company for a short period, but that he had not been the operator of that company, had not attended any roofing job site, did not have any real experience with roofing, did not know anything about flat rooves, and that as owner he did little more than write cheques. He said that he been approached by a roofer, also named Corry, who owned a roofing company, Corry’s Roofing, which was in difficult financial circumstances. The roofer asked Mr. Van Iersel for financial assistance. Mr. Van Iersel agreed to provide a loan but required that the company and its assets be held in his name until such time as the company was in better financial health and Mr. Van Iersel could be repaid. As it happened, Mr. Van Iersel was not repaid, and he moved to sell assets of the company to recover the money he had loaned. Belmar was the purchaser of some of those assets. That is how Mr. Celik and Mr. Van Iersel met.

[47] In other words, Mr. Van Iersel was aware that the defendant was aware of Mr. Van Iersel’s involvement in a roofing company. It is very unlikely, then, that he purposely omitted that involvement from his evidence in the hope that it would go unnoticed. Instead, it is far more likely that Mr. Van Iersel omitted reference to Corry’s Roofing because it was a relatively insignificant part of his professional history. I accept that Mr. Van Iersel’s involvement in that company did not imbue him with any special expertise in roofing. On the contrary, he was dependent on Belmar for its expertise in roofing.

[48] Finally, I note that in many respects the evidence of Mr. Van Iersel was corroborated by Ms. Lynch, Mr. Martins and Mr. Bedi, and most importantly, by Mr. Hensen, who confirmed Mr. Van Iersel’s layperson’s suspicion that the roof had been poorly installed.

(iv) Sam Celik

[49] Mr. Celik was more animated in his evidence. He clearly and rightly takes pride in his story as a successful immigrant to this country who has built a thriving roofing company from nothing. Moreover, he said that he was proud of the work his company had done at 80 King Edward.

[50] However, in my view, some aspects of his evidence simply do not withstand scrutiny, as will be explored below. Most importantly, although Mr. Celik clearly knows a great deal about roofing, where his evidence conflicts with the evidence of Mr. Hensen, I prefer the evidence of Mr. Hensen for reasons relating to their relative expertise and to the independence of the observations of Mr. Hensen.

(b) The contract

(i) New roof or retrofit?

[51] The parties disagree about the meaning of various provisions of the contract. Chief among those disputes is the question of whether the contract contemplates a complete roof replacement, or merely a retrofit of the existing roof. A related dispute relates to whether Mr. Celik provided Mr. Van Iersel with both options and explained the differences to him. In a nutshell, Mr. Van Iersel testified that he understood that Vangar was paying for a completely new roof to be installed and that there was no discussion of the difference between a retrofit and a replacement. Mr. Celik testified that he carefully explained the difference between the two options and that Mr. Van Iersel elected to have Belmar execute a retrofit since it was cheaper.

[52] On the evidence before me, a complete roof replacement would involve removing the existing roof from the building “right down to the deck.” The deck is the layer of material (in this case, concrete or steel, or a concrete/steel composite) which is the just above the ceiling of the building’s top floor apartments. Above the deck was the original 40 or 50-year-old “built-up roof” membrane comprised of tar or bitumen and other materials which together provide both water protection and insulation, over which gravel was laid. A retrofit would involve removing the gravel, but not the built-up membrane beneath the gravel. Instead, new insulation would go over the existing roof and, in turn, the TPO membrane would cover the new insulation. A completely new roof would require removal of the built-up roof and the gravel. New insulation would then be installed on the deck, over which the TPO would be laid.

[53] As is apparent, the two options are similar but not identical. Both involve the “removal” of the gravel and “replacement” of it with new insulation and TPO.

[54] Contracts are, of course, to be interpreted using the words which the parties chose to encapsulate their intended agreement. Absent ambiguity, those words should be given their effect. Here, the contract bears a heading which reads: “Description: Removal of existing flat roof system and replacement with new TPO roof system…” Underneath the heading are a series of bullet points, the first of which reads “Remove existing gravel on the roof system down [sic] and dispose of properly…”. The next two bullet points provide that new insulation will be “mechanically secured to the roof” and that TPO will be installed.

[55] On the one hand, the contract refers to the “removal” of the “existing roof system” and “replacement” with a “TPO roof system.” These words could be read as suggesting a complete replacement. But the relevant provisions of the contract must be read together. This contract makes no reference to the removal of anything under the gravel. Although the inclusion of the word “down” without any syntactically appropriate word or words following it is curious, “down” is preceded by the phrase “Remove existing gravel on the roof system…” The new insulation is then to be “secured to the roof” [emphasis added]. These phrases suggest that the whole roof system was not going to be removed. Rather, new material was going to be installed over some portion of the existing roof.

[56] Mr. Celik testified that the contract described a retrofit. Mr. Hensen, the plaintiff’s expert, also testified that the contract as written described a retrofit, not the installation of a completely new roof. Mr. Weber, the defendant’s expert, gave similar evidence. I accept this evidence. In my view, the contract does not describe the installation of a completely new roof. It describes a retrofit. In my view, the contract is not ambiguous in that respect.

[57] While Mr. Van Iersel may have understood that Vangar was paying for a new roof, that is not what the words of the contract describe. I do not believe that Mr. Celik gave a detailed description of the two options open to Mr. Van Iersel as he claims,[^2] but I am satisfied that he did describe the scope of the work which would be done and that that work is described in the contract. The words, “new roof”, or “replacement”, or “retrofit” may or may not have been used in the discussions before the contract was signed, but I note again that the two options are very similar in nature and I heard no evidence that, assuming the work is properly executed, a retrofit would not have been a satisfactory option for the problem which Vangar was having with the rooves at 80 King Edward.

[58] In summary, I am of the view that the contract unambiguously describes a retrofit, that Mr. Celik did not mislead Mr. Van Iersel about what work was to be done, and that there is no evidence that what was proposed to be done was in any way inadequate, assuming it was done properly.

(ii) Supply and install new drains and plumbing boots as required

[59] The contract calls for the supply and installation of new drains and plumbing boots as required. The parties differ over what is included in this provision of the contract. The defendant asserts that this provision includes the fittings for existing drains on the roof, including the caps or screens that act as strainers and go over the inlets, and the boots which connect the inlet on the roof to the pipes which take the water down through the building and, presumably, into storm sewers or some other outlet at ground level. Mr. Celik points out that his company is a roofing company, not a plumbing company, and that the installation of any actual plumbing – pipes and connections, etc. – is not work that they do. Mr. Van Iersel testified that he thought that the provision for new drains meant that any plumbing required would be included in the cost of the work Belmar was doing.

[60] Again, I prefer the interpretation of Mr. Celik. In my view, in the context of a contract entered into by a roofing company, not a plumbing company, and bearing in mind that the only use of the word “plumbing” in the contract is as an adjective for the word “boots” (an item which is necessary to allow a proper seal around the penetration in the roof which the drains and other pipes create), I am of the view that the contract required Belmar to supply and install the fittings for the drains on the roof, not to engage in plumbing underneath the roof and down through the building.

[61] Although I am not of the view that the contract is ambiguous in this respect, I do note that the conduct of the parties suggests that this interpretation of the contract is correct. When Belmar proposed that a new drain be installed, it fell to Mr. Van Iersel to find a plumber and put that plumber in touch with Belmar. After the plumber had installed the new plumbing, Vangar, not Belmar, paid that invoice. Had the parties intended that plumbing be included in Belmar’s quoted price, Belmar would have paid the plumber or there would be evidence that Mr. Van Iersel raised this objection at the time. There is no such evidence.

[62] However, and while I am of the view that Mr. Celik’s interpretation of this provision of the contract is correct, this is not the only issue with respect to drainage raised by the parties and the contract. Mr. Celik agreed that it is at least an implied provision of the contract that Belmar’s work will be carried out in a satisfactory and competent manner. In my view, this duty includes the duty to ensure that the roof once installed will drain properly. Indeed, Mr. Celik’s conduct and evidence are consistent with this view. He was concerned about drainage and took steps to address drainage issues. It is clear from his conduct and from his testimony that he took this duty to be part and parcel of his job. I will return to this topic below.

(iii) Roof related debris

[63] The parties also disagree about the obligation created by contract’s provisions which require Belmar to “Clean site of all roof related debris” and haul away “All waste material” for recycling. Mr. Celik testified that these provisions required Belmar to remove from the roof any part of the old roof which Belmar removed so that the new roof could be installed (e.g., gravel). It did not require it to remove any other debris found on the roof. Vangar takes the position that the contract, properly read, did require Belmar to remove other debris found on the roof.

[64] On this issue, the parties blame each other for the fact that debris was left on the roof well after Belmar had completed its work. In particular, photos of the roof at various times show that paving stones, cinder blocks, a portion of a railing, and old door, a beer bottle, some broken bricks, among other items, were found on the roof. Certainly some, but not all, of these items were on the roof both before and after Belmar did its work. The paving stones and perhaps the cinder blocks were used as ballast for the walkway to the elevator room, although some of those stones and blocks are photographed nowhere near the walkway and lying directly on the TPO.

[65] Although I am inclined to think that Belmar’s interpretation of this portion of the contract is more likely correct, I do not have to resolve this issue for two reasons. First, it has not been established how any of the contested items got onto the roof, when they got on to the roof, or who caused them to be placed directly on the TPO. Second, although the evidence is clear that such debris could cause damage to the membrane, there is no evidence before me that allows me to conclude that any debris on the roof, including any plants, has caused any damage to the roof installed by Belmar or has been the cause of any leak at any time.

[66] Indeed, the evidence suggests that since Atlas did its last repair to the roof in April 2019, it has not leaked at all.

[67] From these conclusions it also follows that I am not required to resolve the debate between the parties about whether Belmar offered to Vangar an annual maintenance program for the roof, which offer (according to Belmar) Vangar refused. However, I will address the issue since it was the subject of evidence and submissions before me.

[68] Belmar takes the position that Vangar’s failure to take up the maintenance program offer was the cause of the disordered and dirty state of the roof at the various times it is captured in the photographs before me. Vangar, on the other hand, says that it did care for the roof, and, in any case, Belmar never offered it a maintenance program, unlike Atlas, whose maintenance package is highlighted on its invoices.

[69] On balance, I prefer the evidence of Mr. Van Iersel on this point. He testified that no maintenance program was offered, and that Mr. Celik never told him he needed such a service. Mr. Celik testified that he told Mr. Van Iersel that for $6,000 per year, Belmar would attend on the roof four times each year to clean and inspect the roof. I note that information about the maintenance program Mr. Celik says that he offered appears nowhere on the quote provided to Mr. Van Iersel. That quote contains other generic information about Belmar, including that it is fully insured and bonded. There is no information about the availability of a maintenance program on any other Belmar document before me.

[70] Before leaving this topic, while I accept the evidence of Ms. Lynch (the superintendent of 80 King Edward), that she and her fiancée attempted to keep the roof free of debris, it is apparent from the photographic evidence that their efforts were either not always successful or were less frequent than Ms. Lynch reported to me. Although there is no evidence that any maintenance failure has led to any leakage, I agree with the defendant that it appears that the roof was not as well cared for as it should have been after the new membrane was installed.

(iv) Canadian Roofing industry guidelines

[71] In two places the contract refers to “Canadian Roofing industry guidelines.” When asked what these guidelines were, Mr. Celik was unable to provide a satisfactory answer. He said that a Waterloo area trade association for the construction industry, of which Belmar is a member, recommends this language for quotes and contracts. He said that the standards are set by the manufacturers and suppliers of roofing products and that there is no overarching body that sets standards for Canadian roofers. It seems that this language is included mostly for marketing purposes. However, as conceded by the defendant, that language and other phrases in the contract make it plain that Belmar had a duty to do competent work when it installed the roof for Vangar.

[72] Mr. Hensen testified that he was unaware any Canadian roofing guidelines and said that he did not believe they exist.

(c) Belmar’s work

(i) Was the gravel removed?

[73] As noted above, the contract specified that the gravel was to be removed before new insulation and TPO was installed on the roof. Mr. Hensen reported, based on his test cuts, that the gravel was not removed. Belmar countered that conclusion with photographic evidence of the employees of Belmar and another subcontractor removing gravel from the roof.

[74] That photographic evidence, and the testimony of Mr. Celik, does satisfy me that an effort was made by Belmar to remove gravel from the roof. Mr. Celik said that he retained another firm which specializes in gravel removal and has an industrial vacuum designed to pick up gravel from rooves like the one which was on 80 King Edward. After the vacuuming was done, Belmar employees used scrapers or planers to remove even more gravel. Mr. Weber testified that his examination of the roof using thermal photography revealed no evidence of remaining “clumps” of gravel.

[75] Despite this evidence, I am also satisfied that the plaintiff has shown on a balance of probabilities that not enough gravel was removed from the roof and that significant amounts of it remained.

[76] Mr. Hensen testified that he visited the roof both before his draft report and again before his final report. On both occasions, he took test cuts of the roof that allowed him to see a cross-section of the layers of the roof from the TPO membrane at the top to the remnants of the old roof at the bottom. Those test cuts were taken at random locations on the roof. Two were taken before the draft report, and three were taken before the final report, one from each of the three parts of the roof. In each case, the cuts showed that gravel remained on the roof. Some of it was loose, and some of it was adhered to the original roof. Mr. Hensen testified that the original roof had not been removed and that the gravel was still intact. In cross-examination, Mr. Hensen allowed that his test cuts could not tell him how much of the original gravel had been removed, but he maintained that significant amounts of gravel remained.

[77] Mr. Hensen further testified that the problem created by the remaining gravel was that the bottom of the new insulation installed on top of it was not adhering properly. At one location it was apparent that extra fasteners, in addition to the adhesive that was applied, had been used to fix the new insulation to the layer below it. At another, mechanical fasteners had not been used but the amount of foam adhesive that had been applied was clearly insufficient and, in any case, it had “mottled” and cured because it was on loose gravel. Moreover, since not enough of the adhesive which had been used was coming into contact with the insulation board the insulation was not sticking to the layer below it. Moisture found in the test cuts suggested that the original roof was holding water and unable to provide waterproofing.

[78] While each test cut necessarily reveals a cross-section of a very small area of the roof, their random locations and the fact that they uniformly revealed that gravel remained on the roof, satisfies me that Belmar did not remove enough gravel to ensure the proper attachment of the new roofing materials that it installed. I note that Mr. Weber’s conclusion that there was no remaining gravel relied on inferences he drew from thermal photography and, unlike Mr. Hensen’s work, did not involve opening the roof and actually looking underneath at its various layers. On this point, I prefer the evidence of Mr. Hensen.

[79] I further note that the photograph relied on by the defendant to show that gravel was removed[^3] appears to me to show that gravel remains on the roof following the defendant’s effort to remove it.

[80] The failure to remove the gravel, and the consequent or related failure of the insulation to adhere to the remains of the original roof, was exacerbated by the fact that on much of the roof the new insulation was not also mechanically secured to the deck, as contemplated by the contract.

(ii) Was the roof properly attached to the building?

[81] The failure to remove gravel effectively is closely related to the next issue: whether the roof was properly attached to the top of the building. In my view, this is the most important of the issues and is the alleged failing of the defendant which caused Mr. Hensen the greatest concern. In his opinion, the roof is not properly attached and poses a danger to the public because it is at risk of blowing off in a high wind.

[82] This issue involves the attachment of two layers of the roof assembly: the insulation board and the TPO membrane. With respect to the former, as we have already seen, attempts to adhere the new insulation with foam adhesive proved problematic and ineffective because too little adhesive was used and because the remaining gravel resulted in poor adhesion even where there was evidence of the use of adhesive.

[83] However, there is a further issue related to the new insulation. The contract called for the insulation to be mechanically fastened. This is a reference to the use of small metal plates that rest on the insulation board through which long screws are then driven down through the insulation, through the remains of the original roof, and into the deck. This secures the insulation so that it will not move or blow off.

[84] Mr. Hensen testified that on the east side lower roof there was no evidence that any mechanical fasteners had been used. It appeared that foam adhesive had been deployed instead but in insufficient quantity to secure the insulation. On the west side lower roof mechanical fasteners had been used “randomly”, apparently to supplement the adhesive which had been used. On that roof, the screws used were not long enough (1¾”) to secure the insulation properly. Moreover, the wrong plates had been used and had been installed upside down such that they posed a risk to puncture the TPO which is installed on top of the fasteners. On the main middle roof, Mr. Hensen noted that the insulation was mechanically secured with plates and 5” screws, although on half of the roof it was not possible to determine how many fasteners were used per insulation board. On the east side, as many as 6 fasteners were used per board.

[85] With respect to the TPO membrane, which goes over the insulation board, the contract again called for mechanical fastening.

[86] Mr. Hensen testified that on the west side lower roof the TPO membrane was not adequately secured to the roof. Wrinkles in the membrane showed that it had detached from the underlying insulation. The wrinkling was the result of wind load (wind flowing over the top of the roof) causing the unsecured membrane to move. That movement had been sufficient to shift the paving stones left on the roof, which movement had left scrape marks behind. Mr. Hensen testified that the membrane should not be able to move at all. There was evidence that the screws used to fasten the underlying insulation were too short (1¾”) to provide a secure connection through to the deck and, as a result, the membrane was under stress at the locations where fasteners were coming loose and backing out. Mr. Hensen testified that the stress will eventually lead to the puncturing of the membrane and further problems and had in fact already caused some punctures. The TPO had been applied using adhesive, not mechanical fasteners as contemplated in the contract (although Mr. Hensen allowed that the lack of fasteners securing the TPO would not have been a concern had the adhesive not failed).

[87] By contrast, on the east side lower roof, there were no wrinkles in the membrane, and it appeared that the membrane had not detached from the insulation. It was adhered to the roof. There was no evidence of the use of mechanical fasteners as contemplated in the contract (although, again, this was not a deficiency in Mr. Hensen’s opinion). However, as noted above, Mr. Hensen’s observations were that the insulation was not properly attached to the deck on this roof.

[88] On the main roof, different techniques were used on its east and west sides. On the west side, “securement strips”[^4] spaced 9½ feet apart had been used to secure the membrane but the membrane was adhered only to the strips. As a result, the membrane had buckled, a sign of stress due to wind load. On the east side, the membrane was secured to the insulation with adhesive and was fully adhered. However, the poorly executed fasteners used to secure the insulation, which fasteners were protruding at various locations, were putting stress on the TPO and causing “tenting” of it. Mr. Hensen testified that the east side TPO would eventually puncture at the locations of the insulation fasteners. Indeed, he testified that it appeared that some repairs had already been completed at these locations. Finally, at several locations on the middle roof, it was apparent that the TPO was not adhered to the perimeter of the roof at least in part because securement strips had not been used at the perimeter as standard practice would dictate. In any case, as will have been observed, on neither side of the main roof were mechanical fasteners used to secure the TPO, as contemplated by the contract between the parties.

[89] Mr. Hensen concluded that the evidence of wrinkling and buckling of the TPO was evidence that the roof was failing under wind load conditions. Even where the TPO was well adhered, the evidence of fastener pull outs was evidence that the roof was not performing well in wind. He noted that the techniques employed appeared to be haphazard and did not comply with the contract. Mr. Hensen said that this roof should be removed and replaced as it represents a danger to the public.

[90] Mr. Hensen was cross-examined extensively. A significant theme of that cross-examination was that Mr. Hensen had not conducted the wind load calculations required by the Building Code to determine how the roof should have been secured. Counsel posited that this meant that Mr. Hensen was in no position to conclude that the roof was a danger to the public because it was at risk of blowing off the top of the building. Mr. Hensen said that no calculations were necessary given that this roof was so obviously not sufficiently connected to the building. He referred to obvious signs of wind damage, to the “extreme lack of adhesion,” to the ill-advised attempt to adhere to the remaining gravel, and to the lack and haphazard installation of mechanical fasteners. This roof, Mr. Hensen testified, does not comply with any standards. As he put it, you do not need to do a calculation to determine that this roof is not properly secured. And because it is not properly secured, only the weight of the membrane itself and any objects sitting on it are holding it down. I accept this evidence.

[91] Mr. Celik testified that an adhesive was used to secure the new insulation to the old roof and that it had been applied using a caulking gun and in a “zig zag” pattern as he had been trained. Where mechanical fasteners had been used, they had used the fasteners approved by the manufacturer. He testified that he agreed with Mr. Hensen that some of the screws were backing out but denied that this was evidence of poor installation. He said it was simply what happens over time on any roof, which is why he recommended a maintenance program to Mr. Van Iersel. Mr. Weber agreed that proper maintenance would avoid any problem in this respect. He further testified that he saw no evidence of loose screws when visited the roof.

[92] As I have already said, I do not believe that Mr. Celik discussed a maintenance program with Mr. Van Iersel but, in any case, I do not accept that the instances of backing out fasteners on this roof were the natural result of the passage of time. Belmar was actively repairing the roof, including attending to backing out screws, very early on in the life of the roof. As noted above, one of their contractors spent two or three days on the roof repairing fasteners and flashing not as part of any maintenance program, but because Belmar was honouring its warranty by attending to flaws in its work.

[93] Mr. Celik agreed with Mr. Hensen that the screws had to be longer than 1¾ inches but insisted that Belmar had used 5-inch screws. He said that his supplier, a company called Gibson’s, supplied 4 and 5-inch screws. I note here that I saw no invoices or other documentation from Gibson’s. He pointed to photographs of 5-inch screws being used at the time of installation. These photographs, however, are photographs of the middle roof, on which Mr. Hensen testified that 5-inch screws had been used.

[94] Mr. Celik said that wrinkling and buckling in TPO is common and is not a sign of problems. To the extent that Mr. Hensen pointed to evidence of buckling near the perimeter of the roof he said that the TPO was left purposely loose to give it some “freedom” because it is at this part of the roof that the membrane stretches. With respect to Mr. Hensen’s criticisms in this area, Mr. Celik said (as he did with respect to several of Mr. Hensen’s observations) that he did not know what Mr. Hensen was talking about. Mr. Weber gave evidence that the TPO appeared to be secured properly at the foot of the parapet wall one of the lower rooves, but Mr. Hensen’s concerns in this regard had really been about the middle roof.

[95] Mr. Celik pointed to photographs of Belmar workers applying adhesive to the bottom of the TPO, which he said they also applied to the top of the new insulation. As for the use of adhesive instead of mechanical fasteners as called for in the contract, Mr. Celik said that the use of adhesive was part and parcel of mechanical fastening. This evidence contradicts that of Mr. Hensen, and I reject it. Mechanical fastening involves the use of metal plates and screws.

[96] Mr. Weber testified that his inspection of the roof suggested that it was secured to the building. As discussed above, his investigations relied largely on thermal images and his own observations. His main conclusion, though, was that there was no evidence of leakage at the time he inspected the roof, a conclusion that Mr. Hensen’s evidence did not necessarily contradict, although he did testify that he thought that what was left of the original roof was saturated. In any case, I note as did Mr. Weber himself, that he is not an expert in roofing. While I accept Mr. Weber’s opinion that there was little or no evidence of leakage, with respect to issues relating to roofing, I prefer the evidence of Mr. Hensen, whose credentials respecting roofing systems are impressive and are not questioned. Again, I note that Mr. Hensen’s test cuts were taken at random locations and uniformly revealed problems relating to the attachment of the roof to the building.

[97] On this body of evidence, I am satisfied that the roof installed by Belmar was not properly attached to the building and poses a risk to public safety.

(iii) Were patches properly applied?

[98] TPO is applied in large sheets on flat rooves. The seam created where the sheets meet is heat-welded and/or patched so that water cannot seep underneath. At locations where the seams come together in the form of a T, a patch called a “T-patch” is used. Mr. Hensen noted that there were several locations where T-patches had not been installed where they ought to have been installed.

[99] Mr. Celik disagreed, testifying that T-patches had been applied where necessary, and saying that the photographs Mr. Hensen produced of missing T-patches showed no such thing. To the extent that Mr. Celik had differing interpretations of the photographs or relied on photos of T-patches which he says were well installed, I note that neither those interpretations nor those photos were not put to Mr. Hensen in cross-examination. In any case, I prefer the evidence of Mr. Hensen on this issue and find that T-patches were not installed in various locations where they ought to have been installed. Moreover, the fact that some patches were properly installed is not an answer to the criticism that some were not.

(iv) Were penetrations properly waterproofed?

[100] In any TPO membrane roof there will necessarily be penetrations in the membrane to allow for drains and other pipes, vents, chimneys, and heating and cooling equipment, among other things which run from the inside to the outside of the building on the roof. Where the membrane surrounds those penetrations, steps must be taken to ensure that water cannot seep in at the point of the penetration, otherwise moisture will accumulate with the potential to cause long-term damage to the building. Mr. Hensen testified that at several locations the methods used by Belmar to make the penetrations water-tight were poorly executed. He noted that at points the plumbing boots were not tall enough and at others the penetrations had not been insulated as they ought to have been. He said that at least one of the vent turbines installed by Belmar was susceptible to leakage and should not have been used. He testified that at some of the penetrations, there were active leaks when he visited the roof.

[101] Mr. Celik testified that he did not know what Mr. Hensen was talking about when he said that the penetrations had been poorly executed and denied that Belmar had failed in this way. In this regard, he pointed to photographs of work which he said was “good execution” or “well done” by Belmar around several penetrations. He said that he had never heard that the turbine that had been used was susceptible to leaks. Mr. Celik said that Belmar had never been called to attend to a leak at a penetration on the roof of 80 King Edward. Mr. Weber testified that the seams around the penetrations he inspected had been well executed and showed no signs of leakage.

[102] While I accept the defence evidence that some of the penetrations were well executed, I also accept the evidence of Mr. Hensen that some of them were not and that this was a flaw in the roof at 80 King Edward.

(v) Was the flashing properly installed?

[103] Around the perimeter of the rooves, on top of the parapets, the contract called for new metal flashing to be supplied and installed.

[104] Mr. Van Iersel testified that one of the problems with the roof after Belmar had completed its work was that the flashing came loose. He called more than once for Belmar or Atlas to attend to loose metal flashing. Mr. Martins (of Atlas) testified that he attended on two of those days to replace flashing that had blown or fallen off.

[105] Mr. Hensen testified that the flashing is important because it holds the TPO membrane in place at the perimeter of the roof. He said that the flashing that Belmar had used was too light and had not been adequately fastened to the parapet. He said that Belmar had failed to use a sufficient number of fasteners (effectively, specialized screws) and that, consequently, the fasteners were too far apart to be effective. Some of the fasteners were backing out or had come right out and the flashing was loose at points, including where the sheets of flashing came together and should have been connected to each other with something called an “S-lock.” Mr. Hensen said that the fasteners had not been engineered for proper protection of the building and that, combined with the light gauge flashing, they were not adequate to resist wind loading. Mr. Hensen also said that he was of the view that much of the flashing he inspected was not new, as required by the contract, and that old flashing had been re-used.

[106] In cross-examination, counsel confronted Mr. Hensen with the fact that he had not calculated the wind shear at the edge of the building – which Mr. Hensen conceded – and was therefore not in a position to comment on whether the flashing and the number of fasteners was adequate.

[107] Mr. Celik testified that Belmar used all-new flashing on the job at 80 King Edward. He denied that they re-used old flashing. Any re-used flashing was installed by someone else. He identified photographs of new metal which he said were fashioned by Belmar employees in Belmar’s shop. When shown a photograph of Belmar’s flashing lying on the roof, Mr. Celik said that someone must have removed it and left it on the roof. He added that he did not know why anyone would do that. Where Mr. Hensen had found loose fasteners or flashing, he testified that someone must have “played around” with Belmar’s work. He said that the flashing used by Belmar on the project was the flashing he got from the supplier which he has used for years and which stocks the materials used for the roofing system Belmar was installing. He said that the flashing was installed according to his training and that he therefore did not know what Mr. Hensen was talking about. Mr. Weber testified that he did not spend a lot of time inspecting the flashing but said that the screws used were appropriate and that he did not find any loose screws.

[108] Again, I prefer the evidence of Mr. Hensen. He did not need to do any calculation to confirm the obvious: that the flashing was not well secured, was loose, and had blown off at points (a point corroborated by Mr. Martins), whether or not the flashing was new or re-used. In my view, the plaintiff has proven that the flashing was not properly installed.

(vi) Plumbing, drains and drainage

[109] As noted above, the trial involved several controversies respecting plumbing, drains and drainage. Both before and after Belmar did its work, the roof did not drain properly. Mr. Celik was concerned about drainage and recommended the installation of a new drain or drains to assist with the problem.

[110] Mr. Celik testified that he repeatedly told Mr. Van Iersel that the building needed more drains on the main roof given how much ponding it was experiencing and how big it was. He testified that if three new drains had been installed on the main roof it would solve the ponding problem. Mr. Celik testified that he would not walk away from that roof until at least one new drain had been added

[111] Somewhat reluctantly, Mr. Van Iersel agreed to have a new drain installed.[^5] He secured the services of a plumber for that purpose.

[112] As described earlier in these reasons, the location of the outlet for the new drain was badly conceived. In his closing submissions, counsel for the defendant referred to the new drain as “absurd,” a description which is apt. The parties disagree, however, as to who is to blame for this misadventure and its near disastrous results.

[113] Mr. Van Iersel said that he contacted the plumber and put him in touch with Belmar. He testified that he had nothing to do with where the drain was located, how it was executed, or where it would empty. He would not have known anything about these topics and did not give instructions to either Belmar or the plumber on any of them. I accept this evidence. Mr. Van Iersel hired Belmar to make sure the roof performed properly. It was Belmar’s duty to ensure that the drain was properly located to enhance drainage.

[114] Mr. Celik testified that Belmar is not a plumbing company and is not allowed to connect drains. That is why Mr. Van Iersel hired Duke. Mr. Celik said that he did not direct the plumber in any way, whom he never met. He did not tell him where to locate the new drain or where to locate its outlet, although he did tell the plumber that the drain would be on the main roof, as he had recommended.

[115] I note here that Ms. Lynch testified that she saw the plumber on the roof speaking with Mr. Celik.

[116] Mr. Celik said that he was not present when the new drain was installed, although by that time he knew where on the main roof the drain would be. Mr. Celik said that he expected the new drain to be connected properly to pipes, not designed so that it would simply empty on to the lower roof. He said that Duke should have retained an engineer to assist with having the new drain connect to pipes that ran through the building. Mr. Celik testified that Duke clearly did not do its job. Belmar did not receive a bill from Duke and did not pay Duke.

[117] Mr. Celik also testified that when he received word that the lower roof had flooded on the evening of June 8, 2015, he knew immediately what had happened. In my view, this is telling evidence. Mr. Celik knew what the problem was even before he got to the roof because it was obvious that the new drain had been absurdly installed. I reject Mr. Celik’s evidence that he played little or no role in the location of the new drain and its outlet and I reject that Belmar was not at least in part responsible for the new drain and the flood that it caused. As I have said, Mr. Celik was concerned about drainage and it was part of his duty to Vangar to ensure that the roof drained properly. I note that Belmar provided clear evidence of its responsibility in this regard by paying for the restoration work that Winmar did following the flood caused by the absurd drain.

[118] After the flood, Belmar cut new scupper drains on the lower rooves so that there would never be a second such flood. Mr. Hensen testified that the scupper drains which had been installed were appropriate and an example of “good practice.” His criticism of these drains was that they did not drain into a pipe or down spout to take the water to the ground. In the absence of a pipe, water would simply run down the side of the building which creates risk of leakage into the building, ponding at ground level, and icicles in winter which might represent a safety hazard since the scuppers were directly above a walkway.

[119] Mr. Celik testified that he recommended overflow drains to Mr. Van Iersel from the outset. He distinguished overflow drains from scuppers, only the latter of which requires a downspout. Mr. Celik did not deny that the water exiting through the overflow drains would simply run down the side of the building as Mr. Van Iersel and Mr. Hensen described. Whatever the drain is called, I accept the evidence that the result was water running down the building at the risk of the problems Mr. Hensen described.

[120] Mr. Celik also said that Mr. Van Iersel did not want to install overflow drains, and only agreed to them after the flood on the recommendation of Mr. Celik. I do not accept this evidence. Mr. Van Iersel agreed that Mr. Celik had recommended a new drain on the middle roof but said nothing about discussing new scuppers with Mr. Celik. The assertion that there was discussion of new scuppers was not put to Mr. Van Iersel in cross-examination.

[121] In any case, after Belmar finished its work on the roof, water continued to pond on it. In other words, it does not drain properly.

[122] Mr. Hensen testified that the roof does not drain properly because no steps were taken in the design of Belmar’s work to promote drainage. In particular, he found that the screens used to prevent debris from entering the drainpipes were badly installed and that the installation of the membrane around the drain had impeded drainage because it restricted the drain. Some of the drain fittings used were inappropriate and were impeding drainage. The roof was dry around one of the drains but wet elsewhere, suggesting that the drain was at a high point on the roof. Nothing had been done to slope the roof toward the drains such that low points on the roof that existed before Belmar did its work had not been corrected. He said that Belmar should have designed the roof to drain properly and added that such a design did not require the involvement of an engineer, or even a permit.

[123] Mr. Hensen testified that he did not think that the drains he saw had been badly maintained since they were installed (he referred to one of them as one of the cleanest drains he had seen) and that he did not think that the pollution which naturally collects on rooves was causing any issue with drainage.

[124] Mr. Celik said that he agreed that no sloping or tapering had been employed to ensure that water flowed toward the drains. He said that this kind of roof design would have required the input of an engineer, a point that he said he explained to Mr. Van Iersel when describing the more extensive work that could be done on the roof and which he says Mr. Van Iersel declined (which evidence I have rejected). That is why, according to Mr. Celik, he recommended installing more drains instead. Mr. Celik said that the drain fittings were installed properly and that they used the fittings supplied by their supplier which is how he determines what fittings are appropriate. He denied that Belmar was responsible for the installation of one of the drains which Mr. Hensen said was obviously improperly installed. He said that it appeared that someone else had done something to the drain.

[125] Mr. Celik testified that the ponding on the roof after Belmar completed its work was caused by the failure of Vangar to ensure that the roof was maintained, clean, and the drains free of debris. Mr. Weber also testified that the roof was dirty and that as a result the drains did not work. Each of the drains was plugged by debris. He testified that the solution was to keep the roof clean by ensuring a proper maintenance program.

[126] Some of the photos do show dirt (what Mr. Hensen called “pollution”) around the drains and it may be that some of that dirt was impeding drainage. In photographs taken by Belmar and by Mr. Weber, the pollution appears to be heavy and sticky and less silt-like than as described by Mr. Hensen. It seems obvious that this heavier pollution could interfere with the performance of the drains.

[127] I accept Mr. Hensen’s evidence that some of the drain fittings were inappropriate or not properly installed, but on the evidence before me I find that the most significant issue respecting drainage is not the fittings or the effects of pollution, it was the failure of Belmar to design the roof to encourage drainage and, to the extent that involved adding a new drain or drains, to do so in a competent way. In this regard, I note that in the version of the manufacturer’s manual on which Belmar relies, under the heading “Roof Design”, installers are instructed that they should “address drainage deficiencies to provide positive drainage.”[^6] Addressing drainage deficiencies can be achieved by employing various sloping techniques to direct water to the drains and by adding new drains. No sloping techniques were used and the one new drain which was installed added to drainage deficiencies. I accept Mr. Hensen’s evidence that no engineer was required to execute a good sloping roof design. Nothing in the portion of the manual which addresses roof design suggests otherwise.

[128] In this case, while improperly installed fittings and some of the pollution may have contributed to the ponding which persisted on the roof, I have concluded that the most significant cause of ponding was Belmar’s failure to design the roof to promote drainage.

The Post-Work Problems

[129] After Belmar finished installing the roof, Vangar experienced problems at 80 King Edward. First, there was the serious flooding incident on June 8, 2015, and, after that event, there were repeated leaks and other problems which were dealt with first by Belmar and later by Atlas.

[130] As discussed above, the flood was caused by the badly conceived new drain which took water from the much bigger upper roof onto one of the lower rooves where no scupper or overflow drains had been installed and where the existing drain was not able to accommodate the extra water from the upper roof. As I have already found, this mishap was a result of Belmar’s failure to ensure that the new drain would actually promote drainage and its failure to propose and install scuppers in advance.

[131] After the flood, Vangar reported a series of issues with the roof first to Belmar and then to Atlas. The defendant argues that there is no evidence that any of these issues was caused by any failure of Belmar. However, Mr. Van Iersel testified that Atlas attended to leaks where a fastener had poked through the membrane, and where membrane was coming off the parapet wall. Mr. Martins referred to flashing which was coming off. Mr. Hensen referred to several instances of poor installation which could cause leaks. Moreover, before Mr. Van Iersel tired of calling Belmar, Belmar attended to the repair of the problems reported to them as part of its warranty on the work it had done on the roof. As I did earlier in these reasons, I observe that there is no evidence that any leak at 80 King Edward was caused by debris left on the membrane or by the failure of Vangar to have a maintenance program for the roof.

[132] Mr. Weber testified that the water on the roof limited his ability to use his thermal imaging camera but that where the roof was clear he could detect no moisture except in one spot where further investigation might be required. The area of concern was around the elevator room which, he observed, had brick that was deteriorating and obviously taking on water which would seep down into the building. In other words, the moisture he detected at that point was a failure of the wall, not Belmar’s roof.

[133] I accept that the failure of the elevator room wall may be a source of moisture that leaks underneath the membrane. However, I note the none of the evidence before me suggests that there was any leak at 80 King Edward in the area of the elevator room and, even if there were, there is significant evidence of other causes of leakage at other locations, and for other reasons, including on the lower rooves.

[134] For all these reasons, I find on a balance of probabilities that the issues attended to by Belmar and Atlas after the flood were the result of the faulty installation of the roof by Belmar.

The Sale of the Building

[135] The sale of the buildings on King Edward Avenue from Vangar to Mr. Bedi was described earlier in these reasons. The key question respecting this sale is why the purchase price was reduced from $19.0 million to $18.8 million.

[136] The defendant argues that the reduction was the result of a negotiation between the parties that took into account many issues, not simply the state of the roof at 80 King Edward. Belmar says that the wording inserted into the APS, drafted by Mr. Van Iersel after this litigation was initiated, is self-serving and manufactured to generate a damages award that bears no relationship to any actual damages, assuming there were any damages.

[137] The plaintiff argues that the price reduction was caused solely by the fact that Belmar’s poorly installed roof decreased the value of the building. Although the purchasers raised other issues with the buildings after their inspections, Mr. Van Iersel did not agree to reduce the price for any reason other than the poor state of the roof on 80 King Edward, which he felt obliged to disclose to the purchasers. With one exception, he dismissed their other concerns. That exception was their complaint about the state of the parking lot, which Mr. Van Iersel attended to by having the lot repaved at Vangar’s expense prior to the sale. In other words, the parking lot issue did not affect the purchase price. Vangar argues that the language inserted into the APS, to which Mr. Bedi agreed, reflects the fact that the parties agreed that the purchase price was being reduced because replacement of the roof would be an expense which the purchasers would have to bear. Far from being manufactured or inflated, the $200,000 reduction was less than the two quotes Mr. Van Iersel received respecting replacement of the roof.

[138] In my view, having heard the evidence of Mr. Van Iersel and Mr. Manpreet (Mani) Bedi (T.S. Bedi’s son), who was involved in the negotiations of the purchase and sale, and having read the APS, I am satisfied that the price of the buildings was reduced from $19.0 to $18.8 million because of the poor state of the roof at 80 King Edward and for no other reason.

[139] Mr. Van Iersel was clear on the matter. The offer to purchase had been unsolicited and Vangar was not motivated to sell unless it secured an attractive sale price. He was therefore not inclined to accept any argument with respect to a reduction of the sale price except those he regarded as well-founded. As I have said, there were two complaints about the buildings which he regarded as fair: the state of the parking lot and the state of the roof at 80 King Edward. Vangar paid for the repair of the former and agreed to a reduction in the purchase price regarding the latter.

[140] Mani Bedi’s evidence corroborates this view. In cross-examination, he was clear that the $200,000 reduction was to account for the cost of the replacing the roof at 80 King Edward – not for anything else. I note that Mr. Bedi testified that the purchasers had independently come to the view that the roof had to be replaced.

[141] Although the amendments to the APS are not well-drafted and are slightly confusing, I am satisfied that the contract captures the intention of the parties: that the purchase price was being reduced to account for the state of the roof at 80 King Edward. This is clearly captured in the following language added to the APS:

The credit or reduction in price is only for the roof at 80 King Edward Ave, not 92 King Edward Ave, as we acknowledge the roof at 80 is not done in a professional manner. (the roof at 92 is old and only leaked due to age, not poor workmanship).

The buyer accepts this reduction as full compensation on any roof issue at 80 King Edward building [emphasis added].

[142] As to the defendant’s claim that the $200,000 figure is manufactured, Mr. Van Iersel obtained two quotes to replace the roof at 80 King Edward, both of which are in evidence and both of which estimated the cost of replacement at over $240,000, exclusive of HST. I accept his evidence that, although he did not share these quotes with the purchasers, he thought it was fair that the price should be reduced to account for the poor state of the roof at 80 King Edward, given that it would have to be replaced. He proposed $200,000, expecting the purchasers to make a counter-offer, but they did not.

[143] In other words, Mr. Van Iersel anticipated that the purchasers might take the view that $200,000 was insufficient to account for the cost of replacing the roof and he was prepared to consider a larger reduction given the quotes he had received. The reduction was not manufactured, it was based on the estimated cost of replacing the roof set out in those quotes but reduced in the course of a successful negotiation.

Conclusions

(a) The pleadings

[144] The plaintiff argued that the defendant breached the contract by installing a faulty roof and by failing to carry out the work as described in the contract. The defendant takes the position that the statement of claim does not allege breach of contract and that, instead, the case was pled as a claim based on negligence. The plaintiff says that breach of contract was pled in addition to negligence.

[145] In my view, little turns on this debate given that the defendant conceded that it owed a duty to the plaintiff to install the retrofit roof in a good and workmanlike manner, which was the duty imposed by the contract. In any case, I am satisfied that the statement of claim raises both negligence and breach of contract. While the statement of claim does not use the words “breach of contract”, it sets out the details of the contract and then sets out the various alleged failures of Belmar. I note that the statement of defense responds to the claim by setting out its own description of the contract and its requirements and states that the defendant completed its work in accordance with the contract using the materials as agreed.

[146] In this case, the defendant cannot be said to have been taken by surprise that the plaintiff alleged breach of contract, or that the plaintiff pursued a new and novel theory of liability at trial. The defendant had fair warning of what was alleged against it and had every opportunity to lead evidence, and did lead evidence, to respond to those claims (see Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 59 – 61; Leslie v. Mississauga (2006), 2006 CanLII 63743 (ON SCDC), 81 O.R. (3d) 415 (Div. Ct)). The pleadings lay out the facts of the contract, which the defendant conceded required that the work be completed competently, and the plaintiff clearly alleged that the roof was not installed competently, contrary to the agreement between the parties.

(b) Liability

[147] The evidence leads to the conclusion that Belmar’s work was not competent. It was the cause of the flood on June 8, 2015, and of a variety of smaller problems relating to leaks, fasteners and flashing that post-dated the flood and ended with the last of the visits by Atlas in April of 2017.

[148] The roof also does not drain properly because appropriate steps were not taken by Belmar to promote drainage. The evidence suggested that ponding on a flat roof is not by itself a significant problem so long as the TPO membrane is holding the water and preventing it from seeping into the building. The problem with ponding is that if the TPO is punctured or torn, the results can be catastrophic as the collected water runs underneath the membrane. For this reason, despite the lack of evidence of recent leakage, the failure to design the roof to encourage drainage was an important failure on Belmar’s part.

[149] Most significantly though, Belmar’s retrofit roof was not properly secured to the roof because Belmar did not ensure that all the gravel was removed from the old roof, did not mechanically fasten the new insulation to the old roof, did not use sufficient adhesive to secure the new insulation to the old roof, and either did not use mechanical fasteners or otherwise ensure that the TPO membrane was secured to the new insulation. For these reasons, I accept Mr. Hensen’s evidence that the roof represents a public safety hazard.

[150] I also accept his evidence that what remains of the old roof is wet, that it therefore represents a risk to the structural integrity of the building, and that it should be removed.

[151] For all these reasons, the only available conclusion is that the roof at 80 King Edward was negligently installed by Belmar, is deficient and should be removed down to the deck and replaced. Had Belmar’s work been properly executed, there would be no need for this replacement.

(c) Damages

[152] The plaintiff claims two heads of damages: the cost of having Atlas repair to the roof between June 2017 and April 2017 ($3,329.98) and damages flowing from the failure of Belmar to install the roof in a good and workmanlike manner, either as a matter of breach of contract or negligence, which resulted in the $200,000 reduction in the purchase price of the group of buildings on King Edward Avenue.

[153] Here I note again that I have found that the repairs completed by Atlas were necessitated by the failure of Belmar to install the roof properly and that the $200,000 reduction of the sale price of Vangar’s buildings in London was solely attributable to the poor state of the roof on 80 Kind Edward.

[154] In my view, whether damages are assessed as a matter of breach of contract (expectation damages which put the plaintiff in the position it would have been in had the contract been performed (Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, at paras. 26 - 27)) or as a matter of negligence (compensatory damages which are measured either by the cost of repair or by the diminution in the value of the plaintiff’s property (Bowman v. Martineau, 2020 ONCA 330, at para. 11)), they are the same.

[155] If the contract had been properly performed, the plaintiff would not have incurred the costs associated with paying Atlas for its repair work ($3,329.98) and would not have had to agree to a $200,000 reduction of the sale price of the building. Accordingly, damages in the amount of the money paid to Atlas plus the amount by which the purchase price of the building was reduced will put the plaintiff in the position it would have occupied had the contract been performed.

[156] Similarly, Belmar’s negligent work resulted in the repairs carried out by Atlas and costing $3,329.98 and the diminution in value of the building by $200,000. The plaintiff is entitled to compensatory damages in these amounts.

[157] Accordingly, damages are awarded to the plaintiff in the amount of $203,329.98.

The Counterclaim

[158] At the request of the defendant (and plaintiff by counterclaim), the counterclaim is dismissed.

Costs

[159] If the parties are unable to agree on costs, the plaintiff may serve and file brief written submissions respecting costs within 7 days of the release of these reasons. The defendant may serve and file brief responding submissions respecting costs within 7 days of the service of the plaintiff’s costs submissions. The plaintiff’s reply, if any, may be served and filed within 3 days of receipt of the defendant’s costs submissions. Each party’s initial written submissions shall not exceed three double-spaced pages, exclusive of offers to settle, cost outlines and authorities while the plaintiff’s reply submissions, if any, shall not exceed two double-spaced pages. All costs submissions shall be forwarded to my attention by way of email to my Judicial Secretary, Kelly Flanders, at Kelly.Flanders@ontario.ca with a copy CC’d to Kitchener.SCJJA@ontario.ca. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs between themselves.

I.R. Smith, J.

Released: June 22, 2022

[^1]: The copy of the quote in the record is unsigned, but the parties agree that it was signed and that it constitutes the contract between them. [^2]: In that respect, I note that there was no written estimate of what a completely new roof would cost. The written quote given to Mr. Van Iersel did, however, provide him with an estimate of the cost of doing work only on the middle roof, without attending to either of the two lower rooves, an option Mr. Van Iersel did not pursue. The quote makes no mention of the option of a installing a completely new roof. [^3]: Exhibit 4, tab S, Defendant’s Photo #12, p. B-1-310. [^4]: These are strips of membrane, 10 inches wide, which are screwed into the deck. The TPO is then heat welded to the strips. [^5]: Mr. Van Iersel testified that Mr. Celik urged only one new drain on him, contrary to Mr. Celik’s assertion that he recommended three new drains on the middle roof. [^6]: See Exhibit 4, tab B, GAF Manual for Roofing Systems, at B-1-139.