COURT FILE NO.: CV-16-559117
DATE: 2022 07 27
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended
RE: R&V CONSTRUCTION MANAGEMENT INC., Plaintiffs
- and -
MANOUCHER BARADARAN, ROYAL BANK OF CANADA and BAYBANK CAPITAL INC., Defendants
BEFORE: Associate Justice Todd Robinson
APPEARING: J. McClelland, counsel for the plaintiff
M. Baradaran, acting in person
HEARD: December 17, 2021 (by videoconference)
REASONS FOR DECISION (Summary Judgment)
OVERVIEW
[1] In spring 2015, a flood occurred in a house owned by Manoucher Baradaran. Mr. Baradaran’s insurer authorized him to directly retain a contractor to repair the flood damage, the costs of which were to be reimbursed by the insurer. Mr. Baradaran ultimately contracted with R&V Construction Management Inc. (“R&V Construction”) to repair the flood damage as well as perform other renovation work.
[2] Two contracts were executed in short succession: an initial contract on February 15, 2016, with a total contract price of $108,505 plus HST, and a second contract on February 22, 2016, with a total contract price of $144,600 plus HST. A further, supplementary contract was later executed on April 20, 2016, covering additional work for a contract price of $45,190 plus HST. One of the parties’ disputes is whether the second contract and supplementary contract are enforceable. R&V Construction relies on them. Mr. Baradaran’s position is that the second contract was prepared solely for insurance purposes and that the supplementary contract outlined anticipated work that would only be performed if Mr. Baradaran’s insurer agreed to pay for it, which the insurer did not. According to Mr. Baradaran, neither of those contracts was ever intended to be binding.
[3] It is undisputed that R&V Construction performed work and that various payments were made. Mr. Baradaran alleges that R&V Construction was paid in full. R&V Construction disagrees. It registered a construction lien for $87,084.70 for unpaid work.
[4] Prior to R&V Construction commencing this action, Mr. Baradaran sued R&V Construction and others for his own damages from the project. R&V Construction then commenced this action under the now-former Construction Lien Act, RSO 1990, c C.30 (the “CLA”) to perfect its lien. Mr. Baradaran delivered a short statement of defence and counterclaim, referencing his non-lien action. His defence and counterclaim was later amended. Mr. Baradaran’s subsequent counsel ultimately delivered a notice of discontinuance of the counterclaim.
[5] During the early stages of litigation, Mr. Baradaran sold the property. He alleges that it had to be sold under market value as a result of issues with R&V Construction’s work. To clear title for the sale, security was posted into court to vacate R&V Construction’s claim for lien and certificate of action. That security remains in court.
[6] Considering the modest quantum in dispute, this lien action has had a long and winding procedural history leading to this point. Judgment was previously granted in favour of R&V Construction following a motion heard in May 2018 by the former construction lien reference master (as then titled). Confirmation of the report embodying that judgment was successfully opposed by Mr. Baradaran on a motion heard in February 2019. The motion judge’s decision, which had the effect of overturning the judgment, was then appealed to the Divisional Court. Although disagreeing with the motion judge’s reasoning, the Divisional Court upheld that the report should not be confirmed as a matter of procedural fairness. The case was returned to a construction lien master (now associate judge) for disposition. I was assigned.
[7] After two hearings for trial directions, I heard motions by both parties: a motion by Mr. Baradaran to set aside the discontinuance of his counterclaim and compel further production from R&V Construction and a motion by R&V Construction for leave under the CLA to bring this summary judgment motion under rule 20 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). I dismissed Baradaran’s motion and granted leave to R&V Construction to bring this motion (2021 ONSC 5197).
[8] R&V Construction seeks summary judgment on its claim as well as an order paying the judgment amount from the security in court.
[9] Although Mr. Baradaran has not served a notice of cross-motion, in his responding factum he seeks an order discharging R&V Construction’s lien, dismissing this action, and paying out the lien security to him. He also seeks judgment for his costs of repair (which Mr. Baradaran can no longer pursue in this action), mortgage renewal amounts incurred due to R&V Construction’s delays, and diminution of property value suffered from deficiencies and incomplete work.
[10] I am granting summary judgment in favour of R&V Construction. I am satisfied that there are no genuine issues requiring a trial. As outlined below, I find that R&V Construction is entitled to a lien and judgment for $79,329.10.
ISSUES
[11] Several issues must be determined on this motion, namely:
(a) Should Mr. Baradaran be entitled to rely on affidavits filed for prior motions that were not included in his responding motion record?
(b) Is it appropriate to defer to the findings made on the motion argued before my predecessor in May 2018?
(c) Is summary judgment appropriate in this case? In particular, is there a genuine issue requiring a trial on any of the following issues:
(i) the agreed price and scope of the work;
(ii) the extent of work actually performed by R&V Construction;
(iii) the amount paid by Baradaran for R&V Construction’s work;
(iv) Baradaran’s claim for diminution of value in the property;
(v) Baradaran’s claim for additional financing costs; and
(vi) whether R&V Construction’s lien was preserved and perfected within the timelines prescribed by the CLA?
Analysis
Issue 1: Should Mr. Baradaran be entitled to rely on further affidavits not included in his responding motion record?
[12] At the hearing, there was a dispute over what evidence ought to be considered for this motion. In both his factum and during his oral submissions, Mr. Baradaran referred to affidavit evidence and exhibits filed on prior motions that were not filed for this motion. R&V Construction challenged whether those materials ought to form part of the record for this motion. I have determined I should not considered any of that evidence. In my view, to do so would be procedurally unfair to R&V Construction.
[13] When I fixed the timetable for exchanging evidence for this motion, I put the onus on R&V Construction to compile its motion record with copies of all affidavits and transcripts that were before my predecessor on Mr. Baradaran’s prior motion (which was the only evidence on which R&V Construction intended to rely). I then afforded Mr. Baradaran an opportunity to serve responding materials, which he did. R&V Construction thereafter chose not serve any reply affidavits and elected not to cross-examine.
[14] Mr. Baradaran’s responding materials do not include any of his affidavits sworn on prior motions. I acknowledge, though, that Mr. Baradaran’s fresh affidavit does state, at para. 4, that he will be “relying on affidavits as filed wit the Court in this matter since the first Affidavit filed May 13, 2017, up to the date on this matter was filed.” However, in my view, that statement is not fair notice of the evidence on which he intended to rely for this motion. R&V Construction’s first genuine notice that Mr. Baradaran intended to rely on further affidavit evidence beyond the fresh affidavit in his responding motion record was when his factum was served. It cited a number of other affidavits filed on prior motions. That was served less than ten days before the motion hearing and well after the deadline for cross-examinations.
[15] Self-represented litigants are often afforded a certain amount of latitude and leniency given the complexities of litigation. However, they cannot ignore court orders and they still remain bound by the rules of court. Subrule 37.10(3)(b) of the Rules expressly requires that a responding motion record include “a copy of any material to be used by the responding party on the motion and not included in the motion record.” Mr. Baradaran’s general affidavit statement does not comply with either that subrule or my order.
[16] Permitting Mr. Baradaran to rely on affidavits that could and should have been included in his responding motion record is unfair to R&V Construction. R&V Construction made decisions about the evidence to present on this motion and decided not to serve any reply affidavits or cross-examine Mr. Baradaran based on the evidence he had put forward. Had other affidavits been included in the responding motion record (as required by the Rules), or if Mr. Baradaran had at least provided clear notice to R&V Construction’s lawyers about which specific affidavits he intended to use on this motion before serving his factum, this dispute may not have arisen.
[17] In my view, Mr. Baradaran is precluded from relying on other affidavit evidence not included in his responding motion record by his failure to comply with subrule 37.10(3)(b) of the Rules and his failure to provide clear prior notice about the additional affidavits on which he intended to rely.
Issue 2: Is deference to my predecessor’s prior findings appropriate?
[18] R&V Construction argues that, since the evidentiary record before me on this motion is virtually identical to that before my predecessor in May 2018, I ought to give significant deference to my predecessor’s assessment on the underlying merits of this case. R&V Construction submits that such deference is appropriate because the only difference in the evidentiary record is the addition of one fresh affidavit sworn by Mr. Baradaran, which R&V Construction argues contains nothing more than improper argument and irrelevant evidence.
[19] R&V Construction submits that my predecessor’s findings were not criticized or overturned on appeal, pointing to the Divisional Court’s comment that disposition of this action “could be by way of a properly constituted motion for summary judgment”: R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111(Div Ct), para. 62. In addition, it submits that findings of fact or law by a motion judge who dismisses a summary judgment motion will have binding effect if the judge invokes the enhanced powers provided under Rule 20.04 or 20.05 of the Rules: 2441472 Ontario Inc. v. Collicutt Energy Services, 2017 ONCA 452 at para. 17. Since my predecessor used the enhanced powers, R&V Construction argues that I should defer to her findings on the underlying merits.
[20] I give no effect to R&V Construction’s argument. In my view, I must approach this motion as a de novo hearing. Although the evidentiary record before me is substantially the same as in the prior motion, that motion was not a motion for summary judgment. It was a motion brought by Mr. Baradaran under s. 47 of the CLA seeking to discharge R&V Construction’s lien and dismiss this action. That context is significant.
[21] The Divisional Court felt that assessing the motion as a summary judgment motion, when it was not, resulted in procedural unfairness to Mr. Baradaran. A clear distinction was drawn between a discharge motion under s. 47 of the CLA and a motion for summary judgment under rule 20 of the Rules. The Divisional Court has subsequently confirmed that the focus on a s. 47 motion is limited to whether there is a triable issue in respect of the bases on which discharge of the lien is sought: Maplequest (Vaughan) Developments. Inc. v. 2603774 Ontario Inc., 2020 ONSC 4308(Div Ct) at para. 25. In this case, the Divisional Court only held that my predecessor had, by necessary implication, rejected Mr. Baradaran’s s. 47 motion: R&V Construction, supra at para. 62.
[22] In light of the Divisional Court’s decisions, my predecessor’s determinations on the merits of R&V Construction’s claim is only fairly viewed as confirming that evidence supported triable issues. That is why Mr. Baradaran’s s. 47 motion failed. To view the decision as making binding factual determinations or to give those determinations significant deference would, in my view, compound the procedural fairness concern identified by the Divisional Court.
[23] For these reasons, I have not considered my predecessor’s prior assessment. Proceeding in that manner is the most fair and equitable way of approaching this motion in light of the procedural history that has brought it before me.
Issue 3: Is summary judgment appropriate in this case?
a. Legal framework for summary judgment
[24] Subrule 20.02(2) of the Rules directs that I should grant summary judgment if I am satisfied that there is no genuine issue requiring a trial. As set out by the Supreme Court of Canada, there will be no genuine issue requiring a trial if I am able to reach a fair and just determination on the merits. That will be the case where this process allows me to make the necessary findings of fact, allows me to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7 at para. 49.
[25] The two-stage assessment for deciding a summary judgment motion is set out by the Supreme Court of Canada in Hryniak at para. 66.
[26] At the first stage, I am required to determine if there is a genuine issue requiring trial based only on the evidence in the record before me. I make that determination without using the fact-finding powers provided in subrules 20.04(2.1) and (2.2), which allow evidence to be weighed, credibility to be assessed, inferences to be drawn, and further oral evidence. If I find that the evidence required to fairly and justly adjudicate the dispute is available on the record and summary judgment is a timely, affordable and proportionate procedure, then I may grant summary judgment.
[27] The second stage is triggered if I find that there appears to be a genuine issue requiring a trial. I must then determine if the need for a trial can be avoided by using the discretionary powers under subrules 20.04(2.1) and (2.2). Although those powers are not ordinarily available to an associate judge, the Divisional Court has confirmed that I do have access to them on this motion, since it is brought within a reference under s. 58 of the CLA: R&V Construction, supra at para. 23. Those powers are only to be used if doing so is not against the interest of justice, meaning that using them will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
b. Is there a triable issue on the agreed price and scope of the work?
[28] There is no dispute that the parties agreed to a fixed price contract. Their dispute is over the purpose behind the second contract executed on February 22, 2016 and whether the supplementary contract dated April 20, 2016 was ever intended to be acted upon. In my view, a trial is not required to decide either dispute.
[29] All of Baradaran’s negotiations and dealings on behalf of R&V Construction were with Gholamreza (Reza) Kamranpoor, who was the sole officer and director of R&V Construction during the project. Although R&V Construction relies on an affidavit sworn by him, its primary evidence is from his son, Vahab (Rob) Kamranpoor. Rob Kamranpoor was involved in the project through another entity, Phoenix Vision Tech Inc. (“Phoenix”). He did not become a director and officer of R&V Construction until after this litigation had been commenced. Rob Kamranpoor’s affidavit states that he was made a director and officer of R&V Construction to assist his father with managing the corporation and continuing this action to recover the unpaid amounts.
[30] As noted above, the parties’ initial contract was signed on February 15, 2016, contemplating a particular scope of work for a total fixed price of $108,505, plus HST. Evidence before me supports that the contract was based on a handwritten scope of work and estimate prepared by Reza Kamranpoor. One week later, the parties executed another contract with a total contract price of $144,600, plus HST.
[31] There is conflicting evidence on the scope and purpose of the second contract. Because of the opposing versions of events before me, I must exercise the “enhanced powers” under subrule 20.04(2.1) of the Rules in order to reconcile the evidence. In my view, it is in the interests of justice to do so in this case, particularly considering the summary character of lien proceedings mandated by the CLA.
[32] Rob Kamranpoor’s affidavit outlines that the second contract was executed because Mr. Baradaran wanted to increase the scope of work to include other items. Reza Kamranpoor’s affidavit confirms that he agrees with Rob Kamranpoor’s affidavit.
[33] That evidence is at odds with Mr. Baradaran’s evidence, which is that the second contract was agreed and executed solely for the purpose of claiming repayment from the insurer for an artificially inflated contract price. Mr. Baradaran argues that Reza Kamranpoor proposed the scheme, and his evidence is that he and Reza Kamranpoor agreed to share the excess recovery above R&V Construction’s actual contract price. Essentially, Mr. Baradaran’s evidence is that he and Reza Kamranpoor agreed to cheat the insurer.
[34] There is also conflicting evidence on the supplementary contract. Rob Kamranpoor’s evidence, with which Reza Kamranpoor’s affidavit agrees, is that Mr. Baradaran approached R&V Construction about increasing the scope of work to include additional work items. In his own evidence, Mr. Baradaran agrees that the supplementary contract covers additional work, but he says that he and Reza Kamranpoor agreed that the work would only be performed if Mr. Baradaran’s insurer agreed to pay for it as part of his insurance claim.
[35] Reza Kamranpoor passed away before cross-examinations were completed. Mr. Baradaran takes the position that his account of events is thereby uncontested. It is undisputed that Rob Kamranpoor was not present during discussions between Mr. Baradaran and Reza Kamranpoor. Mr. Baradaran argues essentially that I should thereby give no weight to Rob Kamranpoor’s evidence on what happened. Mr. Baradaran’s argument before me (as it was before both my predecessor and the Divisional Court) is that there will be no better evidence on the contract at trial because only Mr. Baradaran and Reza Kamranpoor were involved in the contract negotiations and discussions.
[36] I do not agree that Mr. Baradaran’s account of events is uncontested. The affidavit evidence tendered by R&V Construction disagrees with Mr. Baradaran’s account of events. Mr. Baradaran is correct that Rob Kamranpoor has no first-hand knowledge about negotiations and discussion between Mr. Baradaran and Reza Kamranpoor. However, Reza Kamranpoor has confirmed his son’s evidence. Specifically, in his affidavit, Reza Kamranpoor states, “I have reviewed the affidavit of Rob Kamranpoor, sworn October 11, 2017, and agree with the statements made therein.”
[37] I agree with R&V Construction that Rob Kamranpoor’s hearsay evidence was converted into Reza Kamranpoor’s own direct evidence by that statement. Reza Kamranpoor was a party to the discussions with Mr. Baradaran and thereby has first-hand knowledge of them. He has confirmed the accuracy of the account of events outlined in his son’s affidavit. In Kouleles v. Diamond, 2005 CanLII 3387 (Ont SCJ-Master), at para. 5, the court held that when one affiant adopted the evidence of three other affiants, it had the effect of converting the hearsay evidence of those three affiants into the first affiant’s own evidence. I agree with that view.
[38] Mr. Baradaran submits that I should find that Reza Kamranpoor “absconded and evaded” cross-examination prior to his passing and take that into consideration. I give no effect to that submission. In my view, the record before me does not support that either R&V Construction or Reza Kamranpoor interfered with Mr. Baradaran’s ability to cross-examine Mr. Kamranpoor prior to his passing.
[39] I also do not agree with Mr. Baradaran’s reading of the Divisional Court’s decision that it emphasized the absence of Reza Kamranpoor as a critical witness and indicated that the absence supports judgment for Mr. Baradaran. The paragraph in the Divisional Court’s decision referenced by Mr. Baradaran (para. 53) does nothing more than confirm Mr. Baradaran’s position and arguments before that court. It does not reflect any view taken by the Divisional Court’s on the strength of Mr. Baradaran’s case.
[40] On a summary judgment motion, both sides have an obligation to put their best evidentiary foot forward. I afforded an opportunity to both parties to tender any additional evidence not already included in the prior record from Mr. Baradaran’s discharge motion. I am satisfied that there will be no better evidence at a trial, particularly since Reza Kamranpoor has passed.
[41] On a balance of probabilities, I give greater weight to the evidence tendered by R&V Construction on the applicable contracts and scope of work. My main difficulty with Mr. Baradaran’s evidence is that it is self-serving, uncorroborated and, at times, inconsistent. Without going through every instance supporting my view, I note the following:
(a) Although his affidavit evidence outlines the alleged insurance scheme, Mr. Baradaran unequivocally confirmed during his cross-examination that the February 22, 2016 contract was the contract he entered with R&V Construction, that he signed it, that he had read it at the time of signing, that he understood what the terms meant, that it included the scope of work to be performed by R&V Construction, and that $163,580 was the price to be paid for that work;
(b) Mr. Baradaran argues that the scope of work between the initial contract and the second contract did not change, but he has failed to provide any cogent explanation for why there are items of work in the second contract that are not listed in the first contract, or how they are captured by items of work in the first contract;
(c) There is no evidence, such as emails, text messages, or other documents, corroborating Mr. Baradaran’s statements that he and Reza Kamranpoor agreed that the work under the supplementary contract would be conditional on the insurer approving and agreeing to pay for it. There is similarly no corroborating evidence for his position that, if the insurer did not agree to pay for the work, then they had agreed the work would not be performed;
(d) Notwithstanding his position on the unenforceability of the supplementary contract, the evidence before me supports that Mr. Baradaran paid the deposit outlined in it, which has not been adequately explained. In my view, that is inconsistent with his position that the contract would only move forward on approval of the insurer; and
(e) Mr. Baradaran’s evidence is that a total of $152,513.45 was paid to R&V Construction and its subcontractors on account of its work, yet his position is that the total contract price for all work was only $122,610.65, including HST. No explanation has been provided for over-paying the contract.
[42] In my view, the affidavit evidence of Reza Kamranpoor, which confirms the account of events in Rob Kamranpoor’s affidavit, should be preferred. The evidence on the genesis of the second contract and the circumstances of the supplementary contract, buttressed by admissions obtained from Mr. Baradaran on cross-examination, is more consistent with the contemporaneous records and the language used in the contracts themselves.
[43] I wish to further touch on Mr. Baradaran’s evidence that his insurer refused to pay for work under the supplementary contract on the basis that the majority of items were already paid for as part of the original contract. That evidence is entirely uncorroborated.
[44] Firstly, I note that there is no evidence from Mr. Baradaran confirming the extent to which he was actually reimbursed by the insurer. That evidence is relevant given his positions on the value of the original contract and the supplementary contract.
[45] Secondly, Mr. Baradaran relies on an email from his insurance adjuster from September 2016, several months after R&V Construction had left the site and the property had been listed for sale. Mr. Baradaran’s evidence and submissions are that the email supports that the insurer refused to pay for the supplementary contract because there was only $1,863.11 in additional work beyond the original contract. That is not what the email says and no evidence has been tendered from the adjuster himself.
[46] On close review, the email provides a comparison between the supplementary contract costs and an undisclosed “State Farm Supplemental Estimate”. The adjuster observed, “As you will notice, there are items on the State Farm estimate that have higher replacement costs then the cost from R&V Construction, and vice versa, however the line item totals balance themselves when it comes to the final total.” The email appears to confirm that R&V Construction’s costs for the work under the supplementary contract are generally in line with the insurer’s own estimate for the same scope of work, with a net difference of $1,863.11.
[47] In my view, Mr. Baradaran’s evidence reflects a misunderstanding of the email and misrepresents its contents. Nothing in the email supports that the insurance company was not prepared to reimburse the cost of the work outlined in the supplementary contract or that the insurer viewed the work as duplicating work already required under the original contract. Mr. Baradaran did not direct me to any overlap between the original scope of work and the work identified in the supplementary contract.
[48] In any event, it is significant that the supplementary contract itself contains no language making it conditional on the insurer’s approval. Even if I were to accept that there is a triable issue that the supplementary contract was conditional (which I do not), those surrounding circumstances would only properly be used to interpret existing terms of the contract, not to supplant them. Interpreting written contractual provisions must always be grounded in the text and read in light of the entire contract. Courts may use surrounding circumstances in the interpretive process, but cannot use them to deviate from the text such that the court effectively creates a new agreement: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 57.
[49] For Mr. Baradaran’s argument to succeed, I would have to read into the supplementary contract a new term that it was conditional upon insurer approval, when no such term is reflected anywhere in its current language. The Supreme Court of Canada’s interpretive approach in Sattva supports that courts should not use interpretation to rewrite contracts into something new.
[50] For these reasons, I find no genuine issue requiring a trial on the agreed price, scope, and terms of the contract. Weighing the evidence before me, I find that the governing contract was the second contract signed on February 22, 2016, which detailed the required scope of work with a total contract price of $144,600 plus HST. The evidence also supports that the parties subsequently agreed to and entered the supplementary contract on April 20, 2016, which added specific work for a total additional contract price of $45,190 plus HST. Those two contracts together set out the agreed scope of work, price, and terms for R&V Construction’s work.
c. Is there a triable issue on the extent of work performed?
[51] R&V Construction submits that the result of my decision dismissing Mr. Baradaran’s motion to set aside the discontinuance of his counterclaim is that he is now precluded from arguing that R&V Construction did not complete its work. I disagree.
[52] Nothing in my decision changed the parties’ evidentiary onuses or Mr. Baradaran’s available defences. What Mr. Baradaran is precluded from pursing in this action is his damages claim for costs of completion and deficiency rectification, which he is now only entitled to pursue in the non-lien action. That does not mean he cannot maintain and continue to advance his position that R&V Construction did not complete all required work and, accordingly, should not be compensated for unperformed work.
[53] R&V Construction has the evidentiary onus of demonstrating that there is no triable issue that all contractually required work was completed. In response, Mr. Baradaran has an evidentiary onus to tender evidence that at least raises a triable issue that R&V Construction did not, in fact, complete all work.
[54] I am satisfied that R&V Construction has established that there is no triable issue on whether it completed its contract work. Reza Kamranpoor’s unequivocal evidence is that all contract work under the February 22, 2016 contract and the April 20, 2016 supplementary contract was completed. Rob Kamranpoor’s evidence is to the same effect. The exception is four items from the supplementary contract, which R&V Construction has pleaded at para. 20 of its statement of claim and confirmed by way of answers to undertakings were not performed and does not form part of its claim. Those are a kitchen countertop ($15,000), stainless kitchen faucet ($670), stainless steel undermount double bowl kitchen sink and chrome ($550), and kitchen backsplash tile ($3,500). Collectively, they total $19,720 plus HST of the total contract price in the supplementary contract. R&V Construction’s evidence is that Mr. Baradaran agreed to complete that work himself.
[55] R&V Construction submits that its position on all work being completed is corroborated by Mr. Baradaran confirming during cross-examination that R&V Construction was last on site on June 21 or 22, 2016, at which time painting touch-ups were occurring, and the fact that Mr. Baradaran listed the property for sale a few days later on June 24, 2016. The property listing included “virtual tour” photographs of the house, which I agree tend to show the property in good condition, with countertops, backsplash, and faucets installed. I also agree with Mr. Baradaran, though, that the nature of the photographs is such that they would unlikely show deficiencies or clearly incomplete work.
[56] R&V Construction further relies on Baradaran’s failure to identify the contractor he allegedly retained to complete the work and failure to produce any documents identifying the scope of work allegedly performed by that contractor. During cross-examination, Mr. Baradaran confirmed that he did not have the name of the contractor, had no written invoices for work performed, and had no record of alleged payments to the unidentified contractor, which are said to have been in excess of $78,000.
[57] Although more detailed evidence on completion of work could have been tendered by R&V Construction, in my view, the totality of the evidence, including cross-examinations, supports that R&V Construction did complete the required work. In response, Mr. Baradaran has failed to raise any triable issues.
[58] Mr. Baradaran points to his evidence in other affidavits filed on prior motions, which I am not considering for reasons already given. He also points to allegations in the statement of claim in his non-lien action as supporting problems in R&V Construction’s work. However, pleadings are allegations, not evidence.
[59] The only cogent evidence tendered to support Mr. Baradaran’s position that work remained incomplete is a property inspection report. It was prepared following an inspection on September 3, 2016, several months after R&V Construction had left the site. Mr. Baradaran’s cross-examination evidence was that “several” of the identified deficiencies were attributable to R&V Construction. His counsel took under advisement a request to review the report and specifically identify those deficiencies within R&V Construction’s scope of work. I was directed to no answer to that advisement. There is no evidence supporting what deficiencies and incomplete work identified in the report were within R&V Construction’s scope of work. No argument was advanced tying any specific items to required work identified in the contracts.
[60] In my view, the home inspection report does not assist Mr. Baradaran in raising any triable issues. It is not an expert opinion and provides no correlation between observed deficiencies and incomplete work and the work performed by R&V Construction. Since it is being tendered for the truth of its contents by Mr. Bardaran, who did not author the report, it is inadmissible and unreliable double hearsay. Mr. Baradaran has given no evidence confirming any of the items identified in the report, and admitted during cross-examination that he was only present for part of the inspection.
[61] It was incumbent on Mr. Baradaran to identify specifically what required work was not completed. In my view, the absence of any evidence or argument on specific incomplete work is significant. Notably, although Mr. Baradaran’s asserts that he retained a contractor to complete the job, the contractor has not been identified, the scope of work performed has not been confirmed, and the alleged cash payments have not been substantiated. Given R&V Construction’s evidence, Mr. Baradaran’s self-serving position that work within R&V Construction’s scope that has not been clearly identified remained incomplete is insufficient to raise a triable issue.
[62] I am satisfied that, on the record before me, there is no triable issue that R&V Construction completed its contractual scope of work, other than the four items in the supplementary contract that were admittedly not performed and for which no claim is advanced. Albeit that whether work was completed deficiently is distinct from whether work was completed, I also find no genuine issue on the evidence before me that any of R&V Construction’s work was deficient.
d. Is there a triable issue on the amounts paid?
[63] There is conflicting evidence on the amounts paid to R&V Construction by Mr. Baradaran. However, in my view, a trial is not required to resolve the conflicts.
[64] R&V Construction’s evidence is that Baradaran paid it $92,350, comprised of three deposits totalling $50,850, progress payments totalling $40,000, and a deposit under the supplementary contract of $1,500. R&V Construction also acknowledges a direct payment by Mr. Baradaran to one of its subcontractors, Dreamview Kitchens Inc., in the amount of $15,500.
[65] Mr. Baradaran’s evidence is that a total of $152,513.45 was paid for R&V Construction’s work, comprised of $121,695 paid to R&V Construction by cheques and cash, $14,268.45 paid to Phoenix for installation of sound and security systems, and $16,550 paid to directly to R&V Construction’s subcontractors and suppliers, including the undisputed direct payment to Dreamview Kitchens Inc.
i. Payments to R&V Construction
[66] There is a $29,345 discrepancy between the parties’ positions on amounts paid directly to R&V Construction. That is made up of a $5,000 cheque dated April 5, 2016 and various cash payments that Mr. Baradaran says were paid without Reza Kamranpoor providing written acknowledgement of receipt.
[67] Although Mr. Baradaran’s affidavit states that Reza Kamranpoor told him that no further amounts were owing when R&V Construction ceased work, that is contradicted by Reza Kamranpoor’s evidence. As already discussed, Reza Kamranpoor confirmed the evidence of his son, Rob Kamranpoor, which included evidence on payments. As the party alleging additional cash payments, Mr. Baradaran is the party who must demonstrate a triable issue that those payments were made. He was obliged to put his best foot forward in response to this motion. Nevertheless, he has tendered no cogent corroborating evidence of the disputed cash payments. Bank statements were tendered, which Mr. Baradaran uses to support his evidence that cash withdrawals totalling $32,018.45 were made between May 13 and June 5, 2016. However, that figure does not fully reconcile with the asserted total cash payments of $34,345.
[68] Mr. Baradaran has tendered no evidence on when specifically the disputed cash payments were requested, where he met with Reza Kamranpoor to pay him, and what “rush basis” prevented payment receipts being prepared and signed similar to what was done for the two $5,000 cash payments admitted by R&V Construction. Mr. Baradaran’s evidence does not explain why such receipts could not have been prepared for Reza Kamranpoor to sign, even after the fact.
[69] On a balance of probabilities, I find no genuine issue for trial on the $24,345 in disputed cash payments to R&V Construction. The evidence does not support any triable issue that they were, in fact, paid.
[70] The disputed $5,000 cheque is different. Mr. Baradaran has tendered a copy of the cancelled cheque made payable to R&V Construction. I was directed to nothing in the record supporting that it was not received, nor has R&V Construction provided any explanation for why there is a cancelled cheque made payable to it if it was not received. In my view, there is no triable issue on that cheque. Mr. Baradaran’s evidence supports that it was received and cashed by R&V Construction.
ii. Payments to Phoenix
[71] Mr. Baradaran claims a payment credit of $14,268.45 for amounts he paid to Phoenix, alleged by Mr. Baradaran to be R&V Construction’s subcontractor. I am satisfied that there is no triable issue on whether Phoenix was a subcontractor. The record before me amply supports a finding that it was not, and that Baradaran directly contracted with Phoenix for installation of sound and security systems.
[72] R&V Construction’s position that Phoenix was not its subcontractor on the project and that Phoenix had a separate contract with Mr. Baradaran is fully supported by the record before me. An estimate was prepared by Phoenix and addressed directly to Mr. Baradaran. Phoenix’s invoices were similarly addressed directly to Mr. Baradaran. Mr. Baradaran paid them. Nothing before me supports Mr. Baradaran’s argument that installation of the sound and security systems was (or even may have been) included within the electrical scope of work in either the February 15, 2016 or February 22, 2016 contracts with R&V Construction. The language used in those contracts does not support Mr. Baradaran’s assertion.
iii. Payments to subcontractors/suppliers
[73] As already noted, Baradaran’s payment of $15,500 to Dreamview Kitchens Inc. is admitted by R&V Construction. Baradaran is entitled to a credit for that payment.
[74] Baradaran further asserts payments totalling $1,050 to R&V Construction’s alleged subcontractors: a $300 cheque paid to Amir Malerzedah, a $450 cheque paid to Chaderick White and cash payments totalling $300 paid to two labourers said to be working for Mr. White. However, Rob Kamranpoor’s evidence is that he was advised by Reza Kamranpoor that the cheques issued to Mr. Malerzedah and Mr. White “are not payments to R&V Construction or any subcontractors employed by R&V Construction in respect of the Property.” As already noted, Reza Kamranpoor’s affidavit confirms agreement with Rob Kamranpoor’s evidence.
[75] During cross-examination, Rob Kamranpoor confirmed that he did not know either of Amir Malerzedah or Chaderick White and did not know if Mr. White was employed by R&V Construction. Requests to review R&V Construction’s records for contracts with the two individuals and any record of payments were taken under advisement, and later answered. Those answers state that R&V Construction did not find any subcontracts with either Amir Malerzedah or Chaderick White nor were there records of any payments to either of them.
[76] Mr. Baradaran confirmed on cross-examination that he had no affidavit or written statement from either individual. He asserted, though, that Reza Kamranpoor “hired usually the people has problem with immigration because he was paying very less money [sic]” and that payments were made on behalf of Mr. Kamranpoor, who did not have the money to pay them. Mr. Baradaran stated that Chaderick White was paid for delivering a cabinet and Amir Malerzedah was paid for plumbing work. However, there is no clear correlation between that work and required contract work, including the location of alleged plumbing work (since only limited plumbing appears included in the contract). I was directed to no evidence on what the two labourers are said to have done.
[77] I am satisfied from the record before me that there is no genuine issue requiring a trial on these payments. Mr. Baradaran’s unsubstantiated view that Amir Malerzedah and Chaderick White were subcontractors of R&V Construction and his uncorroborated evidence both on dealings with them and on Reza Kamranpoor’s typical hiring practices is insufficient to create a triable issue. The evidence supports, on a balance of probabilities, that neither individual was an employee or subcontractor of R&V Construction. It follows that any work they were performing, including labourers working for Mr. White, was not done on behalf of R&V Construction or in respect of its scope of work. Payments to them were thereby not on account of R&V Construction’s work.
e. Is there triable issue on diminution of value in the property?
[78] Mr. Baradaran’s evidence is that he “was left with no choice” but to sell the property for $300,000 under market price due to R&V Construction’s “faulty construction work”. He relies on a letter dated September 5, 2016 from his real estate agent for selling the property. The letter reports that every prospective buyer complained about deficiencies and includes a list of various complaints. The agent’s letter states that the market price in the area is $2,900,000 to $3,100,000. No other evidence has been tendered supporting Mr. Baradaran’s claim for diminution in value of the property.
[79] In my view, this letter does not assist Mr. Baradaran in raising a genuine issue for trial on diminution of value. There is no direct evidence from the agent. The letter, which is tendered for the truth of its contents, contains nothing more than hearsay statements about alleged, unverified deficiencies as well as an unqualified opinion on market value.
[80] Nothing in the letter supports that the agent has any first-hand knowledge of the alleged deficiencies or has confirmed they are accurate. It is not clear if potential buyers themselves relayed the complaints or if they were relayed by their real estate agents (the latter of which would add a further layer of hearsay). The agent’s qualifications and credentials are not provided, nor is the basis of his opinion on “actual market price” in the area, so his views on the property value and likely sale price has no real evidentiary value.
[81] The only other evidence on which Mr. Baradaran sought to rely is his affidavits filed on prior motions, which I have held would be procedurally unfair to consider.
[82] Unqualified opinions on market value coupled with the fact that the ultimate sale price was lower than the list price is insufficient to create a triable issue, let alone support judgment as requested by Mr. Baradaran in his factum. I find no triable issue on Mr. Baradaran’s assertion of diminution of value in the property. It is unsupported by the record before me.
f. Is there a triable issue on liability for additional financing costs?
[83] Mr. Baradaran alleges that R&V Construction registered its lien in response to being sued. This action is alleged to have been pursued with the intent of interfering with Mr. Baradaran selling the property. Mr. Baradaran’s evidence is that, as a result of the lien and deficient workmanship, it could not be sold until October 2016, resulting in him accruing additional high-rate mortgage interest costs for which R&V Construction should be liable.
[84] There is no genuine issue requiring a trial on this claim. Contrary to Mr. Baradaran’s assertion that R&V Construction was paid in full, I have found no genuine issue for trial that it remains unpaid for services and materials supplied. Preserving and perfecting a lien in such circumstances was a statutory right available to R&V Construction. Although the amount I have found owing is less than the amount claimed, this is not a situation where the lien has been grossly exaggerated. In addition, the evidence before me does not support any genuine causal link between delay in selling the property and R&V Construction’s workmanship.
g. Is there a triable issue on timeliness of R&V Construction’s lien?
[85] R&V Construction argues that my predecessor has already decided timeliness of its lien and that the Divisional Court’s comments at para. 62 of its decision support that it need not be re-litigated. I do not agree that is what the Divisional Court said or even intended to say.
[86] Ultimately, though, I find no triable issue on whether R&V Construction’s lien was timely. I have found that there is no triable issue that R&V Construction completed its work before leaving the site. Both affidavits of Reza and Rob Kamranpoor state that R&V Construction’s scope of work was completed on June 20, 2016. Mr. Baradaran’s evidence is that work continued on June 21 or 22, 2016 and that the contractual scope of work remained incomplete. No earlier date was argued for completion or abandonment of the contract. R&V Construction’s claim for lien was registered on July 4, 2016, well within 45 days of the claimed date of completion, with this lien action commenced on August 23, 2016 and the certificate of action registered on August 31, 2016. A judgment of reference and order for trial were obtained within the statutory two-year period under s. 37 of the CLA.
[87] I thereby find no triable issue on timeliness of R&V Construction’s lien, which has been preserved and perfected in time, with order for trial obtained before expiry of the lien.
Disposition
[88] For the above reasons, I find no genuine issue requiring a trial on R&V Construction’s claim or Mr. Baradaran’s defences. The total contract price for R&V Construction’s work was $192,179.10, including HST, comprised of $144,600 for the amended initial contract, plus $45,190 for the supplementary contract, less $19,720 for the removed items, plus HST.
[89] Since I have found that R&V Construction completed its scope of work and that there are no triable issues on incomplete work, alleged diminution of property value, or alleged liability for financing costs, Mr. Baradaran is only entitled to deduction for payments made. I have found that those total $112,850, comprised of $97,350 in payments directly to R&V Construction and $15,500 paid directly to Dreamview Kitchens Inc. After deducing those payments there remains a balance owing under the contracts of $79,329.10.
[90] I accordingly find that R&V Construction is entitled to a lien in the amount of $79,329.10, including HST, and judgment against Mr. Baradaran in the same amount, plus pre-judgment interest.
CostS, INTEREST & REPORT
[91] Having succeeded in obtaining judgment, R&V Construction is presumptively entitled to its costs of this action and the motion. I encourage the parties to agree on both costs and calculation of pre-judgment interest, including a per diem rate that may be applied to the date of a report. If they cannot agree on one or both, then written submissions shall be exchanged and filed.
[92] R&V Construction shall serve its submissions, including its costs submissions and its position on calculation of pre-judgment interest, by August 10, 2022. Mr. Baradaran shall serve his responding submissions by August 24, 2022. There shall be no reply submissions absent leave of the court. Submissions shall not exceed five (5) pages, excluding any offers to settle and case law, and shall be submitted by email directly to my Assistant Trial Coordinator (ATC), Christine Meditskos, with proof of service.
[93] In accordance with the CLA, the results of this motion must be embodied in a report in the prescribed form. Since a report was previously prepared in this reference, I encourage the parties to discuss an appropriate form of draft report, which shall be filed with my ATC by the deadline for responding submissions. If the parties cannot agree, then my ATC should be so advised and an appropriate form of report will be addressed following my decision on costs and interest.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: July 27, 2022