Life Long Landscaping Inc. v. 1414610 Ontario Inc. et al.

COURT FILE NO.: CV-18-00075349-R000 DATE: 2022-12-06

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Life Long Landscaping Inc. Plaintiff

and

1414610 Ontario Inc. operating as Eastwood Construction and Paul Gibson Defendants

BEFORE: Associate Justice M. Fortier COUNSEL: Shawn O’Connor, for the Plaintiff Martin Diegel, for the Defendants REFERENCE HEARD: March 2, 2022

REASONS FOR JUDGMENT

Introduction

1- This is a reference directed by the Order of Parfett J. and granted on consent on January 17, 2020. The Order directs that I determine all questions arising in this action and on the reference, and all questions arising under the Construction Lien Act (the “Act”)[^1] including costs of the action and of the reference.

2- Life Long Landscaping Inc. (“Life Long”) is an Ottawa-based landscaping company specializing in residential and commercial services including interlock, decks, fences, retaining walls, and landscaping.

3- 1414610 Ontario Inc., operating as Eastwood Construction (“Eastwood”), carries on the business of a general contractor.

4- Paul Gibson (“Mr. Gibson”) is the registered owner of the property located at 704 Gallica Court, Ottawa (“the property”). On March 24, 2021, the property was transferred to both Mr. Gibson and his wife, Kelly Gibson, as joint owners.

Background

5- In 2017, Mr. Gibson contracted with Eastwood to carry out and oversee work at the property, including installation of a pool, a patio, fencing and landscaping. Eastwood thereafter subcontracted with Life Long to install the fencing, and subsequently requested Life Long to install pool coping and interlocking stones (“stonework”) at the premises.

6- The issues in this proceeding relate to the stonework only. The fence was installed, and Eastwood paid Life Long’s invoice for the fencing in full.

7- Eastwood did not provide Life Long with any site measurements or a plan for the stonework. It was Thomas Hoyle of Life Long who prepared a diagram of the work based on discussions that were held at the site between himself, Ryan Weatherall of Life Long, and Carlo Grandinetti, an officer and director of Eastwood. Mr. Gibson was not involved in these discussions.

8- The plan and an estimate for the interlock were sent to Carlo Grandinetti on September 22, 2017. The estimate was based on square footage and was for installation only. The estimate included the installation of pool coping, interlocking stonework in the patio area, and work on the window well and three (3) stairs. The estimate was for a total of $34,465.00 inclusive of HST.

9- There was no formal written contract between Life Long and Eastwood for the installation of the interlocking stones. The parties agree, however, that the scope of the work was to install interlocking stone, supplied by Eastwood, on a rough base supplied by Eastwood. Eastwood was to supply all stone, electrical lines, and gas line installation.

10- It is not disputed that Life Long started work on the property on October 18, 2017, and completed the work on November 16, 2017.

11- Life Long is claiming the sum of $19,465.00 for the unpaid balance of its invoice for the stonework. Life Long invoiced the stonework on October 26, 2017. The invoice was for the sum of $34,465.00 inclusive of HST. Life Long received payment of the sum of $10,000.00 for the stonework and a further $5,000.00 after it registered a Claim for Lien. The Claim for Lien was registered on December 22, 2017, in the Land Registry Office Number 4, in Ottawa, as Instrument No. OC1961551.

12- The Defendants do not dispute the timelines for the registration of the lien nor the outstanding balance owing to Life Long in the amount $19,465.00. Rather, Eastwood and Mr. Gibson are counterclaiming, seeking damages in the sum of $20,000.00 for delay and deficiencies.

13- The evidence at the reference was provided by affidavit and oral cross-examinations on the affidavits. The plaintiff also filed the transcript of the May 14, 2019 examination for discovery of Eastwood’s representative, Carlo Grandinetti.

14- Life Long filed three affidavits. Brian Weatherall, the chief operating officer of Life Long, provided two affidavits, dated January 5, 2022, and February 11, 2022, respectively. The third affidavit was that of Thomas Hoyle, an officer of Life Long, dated February 11, 2022.

15- Eastwood filed the affidavit of Mario Grandinetti, an officer of Eastwood, dated January 28, 2022.

16- Mr. Gibson filed an affidavit dated January 28, 2022.

17- As this matter predates the application of the Construction Act, the provisions of the Construction Lien Act therefore apply.

Preliminary Motion

18- The plaintiff brought a motion at the commencement of the reference to strike out the first sentence of paragraph 8 of the affidavit of Mario Grandinetti, sworn January 28, 2022. The first sentence of paragraph 8 (“the impugned sentence”) states as follows:

8. As the lien claimant would not come back to fix deficiencies, Eastwood Construction had its forces do much of the work which is outlined in Exhibit B.

Position of the Parties

19- Counsel for the plaintiff argues that this sentence, as well as Exhibit B as attached to the affidavit, should be struck because:

(a) It is a withdrawal of an admission made on behalf of Eastwood at the examination for discovery of one of its officers, Carlo Grandinetti, on May 14, 2019.

(b) Eastwood has not made any attempt to correct or explain the admissions made on discovery nor has this defendant sought leave of the court to introduce the information at trial, pursuant to Rule 31.09(1) of the Rules of Civil Procedure (the “Rules”).[^2]

(c) The document referred to in Exhibit B of Mario Grandinetti’s affidavit was not disclosed in the defendant Eastwood’s affidavit of documents, and leave has not been sought to use the document at trial pursuant to Rule 30.08(1) of the Rules.

20- As indicated above, Carlo Grandinetti was examined for discovery on May 14, 2019, on behalf of Eastwood. Counsel for the plaintiff submits that there were admissions on the record to the effect that:

a. Eastwood had not corrected the alleged deficiencies.

b. Any evidence of deficiencies would be provided by the defendant Paul Gibson.

c. The counterclaim was related to coping and interlock, and not to work related to the pool.

21- The relevant portions of Carlo Grandinetti’s examination for discovery are on pages 20-21, 23-24, and 33-34 of the transcript, and are as follows:

p. 33-34 Questions 142-143:

BY MR. O'CONNOR:

142. Q. Did Eastwood finish he work? Did it finish the project, complete it?

A. No.

Well, let me say that we came back the following summer and we finished the pool house off and the roof on the cabana, yes.

143. Q. Okay. So, I guess I will need those documents, too.

A. In relation to deficiencies, no, Eastwood did not complete them.

p. 20-21 Question 105:

105. Q. Just before we do; sir, you have produced a black binder that your counsel is going through. What is this binder?

A. This binder was prepared by Mario, and I’m assuming it’s just everything that happened on that job.

(OFF RECORD DISCUSSION)

MR. O’CONNOR: There seem to be quite a few things that I haven’t seen before.

MR. DIEGEL: Well, I don’t think the pool stuff is relevant, unless you can tell me why you think it’s relevant, Shawn.

MR. O’CONNOR: Yes, the complaint is about the interaction between the interlock and the pool. So, yes, I need to see the pool stuff.

MR. DIEGEL: It doesn’t even look like this is what they installed.

This may be what they installed, by the looks of it.

THE WITNESS: Is that just a quotation?

Pool suppliers, yeah, he was just getting quotes. Just everything we’ve got in the file there would be quotes and different specifics on pools.

MR. O’CONNOR: There appear to be notes.

MR. DIEGEL: Yes, but they are all on the pool.

MR. O’CONNOR: My understanding is that there is a claim about the pool.

MR. DIEGEL: Well, not a claim. The claim is just in relation to the coping and the interlock.

MR. O’CONNOR: I saw a document indicating that there is a claim in relation to the pool liner, for instance. So, I think everything about the pool is in issue.

MR. DIEGEL: Well, I don’t think it is, but…

p. 23-24 Question 105 cont.:

MR. O’CONNOR: And then I need all of the documents that relate to this counterclaim. I have some, but they are very vague. There is nothing specific, and if there is nothing specific, then tell me there is nothing specific.

MR. DIEGEL: Well, let’s do it this way. Finish off what you can with Carlo, and then we will get you a copy of the relevant stuff out of that binder, and we will see if there are any text messages that are still available.

As far as deficiencies, I think that is probably Paul, not Eastwood.

MR. O’CONNOR: Right, but I don’t have anything from Mr. Gibson, either.

MR. DIEGEL: Well, it may be that he hasn’t done the work.

22- The plaintiff submits that Eastwood’s evidence in the impugned sentence of paragraph 8 of the affidavit of Mario Grandinetti, asserting that Eastwood corrected the alleged deficiencies in the plaintiff Life Long’s work, is in complete contradiction to their evidence given during the examination for discovery of Carlo Grandinetti and constitutes a purported withdrawal of the admission that Eastwood did not in fact correct any deficiencies in the plaintiff’s work. The plaintiff argues that the affidavit of Mario Grandinetti is the first time there is any mention of deficiencies being corrected by Eastwood.

23- Moreover, the plaintiff points out that Mr. Gibson, in his affidavit filed for the reference, has not provided any evidence of the deficiencies. Rather, the only evidence of deficiencies is found in Mario Grandinetti’s affidavit.

24- The plaintiff relies of the decision of the Court of Appeal in Champoux v. Jefremova.[^3] In Champoux, the Court dealt with the withdrawal of an admission in a Response to Request to Admit, and reiterated the three-part conjunctive test with respect to the withdrawal of an admission from Antipas v. Coroneos[^4] and endorsed by the Court of Appeal in Liu v. The Personal Insurance Company.[^5] As stated by Hourigan J.A., at para. 28 of Champoux:

… That test directs courts to first consider whether the admission is one purely of fact, law, or mixed fact and law (since questions of law can be more easily withdrawn than questions of fact), and then apply a three-part conjunctive test regarding when an admission could be withdrawn, being:

(a) Does the proposed amendment raise a triable issue in respect to the truth of the admission?;

(b) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and,

(c) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?

25- The plaintiff argues that the impugned sentence in Mario Grandinetti’s affidavit is a withdrawal of a formal admission on a highly material matter and that the rigorous test for the withdrawal of an admission as set out by the Court of Appeal in Champoux had not been met.

26- The plaintiff maintains that the admission was one purely of fact and that it does not raise a triable issue in respect of the truth of the admission. The plaintiff says there is no reasonable explanation for the withdrawal and Eastwood simply filed an affidavit, without explanation, that contradicts the evidence given on the examination for discovery. Finally, the plaintiff argues that it will suffer non-compensable prejudice if Eastwood is permitted to withdraw its admission, as the plaintiff based its trial preparation and strategy on the admission by Eastwood at the examination for discovery that Eastwood did not correct the deficiencies. The plaintiff emphasizes that in Champoux, the Court of Appeal held that the withdrawal of an admission will result in non-compensable prejudice to a party when that party based their trial strategy on the fact that they had that admission.[^6]

27- Eastwood responds that Champoux is distinguishable in that it deals with the withdrawal of an admission made in a Response to a Request to Admit, and not admissions made on discovery. In any event, Eastwood contends that is not clear from the answer given at Carlo Grandinetti’s examination for discovery that it was in fact an admission that Eastwood did not fix Life Long’s alleged work deficiencies.

28- According to counsel for Eastwood, Carlo Grandinetti’s answer may have been taken out of context as it followed the discussion of issues related to the electrician and other trades. Accordingly, it was argued that the impugned sentence does not constitute a withdrawal of an admission because it was not clear that it was an admission in the first place.

29- Eastwood concedes however, that the answer given at the examination for discovery may have been incomplete, and counsel for Eastwood relies on Rule 31.09 of the Rules in support of the proposition that both Mario Grandinetti’s and Paul Gibson’s affidavits complete the answer given by Carlo Grandinetti on his examination for discovery.

30- Pursuant to Rule 31.09, after an examination for discovery, if the party examined later realizes an answer given on examination was incorrect or incomplete or is no longer correct and complete based on subsequently obtained information, the party must immediately provide the correct or expanded information to the examining party in writing. The written answer then becomes part of the original examination.

31- If the subsequently obtained information is not disclosed or the answer is not corrected, the party cannot use the subsequently obtained information at trial without leave of the trial judge.

32- Rule 31.09 provides:

Duty to Correct Answers

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

(a) was incorrect or incomplete when made; or

(b) is no longer correct and complete,

the party shall forthwith provide the information in writing to every other party.

Sanctions for Failing to Correct Answers

(3) Where a party has failed to comply with subrule (1) or a requirement under clause (2) (b), and the information subsequently discovered is,

(a) favourable to the party’s case, the party may not introduce the information at the trial, except with leave of the trial judge;

33- The defendants assert Mr. Gibson and Mario Grandinetti’s affidavits serve to correct and complete the statement that Carlo Grandinetti made at his examination for discovery as contemplated by Rule 31.09. In the alternative, the defendants seek leave of the court to introduce further evidence at trial to correct and complete Carlo Grandinetti’s answer given on his examination for discovery. It was argued that the defendants did not receive a transcript of Carlo Grandinetti’s examination for discovery until January 2022, and therefore, there was little time to correct and/or complete the answer. In the further alternative, the defendants submit that all the evidence should be allowed in, and that my ruling with respect to the impugned sentence be made at the conclusion of the presentation of the evidence.

34- With respect to the list of deficiencies attached as Exhibit B to Mario Grandinetti’s affidavit, counsel for the defendants argues that, as he is acting for both defendants in this action, the fact that the list is attached to one of the defendant’s affidavits should be sufficient and Eastwood should be permitted to provide evidence of the deficiencies. The fact that the list of deficiencies was not included in Eastwood’s affidavit of documents or attached to Mr. Gibson’s affidavit in chief is procedural only and does not prejudice the plaintiff. The defendants further maintain that the plaintiff was aware of the list of deficiencies as it was included in Mr. Gibson’s affidavit of documents.

Disposition

35- For the reasons that follow, the plaintiff’s motion to strike out the first sentence of paragraph 8 of the affidavit of Mario Grandinetti, sworn January 28, 2022, including Exhibit B, is granted.

36- The Court of Appeal in Champoux delineates the boundaries of a trial judge’s treatment of an admission as follows:

A trial judge has the freedom to interpret what an admission means: Alto Construction Services Ltd. V. Toronto and Region Conservation Authority, 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracity of the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.[^7]

37- Based on the evidence before me and having the freedom to interpret what an admission means, in my view, Carlo Grandinetti’s answer given on his examination for discovery stating that: “In relation to deficiencies, no Eastwood did not complete them,” means exactly what he unequivocally said under oath, i.e. that Eastwood did not complete the deficiencies. In my view, that is the clear meaning of the wording and consistent with the discussion between counsel as reflected in the discovery transcript. I do not accept the submissions on behalf of the defendants that the evidence was taken out of context or that the meaning was unclear.

38- Moreover, I do not consider that the affidavits of Mario Grandinetti and Paul Gibson correct or complete Carlo Grandinetti’s answer given on discovery, nor do I consider that they satisfy the requirements of Rule 31.09.

39- If Carlo Grandinetti’s answer on his examination for discovery in May 2019 was incorrect or incomplete, Rule 31.09 is clear. The answer must be corrected or completed immediately in writing. This was not done, and, in my view, this cannot be done years later, at trial, after the witnesses have provided their evidence in chief by way of affidavit. Not ordering the transcript of the examination for discovery until the eve of trial is not an explanation or excuse for delay in completing or correcting an answer given on an examination for discovery.

40- Pursuant to Rule 31.09(3), if the subsequently obtained information is not disclosed or the answer not corrected, the party cannot use the subsequently obtained information at trial without leave of the trial judge. I exercise my discretion to refuse leave.

41- In my opinion, the impugned sentence of Mario Grandinetti’s affidavit simply contradicting the evidence given on the examination for discovery, without explanation, is tantamount to the withdrawal of an admission, on a highly material issue.

42- I accept the submissions of counsel for the plaintiff that the plaintiff based its trial strategy on the admission by Eastwood at the examination for discovery that it did not correct the deficiencies. Granting leave to Eastwood, under the circumstances, would result in non-compensable prejudice to the plaintiff and will not be allowed.[^8]

43- Rule 30.08(1)(a) deals with the failure to disclose a document in an affidavit of documents, and provides as follows:

30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,

(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge.

44- As stated previously, Eastwood did not disclose the list of deficiencies in its affidavit of documents and is now seeking to use the list of deficiencies at trial.

45- Rule 30.08 is clear. If a document is not disclosed in the party’s affidavit of documents, the party may not use it a trial without leave of the trial judge.

46- For the following reasons, I decline to grant leave to Eastwood to use Exhibit B at trial:

(a) Schedule B was not disclosed in Eastwood’s affidavit of documents as required by the Rules.

(b) Not only is the document not referred to in Eastwood’s affidavit of documents, but it contradicts Carlo Grandinetti’s answer at discovery which was not corrected as required by Rule 31.09.

(c) Rules 31.09 and 30.08 enable parties to know before the trial begins what evidence may be presented and therefore avoid “trial by ambush”. The Rules also enable the parties to plan their trial strategies based on the admissions made and the documents disclosed.

(d) I do not accept the submissions of the defendants that, for all intents and purposes, it is of little import whether it was Eastwood or Paul Gibson that disclosed the list of deficiencies in their affidavit of documents. The goal of Ontario’s civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits.[^9] To achieve that goal, parties must comply with their document disclosure and production obligations, in accordance with the Rules of Civil Procedure.

Issues

47- Moving to the claim and counterclaim, the issues are:

a. Should the defendant Eastwood be ordered to pay to the plaintiff the sum of $19,465.00?

b. Is there any basis for a counterclaim?

c. Should there be a charge on any holdbacks required to be retained pursuant to the Construction Lien Act?

The Plaintiff’s Claim

48- The Plaintiff is claiming the sum of $19,465.00, being the unpaid balance of Life Long’s invoice to Eastwood dated October 26, 2017.

49- I accept the evidence of Mr. Weatherall of Life Long that Mario Grandinetti repeatedly advised Life Long in November and December 2017 that Life Long’s work was satisfactory, and that it’s invoice would be paid in full. It was only when Eastwood failed to pay Life Long in full that Life Long registered a lien on the title of the property.

50- According to Mr. Weatherall, Mario Grandinetti advised him that as a result of the lien, Mr. Gibson would not pay the balance of the invoice.

51- Eastwood does not dispute the fact that Life Long carried out the stonework, nor does it dispute the agreed price for the stonework by Life Long. Eastwood agrees that Life Long completed its work on November 16, 2017, and that the unpaid balance of Life Long’s invoice of October 26, 2017, is in the sum of $19,465.00. Eastwood also agrees that the lien was preserved and perfected in time.

52- Mario Grandinetti’s evidence is that after Life Long left the job in November 2017, he spoke to the representative of Life Long several times, indicating that Life Long would be paid in full if they agreed to return and fix certain deficiencies, which Life Long refused to do.

53- Based on the evidence before me, I find that:

(a) Life Long was entitled to a lien by virtue of having performed the work.

(b) The lien was preserved and perfected in a timely fashion.

(c) Eastwood owes the balance outstanding for the stonework in the sum of $19,465.00 to Life Long.

The Counterclaim

54- In their pleadings, Eastwood and Mr. Gibson seek damages in the sum of $20,000.00, alleging that Life Long’s work was deficient and their failure to follow the plans and specifications of the project caused delays.

Delay

55- According to Mr. Gibson, he met with Tom Hoyle of Life Long and Carlo Grandinetti at the job site on September 11, 2017. Mr. Gibson stated that both Life Long and Eastwood were aware that he wanted the work completed expeditiously and prior to the start of winter freeze-up so that the backyard and pool could be used the following spring. It is Mr. Gibson’s evidence that Tom Hoyle indicated at that time that Life Long could complete the work within two weeks of receiving the stone on site.

56- Overall, Mr. Gibson indicated that the job took much longer than promised and pointed to the following factors for the delay:

(a) When the job was set to start, Ryan Weatherall complained that the stone on site would be too difficult to work with. Therefore, Mr. Gibson agreed to have the stone sent back and another type of stone was ordered.

(b) It was not clear to Mr. Gibson what plan was being followed for the stonework. According to Mr. Gibson, it was only after the stonework had started at the beginning of October that he realized that Life Long was working from a plan that Life Long had created. Mr. Gibson had not approved nor signed off on this plan. Rather, Mr. Gibson and his wife had created another plan and there was overall confusion as to what plan was being followed by Life Long’s work crew. This confusion led to problems with the stairs that eventually had to be redone.

57- Ultimately, Mr. Gibson indicated that he was unable to use his backyard or pool until July 2018.

58- Although Mr. Weatherall agrees that the intent was to get the work done quickly, he denies that Life Long gave any assurances or guarantees to either Eastwood or Mr. Gibson on a timeline, particularly since weather is a factor to be considered when working in the fall and he did not want to interfere with the relationship between Eastwood and Mr. Gibson.

59- In addition, it is Mr. Weatherall’s evidence, corroborated by Carlo Grandinetti’s testimony at his examination for discovery, that no work schedule was ever communicated to Life Long by Eastwood. Mr. Grandinetti stated the following at his examination for discovery:

Questions 107-112:

107. Q. Okay. When you say that typically you have schedules and mandates, what physically does that look like?

A. Well, it’s a timeline schedule, and just a project summary on a day-to-day basis.

108. Q. Is that electronic or is it pen-and-ink?

A. Pen-and-ink typically.

109. Q. Is that something you did on this job?

A. No, we didn’t do it on this job, because I was there – – hired to help Paul Gibson out to push the job along.

110. Q. But this was an Eastwood job.

A. M’hmm.

111. Q. Okay. So, is there a reason why Eastwood didn’t follow its normal practice in recording the timetable – – –

A. Because it was such a small job. We were supposed to be in and out in two weeks, and it went longer. So, probably that would be the reason why we never had a schedule on this job.

When we hired Life Long as the contractor, they told us that it was going to be ten days, and we figured they would be just in and out, and at the end of the day there was no schedule for this project.

112. Q. So, Life Long wasn’t given a schedule.

A. No, because there wasn’t one.

60- While Life Long acknowledges that there were delays in completing the stonework, it is the plaintiff’s evidence that the delays were caused by Eastwood’s poor organization on the project. In particular:

(a) Eastwood did not advise Life Long that they had been chosen to do the stonework until September 19, 2017.

(b) Life Long could not start work until the material arrived on site.

(c) Life Long did not receive timely responses from Eastwood to their calls, emails, and text messages.

(d) There was a misunderstanding between Eastwood and Mr. Gibson about the plan that was drafted by Life Long. Further, it was not until mid-October 2017, when Mr. Gibson indicated that he was not happy with the stair set-up, that Life Long learned that Eastwood never provided a copy of Life Long’s plan to Mr. Gibson. Mr. Hoyle emailed a copy of the plan to Mr. Gibson on October 19, 2017.

(e) As the project wore on, Mr. Gibson indicated that the plan was not representative of what he wanted or had envisioned and planned with Eastwood. The plan was eventually heavily modified. The stairs were dismantled and rebuilt which included lifting all the interlock around the stairs and regrading the stairs to accommodate the size and to adjust the elevations. Extensions were also made to the pool deck which added time to the project.

(f) Eastwood failed to attend meetings with Life Long for on-site clarifications when deliveries were delayed, and subcontractors did not show up.

(g) Eastwood did not complete the underground electrical line installation until mid-November 2017, which prevented the installation of the steps and the landing near the house.

(h) The pool area had lighting that had to be installed before the stonework could be completed.

(i) Eastwood never advised Life Long that the pool installers would not install the pool liner until the stonework was completed.

61- According to Ryan Weatherall, Mr. Gibson misstated Life Long’s concerns about the stone that had been purchased. Mr. Weatherall stated that the stone purchased was acceptable for part of the work and was in fact used. However, the stone could not be used for the banding as it would have to be cut with a masonry saw which would have left an irregular and unattractive joint finish. Hence, the request for different stone for part of the project.

62- Based on the evidence before me, I accept that the project took longer than Mr. Gibson expected. Although he indicated that he was unable to use his backyard and pool area until July 2018, there is no evidence to support the allegation that Life Long caused the delay and, just as importantly, no evidence that would enable the court to assess the quantum of Mr. Gibson’s claim for the consequences of delay.

63- I accept Life Long’s evidence as outlined in paragraph 60 above with respect to the causes for the delays and find that on a balance of probabilities, the delays were caused by Eastwood and not by Life Long.

64- Furthermore, I prefer Mr. Weatherall’s evidence, supported by Carlo Grandinetti’s evidence at his examination for discovery, that no firm timeline had been established for the completion of Life Long’s work. Moreover, I am not persuaded that there was any delay sufficient to constitute a breach of contract.

65- I therefore deny the counterclaim for damages for delay.

Deficiencies

66- In their Counterclaim, Eastwood and Mr. Gibson sought damages in the sum of $20,000.00, alleging that Life Long failed to follow the plans and specifications and that its work was, as a result, deficient. The quantum of damages sought was reduced to $15,425.75 at trial.

67- According to both Mr. Gibson and Mario Grandinetti, there were various deficiencies with Life Long’s work, which Life Long refused to acknowledge or correct. Mario Grandinetti’s evidence is that Life Long refused to return to the premises to fix deficiencies after being asked several times to do so.

68- Mr. Grandinetti attached invoices to his affidavit to confirm certain costs allegedly associated with Life Long’s delays and deficiencies. The invoices are for the supply and installation of lighting and other electrical work in the sum of $669.24, for labour and material to remove creases in the pool liner in the sum of $1,130.00, and an additional invoice without a description of the work done in the amount of $1,757.15. Mr. Grandinetti also indicated that Life Long either damaged stones and pavers while on site or used damaged stones and pavers in their work.

69- According to Eastwood, because of the delay and deficiencies, the charge back to Life Long, inclusive of HST, is in the sum of $15,425.75.

70- Life Long denies that they were told of any deficiencies or asked to return to the site either by Eastwood or Mr. Gibson. It is Life Long’s evidence that it did not refuse to return to the site, but rather they were never asked to return to the site.

71- It is to be noted that according to the evidence of both Life Long and Eastwood, Life Long was not responsible for electrical work nor anything to do with the installation of the pool. With respect to the allegation of damaged stone, Life Long’s evidence is that some of the stone used was tumbled stone, which is a product that is put in a tumbler, giving the stone a more antiqued, roughened look.

72- The uncontradicted evidence is that no list of deficiencies was provided by Eastwood at any time. Rather, it was only after the plaintiff delivered its affidavit of documents in 2019 that Mr. Gibson provided a list of deficiencies, dated August 15, 2018, in his affidavit of documents.

73- For the following reasons, I deny the Counterclaim for damages for alleged deficiencies:

(a) Based on the evidence before me, or lack thereof, I find that on a balance of probabilities, Life Long was not advised of deficiencies in their work prior to receiving a list of deficiencies from Mr. Gibson after the commencement of this litigation. There is no prior notice of the alleged deficiencies. Moreover, there is no corroborating evidence from Mr. Gibson or Eastwood in the form of records of telephone calls, emails or text messages, asking Life Long to return to the site after they completed their work. Nor is there any indication of what the alleged deficiencies were. It is noteworthy that even at the discovery stage the plaintiff was seeking information and disclosure related to the counterclaim (see paragraph 21 above).

(b) I find Mr. Weatherall to be credible, and accept Mr. Weatherall’s and Mr. Hoyle’s evidence that they did not refuse to return to the site but rather were not asked to do so.

(c) There is no evidence that Eastwood performed any rectification of Life Long’s alleged deficiencies. In fact, Carlo Grandinetti in his examination for discovery said that they did not. Moreover, Mr. Gibson’s affidavit does not speak to any rectification of deficiencies or incurring of any expenses in that regard.

(d) As a result of my ruling at the preliminary motion, there is no evidence before the court to support the Plaintiffs by Counterclaim’s claim for damages for the deficiencies in the sum of $15,425.75.

Holdback

74- Section 23(1) of the Act provides as follows:

Personal liability of owner

23(1) Subject to subsections (2), (3) and (4), an owner is personally liable for holdbacks that the owner is required to retain under this Part to those lien claimants who have valid liens against the owner’s interest in the premises.

75- Section 22(1) of the Act mandates the retention of 10 percent of the price of services or materials as they are actually supplied until all lien rights have been satisfied, discharged, or have expired.

76- Mr. Gibson gave evidence that he is an experienced businessman and has been involved in hundreds of construction jobs. He indicated that he has a general understanding of the 10 percent holdback provisions under the Act.

77- Although neither defendant provided evidence as to the value of the contract between Mr. Gibson and Eastwood, Mr. Gibson stated that he paid out over $165,000.00 to Eastwood for the project. Mr. Gibson’s evidence is that he held back approximately $18,000.00.

78- Mr. Gibson acknowledged that Ryan Weatherall notified him of the lien between Christmas and New Years in 2017. No payments were made to Eastwood after the registration of the lien.

Conclusion

79- Based on the evidence before me, and for the reasons outlined above,

a. I find that Life Long has a good and valid lien for $19,465.00 against the lands described as follows:

Description of premises:

PIN 14526 – 1766 LT

Description Lot 48, Plan 4M1336, Ottawa

Address 704 Gallica Court, Ottawa

b. I find that Paul and Kelly Gibson are the owners of the lands described above. As owners, I find that they are personally liable under section 23(1) of the Act and jointly and severally liable for the sum of $18,000.00, being the amount of the holdback plus interest before and after judgment in accordance with the Courts of Justice Act.[^10]

c. 1414610 Ontario Inc., operating as Eastwood Construction, is ordered to pay Life Long the sum of $19,465.00 plus interest before and after judgment in accordance with the Courts of Justice Act.

d. Eastwood’s and Mr. Gibson’s Counterclaim is dismissed.

80- If the parties cannot agree on costs, they may file written submission not exceeding two pages, exclusive of their respective bills of costs, to my office. The plaintiff’s costs submissions shall be filed within 10 days of the release of this decision. The costs submissions of the defendants shall be filed within 10 days thereafter.

Marie T. Fortier

Associate Justice Fortier

Date: December 6, 2022

COURT FILE NO.: CV-18-00075349-R000 DATE: 2022-12-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LIFE LONG LANDSCAPING INC. v. 1414610 ONTARIO INC. et al

BEFORE: Associate Justice M. Fortier COUNSEL: Shawn O’Connor, for the Plaintiff Martin Diegel, for the Defendants

REASONS FOR JUDGMENT

Associate Justice M. Fortier

DATE: December 6, 2022

[^1]: R.S.O. 1990, c. C.30 [^2]: R.R.O. 1990, Reg. 194. [^3]: 2021 ONCA 92. [^4]: (1988), 1988 10348 (ON SC), 26 C.P.C. (2d) 63 (Ont. H.C.). [^5]: 2019 ONCA 104, 89 C.C.L.I. (5th) 195. [^6]: Champoux, at para. 35. [^7]: Champoux, at para. 34. [^8]: Champoux, at para. 5. [^9]: Rules of Civil Procedure, r. 1.04(1). [^10]: R.S.O. 1990, c. C.43.