Court File and Parties

Court File No.: CV-21-654659 Date: March 7, 2023

Ontario Superior Court of Justice

In the Matter of: the Construction Act, R.S.O. 1990, c.C.30

Between:

BEN-AIR SYSTEMS INC. Plaintiff Jonathan Frustaglio for the plaintiff, Tel.: 905-695-5500, Fax: 905-695-5501, Email: jfrustaglio@sutherlaw.com,

-and-

2664835 ONTARIO INC. and CASTLEMORE PLUMBING LIMITED Defendants Gregory N. Hemsworth for Castlemore Plumbing Limited; Tel.: 905-850-7000, Fax:: 905-850-7001, Email: ghemsworth@csllp.ca.

Heard: August 9, 10, 11 and 31 and October 12, 2022.

Associate Justice C. Wiebe

Reasons for Judgment

I. Introduction

[1] In this reference the plaintiff, Ben-Air Systems Inc. (“Ben-Air”), in its written closing submissions, claimed a lien in the amount of $185,089.24 plus HST ($209,150.84) plus damages for breach of contract in the amount of $28,100 plus HST ($31,753). In its oral closing, it appeared that Ben-Air revised that position to claim only a lien in the amount of $94,173.01.

[2] In its written closing submissions, the defendant, Castlemore Plumbing Limited (“Castlemore”) claimed a discharge of the Ben-Air claim for lien, a dismissal of the Ben-Air action, a return of the Castlemore posted security and an order that Ben-Air pay Castlemore $41,184.01 in damages for the costs to complete the work. In its oral closing, Castlemore appeared to revise that position, and urged me to order a discharge of the Ben-Air claim for lien, a return of the security, a dismissal of the action and counterclaim, and no damages. The claim as against the other defendant, 2664835 Ontario Inc.(“266”), has been discontinued.

II. Background

[3] I begin with a summary of the facts of this case that are undisputed.

[4] The project in question was the construction of a huge, commercial cannabis growing facility at 425 Alness Avenue, Toronto. I was told that the entire building was to span 120,000 square feet. The owner, 266, planned to construct this building in two phases. The first phase covered about 45,000 square feet of the main floor, and phase two the remainder of the main floor and the basement. The reason for these two phases was to have the part of the facility, phase 1, ready for growing operation for the purpose of attracting further investment.

[5] At some point, 266 hired JNJ National Contracting Inc. (“JNJ”) as the general contractor for the project. On April 12, 2019 JNJ hired Castlemore to do the mechanical scope of the project. This contract required the completion of the mechanical work in nine months between April 13, 2019 and January 12, 2020.

[6] On May 16, 2019 Castlemore entered into a subcontract with Ben-Air to have Ben-Air do the sheet metal portion of Castlemore’s scope. The subcontract, embodied in a purchase order issued by Castlemore (PO 8916-562), was fixed price, with the price being $733,250 plus HST. The contract also included the Ben-Air quotation. I will call this subcontract the “Subcontract.” Ben-Air claims that its work had an eight month schedule divided into the same two phases. Castlemore denies this.

[7] Ben-Air’s work started in June, 2019 and proceeded. There were significant delays. A major delay was the total shutdown of the project caused by the Covid 19 pandemic that ran from mid-March, 2020 to the end of May, 2020. There were other issues. JNJ did not pay Castlemore a large amount of money and did not issue schedules. Delays and frustration ensued. Ben-Air, a non-union firm, did not pay its workers for idle time. As a result, on several occasions Ben-Air relocated temporarily to other projects where there was work.

[8] There were six approved changes concerning Ben-Air. Five were for extras, and one was a credit on account of the deletion of the basement from the Ben-Air scope. In each case, Castlemore got Ben-Air to quote on the change, got approval from JNJ for the change and issued a purchase order to Ben-Air.

[9] Towards the end of 2020 Ben-Air was approaching the end of its work. On October 28, 2020, at Castlemore’s request, Ben-Air issued a quotation for a large sheet metal extra that had been proposed by JNJ in CCN-M16. The Ben-Air’s quotation was for $140,377.60. It was later approved.

[10] On October 31, 2020 and November 6, 2020 Mr. Cumming, the Ben-Air president, started sending email requests for schedules. Castlemore did not provide any. It claims there were none.

[11] Towards the end of November, 2020 JNJ started applying epoxy to large areas of the main floor. As a result, no other work could be done for some time.

[12] In early December, 2020 Mr. Cumming and Anthony Romano, the president of Castlemore, talked. Mr. Romano informed Mr. Cumming of JNJ’s huge non-payment and Castlemore’s difficult position. The two discussed an agreed-upon termination of the Subcontract. Mr. Romano alleges that the two orally agreed to such a termination at that time on terms whereby Ben-Air would be paid only the holdback on the invoices Ben-Air had rendered to that date, about $60,000. Ben-Air denies this agreement.

[13] On December 7, 2020 Ben-Air left the site. It alleges this was temporary because, again, there was no work for them at that time. Castlemore alleges that this was a permanent departure and that this was confirmation of the oral agreement alleged by Mr. Romano.

[14] Castlemore began completing Ben-Air’s work, including alleged deficiencies. It also eventually worked on CCN-M16.

[15] On December 14, 2020 Mr. Cumming emailed Mr. Romano proposing to meet on site to determine what work Ben-Air had done and not done, with a view to an agreed Subcontract termination and payment for unpaid work. Mr. Romano agreed to meet.

[16] The site meeting happened on December 15, 2020. Two groups of men, one from Ben-Air and one from Castlemore, attended on site. Two from each group walked the project site with drawings each group brought to the site, and marked off on their drawings what Ben-Air work was left to be done. Each side alleges that the other agreed with their markings made at this meeting. Castlemore also alleges that Ben-Air photographed the Castlemore drawings. Ben-Air denies this. None of these alleged photographs were produced.

[17] One of the Ben-Air attendees on site was its estimator, Frank Atzori. He prepared an estimate of the Ben-Air unfinished work that totaled $28,100 plus HST. Castlemore never did an estimate of the unfinished Ben-Air work.

[18] On December 29, 2020 Mr. Cumming emailed Mr. Romano and David Brown, the Castlemore operations manager, the estimate for the unfinished work and other accounting information. The accounting sheet showed an “amount outstanding” of $186,951.80. In the covering email Mr. Cumming asked for payment of that amount in the event of an agreed upon Subcontract termination. However, Mr. Cumming also stated that there were four “other charges not yet billed” that totaled $101,750. He summarized these charges as concerning extras for making holes in panels, supply of charcoal filters, delay and supply of VAV cables.

[19] On December 31, 2020 Mr. Romano sent an email in response. He raised the alleged oral termination agreement of early December, 2020, and stated that the Ben-Air accounting was in violation of that agreement. He then said that there would be no payment until there was a final accounting upon completion.

[20] Mr. Cumming emailed back the same day, December 31, 2020. He denied Mr. Romano’s alleged oral termination agreement, and stated that, if there was to be no agreed Subcontract termination and payment, Ben-Air remained willing to complete. He asked for a schedule.

[21] On January 5, 2021 Mr. Cumming delivered four invoices for the extra charges he referred to in his December 29, 2020 email: invoice 12293 in the amount of $25,000 plus HST for “making holes in panels”; invoice 12294 in the amount of $1,250 plus HST for “charcoal filters”; invoice 12295 in the amount of $73,000 plus HST for “delay claims”; invoice 12296 in the amount of $2,500 plus HST for “VAV’s cable.”

[22] On January 5, 2021 Mr. Brown send a responding email. He went through each extra charge and denied them. He described the Ben-Air estimate of the unfinished work as a gross underestimation. He reiterated Mr. Romano’s oral termination agreement, and Mr. Romano’s message that if Ben-Air would not take the holdback of $60,936 on its existing invoices, the matter would have to await a final accounting on completion.

[23] On the same day, January 5, 2021, Ben-Air registered a claim for lien in the amount of $288,701.80. On January 12, 2021 Ben-Air commenced this action purporting to perfect its lien, and registered a certificate of action. On February 8, 2021 Castlemore delivered a statement of defence and counterclaim. Its counterclaim included a claim for $500,000 in damages.

[24] Castlemore completed Ben-Air’s scope with its own forces. Mr. Brown prepared a ledger of what he said was Castlemore’s labour and material costs to complete the Ben-Air scope. He said this ledger did not include the CCN-M16 work. The ledger totals $125,926.33 plus HST.

[25] On March 27, 2021 Ben-Air obtained a judgment of reference from Justice A. Ramsay referring this action to a master for trial. I issued an order for trial on April 12, 2021. I became seized of the reference at the first trial management conference on June 14, 2021 and made orders for interlocutory steps. There was another trial management conference on October 21, 2021.

[26] At the third trial management conference on November 29, 2021 I was advised that Castlemore had made a payment of $117,619.49, thereby reducing the Ben-Air claim for lien by that amount. At this conference, I scheduled a five day, videoconference trial to take place on August 9, 10, 11, 12 and 31, 2022. In advance of the trial, Mr. Hemsworth delivered a roll of marked up, original drawings to me.

[27] The trial hearing proceeded on the scheduled days. Ben-Air called five witnesses, namely Mr. Cumming, Mr. Atzori, and three other Ben-Air employees - Scott Langford, Peter Chernets and Cody Allison-Last. Castlemore also called five witnesses, namely Mr. Romano and Mr. Brown and three other Castlemore employees - Jason Thatton, Jonathan Millar and Andrew Best.

[28] On the day of the closing oral argument, and having received, read and digested the parties written closing submissions, I departed from convention and started by giving counsel my preliminary view of the outcome of the case. Counsel then requested an adjournment to see whether they could settle the case. The closing argument was adjourned to October 12, 2022. The parties could not settle, and the closing argument proceeded on October 12, 2022.

III. Issues

[29] ISSUES

[30] Based on the evidence and submissions, I find that the following are the issues to be determined:

a) Did Castlemore repudiate the Subcontract? b) Is Ben-Air entitled to be paid its January 5, 2021 invoices? c) What are the resulting damages?

IV. Witnesses

[31] Before I analyze the issues, I will comment on the credibility of the witnesses. There were huge credibility issues with most of the witnesses I saw in this trial.

[32] First a comment about the affidavits for evidence-in-chief from both sides. All of the Ben-Air affidavits and the affidavits of Messrs. Romano and Brown contained the standard opening paragraph for motion affidavits, namely the alert about the affidavit containing hearsay evidence. This was a trial hearing, and I did not give leave to depart from the hearsay rule. This showed me that both sides, but Ben-Air in particular, were not at all careful in preparing these affidavits. It put me on alert as to other potential failings in the evidence.

[33] Mr. Cumming was the main witness for Ben-Air. There were significant credibility issues with his evidence. His evidence concerning the January 5, 2021 extra invoices was quite problematic. In cross-examination he was caught in contradictions. Concerning the $25,000 extra for making holes in the panels, Mr. Cumming was shown his evidence at discovery and had to admit that Ben-Air agreed to absorb that cost, namely giving Castlemore “a favour.” Concerning the VAV supply, he again admitted agreeing to pay the supplier and did pay it, and then changed his mind in December, 2020 and billed for this extra. He gave the same evidence about the charcoal filters. These contradictions made Mr. Cumming appear as a man without integrity.

[34] Other parts of Mr. Cumming’s testimony and the testimony of other Ben-Air witnesses raised further concerns about Mr. Cumming’s integrity. In cross-examination he admitted not fulfilling a key discovery undertaking, namely the undertaking to produce the full-size original of the drawings Ben-Air alleged its personnel marked up at the site meeting of December 15, 2020. Undertakings are solemn promises that need to be fulfilled. It also came out during the cross-examination of the other Ben-Air witnesses that Mr. Cumming was consistently involved in the preparation and swearing of their affidavits, no doubt thereby significantly impacting this evidence. It seemed as if Mr. Cumming was capable of doing whatever was necessary to suit his purpose.

[35] Mr. Cumming also lacked corroboration for key parts of his evidence. Concerning the January 5, 2020 delay claim extra, he admitted having produced no time sheets to support the labour portion of the claim, which is the largest part of the claim. He admitted having no backup for the material cost portion of the claim. He admitted creating the delay claim and deriving the amount at the end of December, 2020 and the beginning of January, 2021. In the end, I had trouble believing anything Mr. Cumming said that was not corroborated.

[36] Ben-Air’s second witness was Mr. Atzori, the estimator. He remains in Ben-Air’s employ, which raised a concert about bias. He discussed the contract price (which he estimated), changes such as the basement credit (which he also estimated), the CCN-M16 extra estimate (which he created) and the Ben-Air estimate of its uncompleted work, which he said he prepared with Mr. Cumming. His affidavit contained hearsay evidence, which I ignored. Mr. Atzori had credibility issues. He was uncomfortable throughout his cross-examination. He was forced to admit using lower labour rates for credits than for extras. In re-examination, he tried to explain this difference with the statement that extras required more work per unit; but he did not explain why or how much a reasonable difference was. On the critical issue of his estimate of the Ben-Air unfinished work, Mr. Atorzi wavered badly. When the labour per unit of material Mr. Atzori used for CCN-M16 was applied to the materials he included in his estimate of the unfinished work, the result showed a gross underestimation of the unfinished labour hours. This undermined Mr. Atzori’s credibility.

[37] Ben-Air also produced affidavits sworn by Scott Langford, Liandros Kouroumalos, Peter Chernets and Cody Allison-Last. I will deal with them as a group. All were employees of Ben-Air, again raising the natural concern about bias. Their affidavits all contained hearsay evidence, which I ignored. However, the cross-examinations of these individuals undermined the credibility of their affidavits completely. The affidavits were all similar in structure and content. It came out in cross-examination that Mr. Cumming had been intimately involved in the creation of these affidavits, particularly as they concerned delay. For instance, Mr Langford used the words, “critical path,” in his affidavit, but admitted in cross-examination not knowing what it meant. Mr. Kouroumalos used the words, “grinding hault,” in his affidavit, but admitted in cross-examination that these were not his words. Mr. Chernets stated in cross-examination that he gave the information for his affidavit to Mr. Cumming, who prepared the affidavit and gave it to Mr. Chernets for swearing. Mr. Allison-Last stated the same about his affidavit. I came away with the view that these affidavits were nothing more than statements from Mr. Cummings. I only trusted the evidence given by these witnesses in cross-examination, as they all appeared forthright at that point. This cross-examination evidence, however, was limited in scope.

[38] Castlemore had equally huge issues of credibility. A major issue was Exhibit 3. Mr. Hemsworth delivered a role of 14 full-size mechanical drawings to me in advance of the trial. During the cross-examination of Mr. Cumming these were entered as Exhibit 3. I was told by Messrs. Hemsworth, Romano and Brown that these were the drawings Casltemore brought to the December 15, 2020 site meeting and were marked up there. These drawings were put to all the Ben-Air witnesses who did not recognize them. In the affidavits of Messrs. Romano and Brown, these drawings were described as the marked up Castlemore drawings. However, during the cross-examination of Jonathan Millar, one of the Castlemore persons who attended the site meeting and marked up the drawings, Mr. Millar stated to everyone’s amazement that these were not the marked up drawings. They were the drawings Castlemore used during completion to track the Ben-Air scope. Exhibit 3 was not referred to again and the real marked Castlemore drawings were never produced. This episode showed me that Castlemore was at minimum profoundly sloppy in its work. No one had taken the time or care to review these drawings with the persons who actually marked up the Castlemore drawings on December 15, 2020 before submitting the drawings as a trial exhibit. My perception of Castlemore’s overall case was negatively coloured, as I was left wondering what other Castlemore evidence I could trust.

[39] Castlemore’s main witness was Mr. Romano. He had many credibility issues. The Exhibit 3 fiasco seriously discredited Mr. Romano, as he insisted repeatedly that these were the marked up drawings. But there was a pattern of unreasonableness to Mr. Romano’s evidence. He insisted that he made an oral agreement with Mr. Cumming on or about December 7, 2020 whereby Ben-Air would end its work in return for being paid the holdback on its existing invoices of about $60,000. This alleged oral agreement was entirely one-sided in favour of Castlemore, and there was no corroboration for it. In fact, his own conduct contradicted this position, as Mr. Romano agreed to meet with Ben-Air on site on December 15, 2020 to assess the state of Ben-Air’s completion. There was no reason for this meeting had there been the oral agreement Mr. Romano alleged. Mr. Romano had no explanation for his attendance at this meeting. Furthermore, Mr. Romano insisted that Castlemore never had a schedule to give to Ben-Air. It seemed incredible that on a project of this size and complexity, neither the general contractor nor the mechanical subcontractor, Castlemore, had a schedule at any time. If so, both were ill-equipped for the job.

[40] Castlemore’s second witness was Jason Thatton. He is a Castlemore sheet metal worker. His affidavit was brief. It concerned Mr. Thatton’s work of completing Ben-Air’s scope. I found Mr. Thatton a credible witness. In cross-examination, he was forthright and clear. Interestingly, he admitted that the majority of his work was on deficiencies and CCN-M16, but mostly the latter.

[41] Castlemore’s third witness was Jonathan Millar, an HVAC supervisor. There were minor credibility issues with him. He seemed to have an animus against Ben-Air, particularly Mr. Langford. Mr. Millar said this came from previous experience with Ben-Air. He seemed combative and argumentative when challenged on his assessment that Ben-Air was only 70% to 75% complete. Yet, it was Mr. Millar who exposed forthrightly the Exhibit 3 fiasco, and conceded that Ben-Air’s marked up drawings may have been used by both sides. I found him on balance believable.

[42] Castlemore’s next witness was Andrew Best, a Castlemore foreman on the project. His affidavit was brief and accused Ben-Air of poor pace and quality without detail. In cross-examination, he was forthright in admitting limitations to his observations, such as the fact that he was the plumbing foreman who did not supervise Ben-Air. His evidence was of little utility.

[43] Castlemore’s last witness was its other key witness, Mr. Brown. He had credibility issues. The Exhibit 3 fiasco discredited Mr. Brown in particular as he deposed in his affidavit at length that he attended the December 15, 2020 site meeting, that these drawings were the ones Castlemore marked up at that time, and that these drawings were agreed to by both sides and photographed by Ben-Air. I got the impression that it was Mr. Brown who picked the wrong drawings that led to the fiasco. Mr. Brown also had problems with another key part of his evidence. He was the one who deposed as to Castlemore’s completion costs. He said he kept a ledger in this regard and produced it. Yet, he conceded that he was not careful in his ledger to break out the work done on deficiencies from the completion work. He insisted that the ledger did not contain work done on CCN-M16; but the corroboration for that assertion was thin. On the other hand, there were moments in Mr. Brown’s cross-examination where he showed condor. For instance, he accepted that Ben-Air was not unreasonable in leaving the site when there was no work. However, on balance, I found Mr. Brown not a careful witness, and I struggled to accept his uncorroborated evidence.

[44] Therefore, I decided to determine conflicts in the evidence as between Messrs. Cumming, Romano and Brown based primarily on what was corroborated and what was reasonable. As for Messrs. Atzori, Thatton and Millar, I gave their evidence appropriate weight issue-by-issue.

V. Analysis

a) Did Castlemore repudiate the Subcontract?

[45] There is no issue that the parties had an enforceable Subcontract embodied in Purchase Order 8916-562 whereby Ben-Air was to do the sheet metal work in the Castlemore scope for a fixed price of $733,250 plus HST. The contract also included the Ben-Air quotation. There is no dispute that in the course of Ben-Air’s work, Castlemore issued five change orders for extras and one change order for a credit. A major issue is whether Castlemore repudiated this Subcontract by its conduct in December, 2020.

[46] Justice Perell aptly summarized the law of construction contract repudiation in his decision in D & M Steel Ltd. v. 51 Construction Ltd., 2018 ONSC 2171 at paragraphs 45 to 56. In paragraph 45, His Honour discussed contract repudiation by the owner. This discussion applies to Castlemore in this case, as Castlemore was the payor of Ben-Air. This is what His Honour stated:

• Owner breach: if the owner without justification ceases to make required payments under the contract, cancels it, or through some act without cause makes it impossible for the contractor to complete its work, then the owner has breached the contract and it has no claim for damages, and the contractor is justified in abandoning the work and the contractor is entitled to enforce its claim for lien to the extent of the actual value of the work performed and materials supplied up until that time, and the court may award the innocent contractor damages for breach of contract or damages on a quantum meruit basis in lieu of or in addition to damages for breach of contract.”

[47] In paragraphs 51 to 53, His Honour discussed contractor breach on account of deficiencies. He stated that “mere bad or defective work or insignificant non-completion will not, in general, entitle an owner to terminate a contract, but the owner will have an obligation to pay for the work and make a claim for damages for the defective work.” Furthermore, the contractor is entitled to correct its own deficiencies, and failure by the owner to give that opportunity will be fatal to the owner’s back-charge for correction costs. Only where the defective work is so severe as to amount, in substance, to a failure or refusal to carry out the contract work will the owner be entitled to terminate the contract. I will apply these principles to this case.

[48] In this case, there is no dispute that Castlemore took over the completion of Ben-Air’s scope of work in its entirety starting November 30, 2020 and the beginning of December, 2020. There is no dispute that Castlemore did this with the intention of completing that scope along with the CCN-M16 work. Mr. Thatton made that clear in his evidence. Castlemore gave no notice to Ben-Air that it was doing this. The issue then is: was Castlemore justified in taking over the Ben-Air scope like this?

[49] Castlemore gave two explanations for this conduct. First, there was the alleged oral contract Mr. Romano said he reached with Mr. Cumming in early December, 2020 whereby Ben-Air agreed to end its work and get paid the $60,000 holdback on its existing invoices. The date of this alleged oral agreement seemed to be December 1, 2020, but it was unclear.

[50] I do not find this explanation credible, and I do not accept it. Here are my reasons:

• This alleged agreement was entirely one-sided in favour of Castlemore. $60,000 was considerably less than what Ben-Air had earned to that point and not been paid. Castlemore effectively admitted as much later when it paid Ben-Air voluntarily $117,619.49 after the work was done and after Castlemore applied the full extent of its back-charges for completion costs against Ben-Air’s account.
• With such a one-sided agreement, there needed to be clear evidence (particularly evidence in writing) that Mr. Cumming agreed to this arrangement. There was none. Mr. Cumming vehemently denied making this deal. Indeed, there was no email or letter from him confirming that he agreed to it.
• Castlemore pointed to the fact that Ben-Air left the site on December 7, 2020 taking its “job box” with it. The “job box” contained Ben-Air’s tools. Mr. Romano repeatedly asserted that this was proof that Ben-Air had agreed to the alleged oral agreement and was permanently leaving. I do not accept that position. Ben-Air’s explanation for this move was much more convincing. Mr. Cumming said there was no work for them on site and, as they had done several times before, they left temporarily to do work elsewhere. The fact that Ben-Air had left the site previously when there was no work was not disputed. Mr. Romano also confirmed that indeed there was no work on the entire site for an extended period at the end of November, 2020 while JNJ was applying epoxy. The fact that Ben-Air this time took its “job box” only tells me that Ben-Air expected this temporary departure to be longer than previous ones, nothing more.
• Castlemore’s conduct contradicted its position on this point. On December 14, 2020 Mr. Romano agreed to meet Ben-Air on site on December 15, 2020 to assess the state of completion of Ben-Air’s work. Had there been the oral agreement alleged by Mr. Romano, there would have been no reason for this meeting. The only explanation Mr. Romano had for this meeting was that Mr. Cumming wanted it. Mr. Romano did not strike me as the type of person to agree to pointless meetings with contractors to accommodate them. I find instead that there was a reason for the meeting, namely that there was no agreement in place and the parties were negotiating what Ben-Air would be paid in return for a voluntary departure. That was the explanation given by Ben-Air and I believe it.
• There was nothing credible in writing from Mr. Romano confirming this deal. The first time he referred to this deal in writing was in his December 31, 2020 email response to Mr. Cumming’s email wherein Mr. Cumming disclosed the following: Ben-Air’s estimation of the cost to complete Ben-Air’s scope; what Ben-Air expected to be paid; and what Ben-Air would charge in further extras if it did not get paid. Obviously, Mr. Romano was upset and had motive to fabricate the alleged oral agreement after the fact to avoid paying Ben-Air anything.
• None of the other Castlemore witnesses were present when Mr. Romano had what he alleged was his conversation with Mr. Cumming that created the oral agreement. Therefore, Castlemore’s position rests entirely on the credibility of Mr Romano and he has none on this issue.
• Castlemore actually started taking over the Ben-Air work as early as November 30, 2020. This was made clear by Mr. Thatton. This predates the alleged conversation that led to the alleged oral termination agreement.
• I find, as a result, that there was no oral agreement as alleged by Mr. Romano.

[51] The second explanation given by Castlemore was that Ben-Air did not complete its deficiency work. This argument was not strongly propounded. In my view, for good reason. The evidence indicates that Ben-Air did address the deficiencies of which it was given written notice. Mr. Cumming’s initial affidavit contains the Castlemore Deficiency List 4 – Phase 1Air Balancing dated October 29, 2020 which contained several items for Ben-Air to address. There is then an email from Mr. Cumming to Mr. Brown dated November 6, 2020 wherein Mr. Cumming stated that the deficiencies had been addressed and that the site was ready for the air balancers. There was then the Castlemore Deficiency List 5 – Phase 1 Air Balancing dated November 13, 2020 which showed only one item for Ben-Air to address and 23 items “fixed.” Mr. Cumming stated in his affidavit that Ben-Air addressed the one remaining item. There was no evidence that Castlemore sent Ben-Air further deficiency notices. This evidence showed that Ben-Air addressed deficiencies of which it was given notice in a timely way. It certainly did not form the basis to terminate the Subcontract.

[52] I, therefore, find that Castlemore was not justified in taking over the Ben-Air scope in late November and early December, 2020, an act which effectively terminated the Subcontract. I find that by doing this Castlemore wrongfully repudiated the Subcontract. Therefore, as indicated by Justice Perell in D & M Steel Ltd., Castlemore lost its claim for damages as against Ben-Air.

b) Is Ben-Air entitled to be paid its January 5, 2021 invoices?

[53] Ben-Air, on the other hand, is entitled to the lien and damages it can prove. As stated earlier, there is no issue about the original contract price, the five Castlemore purchase orders for extras, the one Castlemore purchase order for a credit for the deletion of the basement work, and the amount that Castlemore has paid Ben-Air. The two issues to be determined in assessing Ben-Air’s damages is whether it should be paid the four January 5, 2021 invoices it rendered, and what the credit should be for Ben-Air’s uncompleted work.

[54] Concerning the January 5, 2021 Ben-Air invoices, these totaled $101,750 plus HST. Three of the four were described as extras, and the fourth a delay claim. As a group, I found them suspicious from the outset. They made their first appearance in any correspondence in Mr. Cumming’s email to Messrs. Romano and Brown dated December 29, 2020, an email which disclosed the Ben-Air estimate for the uncompleted work and the amount Ben-Air wanted to be paid for work other than these four extras to bring the Subcontract to an end. As such, these four invoices seemed to have been created to exert leverage in the negotiation. This undermined their credibility.

b.1) Extras

[55] I will deal first with the three invoices for extras. Justice Perell summarized the law about extras in D & M Steel, op.cit. at paragraphs 57 to 60. Extras are charges for work that fall outside the scope of the contract. The contract itself may contemplate extras and provide a mechanism whereby they are to be performed and paid for. Where that is not the case, the law requires that there be an expressed or implied agreement to do extra work. Where there is no expressed agreement, a contractor payor will be found to have impliedly authorized the work if it acquiesces in the work as it is being done knowing it is an extra. In such a case, the price for the work will be what the court finds to be reasonable on a quantum meruit basis. In this case, none of the contract documents provided for extras. Therefore, the issue is what the parties agreed to.

[56] Mr. Hemsworth tried to make much of the fact that these invoices were not the result of the usual process for generating extra charges that led to payment. As confirmed by Mr. Atzori, the usual path involved JNJ seeking an extra quote from Castlemore, which passed the request to Ben-Air. Ben-Air would then issue a quote that Castlemore passed on to JNJ for approval, and, if approved, led to a Castlemore purchase order to Ben-Air. In my view, that process was appropriate for extras that could be passed on to JNJ. It was unclear to me that the alleged three extras could be passed to JNJ. They seemed to involve issues as between Ben-Air and Castlemore only.

[57] However, this established process was instructive about one thing, namely that extra charges were to be identified, asserted in a timely way, and agreed upon in a timely way. This allowed the payor to monitor and confirm the work as it is being done. In short, they should not be left to the end of work.

[58] I will deal with each of the three claims for extra. I bear in mind that Ben-Air has the onus of proving these claims for extras.

b.2) Making holes in panels: $25,000 plus HST

[59] The first invoice for an extra was for $25,000 plus HST for making holes in panels. It was undisputed that the cutting of holes in panels was not in Ben-Air’s scope and that Ben-Air did this work within a few month after it started. Castlemore’s position is that at the time Mr. Cumming agreed to do this work without charge.

[60] In his trial cross-examination, Mr. Cumming was taken to the transcript of his cross-examination on the Ben-Air claim for lien dated April 6, 2021. In this transcript, Mr. Cumming said “begrudgingly . . . yes” to the question as to whether he had agreed to do this work originally as a “favour” to Castlemore. When asked in the follow up question whether he decided on January 5, 2021 to reverse himself and charge for the item to bolster the Ben-Air lien claim, he again said, “yes, of course.” In his trial cross-examination, he confirmed that these answers were accurate.

[61] This showed that in fact Ben-Air had agreed originally to do the work for no charge, as alleged by Castlemore, and that Ben-Air then reversed itself on January 5, 2021 to bolster its lien claim.

[62] Other evidence substantiates Castlemore’s position. This was a labour cost extra. Yet, Mr. Cumming admitted that Ben-Air kept no separate time sheets for this work. Indeed, Mr. Cumming admitted creating the claim “in my head” at the end of December, 2020. He said that Mr. Langford gave him the time estimates and he applied the labour rates. It was truly a claim that was manufactured at the end of the work to bolster the lien claim.

[63] I, therefore, deny this claim as Ben-Air agreed to do it without charge.

b.3) Charcoal filters: $1,250 plus HST

[64] This is another claim for an extra. The issues with the charcoal filters were whether they were an extra and whether Ben-Air agreed to do this at no charge. In his email of January 5, 2021, Mr. Brown addressed this claim. He stated that the supply of added charcoal racks was included in the scope of the extra granted to Ben-Air in Castlemore’s Purchase Order 9550-562 issued July 31, 2019. It is undisputed that Ben-Air issued shop drawings for these filters and made no claim at the time for an extra. This indicates that Ben-Air accepted this work as a part of its scope.

[65] In cross-examination at trial, Mr. Cumming agreed that in any event Ben-Air agreed to do this work at no charge. This admission was corroborated, There was no evidence that Ben-Air kept time sheets or other records documenting this claim in real time. This was another claim created at the end of December, 2020.

[66] I draw the conclusion from this evidence that this work was not an extra, that in any event Ben-Air agreed to do this work at no charge, and that it reversed itself on January 5, 2021 and charged for the item to bolster its lien claim.

[67] I deny this claim as a result.

b.4) VAV cables: $2,500 plus HST

[68] This was another claim for an extra. The issue with the installation of these cables were whether this was an extra and whether Ben-Air agreed to do this at no charge. The evidence as to whether the work was included in Ben-Air’s scope was not clear. The item indeed does not appear in the Ben-Air quote. But Ben-Air did not assert a claim for an extra for this charge at the time of its payment.

[69] Mr. Brown asserted in his January 5, 2021 email that Ben-Air agreed to pay for this item. It was undisputed that in March, 2020 Ben-Air retained a BAS contractor to install these cables, that this contractor billed Ben-Air for the work, and that Ben-Air paid this bill. This charge forms the claim.

[70] At trial, Mr. Cumming agreed that Ben-Air agreed to pay for this installation at no charge, and that it reversed itself on January 5, 2023 and charged for the item. Given this admission, regardless of whether this was an extra, I find that Ben-Air agreed to absorb this cost and reversed itself on January 5, 2021 to bolster its lien claim.

[71] I, therefore, deny this claim as well.

b.5) Delay: $73,000 plus HST

[72] I move on to the delay claim. It is not a claim for an extra. It is a claim for payment of alleged additional costs incurred by Ben-Air to complete its contract scope, with the allegation being that the increase was all Castlemore’s fault. It is undisputed that Ben-Air has the onus of proving this claim as it is asserting it.

[73] The fourth January 5, 2021 invoice was for delay related costs in the amount of $73,000 plus HST. Mr. Frustaglio went on at length in his written closing submissions about scheduling, namely the original Subcontract scheduling and the actual scheduling. In the end, this was of little worth. The core of the Ben-Air delay claim was not based on a scheduling analysis. It was in the nature of a total cost claim, namely a comparison of Ben-Air’s alleged original estimated costs and its eventual actual costs.

[74] The claim document stated that Ben-Air had “budgeted’” labour hours of 4,384, that its actual hours were 5,400 and that its actual hours for extras was 252. From these hours Mr. Cumming deducted 320 hours for the basement credit and 240 hours for the completion credit. The result was “additional hrs caused by job delays” of 708.47. Mr. Cumming multiplied this by $100 to get $70,847.06 in “additional labour costs due to delays.” To this Mr. Cumming added the rental cost of a scissor lift for 6 months at $500 per month, namely $3,000. This produced the grand total of $73,847.06. Ben-Air claims the flat $73,000 plus HST.

[75] Such a total cost approach is frowned on by the courts. In Eco-Zone Engineering Ltd. v. Grand Falls – Windsor (Town), 2005 CarswellNfld 318 at paragraph 238, Justice Wells quoted from the recognized delay claim expert, Stephen G. Revay. Mr. Revay made the point that the total cost approach makes no effort to connect the alleged loss to an entitlement to be paid. He said that the approach can be made acceptable to the court if the following is established: (1) the tender must be shown to be reasonable; (2) the actual costs must be shown to be fair and reasonable; (3) all of the increases in costs must be shown to have resulted from the contract breaches of the payor and that the claiming party is not responsible for any part of the increase; and (4) there is no other method available to quantify the damages.

[76] Having reviewed the evidence concerning this delay claim, I find that Ben-Air has failed to prove it. Here are my reasons:

• There was no evidence that Ben-Air gave Castlemore notice that it would asserting this claim at any time during the course of Ben-Air’s work, much less notice at the commencement of the alleged delay. A failure to give such notice at any time leads to the reasonable inference that Ben-Air never intended to make a delay claim, and that, as with the other January 5, 2021 claims, it reversed itself on January 5, 2021 to bolster its lien claim. I draw that inference. Indeed, Mr. Cumming confirmed that this was another one of the claims he created no sooner than at the end of December, 2020.
• There was no expert evidence from Ben-Air confirming the reasonableness of the Ben-Air estimated labour hours. Furthermore, it was not clear whether there was a competition for the sheet metal work. If there was, it would have been helpful to see the competing bids. But there was none of this evidence. Without this evidence, I am left wondering whether Ben-Air in fact underbid this work to get the Subcontract. That would explain the alleged costs overrun, and would not be Castlemore’s fault.
• The Ben-Air corroboration of its estimated labour hours was opaque. Mr. Cumming attached to his affidavit the original Ben-Air take-offs, but these take-offs do not show alleged “budgeted” labour hours.
• There was no expert evidence confirming the reasonableness of Ben-Air’s alleged actual labour costs in the circumstances.
• Proof of the alleged Ben-Air actual costs was also an issue. Mr. Cumming asserted in cross-examination that the 5,400 in alleged actual hours came from timesheets. These timesheets were not produced. What was produced was a “Job Labour Journal” for “Job 19016.” Job 19016 was not identified by Mr. Cumming. This document is a schedule of names of labourers plus their alleged weekly hours of work running from the week of May 31, 2019 to the week of December 18, 2020. The total indicated is 5,400.5 hours. At discovery, Mr. Cumming undertook to provide the back-up for the Ben-Air actual costs. The best evidence of the labour hours would have been the timesheets. They were in the possession of Ben-Air, and they were not produced. Again, lack of corroboration.
• The small claim for the equipment costs was not a total cost claim. But there was no corroboration to the alleged rental cost for the scissor lift. No rental agreement was produced, and there was no document confirming the actual period of the equipment rental.
• The blame for any increase in costs was also not clear. The Ben-Air witnesses all complained about lack of Castlemore scheduling. There was no expressed contract term requiring schedules. Castlemore admitted it provided no schedules, saying that schedules were not provided by JNJ and that Ben-Air accepted these conditions. Castlemore’s position was corroborated. The evidence showed that Ben-Air did not start asking for schedules until the end of October and the beginning of November, 2020, namely towards the end of Ben-Air’s work and two months before asserting its delay claim for the first time. The bona fides of these requests were as a result dubious.
• All of the Ben-Air witnesses confirmed that Ben-Air, a non-union company, did not pay for idle time. That means that the additional labour hours indicated in the Ben-Air delay claim, if they actually happened, represented at best inefficiencies in the execution of Ben-Air’s work. It did not represent labour shutdowns or idle time. Labour inefficiencies could be the result of many issues. Some could relate to Castlemore mismanagement, such as trade stacking or a failure to complete prerequisite work in a timely way or a failure to schedule. For this, Castlemore may be liable. It could, on the other hand, relate to Ben-Air mismanagement, such as a failure to mobilize sufficient resources or a failure to organize its resources. This was in fact a common complaint about Ben-Air’s work from the Castlemore witnesses. For this, Ben-Air may not be able to claim damages. It could also relate to third party causes, such as the pandemic outside the actual pandemic shut-down period or weather. Whether Ben-Air could claim for these damages is doubtful. As a result, there was that much more of a need for careful schedule analysis identifying where inefficiencies occurred and what caused them. That analysis was not presented by Ben-Air.
• I have already commented on the lack of credibility in the affidavits of Messrs. Langford, Kouroumalos, Chernets and Allison-Last. These are the Ben-Air employees who discussed delay. However, they did so only in general terms. Also these affidavits formed a troubling pattern with no corroboration. As I stated earlier, after cross-examinations, these affidavits appeared to be nothing more than the work of Mr. Cumming. Mr. Cumming himself discussed delay in his affidavits, but again, like the Ben-Air employees, only in general terms with no corroboration. I do not accept this evidence.
• There was also no effort made to explain that there was no other method available to quantify the damages.

[77] Given all of these serious deficiencies in the delay claim, I find that Ben-Air has failed to meet its onus of proving it. I deny the claim.

c) What are the resulting damages?

[78] Without these invoices, what then are Ben-Air’s damages? Mr. Frustaglio provided a helpful schedule summarizing the particulars of the Ben-Air damage claim and lien claim. I have used this schedule to summarize the status of the Ben-Air claim following my rulings on the Ben-Air January 5, 2021 invoices.

[79] Here is my summary:

DESCRIPTION	Amount without HST	Amount with HST
Original purchase order (May 16, 2019)	$733,250	$828,572.50
Undisputed five extras less basement credit	$30,467.10	$34,427.82
Castlemore payments (before Nov. 26, 2021)	($548,665.00)	($619,992.00)
Credit for uncompleted work	($28,100.00)	($31,753.00)
Castlemore payment (Nov. 26, 2021)	($103,612.66)	(117,082.31)
TOTAL:	$83,339.44	$94,173.57

[80] The only item in this schedule that remains to be determined is the credit for the uncompleted work. The amount claimed by Ben-Air, $28,100 plus HST, comes from Mr. Atzori’s estimation derived in turn, according to Mr. Atzori, from the Ben-Air drawings marked up at the site meeting of December 15, 2020.

[81] Castlemore asserts that this was a gross under-estimation, and that its own actual costs to complete the Ben-Air scope, $125,926.33 plus HST, should be the appropriate credit. Mr. Hemsworth conceded in closing argument that, if Castlemore is found to have wrongfully repudiated the Subcontract (which I have found it has), this would produce a result of $0 damages and no lien for Ben-Air.

[82] I struggled with this issue. The evidence of both sides on this point had serious credibility issues. I will deal first with the evidence of Ben-Air:

• It is indeed deeply troubling that Mr. Cumming never produced a full size copy of the Ben-Air drawings marked up at the December 15, 2020 site meeting. This was in violation of his undertakings to do just that. As a result, the only evidence of these drawings was the much reduced size of the marked up drawings. These could hardly be deciphered. I agree with Mr. Hemsworth and draw an adverse inference from this non-production against Ben-Air that the full size, original version of the drawings would have been detrimental to Ben-Air’s case.
• Whether Mr. Atzori actually used the drawings marked up by Ben-Air was cast into doubt by the email Mr. Cumming sent on December 31, 2020 wherein he stated that “as percentage of the work done, we went over on site with your people and we agree on what your people said was left to do as reflected in the drawings you marked up.” This contradicted all the Ben-Air evidence on this point. In cross-examination, Mr. Cumming asserted that this statement was a “mistake.” But, as stated earlier, I had trouble with Mr. Cumming’s credibility generally. This explanation in particular made at trial 20 months after this email, which email was sent when the subject events were unfolding and when there was no litigation, seemed exceedingly self-serving. It could just as well have been that Ben-Air in fact used the missing Castlemore marked up drawings. That these drawings were not produced at trial, therefore, makes the Atzori credit calculation of the uncompleted work that much more difficult to assess and accept.
• In cross-examination, Mr. Atzori’s estimate of the labour cost for the uncompleted work was cast into doubt. He was shown to have treated extras and credits differently concerning the labour rates he applied. He admitted using $100 per hour for the Ben-Air initial estimate for its contract price and on extras, and $80 per hour for the basement credit. He used the lower figure, $80 per hour, to calculate the credit for the uncompleted work. In re-examination, he tried to explain that work on extras is costlier, but provided no further explanation and corroboration for that view.
• In cross-examination, Mr. Atzori’s calculation of the quantum of the labour hours for the uncompleted work was also cast into doubt. He was shown the Ben-Air estimation for the extra, CCN-M16, which Mr. Aztori created. The number of labour hours per unit of material on this extra were significantly greater than the labour hours per unit of material on Mr. Atzori’s estimate of the uncompleted work. Concerning CCN-M16, Mr. Atzori estimated the labour for diffusers at 2.2 hours per diffuser and 0.4 hours per foot of ductwork. Applying those rates to the diffusers and ductwork shown in the Atzori estimate for the uncompleted work and the result is 468 hours. This is almost double the total number of hours shown by Mr. Atzori for the whole credit. What is remarkable is that that figure of 468 hours does not include the 840 feet of flex shown on the credit.
• What I concluded from this evidence was that Mr. Atzori had indeed grossly underestimated the labour hours in the uncompleted work. The labour costs were 68% of the entire credit. Indeed, I concluded that the Ben-Air entire estimate was a gross underestimation.

[83] On the other hand, the Castlemore evidence concerning the uncompleted work also had serious credibility problems. Here is my review of this evidence:

• The one Castlemore witness who focused on the Castlemore cost to complete was David Brown. Apparently he was the individual who was also primarily responsible for the Exhibit 3 fiasco. This fiasco showed a profound lack of care with the evidence. It made me wary of trusting Mr. Brown with any evidence, including his evidence about the completion costs.
• The big issue with this evidence is whether any of the Castlemore costs to complete concerned deficiency correction and the work on CCN-M16. None of this work can be included in the calculation of the costs to complete Ben-Air’s scope. The deficiency correction work cannot be included because I have found that Castlemore wrongfully repudiated the Subcontract, thereby depriving itself of the ability to back-charge Ben-Air for these costs. These costs must be borne by Castlemore. The CCN-M16 work, which Ben-Air quoted at $140,377.60, was an extra and not a part of the Ben-Air scope. What caught my attention was that Mr. Thatton, a credible witness, stated that his work from November 30, 2020 to March 31, 2021 focused on two things: deficiency correction work and CCN-M16 work, with most of his work being the latter.
• Mr. Brown’s evidence-in-chief specified that he kept a journal record of the labour hours and the material costs for the completion work. He appended that journal to his affidavit. Mr. Brown stated that he had the timesheets to support the claimed labour hours and the invoices to support the claimed material costs, which invoices he attached to his affidavit. He costed the labour at the rate of $80/hour, which is the lower rate used by Ben-Air for credits. However, Mr. Brown made no reference to keeping the deficiency correction and CCN-M16 costs separate from the other completion costs. The journal itself did not indicate that the labour hours and material costs shown there concerned only the completion of the Ben-Air scope and excluded the deficiency correction costs and the CCN-M16 costs.
• I was also struck by the number of hours shown in Mr. Brown’s journal for Mr. Thatton, the credible witness who stated that he focused on deficiencies and CCN-M16 work. By far Mr. Thatton is shown in this journal to have worked more than any other single person on this area. The inference to be drawn from this is that Mr. Brown’s journal in fact included work on deficiencies and CCN-M16.
• In cross-examination, Mr. Brown denied that his journal included deficiency correction work. Concerning the CCN-M16 work, however, he conceded that Castlemore’s completion work may have “overlapped” with its work on CCN-M16. Since Mr. Brown was not careful in his journal in delineating the deficiency work from the completion work, I find Mr. Brown’s denial about including the deficiency work, self-serving. On the other hand, his concession about the completion work “overlapping” the CCN-M16 work just added to my distrust of Mr. Brown’s evidence on this subject.
• Mr. Brown attached what he called “take offs and notes respecting the work to be completed.” What is interesting about the attached notes is that at least four of them, starting at the end of January, 2021, refer expressly to CCN-M16 work. This suggests further that Castlemore indeed included CCN-M16 work in its completion costs claim.
• In closing argument, Mr. Hemsworth tried to rehabilitate Mr. Brown’s evidence on this point. He pointed to one email dated February 8, 2021 from a supplier to Mr. Brown wherein the supplier confirmed an order for non-insulated aluminum flex. The email stated that “separate pricing for CCN16 [was] sent under separate cover.” This does not convince me at all that the Castlemore completion costs excluded all CCN-M16 work. This email sent over two months after the completion work was started, concerned only one order and may have pertained to only that order. This document was not specifically addressed by Mr. Brown in his evidence. There may have been other reasons the flex order for CCN-M16 was sent under separate cover on February 8, 2021.
• Speaking generally about the Castlemore completion costs claim, I note that, unlike Ben-Air, Castlemore made no effort to pre-estimate the completion costs based on the work done on the drawings at the December 15, 2020 site meeting and before the bulk of the completion work was done. Creating such a pre-estimate and giving it to Ben-Air, as Ben-Air did with its estimate, would have been a discipline on the Castlemore forces that did the completion work. Without such an estimate, Castlemore could have been quite inefficient in completing the work, knowing that it would be applying these costs entirely to Ben-Air’s outstanding account. This makes me skeptical of the accuracy of the Castlemore completion cost claim.
• What I concluded from this evidence was that the Ben-Air completion costs were significantly less than what Castlemore claims.

[84] As a result, I was left in a quandary – neither side’s position as to the completion costs credit was credible. I have concluded that the completion costs were significantly more than the credit calculated by Mr. Atzori, namely $31,753, and significantly less than the completion costs asserted by Mr. Brown, $142,297.09. But there was no credible evidence as to what an accurate figure is.

[85] This deficiency in the evidence should not detract from the court’s obligation to make a reasonable assessment of the completion costs to complete the determination of Ben-Air’s damages and its lien. I decided to exercise my discretion in this regard and specify that the completion costs are the exact mid-point between the two positions: [($142,297.09 - $31,753)/2] + $31,753 = $87,025.05. If this figure is inaccurate, I do not believe the inaccuracy is great. That is what I find.

[86] Therefore, I find that the Ben-Air damages and lien are as follows:

DESCRIPTION	Amount without HST	Amount with HST
Original purchase order (May 16, 2019)	$733,250	$828,572.50
Undisputed five extras less basement credit	$30,467.10	$34,427.82
Castlemore payments (before Nov. 26, 2021)	($548,665.00)	($619,992.00)
Credit for uncompleted work	($77,013.31)	($87,025.05)
Castlemore payment (Nov. 26, 2021)	($103,612.66)	(117,082.31)
TOTAL:	$34,426.13	$38,900.96

[87] I find, therefore, that Ben-Air’s damages for breach of contract and lien are in the amount of $38,900.96 (HST inclusive).

[88] In his written closing submissions, Mr. Frustaglio asserted a claim for breach of contract damages in the amount of the completion costs credit. This claim was not pursued in oral closing argument. It appears this claim was for lost profit on the uncompleted portion of the Subcontract. Had this claim been pursued, I would have found it to be without merit. It was clear from the evidence that no one was making money on this project by December, 2020. That is no doubt the reason Ben-Air was prepared to leave.

[89] In his written closing submissions, Mr. Frustaglio discussed the validity of the Ben-Air claim for lien. There was no issue that it was timely and about lienable supply. The only issue was the quantum of the lien, which I have now determined.

VI. Conclusion

[90] In conclusion I find that Ben-Air has a lien in the amount of $38,900.96 (HST inclusive). Castlemore is also personally liable to pay the plaintiff this amount in damages for breach of contract.

[91] I dismiss the defendants set-off and counterclaim in its entirety.

[92] I directed that the parties file costs outlines concerning this reference. The plaintiff filed a costs outline that showed a total of $89,939.08 in partial indemnity costs, $117,723.63 in substantial indemnity costs and $145,508.19 in actual costs. The defendants filed a costs outline that showed $81,465.90 in partial indemnity costs, $120,936.80 in substantial indemnity costs, and $144,593.35 in actual costs.

[93] If the parties cannot agree on a costs award, all those seeking costs must serve, file and upload written submissions on costs of no more than four pages on or before March 17, 2023. All those responding to these costs submissions must serve, file and upload responding written submissions on costs of no more than four pages on or before March 28, 2023. Any reply written submissions of no more than two pages must be served on or before March 31, 2023.

[94] Please note that these written submissions must address the prejudgment and post-judgment interest to be calculated and paid on the judgment amount.

Released: March 7, 2023 ASSOCIATE JUSTICE C. WIEBE