Integrity Home and Cottage Inc. v. Clegg and Kelly, 2023 ONSC 2603

Court File and Parties

PETERBOROUGH COURT FILE NO.: CV-16-167-00 DATE: 2023-04-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Integrity Home and Cottage Inc., Plaintiff – and – Jane Clegg and Robin Kelly, Defendants

Counsel: Anastasia M. Friend and J. Dobson, for the Plaintiff Self Represented, for the Defendants

HEARD: May 20 and 21, 2021, October 13, 14, 15, 18 and 19, 2021 and March 2, 2023

Decision from Trial

Sutherland J.:

Introduction

[1] By Order dated March 17, 2022, Regional Senior Justice Edwards appointed me to adjudicate the trial of this proceeding based on the transcript evidence due to the passing of Justice David Salmers.

[2] The trial of this proceeding was bifurcated. The first part was a trial on issues concerning the Contract. The issues concerned the parties’ obligations to each other. Justice Salmers made findings regarding the Contract and its terms, who the parties to the Contract were, and what constituted the Contract documents.

[3] In a decision released on March 4, 2020, Justice Salmers decided the first part of the trial. [1]

[4] The second part of the trial is to determine the amounts, if any, owed either to the plaintiff or, on the counterclaim, to the defendants.

[5] The evidence of the second part of the trial was completed on October 19, 2021. Before hearing submissions and writing the decision from that trial, Justice Salmers tragically passed away.

[6] It is my task, as I see it, to adjudicate the second part of the trial from the evidence presented at the trial, which includes the transcripts of the testimony and the proceedings along with all exhibits filed. I have also received extensive written submissions from the parties.

[7] At a conference with the parties, it was agreed that if I determine that I require oral submissions on any of the issues from the second part of the trial, I would advise the parties and an oral hearing would be scheduled. Such a hearing was conducted on March 2, 2023.

[8] Thus, I intend to:

1. Set out the findings of Justice Salmers from the first part of the trial.
2. Briefly describe the action and the Licence Appeals Tribunal (LAT) Order.
3. Briefly describe the Contract.
4. Set out the issues to be answered and provide my analysis on each issue.

[9] To be clear, I do not intend to re-visit or redo Justice Salmers’ findings on the first part of the trial. I accept those findings and will only deal with issues arising from the second part of the trial.

1. Findings of Salmers J. on the First Part of the Trial

[10] On or about July 28, 2015, the parties entered into the Contract for the plaintiff to provide construction labour and materials for an improvement to the defendants’ lands and premises.

[11] Justice Salmers made clear findings on the obligations between the parties under the Contract. These findings were:

a. That the plaintiff was not obligated to build the residence of the defendants in accordance with the Mansfield Drawings. The plaintiff agreed to build the residence to drywall stage, which means, no installation of drywall or interior finishes. The obligation of the plaintiff would include only construction to a shell, being mechanical, electrical, and plumbing rough-ins. b. The defendant Robin Kelly was not a party with obligations under the Contract. c. The Contract encompassed: i. the July 28, 2015 Total Construction Agreement (TCA) including the Appendices A and B; ii. the August 7, 2015 Sketches, signed by Ms. Clegg on August 10, 2015; iii. the Amended Appendix D; iv. Change Orders 15001-C2, 15001-C3, and 15001-C4.

[12] Justice Salmers also reserved the costs for the first part of the trial to be dealt with after the entire trial was completed.

2. The Action and LAT Order

[13] The work commenced on July 28, 2015. The work was either abandoned by the plaintiff or terminated by the defendants around June 3, 2016. It is not disputed that the Contract work was not fully completed.

[14] The plaintiff registered a claim for lien upon the title of the defendants’ property. The lien was registered as instrument number PE247002 on June 9, 2016, in the amount of $114,057.06. An action was commenced by the plaintiff to enforce its claim for lien on July 20, 2016. [2] A certificate of action was issued on July 20, 2016. The Statement of Claim requests payment in the amount of $178,775.20 plus costs and interest. The plaintiff admits that it is only seeking the sum of $144,632.43, which is more than its claim for lien.

[15] The defendants paid to the plaintiff the sum of $327,851.12. The defendants dispute the amount claimed and claim that the plaintiff owes them monies for deficient and incomplete work plus general, punitive, and exemplary damages. The defendants claim that the plaintiff abandoned the work and did not complete the work contracted. The defendants’ claim consists of:

a. $126,357.05 for compensatory damages. b. $50,000 for punitive and exemplary damages. c. $50,000 for general damages. d. Costs and interest.

[16] The defendants chose a forum for a remedy and commenced proceedings under Tarion. The defendants were not successful and appealed the decision to the LAT. Before the appeal was heard, the parties, on consent, entered into the LAT Order. [3] The parties agreed to perform certain work in the LAT Order:

a. Install the Brise Soleil. b. Remove and replace the concrete slab in the garage. c. Install and remediate the Trex decking and rain escape system. d. Install glass railing on the deck catwalk. e. Remediate the eavestroughing f. Complete the eavestroughing over the office area. g. Attach the dimple board on the west side. h. Framing the fireplace in the great room, the downstairs lounge, and the outdoor living area. i. Install the deck stairs from the catwalk to the finished grade. j. Roxul insulation. k. HRV balance certificate to be provided to meet final HVAC inspection requirement.

[17] The LAT Order further stated that the plaintiff may proceed with its lien action, the defendants may proceed with their counterclaim, and the LAT Order will not cause either party to amend their respective pleadings.

[18] The plaintiff admitted that the following work described in paragraphs 17 was not completed: a, b, e, f, and g. Mr. Gerald Hood, principal and general manager of the plaintiff, testified that the work was not completed due to scheduling issues with the defendants. He testified that the plaintiff was ready and willing to complete the work, and provided dates to do so, but was unable to because the defendants were not responding.

[19] It is not disputed that there is no relief requested by the defendants in this proceeding concerning the failure of the plaintiff to comply with the LAT Order. I am of the view that this Court in this proceeding does not have jurisdiction to adjudicate the failure of the plaintiff to comply with the LAT Order. First, this is an action pursuant to the Act. It is questionable that such relief is within the realm of the Act. Second, no relief was requested in this proceeding. Third, the LAT has the jurisdiction to adjudicate failure of a party to comply with its orders. [4] Thus, I am of the view that relief of the defendants for failure of the plaintiff to comply with the LAT Order is not in within this proceeding.

3. The Contract

[20] The Contract detailed the work to be performed by the plaintiff along with the duties and obligations of the parties to the Contract.

[21] The Contract indicated that:

a. The plaintiff would construct portion A and B of the Contract, namely a shell and rough-in installation and there was no agreed upon completion date of the construction. b. For portion A, the work encompassed: obtain permit, waste removal of construction related waste, insurance, site preparation work, excavation and backfill, except final grade, septic system and existing well, hydro and gas to the home, foundation, wall systems and shell construction to drywall stage. Windows and door, garage doors, soffits and fascia, decks and rails and aluminum eavestrough. Not included is interior concrete slabs and exterior wall finishes. c. For portion B, the work encompassed: mechanical (HVAC and fireplaces), electrical rough-in, plumbing rough-in with sewage ejection pump, insulation, rough-in framing and concrete slabs for garage and basement. d. Summary of costs and payment schedule (Appendix D). e. Payments are to be made pursuant to Appendix D. f. Any changes after the first payment will be done by change order. g. Interest will accrue on any outstanding amount at the rate of TD Bank prime rate plus 2%. h. The plaintiff will indemnify the defendant, Ms. Clegg, for any liens registered or action commenced by any subtrades or material suppliers, provided it has been paid in full and the plaintiff shall promptly cause the registration of any liens to be removed and deleted from title. i. Amendment 1 to Appendix D which included statutory holdback obligations. j. Change Order C2, site work and utilities per Buckhorn Sand and Gravel estimates which included tree and stump removal, basement and garage excavation and stockpile of material, stone, and drainage pipe for foundation, backfill work, septic system, excavation for hydro and well, removal of material off site, geotechnical engineering report, and extend garage foundation wall. k. Change Order C3, increase size of the detached garage, excluding any exterior wall finishes and rough-in work. l. Change Order C4, change the type of facia, deck support and insulation and upgrade electrical water heater and material for sloped ceilings in the House. m. Under the headings Scope of Work and Contract Documents, the Contract set out the obligations and responsibilities of the plaintiff. The Contract states: a. The plaintiff is not responsible for any activities not specifically addressed in the Contract. b. All other activities that are necessary for the successful completion of the Project that are not in the Contract are the expressed responsibility of the defendant “including, but not limited to excluded work.” c. “The Contract Documents constitute the entire agreement between IHC (the plaintiff) and the Client (the defendant, Ms. Clegg) with respect to the services provided and supersede any prior understanding or arrangements between them and there are no representation, warranties, or agreement between the parties (whether oral or written) except as expressly set out in the Contract Documents.” n. Under Conditions, the Contract allows for Change Orders that the defendant, Ms. Clegg may request for work that is not covered in the Contract or that there is a determination that the conditions upon which the Contract was based “differ materially.” The plaintiff is not obligated to perform such work set out in the Change Order “until such Change Order has been agreed upon and signed by the client (Ms. Clegg) and IHC (the plaintiff)”.

4. Issues

[22] The issues for the Court to determine are:

a. Validity of the plaintiff’s claim. b. Whether the Contract was breached and by whom. c. The claim of the plaintiff. d. The set off and counter claim of the defendants.

a. Validity of the Plaintiff’s Claim

[23] At the time the parties entered into the Contract, the Act mandated that a claim for lien of a contractor must be preserved, that is registered on title, within 45 days from the earliest of the date the contract is complete, abandoned, or terminated. The Act also mandated that a claim for lien is preserved, that is an action has been commenced and a certificate of action registered on title (if the lien has not been vacated), 90 days after the earliest of the contract has been completed, abandoned, or terminated. [5]

[24] The plaintiff’s lien was preserved on June 9, 2016 and perfected on July 20, 2016. From the calculation of days, it appears that the claim for lien of the plaintiff complies with sections 31 and 36 of the Act.

[25] The defendants did not dispute the timeliness of the preservation and perfection of the plaintiff’s lien.

[26] However, at the trial, no evidence was presented to indicate that the plaintiff’s lien was preserved and perfected. No abstract of title showing deleted instruments was presented.

[27] On March 2, 2023, I heard submissions from the parties and one of the issues was this lack of evidence presented at the trial. On March 20, 2023, I received a consent motion with a draft Order to allow the trial to be reopened to permit the plaintiff to file as an Exhibit a Parcel Register showing deleted instruments, copy of the registered claim for lien, copy of the registered certificate of action, and Clear Certificate of executions. This Order was granted on March 20, 2023. The new evidence as set out in the affidavit of Emily Carere sworn March 10, 2023, is accepted as an exhibit on the second trial.

[28] From the new evidence provided, the plaintiff’s claim for lien was preserved and perfected pursuant to the pertinent provisions of the Act. I therefore find that the plaintiff has a valid lien registered on the title of the Property and there are no other claims for liens registered or writs of execution claimed against the title of the Property.

b. Whether the Contract was breached and by whom

[29] There is no factual dispute between the parties that the Contract came to an end in June 2016. The uncontroverted evidence presented at trial is that the plaintiff sent a Notice of Non-Payment dated May 26, 2016, which stated:

This is to notify you that, as of the date of this letter, we have not received $24,598.13 representing payment due for outstanding payment(s) for Inv#2639, Inv# 2717, Inv#2808, Inv# 2809 approved by Jane Clegg. This failure to make payment constitutes a material breach of our contract. If within three days from this letter, we do not receive payment of the sums due and owing to us, we will exercise our rights under the assigned Total Construction Agreement and the Construction Lien Act, 1990, c.C.30-Current July 1, 2011. [Emphasis in original].

[30] Mr. Hood sent an email dated May 31, 2016 indicating that there had not been a response after their numerous attempts for payment. As of the date of the email, the plaintiff had incurred costs over $400,000 and the account needed to be paid. Mr. Hood stated:

This is my last courtesy e-mail to both of you, I would be happy to drive to pick up the payment must let me know where and when. I have already proceeded with a lien on your property and will send a letter out to all trades and suppliers informing then of your delinquent account. [“sic”]

Please respond!!!

[31] The defendants received this Notice of Non-Payment and responded by email dated June 1, 2016, addressed to Mr. Jenkinson. In that email, the defendants indicate that the plaintiff was in breach of the Consumer Protection Act, 2002 [6] (“CPA”) and the defendants demanded compliance with the CPA by June 10, 2016. The email further states that the Contract between the plaintiff and the defendants “was a fixed price custom home incorporating the architectural drawings produced by Peter Mansfield…” It goes further to indicate that the plaintiff “offered false, misleading and deceptive representation.” In conclusion, the email states:

Unfortunately, the situation that has now been created will result in us having no other alternative than to proceed under the terms of the Consumer Protection Act 2002 and officially rescind the contract effective 5:00 pm June 1, 2016 due to false, misleading, and deceptive representation. [Emphasis in original].

[32] The email goes further and states that the plaintiff has until 5:00 p.m. Friday June 10, 2016, to respond after which an official complaint with the Consumer Protection Association will be filed.

[33] The plaintiff did not respond to the email.

[34] The claim for lien was then registered on June 9, 2016.

[35] Attempts were made for a meeting to discuss the issues, but no meeting took place.

[36] The plaintiff’s evidence, as set out in the Amended Affidavits of Mr. Hood and Mr. Roger Gourly and their respective testimony, is that the defendants were in breach of the payment provision of the Contract and as such the plaintiff stopped any further work on the construction until payment of the outstanding amount was received. Their evidence further indicates that after receipt of the June 1, 2016 email from the defendants, no further work was done, except the work performed pursuant to the LAT Order.

[37] The defendants’ evidence through the affidavit of Ms. Kelly and the testimony of Ms. Clegg is that they were not in breach of the payment and actually made payments per invoices received, even though work described in the invoices had not been completed. Ms. Clegg in her testimony, answering questions in cross examination and from the Court, agreed that she used the word rescind based on her research of the CPA and due to the false, misleading, and deceptive representations.

[38] Mr. Roger Gourly, the construction/project manager for the plaintiff at the time, in his affidavit deposed that in the spring of 2016 he attended at the defendants’ property to inspect the progress of work. He was met by Ms. Clegg approaching him in her vehicle and was asked why he was at the property. Ms. Clegg told him that she had delivered a letter to the plaintiff that morning and that she did not want anyone from the plaintiff on her property. Mr. Gourley then left and did not return to the property. Since March 2018, Mr. Gourly has not been employed by the plaintiff.

[39] Mr. Gourly’s evidence on this interaction with Ms. Clegg was not challenged on cross examination.

[40] Ms. Clegg’s evidence did not dispute Mr. Gourly’s evidence concerning this interaction with her.

[41] I find that the interaction did occur and accept the evidence of Mr. Gourly.

[42] In addition, the defendants retained third party contractors to complete the construction and those workers commenced work around June 21, 2016.

[43] Accordingly, I conclude that as of June 1, 2016, 5:00 p.m. the Contract was terminated by the defendants. The email of Ms. Clegg is clear. Her use of the term “rescind” was not used in the way the common law interprets recission. [7] Nevertheless, I determine that the defendants intended to and did terminate the Contract as of June 1, 2016, at 5:00 p.m. This conclusion is reinforced by:

a. Mr. Gourly’s interaction with Ms. Clegg. b. The plaintiff did not attend at the site after June 2016, except in 2018 to remedy deficiencies per the LAT Order. c. The defendants commenced retaining other contractors to do work in the third week of June 2016. d. No further payments were made by the defendants.

The plaintiff also preserved their claim for lien on June 9, 2016, which further follows the sequence of events that the contractual relationship between the defendants and the plaintiff came to an end in early June 2016. The plaintiff accepted the recission of the Contract and proceeded to make a claim for monies owed.

[44] The next question is whether the defendants had the foundation to terminate the Contract. I find that they did not.

[45] I do not find that the plaintiff’s conduct justified termination.

[46] There was no date set in the Contract for completion. On the evidence presented, I am not convinced that the plaintiff inordinately delayed the completion of the work. The obligation under the Act is on the Payor, the defendants, to hold back the 10% statutory holdback. In any event, there were no other claims for lien registered on the title of the Property by any subcontractor or material supplier. So, the statutory holdback never became an issue.

[47] Furthermore, I am not persuaded that there was a breach of the Contract by the plaintiff in the construction of the shell of the house that would have justified termination. To justify the termination, the defendants also put forth the difference in measurements between the actual constructed measurements and planned measurements of the TV/fireplace frame, the Golf simulator room, and the alleged concert edge for the deck. I am of the view that none of these justifications separately or put together support the determination of the Contract. Much of these justifications put forth by the defendants are for work that may have been completed if the Contract was not terminated. Also, much of the complaints about work was not for work that formed part of the Contract, as determined by Justice Salmers. The defendants used the Mansfield Drawings as the basis of the complaints for improper or incomplete work, but Justice Salmers determined that the Contract was not based on the Mansfield Drawings. Accordingly, I am not persuaded that the defendants were justified in their termination of the Contract on June 1, 2016.

c. The Plaintiff’s Claim

[48] The plaintiff claims that the defendants have failed to pay the following invoices for work completed:

a. Invoice 2717 in the amount of $11,442.08 with a balance of $7,827.02 owing. b. Invoice 2780 in the amount of $51,119.39. c. Invoice 2795 in the amount of $38,339.54. d. Invoice 2808 in the amount of $1,737.43. e. Invoice 2809 in the amount of $15,033.68. f. Invoice 2863 in the amount of $29,182.09. g. Invoice 2864 in the amount of $2,555.97. h. Invoice 2867 in the amount of $8,655.70. i. Invoice 2878 in the amount of $3,515.93. j. Invoice 2879 in the amount of $10,223.88.

Total $168,190.63.

[49] From the evidence of Mr. Hood, the plaintiff agrees that the defendants paid directly to suppliers the sum of $23,558.00. This reduces the amount of the plaintiff’s claim to $144,632.63 ($168,190.63 - $23,558).

[50] Ms. Clegg in her evidence did not dispute that she did not pay six of the invoices, namely invoices 2780, 2795, 2863, 2864, 2808, and 2809.

[51] Ms. Clegg indicated that with invoice 2717, she provided a cheque in the amount of $9,000. The cheque was not specifically directed to an invoice. The plaintiff indicated that a portion of the cheque was allocated to older outstanding invoices and the sum of $7,826.02 was allocated to invoice 2717. This allocation was not contested and the fact that the full $9,000 was allocated to the defendants’ account was not disputed.

[52] From the evidence presented, there is no contest that invoices 2780, 2795, 2863, 2717, and 2864 are owing.

[53] However, there are issues concerning invoices 2808, 2809, 2867, 2878, and 2879.

[54] Invoice 2808 is for site survey consulting performed by a subcontractor Elliot and Parr, with a 15% for overhead and profit. The Contract allows for cost-plus items, being the costs of the work by others plus 15% markup for overhead and profit. This work relates to Change Order 6, which the Court determined was not part of the Contract work. This is an extra to the Contract. This invoice has not been paid. I allow this invoice as an extra to the Contract.

[55] Invoice 2809 relates to additional backfill performed by Buckhorn Sand and Gravel. This work relates to Change Order 7. The Court determined that this work was not part of the Contract work. It is a claimed extra by the plaintiff. From the evidence presented at trial, I am satisfied that the work was extra to the Contract and that the invoice is owed by the defendant, Ms. Clegg.

[56] Concerning invoices 2878 and 2879, the plaintiff’s evidence is that these invoices were submitted and not paid. The defendants, besides a blanket denial that these invoices are due and payable, have not provided any specific evidence for their contention that the invoices are not due and payable. I conclude that the invoices are due and owing.

[57] Concerning invoice 2867, the defendants’ evidence is that this invoice is not an extra to the Contract and was paid. The defendants further state that Mr. Hood gave evidence that the labour charge of $500 was removed as a credit and the invoice does not acknowledge the credit. Mr. Hood agreed that a credit was acknowledged but is not aware if the credit was given. [8] I agree with the defendants that a credit should have been given of $500 plus HST for a total of $565.

[58] I calculate the amount owing to the plaintiff without interest is $144,632.63 - $565, being $144,067.63.

d. The Defendants’ Claim

[59] The defendants have a counterclaim for compensatory damages, punitive and exemplary damages, and general damages. I will deal with each separately.

[60] Before I deal with the amounts requested, I wish to make some observations and set out some legal principles.

General Observations

[61] It is the defendants’ obligation to satisfy the Court on a balance of probabilities that the plaintiff’s work was negligent or not performed in a proper workmanlike manner and that the amounts claimed by the defendants are justified and supported by evidence.

[62] The defendants did not call any experts to provide opinion evidence on the quality or completeness of the plaintiff’s work. Nor did the defendants provide opinion evidence on the value of the work performed by the plaintiff. The defendants did provide invoicing for work performed by others. They provided affidavits from some of the contractors, but many of these contractors or material suppliers were not called as witnesses to provide testimony to the Court. The defendants rely on the invoices and affidavits submitted for those contractors. No evidence was presented by oral testimony from these contractors. In addition, much of the evidenced of the negligence in the plaintiff’s work and estimates of costs were provided by the defendants. In such cases, there was no independence to such evidence and the reliability of that evidence, generally speaking, is suspect.

Legal Principles

[63] I have found that the defendants terminated the Contract as of June 1, 2016, at 5:00 p.m. By doing so, obligations under the Contract to perform any further work came to an end. If the defendants terminated the Contract without justification, then the defendants breached the Contract and have no claim for damages. [9]

[64] As Justice Perell stated in D&M Steel: “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.” [10]

[65] Hence, the plaintiff is no longer obligated to complete any work under the Contract once the defendants have terminated the Contract. The plaintiff, however, may be obligated to remedy any deficiencies to the work the plaintiff performed, be it contracted work or extra work to the Contract. If the defects exist to the work but do not rise to a fundamental breach entitling the owner to terminate the Contract, the contractor should be permitted to remedy the defects and if the owner fails to permit the contractor to do so, this failure may disentitle or reduce the amount of damages the owner can claim to remedy the defects as a result of the owner’s failure to mitigate or as a matter of equity. [11]

[66] In addition, if the contractor’s work has been rectified by others before the contractor has an opportunity to examine the alleged deficiencies, the tort of spoliation may apply. The contractor would not have had an opportunity to review the alleged deficiencies and, thus, would have been prejudiced in their defence to the deficiency claim by the destruction of evidence. [12]

Compensatory damages

[67] The defendants’ claim is in the amount of $126,357.05 and consists of a claim to rectify deficient work and finish incomplete work. In the defendants’ Scott Schedule, there are 65 items claimed. Below, I will deal with each item.

1. Foundation Parging

[68] The defendants seek damages in the amount of $2,081. The claim is that the plaintiff failed to perform parging required above grade. This work was not charged by the plaintiff and was not to be performed until the end of the project. Given the defendants’ termination of the Contract, this amount is not allowed.

2. Platon Gasket/Closure Strip

[69] This work was not installed. The plaintiff indicates that this work was completed but requires repair. The defendants are claiming $500 as an estimate. The plaintiff indicates the costs to repair is $100 and agreed to complete this work. I allow the sum of $100.

3. Detached Garage Slab

[70] The defendants claim the sum of $12,869 being work of Hope Brothers Construction (Exhibit 22). This work was not performed by the plaintiff. This work was agreed to be completed by June 18, 2018, per the LAT Order. It was done. The defendants did not seek an order that the work not performed in the LAT Order be either performed by the plaintiff or compensated for. The LAT Order is silent on the remedy if the work agreed to be completed is not performed. The parties’ pleadings were not amended to deal with the LAT Order. It is my view that the relief for this item is with the LAT, and it is the LAT who should deal with compliance with the LAT Order. For the reasons stated, no relief is granted for this claim in this proceeding.

4. Front Porch/Stairs

[71] The defendants claim $5,650. The plaintiff indicates this work was not completed. The defendants submit that this work was not included in the Contract and was not part of the work described in the drawings that formed the Contract. I agree with the plaintiff. Per the Decision of Salmers J., this work was not included in the Contract and the amount is not allowed.

5. Outdoor Living Area/Fireplace Foundation

[72] The defendants have extrapolated this work to be in the amount of $8,000. This work pertains to work on the outdoors. The plaintiff claims this work was not part of the Contract. I agree. From my review of the Contract and drawings, I do not find that the plaintiff was responsible for this outdoor work. This amount is not allowed.

6. Attached Garage Frost Walls/Change Order 2

[73] There is no dispute that this work was part of the Contract. The defendants submit that this work was improper. The Court is not convinced on the evidence presented that this work was improper. There were no specifics provided or expert opinion given on how this work was improper. This amount is not allowed.

7. Foundation Wall at Deck Stairs

[74] This claim is for non-completion of a 90-degree portion of the foundation retaining wall. This work was required, the defendants stated, to allow the catwalk stairs to be completed. The plaintiff argues that this work was not part of the Contract. Having reviewed the Contract documents, I am not convinced that this work was contemplated in the Contract. This amount is not allowed.

8. Concrete Post Caps

[75] This claim is for work not completed. The defendants contend that the work was included in the Contract documents. The plaintiff contends that the work is not in the Contract. As of the date of the trial, the work was not completed by the plaintiff. The defendants put forth a verbal quote of $1,000. The drawings do show a concrete cap on the posts at the back and at the front door entry. No caps were provided. This lack of concrete caps is not disputed. The plaintiff indicates a cost of $1,000. The plaintiff has not provided a cost. For the two caps, I will allow the amount put forth by the defendants of $1,000.

9. Ceiling Strapping

[76] The defendants are claiming the sum of $1,695, being invoice number 809068 from Davis Drywall. The defendants submit that the strapping was required for the ceiling and required as part of the framing work. No expert evidence was provided that indicates that such work is required and is part of the framing work. Given the lack of evidence, the Court cannot determine if such work was required and is part of the framing work. This claim is not allowed.

10. Unfinished Carpentry

[77] The defendants claim the amount of $1,314.22, being $1,130 in labour and $184.22 in materials. The work is for shortening vanity shelves due in an error in the framing, install door shelves, fix entry door from binding, and step to sunken area in basement. The defendants have provided photographs of the areas concerned. However, there is no opinion evidence to indicate that there was an error in the work performed, or that rectification was required due to the plaintiff’s negligence. The evidence is the defendants’, being their observations and views. This evidence is not sufficient. This item is not allowed.

11. Deck Material/Stairs

[78] The claim is in the amount of $7,553.22 for material and labour remedy in the outdoor living area and upper deck, plus, $6,261.78 for stairs and deck railing. This work was done by Kawartha Lakes Construction and the defendants state it formed part of the work ordered by the LAT Order.

[79] The plaintiff agrees that the work is included in the Contract and that it was partially completed. The rail system was not installed but the material was provided. The plaintiff indicates that the costs to complete the railing system was $2,592. The plaintiff states that it would have completed the work if the Contract was not terminated, and the defendants allowed the plaintiff to do so. The work for the railings appears to have been invoiced but not completed. I will allow the amount of $2,592.00, the costs attributed by the plaintiff. I accept this amount given the plaintiff was not permitted the opportunity to repair or review before the work was completed. The defendants also request damages for remedial work. I am not persuaded from the evidence provided that the work was deficient, and that remedial work was required. Concerning the work of Kawartha Lakes Construction, the defendants choose the remedy of a LAT Order. This item should be dealt with by the LAT for the reason given above.

12. Subcontractor Work (Carpenter, Labour, Finish Deck, Drainage System)

[80] The defendants are requesting three amounts: $7,233.99, $8,366.53, and $5,989. This totals $21,589.52. This work was completed by Payne Contracting. There was no evidence provided from a representative of Payne Contracting or an expert on the reason why this claimed work is negligent work of the plaintiff. All that was provided was the invoices and photographs. I am not persuaded of that the claim is for negligent work on the part of the plaintiff and is a claim for incomplete work. These amounts are not allowed.

13. Brise Soleil

[81] This work is for the design, supply, and install of missing Brise Soleil. This work was not completed by the plaintiff. The defendants have not yet done this work. This work was agreed to be completed in the LAT Order. This item should be dealt with by the LAT for the reason given above.

14. Tray Ceiling/Lightning Bulkhead

[82] This claim is to complete a tray ceiling in the theater room. The plaintiff states that this was not part of the Contract work. In reviewing the Contract documents (i.e., rough-in framing in the TCA and Change Orders), there is no indication of a Tray Ceiling as part of the contracted work. This claim is not allowed.

15. Door Handles/Self Closing Hinge

[83] These were part of the Contract and were not supplied. The allowance in the Contract was $6,000, as indicated by the plaintiff. The defendants had to pay $702.40 for this material that was not supplied by the plaintiff. The amount of $702.40 is allowed.

16. Window Caulking

[84] This is for material, caulking, for work performed by the defendants themselves. I am not persuaded that this work pertains to deficient work. This claim is not allowed.

17. Window Hardware Installation

[85] This claim is for labour of the defendants (two people), for five hours at $50 an hour. This is to install window hardware and cut, nail, and glue mullions. This is for incomplete work. This claim is not allowed.

18. Window Cleaning

[86] This is to clean the windows after all installation was completed, at the end of the job. This claim is for incomplete work. This claim is not allowed.

19. Detached Garage Doors

[87] The defendants’ claim is for $5,312.66, which is for the payment of material directly to the supplier and labour for installation. The plaintiff agrees that the defendants should be given a credit for amounts paid for the material in the sum of $4,758.06. The plaintiff does not agree that it should be responsible for any labour charge due to the defendants terminating the Contract improperly. I agree with the plaintiff. The defendants are allowed a credit in the sum of $4,758.06.

20. Flat Roof

[88] This pertains to an invoice from Feeney Roof in the amount of $960.50. The invoice is for the supply and install of flat roof membrane over front elevation bump. There is no dispute that this was a deficiency that required remedy. The plaintiff says if they were able to repair, it would not have cost more that $550. I will allow the amount of $550.00 given that the defendants terminated the Contract, and the plaintiff agrees to an amount to rectify the deficiency.

21. Soffit Under Upper deck

[89] This claim is for materials to complete the soffit under upper deck. This is for incomplete work. The LAT Order deals with eavestrough work. This item should be dealt with by the LAT for the reason given above.

22. Eavestrough Completion/Remediation

[90] This claim is for installing missing downspouts at the rear of the garage, securing four downspouts, and installing additional snow load breakers. This claim is for incomplete work, remedial work, and extra work not in the Contract. The LAT Order deals with the eavestrough work. This item should be dealt with by the LAT for the reason given above.

23. Detached Garage Framing

[91] The claim is for $18,069.76, which is for labour and material to complete the detached garage. There is no dispute that the detached garage was part of the Contract. The work was moved to the end of the job. This work was not performed by the plaintiff and the plaintiff did not charge the defendants for any of this work. This claim is for incomplete work. The claim is not allowed.

24. Waste Disposal

[92] This claim is for the costs of disposal and a bin. This was work that the plaintiff did not complete. The plaintiff states that when it left it cleaned the site and paid for disposal and a bin. The defendants also indicated that some garbage disposed of was generated after the plaintiff left, such as for the detached garage. This is for incomplete work and for work performed by the defendants after the plaintiff left. This claim is not allowed.

25. Site/Garbage Clean Up

[93] This is for similar work as in item 24 and there is no amount claimed.

26. Duct Cleaning

[94] This claim is for duct cleaning after the work was all performed before the HVAC system could be operational. This work is done at the end of the job. This is for incomplete work. The claim is not allowed.

27. Portable Toilet

[95] This claim is in the amount of $642.81 to supply a toilet for the workers. This claim is for workers on site after the plaintiff has left. This amount is not allowed.

28/29. Consumables/Building Materials

[96] This claim is a catch-all for material purchased after the plaintiff left the site to complete the work. This claim is not allowed.

30. Change Order 1 (Building Permit Overcharge)

[97] This claim has been withdrawn by the defendants.

31. Scaffold/Scissor Lift Rental

[98] This claim is in the amount of $500. The rental was to complete the work of the plaintiff and particularly the detached garage. This is for work performed by the defendants after the plaintiff was no longer on site to complete the Contract work. This amount is not allowed.

32. Architectural Fees

[99] This claim has been withdrawn.

33. Grass Seed

[100] This is to complete the septic system. The defendants state that the grass seed was required to comply with the final inspection. This was for Contract work not completed when the Contract was terminated. This is for incomplete work and not deficient work. This claim is not allowed.

34. Damaged Tree Removal

[101] The defendants claim the amount of $2,627.25 as compensation for the damage to mature pine trees. There is no question that there did exist pine trees that were removed. The plaintiff’s evidence is that the trees were required to be removed for construction and it was not their obligation under the Contract to replace cut trees. The defendants’ evidence is that the plaintiff was negligent in the placement of the laneway and that the trees were damaged by the plaintiff’s actions. On the evidence presented, I am not persuaded that the plaintiff was negligent in the placement of the laneway and that the cutting down of the trees was due to the plaintiff’s negligence. No expert evidence was provided to indicate that the laneway was constructed in the wrong location and that the plaintiff was negligent in its construction and in removing the trees. The Contract, at 3.1.2, obligated the plaintiff to clear and remove trees and stumps from the site as required but not to replace trees cut. The Contract was terminated by the defendants. This claim is for completion work and for restoration work, which is not the plaintiff’s responsibility. Thus, I am not satisfied on the balance of probabilities that the plaintiff is responsible for this claim.

35. Incomplete/Remediate Site Work (Finish Excavation and Install Septic)

[102] This claim is for work not completed by the plaintiff. Given the Court’s determination on the breach of the Contract, this claim is not allowed.

36. Damaged Tree Disposal

[103] This is for completion work. This claim is not allowed.

37. Attached Garage Slab Remediation

[104] This claim is to remediate the garage concrete slab. The defendants claim that the slab was installed negligently and had to be replaced new. This replacement was done by Kawartha Lakes Construction in the amount of $15,521.41. A representative of Kawartha Lakes was not presented as a witness. Nor was there any expert evidence presented to indicate how the plaintiff was negligent in the installation of the concrete slab. However, this item forms part of the LAT Order. This item should be dealt with by the LAT for the reason given above.

38. Damaged Tree Replacement

[105] This claim is for the replacement of trees. This claim is based on the claim in item 34. The same reasoning applies. This claim is not allowed.

39. Trex Rain Escape Leak (Eavestrough and Downspout)

[106] This claim is for work not completed and poor workmanship. No expert evidence was presented to substantiate the claim of poor workmanship of the plaintiff and the damages caused by this poor workmanship. Further, this claim is for work not completed, as final grading was not completed when the Contract was terminated. In any event, this work formed part of the LAT Order. The plaintiff indicates the work was performed. This item should be dealt with by the LAT for the reason given above.

40. Bar Sink Drain Relocation

[107] The defendants claim $339 due to the drain being placed not in accordance with the blueprint. The plaintiff’s evidence is that the drain was in the correct location. No evidence was presented to show that the drain was installed in the wrong location. The evidence was the testimony of Ms. Clegg. There was no independent evidence provided. I am not persuaded on the sparse evidence presented that the drain was installed in the wrong location. This amount is not allowed.

41. Entryway Door Glass

[108] The defendants’ evidence is that the glass was installed backwards. The defendants indicate that this claim is not a big deal. The amount claimed is an estimate. I am not persuaded that this claim is the responsibility of the plaintiff nor that the amount claimed is reasonable. This claim is not allowed.

42. Decrease Basement Size

[109] The claim that there was a 137 sq foot reduction in size of the basement is based on sketches that the parties agree were not part of the Contract. The amount claimed is an estimate. I am not persuaded that the plaintiff is responsible for this claim nor that the amount claimed is accurate quantification for damages. This claim is not allowed.

43. Removal of Frost Walls

[110] This item is the non-completion of a “bump out” of the office. The amount claimed is an estimate for the work that was completed by the defendants themselves. This claim is for incomplete work and the amount claimed is not supported by any evidence except for the estimated amount. This claim is not allowed.

44. Omission of Architectural Feature

[111] This claim is subsumed in other claims.

45. Reduction in Width of Golf Simulator

[112] The defendants claim the amount of $5,644.30 to install a second camera due to the narrowing of the width of the room by the plaintiff. The second camera has not been installed. I am not persuaded that the room requires a second camera due to the plaintiff’s work. The evidence presented was that of the defendants alone with no evidence from the golf simulator manufacturer or an expert indicating by measurements that the room is narrower due to the plaintiff’s work. This amount is not allowed.

46. Insulation from Roxul

[113] There is no claim presented. Therefore, this claim is not allowed.

47. Reduction in Size of Glass Triangle

[114] This claim relates to item 42.

48. Fireplace Alcove Omission

[115] This claim relates to item 42.

49. Reduction in Window Size

[116] The defendants claim the sum of $3,000 for the removal of three windows. The defendants’ initial claim was for five windows that were not approved and were removed. The defendants changed the claim from five to three windows agreeing that two windows were approved. The amount claimed is a guess by the defendants. The evidence on this claim is sparse. The Court is not satisfied that the plaintiff is responsible for improper removal three windows nor the amount claimed. This amount is not allowed.

50. Rent

[117] The defendants claim the sum of $8,600 to rent a private home for four months at $1,650, plus 2.5 months at $800 per month. There was no completion date in the Contract. This claim is for damages over and above the amounts for deficient/negligent work. This claim is not allowed due to the finding that the defendants breached the Contract and that there was no term in the Contract for a completion date.

51. Storage (From January 1, 2016)

[118] The defendants claim the sum of $4,841.21 for extra time required for storage. This claim is not allowed for the same reason that the rent claim was not allowed.

52. Unfinished Electrical

[119] The defendants claim the sum of $11,239.19 for the completion of the electric and hydro hook up, and credit for main floor pot lights, plugs, and switches. The credit amounts to the sum of $1,845.29. The credit is for material purchased by the defendants that was part of the Contract work. There is no real dispute on the credit claimed. The electrical work claimed is for work that was not completed. Hence, the credit claim is allowed but the claim for completion of electrical work is not.

53. Unfinished Plumbing

[120] This claim is for completion of the Contract work. The plaintiff claims all work was completed except for the connection to the septic. This claim is not allowed due to the finding that the defendants breached the Contract and that the Court is not persuaded that the work claimed was part of the Contract work that was not completed by the plaintiff.

54. Credit for Owner Supplied Pot Lights

[121] This claim is for work not completed sometime after May 31 due to drywall not being completed. The plaintiff indicates that it installed the pot lights and that the defendants changed the pot lights after they were installed. The Court is uncertain of the specifics and evidence of this claim, and whether it is the plaintiff’s responsibility. The onus is on the defendants to prove this claim. The defendants have not met that onus. Therefore, this claim is not allowed.

55. Fireplace Gas Lines/Venting Hook Up

[122] The defendants claim the sum of $7,202.45 for work not completed by the plaintiff. This claim in essence is the completion of venting for the fireplace and gas lines. This is completion work. This amount is not allowed.

56. HVAC Furnace and Heat Pump Unfinished Work

[123] This claim is in the amount of $4,869.50 for completion work. The furnace work was not connected to the duct work. This amount is not allowed.

57. Well Pump/Pressure Tank Potable Water System

[124] This claim is in the amount of $5,231.10 for incomplete work. The plaintiff indicates that this work was not part of the Contract. From my review of the Contract, it appears that this work is described in Portion B as “sewage ejection pump complete with sealed pail.” In any event, this amount is for incomplete work and is not allowed.

58. Potable Water

[125] This work is not included in the Contract. Item 3.3.2 states “existing well to be used for potable water system for dwelling.” The item does not state that the plaintiff’s were to provide potable water to the dwelling. The existing well was to be used. This claim is not allowed.

59. Unfinished Insulation

[126] This claim is in the amount of $2,265.65 for incomplete work of insulation. This amount is for work not completed and as such is not allowed.

Items 60, 61, and 62

[127] These items are withdrawn.

63. Homeowner Project Management/Labour

[128] The defendants claim the sum of $14,912.50 for supervision and management of construction work after the plaintiff was no longer on site. The claim in essence is to supervise and manage construction work performed by others after the termination of the Contract by the defendants. The amount is based on a calculation of $50 per hour for 596.5 hours. There was no evidence provided that the hourly rate is reasonable in the circumstances. Further, there was no evidence provided that the hours sought are reasonable in the industry. This amount is not allowed as it is a claim for damages by the defaulting party and the hourly rate charged and the hours claimed are not supported by any evidence that they are reasonable market rates.

64. Concrete Basement Floor

[129] The defendants claim a deficiency in that the Contract required 4-inch basement slab and under-slab insulation, and it was discovered that the basement floor was 3 inches and there was no insulation under the slab. The defendants claim that this work cannot be remedied and as such no costs have been incurred. The defendants make an estimated claim of $3,000 for the costs of the material not supplied: the insulation. There was no expert evidence on whether the concrete was to the required thickness, whether insulation was installed, or whether the failure of either detracts from the effective life or quality of the concrete slab, and, if so, the cost of the reduced value. Given the lack of evidence, this claim is not allowed.

65. Hydro Rebate from Allowance

[130] This claim is the failure of the plaintiff to complete the work and do the hydro hook up so the defendants could obtain their rebate. Again, this claim is for incomplete work. The work was later performed by the defendants at a cost of $401.36. I do not allow this claim.

Conclusion

[131] The defendants’ claim is allowed in the amount of $9,955.75. [13]

Punitive and Exemplary Damages

[132] The defendants claim that the conduct of the plaintiff is deserving of punitive and exemplary damages in the amount of $50,000.

[133] For the defendants to succeed on such a claim, the plaintiff must be in breach of the Contract and the defendants must prove on the balance of probabilities that the conduct of the plaintiff mandates the Court to award punitive and aggravated damages. The defendants’ evidence is that the plaintiff breached the contract and that the conduct of the plaintiff was false, misleading, and deceptive.

[134] The defendants are not entitled to aggravated and punitive damages. First, the Court has determined that the defendants are in breach of the Contract. Thus, there are no damages flowing to them. Second, if the Court is incorrect that the defendants breached the Contract, the Court is not persuaded that the evidence presented reaches the point that the conduct of the plaintiff is deserving of an award of punitive and aggravated damages against it.

[135] Punitive damages are awarded when the Court wishes to punish a party, denounce the conduct of a party, deter the party and others from conducting in such a way, or to strip a party of profits in excess of the award for compensatory damages. [14] The plaintiff’s conduct must be high handed, malicious, arbitrary, or highly reprehensible. [15] There is no evidence to support such conduct by the plaintiff. There is no question that the relationship between the plaintiff and the defendants broke down to the extent that the defendants did not trust the plaintiff. This distrust, however, is not sufficient to base a claim for punitive damages. Conduct that is malicious, high handed, and highly reprehensible is required. As indicated, I find no such conduct by the plaintiff.

[136] Aggravated damages may be awarded when the Court wishes to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour that is unfair or is in bad faith. [16]

[137] The Court is not satisfied that the conduct of the plaintiff amounted to conduct that was unfair or in bad faith. The Court determines there is no basis to award aggravated damages in favour of the defendants.

[138] Thus, the defendants’ request for punitive and aggravated damages is dismissed.

General Damages and the Consumer Protection Act, 2002 (CPA) [17]

[139] The defendants claim general damages in the amount of $50,000 based on the plaintiff’s breach of the CPA.

[140] First, it is not disputed that the CPA can apply to a contract for the supply of labour and materials to build a home. [18]

[141] There is no issue concerning the validity of the Contract given the decision of Justice Salmers. Much, if not all, of the evidence put forth by the defendants on the misrepresentations by the plaintiff are prior to the signing of the Contract. Justice Salmers dealt with those issues on the validity and scope of the Contract in his decision. As stated earlier, I am not revisiting any issue dealing with the validity and scope of the Contract.

[142] The defendants claim damages pursuant to s. 14 of the CPA due to the plaintiff’s conduct. The defendants’ claim, as I understand it, is that the plaintiff engaged in unfair practices and as such, the defendants are entitled to damages.

[143] First, I have found that the defendants are in breach of the Contract and not the plaintiff. Consequently, there are no damages, in my view, under the CPA that the defendants are entitled to receive.

[144] Second, I do not accept that the plaintiff engaged in unfair practices. Based on the evidence presented at trial, I am not persuaded at all that the plaintiff engaged in unfair practices “to make a false, misleading or deceptive representation.” After the signing of the Contract, I do not find that the plaintiff’s conduct resulted in unfair practices. The defendants’ evidence, as set out in the Affidavit of Ms. Kelly and the testimony of Ms. Clegg, in my view, do not set out any conduct of the plaintiff that results in unfair practices.

[145] The defendants also claim general damages. Paragraph 125 of the defendants’ submission describes the basis of the claim for general damages. Paragraph 125 states:

The Clients claim for General Damages for the following actions of the Plaintiff:

a. Disfiguring the property by failing to follow the site plan and removing/damaging mature trees. b. Failing to obtain the approval of the Municipality for changes to the foundation/footing resulting in anxiety for the Clients as they had expressed concern in writing to IHC about frost protection including the words “peace of mind”. c. Surreptitiously altering the Mansfield drawings and reducing the interior dimensions of the home including the door openings. The result is degradation in the functionality of the interior rooms and wheelchair accessibility. d. Failure to install under slab insulation which will result in lifelong issues with cold temperatures in the basement including bedrooms and theatre room.

[146] I am not satisfied that the basis as set out by the defendants justify a claim for general damages. The defendants have not provided a substantive evidentiary basis that they should receive damages for mental distress. Moreover, I have found that the defendants are the party that breached the Contract. As the offending party, the defendants are not entitled to damages for mental distress based on a Contract they breached. Lastly, the Court has found that the plaintiff is not responsible for many of the claims submitted by the defendants, such as disfiguring the property and improperly removing/damaging mature trees, altering the Mansfield Drawings, which were not the Contract drawings, or failure to install slab insulation.

[147] The defendants’ claim for general damages and damages based on the CPA is dismissed.

Disposition

[148] I therefore find and order the following:

a. The plaintiff has a valid claim for lien and that the amount of the lien registered is $114,057.06. b. The defendant, Jane Margarete Helene Clegg (Ms. Clegg) owes the plaintiff the sum of $144,067.63 based on the Contract. c. The plaintiff owes Ms. Clegg the sum of $9,955.75. d. Personal Judgment be given to the plaintiff in the amount of $134,111.88 as against Ms. Clegg. e. That if Ms. Clegg makes a payment in the sum of $114,057.06 by paying into court to the credit of this action on or before the 7th day of July 2023, the plaintiff’s lien is discharged and the registration of that lien and the certificate of action in relation to that lien are vacated and the money paid into court is to be paid in payment of the plaintiff’s lien. f. That if the defendant, Ms. Clegg defaults in payment of the money into court than Ms. Clegg’s interest in the premises be sold under the supervision of the Court and that the purchase money be paid into court to the credit of this action. g. That the purchase money be applied in or towards payment of the plaintiff’s claim as the Court directs, with subsequent interest and subsequent costs to be computed and assessed by the Court. h. If the parties cannot agree on costs, the plaintiff to serve and file its submissions for costs within fourteen days from the date of this decision, and the defendants will have fourteen days thereafter to serve and file their submissions. The submissions to be no more than four pages, double spaced, exclusive of any cost outline and offers to settle. Any case law to be hyperlinked in the submissions. There is no right to reply. Submissions are to be filed with the Court. If no submissions are received within the time set out herein, an order will be made that there will be no costs.

Justice P.W. Sutherland Released: April 28, 2023

References

[1] 2020 ONSC 1373. [2] The plaintiff’s action was commenced pursuant to the provisions of the Construction Lien Act, R.S.O. 1990, c. C.30, which was later amended by Construction Lien Amendment Act, S.O. 2017, c. 24, s.1 that changed the short title to Construction Act. Section 87.3 of the amended statute, the transition provision, applies in the circumstances of this action. For simplicity, I will refer to the relevant legislation (i.e., the Construction Lien Act) as “the Act”. [3] Exhibit 9 on the stage one trial (November 30, 2018) with no Schedule “A” in the Exhibit. [4] Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 13 and 19. [5] See ss. 31(2) and 36 of the Act. [6] S.O. 2002, c. 30, Sched. A [CPA]. [7] See Urban Mechanical Contracting Ltd. v. Zurich, 2022 ONCA 589, at paras. 33-39; Dechenes v. Lalonde, 2020 ONCA 304, at paras. 29-30. At this trial, the defendants did not request the equitable remedy of rescission of the Contract. [8] Transcripts December 5, 2018, at pp. 23-27. [9] D&M Steel Ltd. v. 51 Construction Ltd., 2018 ONSC 2171, at para.49. See also: Ben-Air Systems Inc. v. 2664835 Ontario Inc., 2023 ONSC 1557, at paras. 46-47 (Associate Justice Wiebe); Rafael Pereira v. II Dreams Homes Ltd., 2022 ONSC 441, at para. 70. [10] D&M Steel, at para. 51. [11] D&M Steel, para. 52; RPC Construction Ltd. v. Zhiyi Zhou, 2017 ONSC 4044, at paras. 87-91. [12] RPC Construction, para. 92. [13] (100 + 1,000 + 6,261.78 + 702.40 + 550 + 4,758.06 + 1,845.29). [14] Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18. [15] Whiten. [16] Whiten; Boucher v. Wal-Mart Canada Corp, 2014 ONCA 419; Bassanese v. German Canadian News Company Limited, 2019 ONSC 1343. [17] S.O. 2002, c. 30, Sched. A. [18] R. v. K-Tech Building Systems Inc., 2012 ONCJ 219; B.C.R. Construction Incorporated v. Humphrey et al., 2014 ONSC 5576, aff’g 2013 ONSC 751; Tecton Construction Inc. v. Yeung, 2016 ONSC 3039.