Court File and Parties

COURT FILE NOS.: 07-CV-333901PD1, 07-CV-332316PD DATE: 20231023 ONTARIO SUPERIOR COURT OF JUSTICE

Court File No. 07-CV-333901PD1 BETWEEN: SHARI KRIESER and GEORGE KRIESER Plaintiffs – and – GREGORY EVAN SELIGMAN, VINTAGE LANDSCAPE CONTRACTORS LIMTED, GREENSTONE GARDENS INC., G,E,S. CONSTRUCTION LIMITED, EDUARDO LEAL, 1415952 ONTARIO INC. and JOHN DOE NO. 1 Defendants

Court File No. 07CV-332316PD2 BETWEEN: SHARI KRIESER Plaintiff GREGORY EVAN SELIGMAN, G.E.S. CONSTRUCTION LIMITED, GREENSTONE GARDENS INC., 1665610 ONTARIO INC., and BONAVISTA POOLS LIMITED Defendants

AND BETWEEN: G.E.S. CONSTRUCTION LIMITED, GREENSTONE GARDENS INC. Plaintiffs by Counterclaim -and- SHARI KRIESER and GEORGE KRIESER Defendants by Counterclaim

Counsel: Les O’Connor, Kenneth Prehogan and Alfred Pepushaj Lawyers for the Plaintiff/Defendants by Counterclaim Shari Krieser and George Krieser Michael L. Shell and Glenn Brandys, Lawyers for the Defendants/Plaintiffs by Counterclaim, Gregory Evan Seligman, G.E.S. Construction Limited, Greenstone Gardens Inc. and 1665610 Ontario Inc.

HEARD: March 14, 15, 16, 17, 18, 21, 22, April 7 and 19, May 3, May 18, November 4, 15, 18 and 21, 2022 and January 23, 24, 25, 26, 27, 30, 31 and February 1, 2, 3, 6 and 7, March 24 and 27, 2023

G. DOW, J.

REASONS FOR DECISION

[1] The trial of these actions arose from difficulties in the construction of a luxury custom home between approximately January 20, 2004 and April, 2007.

[2] The plaintiff, Shari Krieser, as the owner of the property and under the direction of or in conjunction with her spouse, George Krieser sought damages for breach of contract, breach of fiduciary duty, breach of duty of good faith, punitive damages, trespass and intimidation. The action by both George and Shari Krieser involved alleged acts of intimidation by the defendant, Eduardo Leal on April 26, 2007. The defendants, G.E.S. Construction Limited (“G.E.S.”) and Greenstone Gardens Inc. (“Greenstone”) counterclaimed in the first action against both George and Shari Krieser for alleged unpaid accounts arising from separate contracts entered into with the plaintiffs.

Background

[3] The Krieser’s purchased the property in question, 500 Russell Hill Road, sometime in 2003 with the intention of demolishing the existing structure and building a custom luxury home that would accommodate their family. This included four children, two of whom had special needs, one with mobility issues and the other with cognitive challenges. George Krieser’s elderly mother was alive at that time and her mobility limitations were also considered in the design.

[4] There are two contracts at the center of this dispute. The first, dated January 12, 2004 was between Shari Krieser, as owner of the property, and G.E.S. Construction Limited as the contractor and was titled “Construction Management Contract” (Exhibit 19, Tab 1). G.E.S. Construction Limited was owned and operated by the defendant, Gregory Evan Seligman (“Greg Seligman”).

[5] The landscaping contract was detailed in letters dated June 7, 2006 addressed to George and Shari Krieser, signed by only Shari Krieser, September 18, 2006 marked “verbally agreed to go ahead” by Greg Seligman, November 9, 2006 addressed to and signed by George Krieser and March 28, 2007 addressed to Shari Krieser and unsigned, all on the defendant, Greenstone Gardens Inc. stationary (“Greenstone”). Greg Seligman was also the owner and operator of this company which provided landscaping services.

[6] For completeness, 1665610 Ontario Inc. was a corporation that owned a different property where another custom home was being built. The corporation was owned and/or operated by Greg Seligman and an architect, Richard Wengle. Mr. Wengle was the architect who designed the Krieser home (and a cottage) for them. In its closing submissions, the plaintiffs acknowledged no claims were being advanced against this numbered corporation and sought dismissal of the action as against it, without costs.

[7] Bonavista Pools Limited was one of the many trades or subcontractors involved in the construction of the Krieser home, an indoor style spa which included a hot tub. This was a revision to the original plan. The claim against them was settled before trial. Its owner, Melissa Brown, gave evidence at the trial.

[8] The defendant, Vintage Landscape Contractors Limited and 1415952 Ontario Inc. were landscape companies owned and operated by the defendant, Eduardo Leal. Vintage Landscape was retained by Greenstone Gardens to do the landscaping work as designed by landscape architect, Egils Didrichsons. No relief against 1415952 Ontario Inc. was sought by the Kriesers in closing submissions.

[9] Finally, John Doe No. 1 was the individual with whom Eduardo Leal attended at the Krieser residence on April 26, 2007 and was identified at the trial to be Attila Soregi. Mr. Soregi was an employee of Leal and a recent immigrant to Canada at that time.

[10] It should be noted, these actions, issued in 2007 were the subject of various delays and not the apparent fault of the parties themselves or of counsel that completed the trial. A written chronology was tendered at the commencement of the trial by counsel to explain the delay and can be summarized as follows:

a) 2008-2010: then counsel for the defendants delayed in providing productions and arranging discoveries;

b) 2011-2014: then plaintiffs’ counsel delayed in setting the actions down for trial culminating with the actions being administratively dismissed in 2011 with then plaintiffs’ counsel suddenly passing away in August, 2014;

c) 2014-2015: involved drafting and arguing the motion to set aside the dismissal orders;

d) 2015-2018: current counsel for the plaintiffs took over carriage with attendance to set a trial date on June 7, 2017 for a three week trial to commence July 22, 2019;

e) adjournment of that trial date due to the unavailability of the plaintiffs’ expert witness, with a new date set of February 18, 2020;

f) adjournment at the plaintiffs’ request, on consent, of that second trial date to November 22, 2021 but not reached as no judge was available and adjourned to January 14, 2022 with a subsequent defendant’s adjournment request and adjournment to March 14, 2022;

g) my beginning the trial on March 14, 2022 and adjourning same after 5 days of evidence on March 21, 2022 as a result of the hospitalization of then defendant’s counsel with subsequent attendances with replacement counsel, receipt and review of trial transcripts into May, 2022 and the trial scheduled to continue on November 14, 2022; and

h) plaintiffs’ motion to further amend their Statement of Claim in November, 2022 granted on terms which included adjournment of the trial to January 23, 2023.

Construction Management Contract (Exhibit 19, Tab 1)

[11] It was not disputed the initial draft of this document was forwarded by G.E.S. and sent to George Krieser for review. It contemplated but did not state this custom home was to be constructed for an estimated cost of $2.5 to $3 million. G.E.S.’s usual fee for managing construction of this type was 10 percent of the construction cost but negotiations reduced this to $200,000.00 as contained in Article 3.1 of the contract. I interpret this as an example of George Krieser’s business acumen, negotiating skill and familiarity with contracts. Greg Seligman acknowledged the decision to accept a reduced fee was influenced in part by the design which was to include the basement being two floors down instead of one, something G.E.S. had yet to build and, as Greg Seligman testified, would be “a feather in my cap”.

[12] Greg Seligman was introduced to George Krieser by the architect, Richard Wengle, whom George Krieser retained to design the house. George Krieser testified he sought and checked references of G.E.S. and looked at previously completed G.E.S. projects.

[13] George Krieser, as the owner of a large, successful credit recovery business (Total Credit Recovery Limited) also had available and utilized a lawyer employed by his business to review the terms of the draft agreement. She forwarded four typewritten pages of proposed questions and changes, by letter dated November 13, 2003 (Exhibit 18, tab 9). A few of the proposed changes were adopted into the 27 page contract signed by Shari Krieser at her spouse’s direction and Greg Seligman on behalf of G.E.S.. However, in the Kriesers’ submissions, and despite calling this lawyer as a witness, the Kriesers sought to portray her as unqualified and acting outside of the scope of her expertise.

[14] There was much evidence and submissions from George Krieser and his counsel about his intentions and beliefs not contained in the contract. He required and, at the outset, believed he had a person he could “trust” in Greg Seligman. The house was to have enhanced safety features given his family’s situation. There was not a set budget for construction yet the Kriesers required the contract to include that they receive the “benefit from reduced costs by virtue of discounts for early payments, prepayments, volume purchase discounts and any other opportunity to reduce the costs of subcontracts, materials or any matter related to the construction of the home. Further, where possible the owner would be given the opportunity to purchase items with the Owner’s credit card for the construction of the home. The Contractor further understands and agrees that he will not benefit in any way whatsoever from any fees, mark-ups or add-ons whatsoever for any services or supplies performed or provided in relation of the building of this home and any opportunities for the owners to save costs shall be pursued and where appropriate reviewed with the owner” (Article 2.7).

[15] Another example of the contradiction between the evidence given by George Krieser and the terms of the contract was the provision in Article 13(2)(c) where the Kriesers agreed to “indemnify and hold harmless the Contractor, his agents and employees, from and against all claims, demands, losses, costs, damages, actions, suits or proceedings arising out of the performance of this Contract which are: […] (c) attributable to the negligence or breach of contract by any subcontractor or other contractor”. It was George Krieser’s evidence at trial that he agreed to proceed with Article 13(2)(c) in the contract on the basis that Greg Seligman assured him that the trades he used worked for him and should anything go wrong, he would have them fix it (Trial Transcript, George Krieser, March 14, 2022, pages 31-32).

[16] Much was made at trial of Article 5.1 which provided for G.E.S. to perform work with its own personnel. For clarity, the Kriesers agreed to pay “the cost of such work as outlined in Appendix “C” hereto in addition to all other payments pursuant to this Contract”. Appendix “C” simply sets out the hourly rate of $45 for a supervisor and $25 for labourers.

[17] Given the apparent contemplation of changes during construction (which clearly occurred as the initial estimated cost of $2.5 - $3 million grew to about $5 million), Article 12 of the Contract became important that such changes would not invalidate the Contract and the Kriesers could make “Changes in the Work with the Contract Price being adjusted accordingly, only where the changes in the work are not within the control of the Contractor, and are not reasonably anticipated or foreseen by either the Owner, the Contractor, or the Architect. Any adjustment to the Contract Price must be reasonable and approved by the Owner.”

[18] The contract also anticipated disputes with provision in Article 17 included “interpretation, application or administration of this Contract or any failure to agree” … “shall be settled by the architect” or arbitration if the architect was unavailable.

[19] As noted below, George Krieser also agreed, in Article 4.1, to make progress payments and “for the Work performed to date and for the products and materials delivered to the Place of the Work to date within 7 days of receipt by Owner of an invoice in respect of any Work performed by the Contractor”. Further, this Article provided for deposits totalling $100,000.00 to be provided upon commencement of the demolition of the structure on the property being replaced.

[20] Finally, the contract, as negotiated and signed by the parties, contained in Article 18.6, the standard entire agreement clause which stated “This Contract and the appendices hereto constitutes the entire and only agreement between the owner and the contractor and neither party shall have any claim against the other with respect to any agreement or understanding, written or oral, made prior to the date hereof”.

Construction Proceeds

[21] Demolition of the existing structure and construction of the new home likely began in April, 2004 based on the Statement of Account from G.E.S. which sets out payment of the required second deposit April 20, 2004 (Exhibit 19, Tab 2). This summary of described invoices and payments with dates, amounts, invoice/cheque numbers indicated George Krieser regularly failed to pay the full invoice amounts which required G.E.S. to draw down the deposit. This was confirmed by both George Krieser and Greg Seligman in their evidence.

[22] George Krieser’s evidence, which I found to be self-serving and often unreliable, admitted not making the payments within the 7 days as required by the contract. In fact, it became such a practice that George Krieser gave evidence at trial of having averaged his payment efficiency and attempted to portray 26 days as acceptable. In cross-examination, he testified it was “impossible to make these payments in 7 days” (Trial Transcript, March 17, pages 85-88) relying on not having the information needed or being “out of the country”.

[23] George Krieser admitted he was reminded by Greg Seligman on a number of occasions of the 7 day period because Greg Seligman was “making payments on your behalf and people are waiting”. George Krieser purported to have entered into the agreement to have G.E.S. build the house based on his trusting Greg Seligman but even before the relationship reached a breaking point, chose to give priority to reviewing the invoices before payment instead of payment of the invoices in accordance with his agreement to do so and reviewing them subsequently. I find this exemplified George Krieser’s untrustworthiness and willingness to ignore the terms of the contract to suit his purpose of making payments on his own schedule.

[24] Over 100 invoices and draws are listed in the Statement of Account between December 9, 2003 and May 7, 2007. There are only 52 payments received. After the initial deposit, there was only seven occasions when the balance due was reduced to zero, the last being March 20, 2006.

[25] Construction continued such that the Kriesers moved into the house in July, 2006. They have remained living there continuously to this day. I interpret same and find that all of the deficiencies complained of below and litigated were of a minor nature. During the construction, a decision was made to have the whirlpool and spa become part of the interior of the house located on the upper level of the basement. This change was so significant that it required Committee of Adjustment approval which does not appear to have occurred until early 2006 given the first invoice with regard to the spa from Bonavista Pools was dated February 21, 2006 (Exhibit 16, Tab 2). Greg Seligman’s evidence was this change was made one year after construction started. Greg Seligman testified this was not part of the Construction Management Contract and confirmed same with George Krieser and which George Krieser approved (Trial Transcript, January 31, 2023 at pages 23-24). The additional cost of this modification was about $360,000 and this is consistent with G.E.S Construction Spa Management’s ten percent management fee invoice dated May 2, 2007 for $36,607.96.

[26] George Krieser disputed his agreement to pay that amount at trial. In this regard, I prefer and accept the evidence of Greg Seligman. However, no amendment was made to the Construction Management Contract to reflect same.

[27] Although not specifically and clearly set out, the Construction Management Contract was for the building of (only) the house (and not the surrounding yard). I make this finding for the following reasons. The terms used in the contract make no specific reference to or inclusion of landscaping. “The Work” and “The Project” are defined terms in the contract and described completion of and in accordance with architectural plans as provided for by Richard Wengle. This included G.E.S. Construction creating and providing “shop drawings” (see Article 10) for approval by the architect. Richard Wengle was not utilized to design the landscaping. It appears this was not an area in which he had expertise. Rather, as stated earlier, landscape architect, Egils J. Didrichsons was retained and produced the design upon which George Seligman’s landscape company, Greenstone Gardens Inc. did and received approval by George and Shari Krieser to have the necessary work completed. This is reflected in the quote and contract dated June 7, 2006 signed by Shari Krieser for $488,631.55 (Exhibit 18, Tab 3).

Landscaping Contracts

[28] The terms and conditions of this contract are substantially different than the Construction Management Contract. This appears to reflect the evolving relationship between George Krieser and Greg Seligman from before construction began in January, 2004 to June, 2006 when the Kriesers were one month away from moving into their custom designed luxury home.

[29] The initial contract details what was required to be created such as a walkway (retaining) wall, stone work and the driveway. It was supplemented by additional accepted contracts dated September 18, 2006 for rear yard planting (Exhibit 19, Tab 4) and November 9, 2006 for front yard planting (Exhibit 19, Tab 5). There is no reference to the 10 percent management fee Greg Seligman testified he and George Krieser agreed would be paid with one exception. The rear yard planting contract/invoice dated September 18, 2006 itemized a “Management Fee” of $4,231.90 and was paid. George Krieser testified, despite his need to delay payments to scrutinize invoices, that it was paid in error believing it was for taxes. As a result, I accept Greg Seligman’s evidence and find there was an agreement to pay the 10 percent management fee for landscaping work done.

[30] Similar to the Construction Management Contract, there is a Statement of Account to March 16, 2007 (Exhibit 19, Tab 6) from Greenstone Gardens Inc. setting out invoice dates and payments between June 7, 2006 and February 27, 2007. There was also a Statement of Account from Greenstone Gardens Inc. to March 28, 2007 (Exhibit 19, Tab 8) setting out a list of six unpaid invoices totalling $29,964.15 of which $10,838.57 represented the 10 percent Management Fee. There is an email dated February 27, 2007 (Exhibit 18, Tab 6, page B-1-829) where Greg Seligman sets out his understanding of inclusion of the 10 percent Management Fee (and George Krieser’s disagreement with regard to same).

[31] Contrary to the description by George and Shari Krieser that they were paying the invoices in a satisfactory manner, I find the Statement of Account (Exhibit 19, Tab 2) from G.E.S. sets out an accurate history of dates the invoices were submitted for payment and the date and amounts payments were received. It is also in accord with George Krieser’s admission of late payments, and his reliance on his calculation of an average of 26 days rather than the seven days required in the contract negotiated between the parties. I also accept the evidence of George Krieser’s desire to scrutinize the documentation in support of the invoices. It is also consistent with Greg Seligman’s evidence of making repeated requests and follow-up for payment as construction progressed, usually without success.

G.E.S. Construction Workers

[32] Appendix C of the Construction Management Contract is related to the provision in Articles 5 and 6 for G.E.S. to utilize their own “field personnel” and for the Kriesers to pay for such work at the rate set out, being $45 per hour for a (site) supervisor and $25 per hour for labourers. The supervisor was Joe De Gouveia. He was called as a witness by the Kriesers. His background was in carpentry which evolved into a full time position supervising custom homes being built by G.E.S. He was paid under his business style, AJ Renovations and described himself as self-employed. However, he acknowledged working exclusively for G.E.S. and having the use of a pick-up truck, the expense for which were entirely paid for by G.E.S. This was in addition to his $28 per hour wage. These factors indicate that, in the eyes of the law, he was actually an employee.

[33] According to Mr. De Gouveia, the relationship ended in or about April, 2007 (likely a few weeks earlier given more reliable evidence detailed below) when Mr. De Gouveia learned that a new supervisor for G.E.S. he had contact with was being paid $65 per hour. He also learned from George Krieser that G.E.S. was receiving $45 per hour for his services. It was not clear whether Mr. De Gouveia first resigned, then advised George Krieser who promptly offered him a job or was offered the job by George Krieser and then resigned. The job was actually employment with George Krieser’s company, Total Credit Recovery. Mr. De Gouveia described the job as “finishing off odds and ends” at the house (Trial Transcript, January 24, 2023 at page 83). At this point, his evidence was the house was “pretty much completed” (Trial Transcript, January 24, 2023 at page 84). His duties included a variety of maintenance tasks (not provided for in the Construction Management Contract) and his employment continued for the next six or seven years. He testified that he assisted the Kriesers’ family doing “basically, what they needed me to do. I drove the daughter to school, doctor’s appointments, checked on other properties, their cottage, worked in their cottage, stuff like that” (Trial Transcript, January 24, 2023 at page 128).

[34] Mr. De Gouveia’s employment ended in or about 2016 when he testified that he was fired for improperly setting the boilers in the house which emitted carbon monoxide (Trial Transcript, January 25, 2023 at pages 19-20).

[35] The home and landscaping were largely, if not almost completely finished by February, 2007. An important piece of evidence to be considered is in an email dated January 25, 2007 at 10:46 am (Exhibit 18, Tab 1). It is from Jeff McDonald to G.E.S. attaching a list of outstanding items that needed to be “looked at”. The evidence at trial was that Jeff McDonald was hired by the Kriesers to manage the household shortly after they moved in. This included cooking and butler duties. Jeff McDonald began communicating with G.E.S. Greg Seligman described the list of 22 items as deficiencies to be repaired or a “punch list” that is, items that were presented by the homeowners to his company to complete or remedy. As of that date, G.E.S.’s Statement of Account indicated the last payment made by the Kriesers was on January 15, 2007, being $17,781.40. This was against the balance owing of $114,019.92. Subsequent invoices issued to May 7, 2007 increase the amount claimed as outstanding by G.E S. to $142,261.78

[36] The deterioration of the relationship culminated with communication in or about the end of February, 2007 by Greg Seligman that he was withdrawing his services given non-payment of outstanding invoices. At that time, the G.E.S. Construction Statement of Account indicated $89,530.81 was owed.

April 26, 2007 – Eduardo Leal - Shari Krieser Incident

[37] Eduardo Leal operates Vintage Landscape Contractors Limited and received substantial work referrals by Egils Didrichsons and Greenstone Gardens, both at the time of the Krieser landscaping job and subsequently. He was retained by Greg Seligman on behalf of Greenstone to do the landscaping at the Krieser residence in the summer of 2006.

[38] Eduardo Leal testified it was completed by November, 2006 but he was not paid in full as of April 26, 2007. Mr. Leal was an occupant in a vehicle being driving by his then employee, Attila Soregi to another job site along Russell Hill Road. He asked Mr. Soregi to stop at the Krieser residence in order to show him the work done in the front yard as it was complex and similar to a project they had been hired to do. At this point, the evidence diverged.

[39] George Krieser claimed, as he was exiting the property in his vehicle to pick up his son from soccer, that he observed Eduardo Leal and another person sitting in a vehicle stopped on the street in front of the Krieser residence. George Krieser observed Eduardo Leal make a slashing gesture across his throat while looking at George Krieser.

[40] Eduardo Leal’s version is that George Krieser stopped beside the parked vehicle, rolled down his window and asked what was going on in a hostile manner. Eduardo Leal’s response was to say nothing aside from advising Mr. Soregi to roll up the window. He also made a waiving gesture across his face with his right hand or a “go away type of thing” (Trial Transcript, January 27, 2003, page 129). It was agreed George Krieser continued on his way.

[41] George Krieser then called the house and spoke to Shari Krieser advising her of Eduardo Leal’s presence and to lock the doors.

[42] Shari Krieser’s evidence was that she then observed Eduardo Leal on her driveway taking photos of the front yard area. She observed this through a window from inside the home. Instead of heeding her spouse’s advice, she opened the door and began asking Eduardo Leal to leave. Three photos taken were produced at the trial which the Kriesers disputed were taken from off the property. I find it is not clear where Eduardo Leal was standing when these photos were taken. However, it appears clear that Exhibit 43(b) was taken from a position not on the Krieser property given roadway seen at the bottom of that photo. This supports Eduardo Leal’s version of the incident. Ms Krieser testified that Eduardo Leal also yelled at her about being owed $40,000 and refusing to leave the property. He claimed he would “keep her company tonight”.

[43] Shari Krieser testified feeling threatened, scared and afraid so she returned to the house and called their security company and the police.

[44] There was an Intercon Security Report and Response Report prepared by Martin Woodward (Exhibit 42, found at Exhibit 6, Tab K) who also testified. The Response Report describes a “contractor client dispute while conducting a perimeter petrol”. That is, there was no indication he was called to the scene by either of the Kriesers. The report does indicate overhearing the contractor (whom I find to be Eduardo Leal) telling Shari Krieser to “pay him” and “keep her company”. There was also reference to the taking of photos and initially Eduardo Leal refusing to leave the area.

[45] The refusal to leave was consistent with Eduardo Leal’s evidence. When advised the police had been called, he testified wishing to remain to give his version to the police because he had done nothing wrong. Eduardo Leal leaves after waiting some time and believing the police had not, in fact, been called and were not coming. The police apparently attend shortly after Eduardo Leal departs. No police records of their attendance was tendered as evidence at the trial.

[46] The report has Mr. Woodward arriving at 18:34 five minutes before being called and “departure” from the property at 19:48 or 74 minutes later.

[47] The viva voce evidence of Martin Woodward was that he no independent recollection of the events. This was despite it being three years into a ten year term of employment with Intercon Security, and such an event would not have been part of a “usual daily routine”. Further, his reading the report to see if it refreshed his memory did not assist (Trial Transcript, January 26, 2023 at pages 82 to 87).

Regarding the effect these events had on Shari Krieser, she testified having an Intercon person stay on site overnight and being fearful for a few days to a few weeks following. There was no evidence of any medical attention received or other steps taken.

Deficiencies

[48] The Kriesers complained of and testified about a variety of ongoing problems with the quality and completeness of construction. A list was prepared and was the subject of review and an inspection by Stephen Blaney, a professional engineer who gave expert opinion evidence arising from onsite observations at the home on March 4 and June 16, 2016 or about 10 years after the dispute arose.

[49] The list of deficiencies contained 63 items with issues identified and the proposed solution with a cost to repair in separate columns. Twelve of these items were not pursued at trial. More than one-half of the items listed had a cost to repair of less than $5,000. 15 of the items claimed had no known or a zero cost repair. At least 7 of the items listed included the word “maintenance” in the “solution” column. The Kriesers chose not to submit or claim invoices for expenses or other repair costs incurred. The focus of the evidence was on the following areas of concern.

Heating, Ventilation, Air Conditioning (“HVAC”)

[50] The evidence of the Kriesers was certain areas of the home were either too hot or too cold and the problem could not be remedied. The installation of the system was subject to three quotes and George Krieser selected a company called Tropical Heating, being the lowest bid at $269,986 (Exhibit 11, Tab E) rounded to $270,000. This compared to the highest bid at $326,872. The existence of the quotes and his decision to select the lowest flies in the face of his counsel’s reliance on his trial evidence that there was “never a budget put on this, I just wanted it done and I wanted it done well” (Trial Transcript, March 14, 2022, page 42). While counsel sought to describe the system as sophisticated, the evidence of the owner/operator of tropical heating (brothers Bob and Dan Williams) explained they install HVAC system from design plans. In this case, the plans were prepared by McCallum HVAC Design and approved by the City of Toronto (Trial Transcript, February 2, 2023, page 154).

[51] There was evidence that multiple furnace rooms were required for this luxury custom designed home was on account of its size. That is, larger homes such as this one, require multiple sets of heating and air conditioning equipment.

[52] The Kriesers complained and Stephen Blaney proceeded on the basis that the final step of the installation was never completed. That is, the process called “balancing” where the six heating and air conditioning units are adjusted t o provide even heating and cooling throughout the home.

[53] This evidence was contradicted by the evidence of Dan Williams, of Tropical Heating, who, as indicated, supervised the installation of the HVAC system. This would have included starting up all the equipment to make sure it was functioning as designed “just before the client moved into the house” (Trial Transcript, February 3, 2023, pages 79-80). Thus, this would have occurred before the Kriesers moved into the premises in July, 2006.

[54] I find the balancing was performed and while the Kriesers have ongoing complaints about differing temperatures in different areas of the home, the nature and extent of those differences were within the acceptable range of heating and cooling that one would expect in a large custom designed luxury home. I was not satisfied from the evidence of any actionable or improper installation resulting from the conduct or responsibilities of the defendants, Seligman or G.E.S.

Snow Melt System

[55] This describes the flexible tubing (trade name Raupex) placed under the surface of the front walkways, steps and driveway of the premises. It is operated by pumps in the basement which circulates a combination of water and glycol (which expands the freezing and boiling point of the liquid) through the tubing which heats the surface above and melts accumulating ice and snow.

[56] There was competing evidence between the plaintiff’s consulting engineering, Stephen Blaney and the installers, Dan and Bob Williams of Tropical Heating who did the installation of the system. Stephen Blaney’s attendance at the property was on March 1 and June 14, 2016 (or not during the time of year when the system would be actively operating). His inspection of the system did not include any intrusive testing but only reviewed photos showing snow on the steps and/or driveway or a portion thereof, particularly snow on the edge of the steps while areas beyond the edges were damp or clear and dry. As a result, I have difficulty accepting his evidence and expertise in this area. Further, he testified the heat exchange pump had been installed backwards. This was contrary to the evidence of the installer, Bob Williams. Given the ongoing nature of the complaints about the system and the evidence of the Kriesers having other installers or service people attempt to repair the system (with no other evidence of the pump being installed backwards), I prefer the evidence that it was not installed backwards.

[57] Further, it should be noted much was made of Exhibit 8, being a drawing by McCallum HVAC and Design showing the snow melt system included what the plaintiff purports to be the routing of what are called “runs” or “loops” (Exhibit 8”). However, this diagram contained a turn of significantly more than 90 degrees of one of the runs near the roadway which would kink the tubing and block the flow of liquid. Thus, if installed as depicted, that run would not perform as intended.

[58] Further, it did not show a run for what Dan Williams testified was “a city loop” or the portion of the system installed nearest to or abutting the city roadway. Thus, it is on city property (which extends beyond the edge of the roadway towards the house). This could be the subject of city construction or maintenance work over which the property owner had no control. Thus, it is installed as a separate loop which would minimize any damage to the system as a whole. Further, I heard and accept evidence the loops were not to exceed 250 feet to avoid excessive cooling of the liquid. This is also noted on the design diagram setting out that 11 loops were required.

[59] As a result, I have concluded that Exhibit 8 was only representative of the nature and extent of tubing to be installed and not in accord with the accepted practice and method of installation. I prefer the evidence of Dan and Bob Williams given their 10 years of experience doing three or four such installations per year as of that time. Further, it is clear from the photos referenced (for example, Exhibits 2D, 6Q, 33, 39, 45, 46, and 47) the system did work. It would also appear to show installation of the system on the driveway in a pattern different than that indicated in Exhibit 8.

[60] There was also concern raised at the trial that Tropical Heating, G.E.S. and/or Vintage failed to install the 2 inch insulation on the ground underneath the wire mesh to which the tubing is attached to hold it in place while the concrete surface was poured or the steps laid over the sidewalk. None of Mr. Seligman, Mr. Leal or Dan and Bob Williams could confirm from their recollection 15 years later that the styrofoam installation had been installed. Its installation would improve the efficiency of the system by reducing the heating effect of the tubing downwards. No evidence was led by the plaintiff that it was not installed, such as lifting an out of the way small sidewalk stone or drilling a small hole in the driveway which could have proven same. This results in my being satisfied that this usual, regularly followed step of installation occurred.

[61] There was also evidence that the installation of the steps with nosing which extended two inches beyond the vertical support would be a concern even if the system was working optimally. Stephen Blaney’s proposed solution was to cut this edge back to 1 inch (at an estimated cost to $15,420 – Item 10 of the Deficiency Schedule at Exhibit 30). I prefer the evidence of Dan Williams regarding the maintenance and service required by a qualified technician that ensures the system has the appropriate pressure, flow rate and temperature. Such maintenance also addresses potential problems such as faulty sensors, or air locks in the system.

[62] Overall, while the system does not perform to the Kriesers’ high (and perhaps unrealistic) expectations, as compared to the evidence of the witnesses who had direct knowledge of its installation and the need for maintenance, I do not find any liability for its installation or operation on the defendants.

Driveway Cracks

[63] The Kriesers’ allege cracks in the driveway have developed since 2007. They began shortly after construction was finished. This would appear to be contrary to the photos taken by Eduardo Leal on April 26, 2007 (Exhibit 43). They have become more evident over time. When addressed by Stephen Blaney in 2016, his assessment was that many factors might contribute to the cracking he observed and there was no information about actual installation of the driveway. As a result, I find there was insufficient evidence to find any liability on the defendants for its installation.

Bedroom Leaks

[64] Post construction, some moisture was observed in the exterior walls of two bedrooms on the upper levels which required the installation of ice guards on the roof. As stated in the written submissions of the plaintiff’s counsel, this was a “design problem”. As a result, I do find any liability on G.E.S. for its installation.

Garage – Floor Slope

[65] The Kriesers allege that G.E.S. is at fault for the 2 inch downward slope from the rear of the two car deep garage to its entrance. This results in poor flow of moisture to the drain at the entrance of the garage. Multiple architectural drawings show the slope was to be 2 inches. This design feature would appear to have facilitated a near flush threshold for a door near the entrance to the garage into the home which was an intended access point for the Kriesers’ child with mobility issues. As a result, it appears to have been installed as designed and I find no liability rests with G.E.S.

Missing Manuals

[66] There was conflicting evidence about the presence or lack thereof of manuals or material on how to operate and maintain the various systems and devices installed in the home. The Kriesers alleged they were not provided. This is contrary to the evidence of, for example, Dan and Bob Williams who testified leaving such material on site (including, for example, Bob William’s handwritten description of the snow melt loops – Exhibit 6, tab D, and other photographs of same – Exhibits 3A, page 8235-38, Exhibit 3B, page 8 to 41 and 8 to 50-51, Exhibit 3D, page A263-267, Exhibit 5A, page 8314 and Exhibit 5B, page A318) tendered by the Kriesers.

[67] Further, it must be noted that the Kriesers moved into the house in July, 2006 and began using the appliances and other systems over the balance of that year and into the first three months of 2007. That is, a period of eight months before Greg Seligman stopped work given the outstanding balance his company, or at least of portion of same was admittedly owed.

[68] As a result, I find no liability rests on the defendants on this issue. I am reinforced in this conclusion by the availability of such material from the manufacturer of the product or, as the Kriesers claimed, the alternative tradespeople that were brought it to do servicing and/or repair that the Kriesers claimed were unable to assist.

Dry-O-Tron and Cleaning System

[69] This is the system that maintained proper humidity in the spa room given the ongoing operation of the heated whirlpool and an ionizer cleaning system was installed to clean the whirlpool water that was later converted to a chlorine based system after Greg Seligman had stopped work. The original work was done by Bonavista Pools who was a party to initial actin and reached a settlement with the Kriesers, the details of which were not disclosed. As a result, I find no basis for any liability on the remaining defendants.

Other Issues

[70] Counsel for the Kriesers detailed and there was evidence about needing to pay for the survey of the property from a surveyor as part of obtaining the occupancy permit after a copy had been provided to Greg Seligman which he refused to turn over after he stopped work in March, 2007. This is contrary to a letter dated October 11, 2006 from G.E.S. to the Kriesers enclosing the surveyor’s “Real Property Report”. I prefer that written evidence, particularly in the absence of any evidence from the surveyor detailing what occurred.

[71] Cracks have appeared in the ceiling of the master bedroom. A crack has also appeared on the floor of the spa where the foundation wall was and altered after the decision to enclose the spa received Committee of Adjustment Approval. Given the passage of time before they were documented and uncertainty combined with my finding the evidence of the Kriesers to be unreliable, I find no basis to impose any liability on the defendants for same.

[72] Multiple air conditioning units installed along the side of the home were mounted on the exterior wall caused noticeable vibration which could be reduced by rubber bushings (or, if they previously existed which I find occurred, such bushings being replaced). This is a maintenance issue and I find no liability rests for same on the defendants.

Threatening of the Trades

[73] Evidence was tendered that after Greg Seligman stopped work in March, 2007, the Kriesers reached out to various trades to service or repair various systems and that the trades declined to do so on the basis they had been instructed not to by Greg Seligman. This included evidence from Joe De Gouveia who spoke with trades people after he resigned his position with G.E.S. and began working for George Krieser (Total Credit Recovery). George Krieser also gave evidence from a discussion he had with various trades that were noted in an email to his (then) lawyer, March 20, 2007, (Exhibit 6, Tabs F and G). This hearsay evidence included Greg Seligman would not use these trades in his future projects if they assisted the Kriesers.

[74] As part of this issue, the Kriesers called Melissa Brown, a co-owner of Bonavista Pools who confirmed that in or about March, 2018, Greg Seligman asked her not to service the Kriesers because he had not been paid. She also confirmed speaking with George Krieser who agreed to pay her company directly what was outstanding and her agreement to then perform service. A copy of a cheque for $8,280 from George and Shari Krieser to Bonavista dated March 27, 2007 was marked as Exhibit 6, tab P). The company did service for the Kriesers and subsequently.

[75] In cross-examination she denied any threat from Greg Seligman to withhold future work (Trial Transcript, January 23, 2023, page 48, line 29).

[76] Also as part of this issue, Ed Bonisch, the owner of Brady Speciality Shades gave evidence for the Kriesers. His company provided window coverings for the home (and later for the Kriesers’ cottage). His contract was with G.E.S, and there was an outstanding balance of $4,783 from invoice dated March 9, 2007. This was paid by George Krieser in September, 2007. While Ed Bonisch was aware of a split, he had no recollection of any conversation with Greg Seligman about (not) servicing the Kriesers. He admitted doing work for both the Kriesers and G.E.S. subsequently.

[77] Philip Solomon, the owner of A-Lite Electrical, also gave evidence for the Kriesers about work his company performed at the Krieser home. This work was initially invoiced to G.E.S. He testified not recalling getting paid for work performed and having a “falling out at the time of this job” with Greg Seligman (Trial Transcript, January 23, page 111, lines 27-32) and not doing work for Greg Seligman subsequently. He testified in chief, to his knowledge, having not ever being told by Greg Seligman that he would lose work if he continued to service the Kriesers (Trial Transcript, January 23, page 115, lines 30-32).

[78] Dan and Bob Williams, co-owners of Tropical Heating, gave evidence about their reluctance to do work for the Kriesers. However, Bob Williams did so in the months after Greg Seligman stopped doing work for the Kriesers and again in 2019 (although this appears to have been at the request of Greg Seligman as part of pretrial efforts to resolve the matter). Much was made by counsel for the Kriesers of the evidence by Dan and Bob Williams of declining to attend and perform work for the Kriesers, despite no record of non-payment to them, as not being credible. My impression was these experienced businessmen were in a position to decide whom they would do work for and did so. I also accept they wished to avoid and could choose customers whom they believed could become problematic such as the Krieser’s. I also accept they wished to avoid and could choose customers whom they believed could become problematic such as the Krieser’s.

[79] It should also be noted the evidence at trial included a letter to the Kriesers dated November 29, 2006 from G.E.S. urging them to organize regular maintenance contracts and attaching a list of 21 companies, organized by their trade with phone numbers (Exhibit 18, Tab 9, page B-1-884-85). The companies listed were the trades used and appear to reflect the evidence from both parties that the Kriesers could rely on Greg Seligman’s strong relationship with the trades he used to correct any issues that arose.

Breach of Contract

[80] I find that the Construction Management Contract between Shari Krieser and G.E.S. was breached on her behalf by her spouse, George Krieser in their failure to comply with timely payments of invoices rendered. It was submitted by George Krieser in his evidence in chief at this trial that, by his own calculation, he owed $58,653.82 when G.E.S. stopped working on the home. That amount remained unpaid through to and during this trial.

[81] The contract was negotiated between the parties. The Kriesers had their own lawyer review the terms and provide input as to changes requested. The contract contained clear statements of when invoices for work performed were to be paid (Clauses 3.3 and 4.1), the rates which the Kriesers agreed to pay for a G.E.S. Supervisor and Labourers (Clause 5.1 – Appendix C) and an entire agreement provision (Clause 18.6). Pursuant to Clause 12.1, this undermines the claim by G.E.S. for payment of the additional management fee of $36,607.96 despite my accepting Greg Seligman’s evidence over that of George Krieser that George Krieser agreed to pay same. That claim is dismissed.

[82] As a result, I find in favour of G.E.S. for the outstanding amount as set out in the Statement of Account (Exhibit 19, tab 2) subject to deductions detailed below.

[83] The breach of the Construction Management Contract with Shari Krieser disentitles them to relief for any warranty claims or deficient instructions installations. This includes the request to issue or provide a certificate of Substantial Performance of the Work. It should be noted, had I found the reverse, I would not have been satisfied with the evidence about many of the Kriesers complaints which appear to have resulted from either little or poor maintenance. It was clear Joe De Gouveia was a skilled supervisor. That position included organizing and supervising the trades necessary to install portions of the home in which those trades had expertise. Joe De Gouveia was not a skilled maintenance person as attested to by the ongoing complaints from the Kriesers of systems not working to their expectations and resulted in his dismissal for improper servicing of the boilers described above.

[84] As a result, the Kriesers owed the defendant, G.E.S. and G.E.S. shall have judgment for $92,589.90. This figure is calculated by reducing the balance contained in the G.E.S. Statement of Account as of May 7, 2007 of $142,261.78 for the acknowledged credit for the Kriesers’ payment of $8,280 to Bonavista Pools and the $4,783.92 credit and payment to Brady Shades. The last deduction is the $36,607.96 for payment of the management fee regarding the spa.

[85] The Kriesers raised the failure by G.E.S. to have disputes settled by the architect or arbitration as provided for in Clause 17.1 of the Construction Management Agreement. However, it is clear, given the Kriesers’ concerns about the architect being in business with Greg Seligman on another house that they would have been reluctant, if not strongly opposed, to proceeding in that matter. Further, it was open to them to demand and proceed to arbitration. This did not occur. I reject it as a basis to find in favour of the Kriesers.

[86] The Greenstone contract was very different in its formation and detail. It involved three quotations on Greenstone letterhead for work to be performed. As submitted by counsel for Greenstone, these were fixed price contracts. They contained no terms restricting subcontracting of the actual work. Those letters, dated June 7, 2006, September 18, 2006 and November 9, 2006 (Exhibit 19, tabs 3, 4 and 5) were signed either by George or Shari Krieser. The fourth letter, dated March 28, 2007 was neither signed by the Kriesers or agreed to and thus is unenforceable. Further, that letter made no provision for a management fee.

[87] Unlike the Construction Management Contract, these letters contain no terms on who was to perform the work. As a result, I prefer and find the evidence at trial of Greg Seligman over that of George Krieser with regard to George Krieser’s agreement to be bound by these contracts and to pay the 10 percent management fee. I am reinforced in this conclusion by George Krieser’s payment of the management fees set out in the September 18, 2006 invoice.

[88] As a result, there shall be judgment in favour of Greenstone as against George Krieser and Shari Krieser (to whom the contracts were addressed and the evidence supported they agreed to have the landscape work performed) in the amount of $20,084.95. This is the amount outstanding as indicated in the Statement of Account as at March 16, 2007 (Exhibit 19, tab 6). The claim for the additional $9,879.20 contained in the letter of March 28, 2007 is dismissed.

Corporate Veil

[89] In its submissions, the Kriesers sought relief not only as against G.E.S. and Greenstone with regard to the alleged deficiencies in construction of the home and landscaping but also against Greg Seligman personally. It did so on the basis of the Court’s equitable jurisdiction to “pierce the corporate veil”. As I have found, it was the Kriesers who breached the contract with G.E.S. and Greenstone. Thus, is not necessary to determine this issue. I would only indicate that I reject the submission by the Kriesers of Greg Seligman acting in a fraudulent or dishonest manner. His contract with the Kriesers set out terms and prices the corporate entity agreed to charge the Kriesers and it did so. The fact individuals were paid in the employ of G.E.S. in an amount less than what the Kriesers negotiated and agreed to pay for these services ignored, as was tendered in evidence, the additional expenses G.E.S. incurred for its employees. This included the use of a company truck for Joe De Gouveia as well as standard and obligatory payments for employment insurance and pension premiums or other expenses.

Duty of Good Faith and Honesty

[90] The Kriesers raise this issue in submissions and relied on the reasons of the Supreme Court of Canada decision being Bhasin v. Hrynew, 2014 SCC 71 and C.M. Callow Inc. v. Zollinger, 2020 SCC 45.

[91] I reject that the conduct of Greg Seligman in his role as the owner of both G.E.S. or Greenstone was of a nature that equated the conduct that occurred in those decisions. Both parties in this dispute acted in their own best interests. To that end, I would adopt the statements in Bhasin v. Hrynew, supra (at paragraph 70) “The principle of good faith must be applied in a manner that is consistent with the fundamental commitments of the common law of contract which generally places great weight on the freedom of contracting parties to pursue their individual self-interest”. That paragraph concludes and I am guided by “The development of the principle of good faith must be clear not to veer into a form of ad hoc judicial moralism or “palm tree” justice. In particular, the organizing principle of good faith should not be used as a pretext for scrutinizing the motives of contracting parties”.

[92] To the contrary, I find George Krieser’s unilateral decision to determine what amounts he would pay and when closer to the type of conduct requiring judicial intervention as considered in these Supreme Court of Canada’s decision.

[93] On this basis, I also find no fiduciary relationship arose.

[94] This was not a situation as relied on by counsel for the Kriesers in Ross v. 0999079 BC Ltd., 2021 BCSC 1165 (at paragraph 214) where insurance proceeds were transferred to parties who did not do any work on the rebuilding of the plaintiff’s home after it was destroyed by fire.

Civil Conspiracy

[95] The Krieser alleged in submissions a tort of civil conspiracy and unlawful conduct. I reject the elements for that tort having been met. As noted in submissions, such claims are “often built on inference, as it is difficult to prove them by direct evidence”, Extreme Venture Partners Fund I LP v. Varma, 2019 ONSC 2907 (at paragraph 242).

[96] In this regard, the events of April 26, 2007 are revisited. I reject the version of events as stated by the Kriesers and prefer that of Eduardo Leal. While there was some inconsistencies in his evidence which regrettably may have occurred to the passage of time, I found his demeanor to be generally forthright and candid.

Intimidation

[97] The Kriesers maintain that Greg Seligman prevented trades from returning to their home to complete or service work done by them after March, 2007. The evidence, summarized above is to the contrary. Interestingly, when the Kriesers paid their outstanding accounts, such as to Bonavista Pools and Brady Shading, the owners of those businesses provided additional service. However, G.E.S. and Greenstone were not provided the same courtesy of prompt and full payment.

[98] The evidence of Melissa Brown was clear she was not told by Greg Seligman that he would withhold future work. Similarly, Philip Solomon also testified to that effect. As a result, the contrary evidence of Joe De Gouveia must be discounted.

[99] For the reasons stated, I prefer the evidence of Eduardo Leal with regard to the events of April 26, 2007. To that end, I find that he did not proceed onto the Kriesers’ property. It is also noteworthy to recall the evidence of Dan Williams installing the snow melt tubing with a “city loop”. The actual property line dividing the city road allowance from the Kriesers’ property line is not where the ground level pavement roadway meets the end of the driveway but some distance beyond that. As a result, had Mr. Leal encroached a few steps onto the driveway to take the pictures, it was not technically a trespass.

[100] In this regard, in the event I am in error, the general damages for any emotional distress, caused to Shari Krieser as a result of Eduardo Leal’s action should be assessed. However, I would assess same in a minimal amount. There was no evidence of any injury aside from minor emotional upset. There was no medical attention sought or received. By her own admission, Shari Krieser was recovered within a few days to a few weeks. I would assess general damages in the amount of $1,000 or far less than the $42,000 claimed in submissions. To be clear, that claim is dismissed.

Punitive Damages

[101] As indicated in my findings above, the conduct of the defendants did not meet the requisite elements that requires a determination of whether there should be an award under this heading or in any amount. I reject the plaintiffs’ submission of an award of $135,000 as against Greg Seligman and his companies or the $50,000 sought as against Eduardo Leal and Vintage. Those claims are dismissed.

Estoppel by Representation

[102] Given this was a mid trial amendment to the Kriesers’ claim and resulted in an adjournment of the trial from November 21, 2022 to January 23, 2023, it shall be briefly addressed. This concerned any reliance by G.E.S. in Clause 13.2(c) of the Construction Management Contract and the Kriesers’ agreement to “indemnify and hold harmless the Contractor, his agents or employees, from and against any claims, demands, losses, costs, damages, actions, suits or proceedings” attributed to the negligence or breach of contract by subcontractors.

[103] The submissions by counsel for the Kriesers was that the acceptance by G.E.S. of the Kriesers’ habitual late and insufficient payments became so routine that it amounted to G.E.S. waiving its right to claim a breach of contract on this basis. I disagree. To the contrary, there are multiple in writing statements by Greg Seligman contesting this conduct (in addition to his oral evidence at this trial). The best examples of same are contained in Exhibit 18, tab 6, pages B-1-790 and B-1-795 where the need for full and prompt payment is explained. This conduct was not, as submitted by counsel for the Kriesers, the required “intentional relinquishment of a known right” (at paragraph 345 of written Closing Submissions on behalf of the Kriesers).

Conclusion

[104] The actions by the Kriesers are dismissed as against all defendants. The counterclaim by G.E.S. against George and Shari Krieser in Action No. 07-CV-332316PD2 is granted and Judgment shall issue in the amount of $92,589.90 as indicated above. Similarly, the counterclaim by Greenstone Gardens against George and Shari Krieser is granted in the amount of $20,084.95. The action by the Kriesers against the defendants’ Action No. 07-CV-333901PD1 is also dismissed as against the defendants.

Pre-Judgment Interest

[105] The Construction Management Contract provided for, in Clause 18.2(a) interest on overdue fees and expenses from the due date to the date of payment at 2% (presumably per year) over the prime rate as charged by the Canadian Imperial Bank of Commerce on demand loans made to its most favoured commercial borrowers. No evidence was tendered as to this rate.

[106] In closing submissions, the Kriesers sought pre-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43. This is no doubt due to the extraordinarily lengthy passage of time between when this matter commenced and completion of the trial.

[107] To the contrary, the defendants sought pre-judgment interest based on the contract or, in the alternative, the Courts of Justice Act, supra. I note these actions, commenced in May, 2007 would attract Courts of Justice Act, supra, interest at the rate of 4.5% per year. It seems clear some abatement should occur for the passage of time and delays that resulted not due to the conduct of the parties.

[108] I urge to the parties to agree on pre-judgment interest. If they cannot, they may state their position and the basis for same in written submissions not exceeding three double spaced typed pages in a readable font on the same time deadline as provided for my fixing of costs, if required, as indicated below.

Costs

[109] I requested the parties prepare and submit their Bill of Costs at the conclusion of submissions. The Kriesers’ claimed $1,232,337.33 for actual fees reduced to 80 percent on a substantial indemnity basis and 60 percent on a partial indemnity basis. The extended time frame of this action involves additional GST in addition to HST. The disbursements claimed total $62,747.67 of which $26,790.76 was related to the engineering evidence of Stephen Blaney.

[110] The Kriesers’ claimed costs incurred by the initial counsel from 2007 to 2015 of $57,506 with hourly rates between $80 an hour for a first year lawyer (at that time) to $450 per hour. For trial counsel, the rates, ranged from $300 per hour for first year counsel to $1,000 per hour for Mr. Prehogan (whose presence at trial did not begin until 2023).

[111] By comparison, the defendants claimed substantial indemnity fees (at 90 percent) of $149,824.50 plus disbursements of $12,258.57. The substantial indemnity fees for counsel which resumed and completed the trial were $349,140 plus disbursements of $444.57.

[112] The total costs claimed by the defendants was $498,964.50 on a substantial indemnity basis (reduced to $332,643 on a partial indemnity basis) plus GST/HST and disbursements of $12,703.14.

[113] The hourly rates used by the initial counsel for the defendants ranged from $231.44 per hour to $500 per hour. Counsel that attended the trial used hourly rates between $350 to $550 per hour.

[114] I was advised that Offers to Settle had been made by each side.

[115] I urge the parties to agree on costs. If they cannot, then the G.E.S./Vintage parties shall submit the amount they are requesting be awarded with supporting submissions in not greater than five (additional to that for pre-judgment interest) double spaced typewritten pages in a readable font excluding copies of any Offer to Settle being relied on. The deadline for delivering same to counsel for the Kriesers and myself shall be November 23, 2023. Counsel for the Kriesers shall have until December 19, 2023 to respond, identically limited.

[116] The submissions may be delivered to me at the email from which they received this decision.

Mr. Justice G. Dow Released: October 23, 2023

COURT FILE NOS.: 07-CV-333901PD1 and 07-CV-332316PD2 DATE: 20231023 ONTARIO SUPERIOR COURT OF JUSTICE

Court File No. 07-CV-333901PD1 BETWEEN: SHARI KRIESER and GEORGE KRIESER Plaintiffs – and – GREGORY EVAN SELIGMAN, VINTAGE LANDSCAPE CONTRACTORS LIMITED, GREENSTONE GARDENS INC., G.E.S. CONSTRUCTION LIMITED, EDUARDO LEAL, 1415952 ONTARIO INC. and JOHN DOE NO. 1 Defendants Court File No. 07-CV-332316PD2 BETWEEN: SHARI KRIESER Plaintiff GREGORY EVAN SELIGMAN, G.E.S. CONSTRUCTION LIMITED, GREENSTONE GARDENS INC., 1665610 ONTARIO INC., and BONAVISTA POOLS LIMITED Defendants AND BETWEEN: G.E.S. CONSTRUCTION LIMITED, GREENSTONE GARDENS INC. Plaintiffs by Counterclaim -and- SHARI KRIESER and GEORGE KRIESER Defendants by Counterclaim

REASONS FOR DECISION Mr. Justice G. Dow Released: October 23, 2023