Court File and Parties

Court File No.: CV-20-00074315-0000 Date: 2023-05-04 Ontario Superior Court of Justice

Between: Renee Wilson and Peter Wilson, Plaintiffs And: Ryan David Hill d.b.a. Crown Hill Builders, Defendant

Counsel: Barry L. Yellin, for the Plaintiffs Luigi De Lisio, for the Defendant

Heard: February 28 and March 1, 2023

Reasons for Judgment Justice L. Sheard

Overview

[1] The plaintiffs sue the defendant for the return of a $50,000 cash deposit they allegedly gave to the defendant for renovations to their home. The defendant denies receiving the money.

Agreed Facts

[2] The plaintiffs submitted an Agreed Statement of Facts. Set out below are facts which are not in dispute.

[3] The plaintiffs, Renee and Peter Wilson, own 680 Regency Court, Unit 112, Burlington (the “Property”) in a condominium complex (the “Complex”). The defendant, Ryan David Hill, also lived in the Complex.

[4] On September 26, 2020, Mr. Wilson started a group text with Mr. Hill and Mrs. Wilson (the “Group Chat”) through which Mr. Hill agreed to see the Property to discuss renovations that the Wilsons were planning. On September 27, 2020, the Wilsons and their son attended at Mr. Hill’s home.

[5] In 2018, Mr. Wilson received an inheritance. The investment funds of $125,000 were deposited to Mr. Wilson’s bank and on October 20, 2020, Mr. Wilson withdrew $50,000 in cash.

The Claim

[6] The plaintiffs allege that:

(a) Mr. Hill purported to carry on business as a contractor, renovating residential properties under the business style, Crown Hill Builders;

(b) in October 2020, they hired Mr. Hill to renovate the Property in a fashion similar to the renovations he had completed on his own unit in the Complex, which had the same layout as the Property;

(c) Mr. Hill agreed to do the renovations as per their in-person and text discussions, with finishing decisions to be finalized as the work progressed;

(d) the renovations were supposed to start on October 26, 2020 and to be completed by December 19, 2020;

(e) on October 4, 2020, Mr. Hill gave them a document labelled “Project Outline” that set out the renovation work and payment terms;

(f) in a later text, Mr. Hill asked for a cash deposit equal to one-third the then-estimated cost of $90,000. Later the estimate increased to $100,000. Using the higher estimate and as per the payment terms in the Project Outline, on October 20, 2020, Mr. Wilson withdrew $50,000 in cash and, that evening, handed the $50,000 in cash to Mr. Hill. No receipt was provided; and

(g) Mr. Hill did no renovation work on the Property and within days of receiving the deposit, Mr. Hill moved out of the Complex, to an undisclosed location. Thereafter, Mr. Hill was unreachable by phone or text.

[7] The Wilsons seek the return of their deposit and claim that Mr. Hill fraudulently misrepresented to them that he would conduct renovation work on the Property; the whole proposed renovation project was a “fraudulent sham” and that Mr. Hill “bilked” them of their $50,000 cash. In the alternative, the Wilsons seek judgment against Mr. Hill on the basis of unjust enrichment and the doctrine of constructive trust.

The Defence

[8] Mr. Hill says he is a contractor, doing business as Crown Hill Builders.

[9] Mr. Hill acknowledges that he had some discussions with the Wilsons about possible renovations to the Property but denies that the parties ever entered into a “formal contract for the provision of work, services and labour”. Most importantly, Mr. Hill denies that he received any money from the plaintiffs, let alone $50,000 in cash.

Issue to be Decided

[10] The issue to be determined is whether the Wilsons did, in fact, hand Mr. Hill $50,000 in cash.

[11] This case comes down to credibility. The parties agree that Mr. Wilson withdrew $50,000 in cash from his bank on October 20, 2020. The question is: Can Mr. Wilson be believed that he handed Mr. Hill a bag containing $50,000 in cash without asking for or receiving a receipt or any other confirmation of payment? Or, should Mr. Hill be believed that payment never happened?

[12] Mr. Hill says that Mr. Wilson’s story is not credible: who would ever turn over $50,000 in cash to another person without a receipt or, in fact, anything in writing to evidence the transaction? Mr. Hill also asks the court to consider that after allegedly handing over the bag of money, the Wilsons not only never texted Mr. Wilson to ask for its return, but never even mentioned the money in later texts.

[13] Mr. Hill’s assertions might find traction in the minds of many. Even Mrs. Wilson acknowledged that she was naïve for trusting Mr. Hill with the cash deposit.

[14] Unfortunately, the world is filled with trusting, naïve people and, sadly, it is also filled with people who would take advantage of such people. I conclude that this is one of those cases.

Disposition

[15] As will be explained below, I accept the evidence put forth by the plaintiffs and, where their evidence conflicts with the evidence given by Mr. Hill, I reject Mr. Hill’s evidence.

[16] I conclude that the plaintiffs have proven their claim on a balance of probabilities. I find that the plaintiffs were “bilked” of their $50,000; that Mr. Hill misled and deceived the Wilsons into paying him the $50,000 when he had no intention of performing the renovations for which this payment was intended as a deposit. I find that Mr. Hill obtained and kept that money by deceit and fraudulent misrepresentation, without any justification, juristic reason, or legal right.

[17] Based on my findings, the plaintiffs shall have judgment against Mr. Hill in the principal amount of $50,000, together with pre-judgment interest on that amount from and after October 20, 2020, in accordance with the Courts of Justice Act.

[18] As the successful parties, the Wilsons are also entitled to their costs of this action. The exchange of costs submissions will be addressed in greater detail later in these reasons.

The Evidence

[19] This claim was brought under the Simplified Rules. As such, the evidence in chief was by way of affidavit. The Trial Record contains affidavits from each of the plaintiffs, from their now 12-year-old son, and from Christopher Donnelly, a carpenter living in the Complex.

Peter Wilson

[20] Mr. Wilson is a butcher. In 2010, the Wilsons bought the Property, a split five-level townhouse, built in 1970.

[21] The Wilsons talked often about renovating their home: replacing carpet with hardwood, upgrading the kitchen and living area, and redoing the basement. With Mr. Wilson’s inheritance, they could afford to renovate.

[22] The Wilsons had known Mr. Hill for eight years as a neighbour in the Complex. Mr. Hill had renovated a number of townhomes in the Complex.

[23] In September 2020, Mr. Wilson noticed that Mr. Hill was renovating a bathroom in another home in the Complex and spoke to Mr. Hill about his renovation plans. Mr. Hill said he would be interested in doing the Wilsons’ renovations.

The Group Chat

[24] Between September 26 and October 14, 2020, the Wilsons and Mr. Hill communicated through the Group Chat created by Mrs. Wilson. Extracts from the Group Chat were put forth in evidence and disclose the following:

(h) on September 26 and 27, 2020, Mr. Hill toured the Property and the Wilsons toured Mr. Hill’s home to look at his renovations;

(i) on October 4, 2020, Mr. Hill asked to meet again with the Wilsons to “go over the list” of proposed renovations to the Property;

(j) Mr. Hill’s follow-up text at 11:19 p.m. that day, confirming that the number he gave them was still an estimate and that he had to add in extra amounts for things he had forgotten and that his final calculations would follow in a few days;

(k) Mr. Hill said that “Meg”, a professional designer, would help “no charge” and would pick out [finish] options to present to the Wilsons;

(l) on October 5, 2020 Mr. Hill asked to push the start date ahead by two to three weeks. The Wilsons agreed when Mr. Hill confirmed the work would be done the “week before Christmas – December 19th latest”

(m) Mr. Hill arranged to show samples to the Wilsons on October 8, 2020. On that date, Mr. Hill told the Wilsons that the cost might not “go over 90k so 30k (1/3) is ok” (referring to the deposit) and “Cash is better if possible since I’m not charging tax on labour.” Mrs. Wilson replied: “Ok sounds good”;

(n) on October 8, 2020, Mr. Hill sent photographs of a front door, a vanity and a mirror, and discussed details about the vanity, etc. Mrs. Wilson responded with choices;

(o) on October 10, 2020, Mr. Hill confirmed that most of the finishing materials had been ordered; that he was going to buy doors and baseboards to ensure nothing went out of stock; and that he was making room at his place to store some of the purchased supplies. Mr. Hill ended his text with: Have you got a chance to go to the bank yet?;

(p) in response to Mr. Hill’s inquiry about the bank, Mr. Wilson replied that funds were not in yet and would not be available until the Wednesday after the holiday [Thanksgiving], to which Mr. Hill replied: “Sounds good. That’s ok, I can wait until then”; and

(q) on October 14, 2020, Mr. Wilson told Mr. Hill that the funds were in his account. That was the last date on which Mr. Hill communicated using the Group Chat.

[25] Mr. Wilson says that at the October 8, 2020, meeting, Mr. Hill told them that his brother was moving into Mr. Hill’s house. (Mr. Wilson speculates that Mr. Hill said this so that the Wilsons would not become suspicious if they saw a moving truck at Mr. Hill’s house).

[26] Mr. Wilson says that after the October 8 meeting, Mr. Hill told the Wilsons that:

(a) Chris Donnelly would be working on the renovation project as Mr. Hill’s “master carpenter”;

(b) the price for the project would be $100,000;

(c) the project’s start date would be Monday, October 26, 2020; and

(d) a garbage disposal bin would be dropped off at the Property the weekend before the start date.

[27] Mr. Wilson stated that on October 20, 2020 he spoke with Mr. Hill on the telephone to arrange to pay the deposit to Mr. Hill. This and other calls to Mr. Hill are corroborated by Mr. Wilson’s phone records.

The Money

[28] In cross-examination, Mr. Wilson testified that he expected the total cost of the renovations to be about $100,000. As Mr. Hill had asked for an initial payment of 25% and a further 25% payment on the first day of renovations and, because it was so difficult to obtain a large amount of cash from the bank, Mr. Wilson said that he decided to pay Mr. Hill $50,000 on account of the initial 25% deposit and the “day one” 25% deposit.

[29] Mr. Wilson stated the $50,000 he withdrew from his TD Bank account was in $100 notes, placed in a grey money bag, which he took straight home.

[30] On October 20, 2020, after speaking with Mr. Hill, Mr. Wilson texted him to say he would be home all evening. Mr. Hill responded to Mr. Wilson directly to confirm he would “pop in around 5:30”.

[31] At home on October 20, 2020, Mr. Wilson showed his wife the $50,000 cash and let his (then) ten-year-old son hold the money, joking that this was the largest amount of cash his son would likely ever hold.

[32] Mrs. Wilson had already left for work when Mr. Hill arrived at around 5:30 p.m. and Mr. Wilson was at home with his son.

[33] Mr. Wilson says that he told Mr. Hill he was nervous about doing such a large cash transaction and that Mr. Hill “joked” that the Wilsons knew where Mr. Hill lived and that these types of transactions happened all the time. Mr. Wilson says he asked about a receipt and Mr. Hill told him one would be provided. Mr. Wilson then handed the money over to Mr. Hill. Without providing a receipt, Mr. Hill got into his truck and drove away. The Wilsons saw Mr. Hill a “few times” after the money was handed over.

[34] In cross-examination, Mr. Wilson testified that, although he expressed a concern about handing over so much cash, he conceded that he did not demand a receipt from Mr. Hill but did want some documentation to evidence the transaction.

[35] Mr. Wilson denied that the payment was made in cash to reduce the Wilsons’ renovation costs. I have trouble accepting Mr. Wilson’s evidence on this point, but it is not necessary for this court to determine whether either party intended to improperly avoid the payment of taxes. It would be reasonable to assume, however, that Mr. Wilson had some inkling that Mr. Hill’s request for cash was so that he could illegally avoid payment of HST, thereby reducing the renovation costs. I conclude that this might also offer some explanation as to why Mr. Wilson did not press Mr. Hill for a receipt: a document that might evidence tax avoidance.

Events after Payment of the Deposit

[36] Expecting that the renovation work would begin on October 26, 2020, on October 24, 2020, the Wilsons rented a U-Haul truck and moved furniture to a rented storage unit and moved other furniture to rooms that were not being renovated.

[37] Mr. Wilson expected that a garbage disposal bin would be delivered on the weekend before October 26, 2020. No bin arrived.

[38] Mr. Wilson texted Mr. Hill on October 25, 2020. The texts went unanswered, and he walked over to Mr. Hill’s residence. The house was empty. The Wilson family then went to Mr. Donnelly’s home to speak to him. Mr. Donnelly reported that he had never spoken to Mr. Hill about working on the Property and mentioned that he had seen a moving truck at Mr. Hill’s house earlier that week.

[39] Later that same evening, Mrs. Wilson contacted the police and a made a report.

[40] After October 20, 2020, Mr. Hill did not again return to the Property. He did not return any of the $50,000 that Mr. Wilson claims to have turned over to him.

[41] The Wilsons could not find Mr. Hill after he moved from the Complex, nor were they able to connect with him by telephone or text.

[42] On November 2, 2020, the Wilsons issued the statement of claim in this action and hired a different contractor to renovate their home.

The Police Report

[43] The Wilsons contacted the Halton Regional Police Service on October 25, 2020, to report that Mr. Hill had taken a $50,000 deposit and then disappeared. The Police Report was based upon what Mrs. Wilson and Mr. Wilson told the officer in this interview.

[44] The officer’s notes indicate that the Wilsons had a verbal agreement with Mr. Hill to do work at a cost of $100,000 and that Mr. Hill required a $45,000 deposit. The notes state that Mr. Wilson gave $50,000 in cash to Mr. Hill. A receipt was not requested nor provided. The report states that when the promised bin did not arrive, the Wilsons called Mr. Hill and discovered his phone was not in service. When they went to Mr. Hill’s home, there was no answer at the door and there was a lock box, from which, the Wilsons assumed the house was for sale.

[45] The police officer also attended at Mr. Hill’s home on October 25, 2020 and found it “spotless and empty”.

[46] Mr. Wilson was cross-examined on the inconsistencies in the notes made by the officer in the Police Report and Mr. Wilson’s evidence. For example, the Police Report said that Mr. Hill said the renovations were going to cost $100,000 and that he required a deposit of $45,000. Mr. Wilson said that the officer got that latter amount wrong, and Mr. Wilson could not recall telling the officer that the total cost was $100,000.

[47] While Mr. Wilson’s evidence about the estimated cost of the renovations and the amount of the deposit conflicts with what is set out in the Police Report, this evidence is not conflicting with respect to the core complaint that the Wilsons gave Mr. Hill a $50,000 cash deposit for renovations.

Affidavit of Katherine Renee Wilson sworn January 25, 2023

[48] Mrs. Wilson’s affidavit essentially mirrors that of her husband, with some additional details.

[49] In cross-examination, Mrs. Wilson testified that in the eight years they had been neighbours, Mr. Hill had lived in, renovated, and sold, three units in the Complex.

The Agreement

[50] Mrs. Wilson confirmed that, by text dated October 4, 2020, Mr. Hill set up a meeting to “go over the list” and that Mr. Hill brought a document titled “Project Outline” which listed the proposed renovations and payment terms. Mrs. Wilson observed her husband making notes at this meeting on the back of the Project Outline. Contrary to her husband’s evidence, Mrs. Wilson recalled discussing the question-marked items on the Project Outline with Mr. Hill while he was walking through their house on October 4, 2020.

[51] Mrs. Wilson testified that on October 7, 2020, the Wilson family toured Mr. Hill’s unit: it was identical to their own. That allowed the Wilsons to see renovations that were possible for the Property.

[52] Consistent with Mr. Wilson’s testimony, Mrs. Wilson stated that they liked what Mr. Hill had done to his unit and trusted him to do the same to the Property. Mrs. Wilson said in their discussions, Mr. Hill said the renovations would cost $100,000. They discussed fixtures and she assumed that Mr. Hill was making notes of what was discussed or agreed and that decisions would be made as the work progressed.

[53] Mrs. Wilson testified that they had originally discussed starting the work on October 12, 2020, but at Mr. Hill’s request, they agreed to push the starting date to October 26, 2020. She then rented a storage facility for October 24, 2020.

The $50,000

[54] On October 14, 2020, Mrs. Wilson sent Mr. Hill a text, separate from the Group Chat, confirming that he would be starting work “on the 26th” to which Mr. Hill replied “Yep!” followed by Mr. Hill’s inquiry: “Were you guys able to get the money?”

[55] Mrs. Wilson confirmed that Mr. Wilson showed her the $50,000 stack of bills in one-hundred-dollar notes. Although Mr. Hill had requested an initial payment of $30,000, Mrs. Wilson said that they decided to increase that payment to $50,000 as “a gesture of good faith”. Mrs. Wilson was at work on October 20, 2020 and did not witness Mr. Wilson handing over the deposit to Mr. Hill. However, she says that Mr. Wilson later reported to her that he had done so.

[56] On the morning of October 21, 2020, Mrs. Wilson sent Mr. Hill a private text message in which she asked Mr. Hill if his carpenter could make a custom wooden banquette as a Christmas gift from her to Mr. Wilson. Mr. Hill replied later that morning with: “Yes he can! We can talk in person with him.”

[57] This text is the last communication received by the Wilsons from Mr. Hill.

[58] Mrs. Wilson saw Mr. Hill after they had given him the $50,000. She said that she was not concerned that they had given him so much money as they had known him a long time and knew where he lived. Neither she, nor her husband, texted Mr. Hill to confirm about the money because they did not feel it was necessary.

[59] At trial, Mrs. Wilson acknowledged that they had been naïve.

[60] Mrs. Wilson’s affidavit echoes Mr. Wilson’s affidavit about events that followed on October 25 and thereafter, including their discussion with Chris Donnelly; attending at Mr. Hill’s (vacated) house; contacting the police to report the theft and, finally, the issuance of the statement of claim on November 2, 2020. Mrs. Hill’s evidence is corroborated to a compelling degree in the Group Chat and in her text exchanges with Mr. Hill.

Affidavit of Christopher Donnelly sworn January 26, 2023.

[61] The plaintiff submitted an affidavit sworn by Christopher Donnelly, a carpenter and cabin-maker. Mr. Donnelly stated that between 2018 and 2020, he had worked on three jobs with Mr. Hill. Mr. Hill did not mention a project at the Wilsons’ home.

[62] Mr. Donnelly first met the Wilsons when they came to his house asking about the work that Mr. Hill was to have started. Mrs. Wilson was in tears. The Wilsons described to him their understanding about the work that Mr. Hill was going to undertake and their concern when no garbage bin arrived.

[63] Mr. Donnelly’s evidence on cross-examination was largely unshaken with one exception - despite having said so in his affidavit, Mr. Donnelly could not recall being told by the Wilsons that they had paid Mr. Hill.

[64] To a meaningful degree, Mr. Donnelly’s evidence corroborated the evidence given by the Wilsons.

Affidavit of Cayden Wilson sworn January 24, 2023

[65] The Wilsons also submitted the affidavit of their son, Cayden Wilson (“Cayden”), aged 12. In cross-examination, Cayden confirmed that his father had brought home a bag of cash from the bank, which he showed to Cayden (then aged 10 years), who was invited to hold the bundle of bills that would likely be “the most money” Cayden would ever see in cash. That same evening, Cayden observed his father meeting with Mr. Hill in the kitchen and handing over the money to Mr. Hill.

[66] Cayden did not hear or recall discussions about a receipt - either between his father and Mr Hill or between his parents.

[67] Cayden’s evidence lacked some details. For example, while he recalled seeing and holding the $50,000, he did not recall the colour of the bills, nor their denominations. The absence of such details is consistent with the recollection expected of a child of his age and adds to the credibility of his testimony. Overall, Cayden’s evidence is corroborative of Mr. Wilson’s testimony that: 1) he brought home a bundle of cash; 2) told Cayden that it was the largest amount of cash he might ever hold; and 3), turned over the bundle or bag of cash to Mr. Hill.

Plaintiffs’ “Read-Ins”

[68] As part of their case, the plaintiffs read into the trial record portions of Mr. Hill’s examination for discovery conducted on November 9, 2021. This evidence will be referred to later in these reasons, where credibility is addressed.

Mr. Hill’s Evidence

[69] Mr. Hill’s affidavit was sworn January 30, 2023. He says he is a contractor and that, at the relevant time, was carrying on business as a sole proprietor under the name Crown Hill Builders. He renovates residential properties, usually working alone.

[70] At the time of these events, he was living in the Complex and knew the plaintiffs from having seen them in the Complex.

[71] Mr. Hill’s evidence, taken from his affidavit is that:

(a) his discussions with the plaintiffs with respect to renovations, including the timing - start and completion - were in the nature of a “casual conversation”.

(b) the parties never agreed on a project plan; specific details of the renovation; a price; or a work plan and the conversations with the Wilsons were never reduced to writing or put into a contract form or described on Mr. Hill’s “company” letterhead because he “was not doing or going to be involved in the project”;

(c) he never requested a “cash” payment as part of any agreement as their discussions never reached a point at which the method of payment was finalized and concluded; his estimate was inclusive of HST and he “suggested a cash payment in order to facilitate payment of same”;

(d) Mr. Hill was never formally hired. The Wilsons knew that any work that Mr. Hill was to perform was contingent on receiving a deposit, and on having a signed agreement in place. Mr. Hill did not receive a deposit, nor a commitment in writing from the Wilsons, who kept commenting that the cost estimate was too high;

(e) despite not having received a deposit from the Wilsons, Mr. Hill ordered some material from suppliers, and a waste disposal bin, all of which were later returned or cancelled because he had not received any money from the Wilsons;

(f) he did not prepare the Project Outline or any project outline; he alleged that it was the Wilsons who had prepared the Project Outline noting that it does not contain information confirming the quantity of material to be used and had question marks where the Wilsons were undecided on aspects. Some questions related to things such as rec room (how much) which is not a question Mr. Hill would be asking: as a contractor Mr. Hill would know “how much” and would set the price;

(g) when Mr. Hill met with the Wilsons on October 4, 2022, he did go over their wish list of work to be conducted, which was used as a point of discussion;

(h) Mr. Hill did suggest that the project would cost approximately $100,000 and, ultimately, that a deposit of $30,000 would be required. He said that a $50,000 deposit was never requested, nor received. Had Mr. Hill received a $50,000 deposit (or any deposit), he would have acknowledged receipt in writing, text or email;

(i) the Wilson’s son was at their home on October 20, 2020, when Mr. Hill attended for “some discussion on the project with Mr. Wilson” but, given the layout of the Property, Mr. Hill did not believe that Cayden could have seen what transpired between the two men;

(j) he was never contacted by the Police; and

(k) he has experienced no bankruptcy, has no consolidated debt, is not in collections, has no judgments against him, no record of late payment on his credit cards, nor a criminal record.

[72] Mr. Hill was cross-examined at trial. The cross-examination began with his refusing to answer, when asked for his address. Mr. Hill alleged that he was afraid for his safety from the Wilsons or persons on their behalf. No evidence concerning the basis for these alleged concerns was led at trial. Following submissions from counsel, Mr. Hill was ordered to answer the question and to provide his current address. Mr. Hill complied immediately with that order.

[73] Mr. Hill testified that he operates his home renovation business as a sole proprietorship, he has no website, nor does he engage in any social media, personally or for his business.

[74] Mr. Hill’s evidence about how he came to have involvement with the Wilsons is consistent with that of the Wilsons. Mr. Hill acknowledged he went through the Property on September 26, 2020, and that the Wilsons visited his home the next day.

[75] Mr. Hill acknowledged having a second meeting with the Wilsons at the Property on October 4, 2020. Mr. Hill acknowledged that they discussed the start and end date for the project and a couple of finishes were chosen (flooring, baseboards and doors), but that nothing was finalized.

[76] Mr. Hill also acknowledged that:

(a) he does accept cash as tender;

(b) he produced no documents or texts, claiming that his phone was damaged and that he no longer had the phone;

(c) his phone line was cancelled due to his deliberate non-payment;

(d) he never requested a signed agreement and that there was no evidence before this court that a signed agreement was ever discussed with the Wilsons;

(e) there was no mention in the texts that the waste bin was cancelled or that no deposit was received;

(f) he told the Wilsons that Mr. Donnelly would work on their project;

(g) based on his discussions with the Wilsons, most of what they had discussed had been ordered and acknowledged that there had been a meeting of the minds on some items; and

(h) he had no notes of any of his meetings with the Wilsons and had no time logs.

[77] Mr. Hill was unshaken from his evidence that he did not prepare, nor present the Wilsons with, the Project Outline. Mr. Hill asserted that anybody could have drafted it using Google.

[78] Mr. Hill acknowledged that when he asked Mr. Wilson if he had gone to the bank, he knew Mr. Wilson was going to the bank to withdraw money. He denied that he came to the Property on October 20, 2020 to collect the deposit.

[79] Mr. Wilson also denied that he “ghosted” the Wilsons or lied to them about having ordered the garbage bin and other materials. He testified that he did not text the Wilsons to tell them he was moving because his house had been for sale for quite some time – it was no secret.

Credibility Assessment

[80] At the heart of the findings made, is my assessment of the credibility of the witnesses. As noted earlier in these reasons, to a significant degree, the Wilsons’ evidence was corroborated by other evidence such as the Group Chat, other texts, bank records, the observations of the investigating officer, and by Mr. Donnelly.

[81] Set out below are examples of other evidence that supported a finding that the evidence given by Mr. and Mrs. Wilson was credible and that Mr. Hill’s evidence could not be believed.

The Project Outline

[82] The plaintiffs asserted, and Mr. Hill denied, that Mr. Hill prepared the Project Outline. I accept the plaintiffs’ evidence that it was Mr. Hill who prepared the Project Outline for a number of reasons including that:

(i) Mr. Hill is in the business of home renovations and had renovated his own unit, the mirror image of the Property;

(ii) the details in the Project Outline were consistent with what a person such as Mr. Hill, who had renovated an identical unit, would have known;

(iii) Mr. and Mrs. Wilson both testified that they relied on Mr. Hill’s expertise as to what could be done and wished to replicate in their unit what Mr. Hill had done in his. The Wilsons’ evidence is inconsistent with a finding that they drafted the Project Outline; and

(iv) the Project Outline contains payment terms, as well as a time estimate to complete the project, details usually dictated by the builder, not the customer.

Plaintiffs’ “Read-Ins”

[83] I find the following extracts to be particularly relevant to the assessment of Mr. Hill’s credibility:

(i) Mr. Hill produced no documents in this proceeding;

(ii) if Mr. Hill had any records on his phone, they were erased;

(iii) Mr. Hill denied that he received a deposit from the Wilsons and asserted that when he does business, he draws up a contract and that a “cash deal” would be illegal because it would omit “HST”. However, later in his examination, when confronted with his text message to Wilsons of October 8, 2020 that: “cash is better if possible since I’m not charging tax on labour”, Mr. Hill insisted that he was including tax in the total price but that it was hard to remember something that happened a year-and-a-half earlier;

(iv) later in his examination, Mr. Hill backtracked on his earlier evidence and said that he did not “often” do cash deals;

(v) in the text messages to the Wilsons, Mr. Hill told them that most of the finishing materials had been ordered and that he was going to buy doors and baseboards. When he asked the Wilsons whether they had a chance to go to the bank yet, Mr. Hill stated that it was out of concern that he was ordering materials for which they had not provided him any money. Mr. Hill undertook to provide proof that materials had been ordered, but provided none;

(vi) Mr. Hill asserted that he had ordered a bin but acknowledged he had no records to support that assertion;

(vii) Mr. Hill admitted that he had “[P]ossibly, yes” promised the Wilsons that the project would be done before Christmas;

(viii) Mr. Hill admitted that he had agreed to start the work but needed to push the project out by two or three weeks so that he could complete another job. Mr. Hill provided no documents or information concerning this other job;

(ix) Mr. Hill denied that he had authored the Project Outline but did acknowledge that he had discussed some of what was referenced in that document, but had no memory of any of these discussions; and

(x) Mr. Hill stated that he spoke to Mr. Wilson in person to tell him he was cancelling the bin because he had not received a deposit, but could not recall that date of that conversation. Mr. Hill stated that he and Mr. Wilson agreed not to go ahead with the renovations because the $100,000 estimate was too high for the Wilsons.

Analysis and Conclusion

[84] It bears repeating that the onus of proof is upon the plaintiffs: they must establish on a balance of probability that they turned over $50,000 to Mr. Hill who kept that money despite providing no services in return for it. As set out earlier in these reasons, I accept Mr. Wilson’s evidence on this key point and reject Mr. Hill’s denial that he received the funds. In making that finding, I take into account that the plaintiffs were able to corroborate their testimony with contemporaneous records, independent documents, text messages and by the events that occurred prior to and after October 20, 2020, referenced above.

[85] Mr. Hill made a key admission that when he texted Mr. Wilson to ask Mr. Wilson if he had been to the bank, he knew that Mr. Wilson was going to the bank to withdraw money. The following text exchanges leave me with no doubt that Mr. Hill went to the Property on October 20, 2020, to receive the cash deposit that he knew Mr. Wilson had withdrawn earlier that day from the bank:

a) In his text of October 8, 2020, Mr. Hill asks Mr. Wilson for a cash retainer of $30,000;

b) On October 10, 2020, after telling the Wilsons that he has bought doors and baseboards and will be making room at his place to hold some of his purchases, Mr. Hill asks: “Have you got a chance to go to the bank yet?” Mr. Wilson responds that he had not yet been to the bank and that the TD would not make the funds available until after the holiday (presumably, referring to Thanksgiving). Mr. Wilson then told Mr. Hill “if you need a little bit of funds I have some in my personal account”. Mr. Hill turned down that offer. The clear inference from Mr. Hill’s text is that he was content to wait for payment, in full, of the requested deposit of $30,000;

c) In his text to Mrs. Wilson of October 14, 2020, Mr. Hill confirms the start date of October 26, 2020 and asks: “Were you guys able to get the money?”. Later in the day on October 14, 2020, Mr. Wilson answers Mr Hill: “Hey Ryan [Hill] the funds are in my account now.”; and

d) On October 20, 2020, Mr. Wilson let Mr. Hill know he had the funds and Mr. Hill asked when he could stop by. Mr. Hill admits that he did stop by in the late afternoon of October 20 and, consistent with the plaintiffs’ evidence, confirms that Mr. Wilson was at home with his son.

[86] Mr. Hill’s explanation for his “stopping by” to see Mr. Wilson on October 20, 2020, is simply not credible and I do not believe him.

[87] I find that the sole reason for Mr. Hill’s visit to Mr. Wilson was to collect the deposit.

[88] There is no dispute that Mr. Hill moved out of the Complex sometime in late October or early November 2020.

[89] There is no dispute that Mr. Hill did no renovations to the Property.

[90] There is no dispute that Mr. Hill did not return or repay any money to the Wilsons.

[91] I do not accept Mr. Hill’s explanation for his failure to produce even one document. As an experienced contractor, I do not accept that Mr. Hill destroyed all his records or, in this electronic era, was unable to recover any records, from even one supplier. Rather, I draw an adverse inference from Mr. Hill’s failure to provide any evidence that he ordered the supplies or materials and infer that the reason for his doing so is that he had placed no such orders: see Tiwari v Chevalier, 2022 ONSC 3071.

[92] I find that Mr. Hill deliberately misled the Wilsons about why they might see a moving van at his house so that he could move to an undisclosed location without arousing their concern. The Wilsons’ evidence, which is uncontradicted, is that days after giving Mr. Hill $50,000 in cash, he stopped answering their calls and texts and then deliberately failed to pay his phone bill, knowing that his phone would be disconnected. I find that after soothing the Wilsons’ concerns about having paid a $50,000 cash deposit by reassuring them that they “knew where he lived”, Mr. Hill deliberately relocated, so that they would not know where he lived, so as to put himself beyond the reach of the Wilsons.

Conclusions

[93] Based on all the evidence, I find as a fact that Mr. Wilson paid Mr. Hill the sum of $50,000 in cash, as a 50% deposit toward the $100,000 renovation project Mr. Hill was to begin on the Property on October 26, 2020.

[94] Based on my factual findings, I conclude that the Wilsons paid Mr. Hill a deposit under false pretences; that Mr. Hill knowingly and falsely represented to the Wilsons that he intended to undertake renovations to the Property, when he had no such intention, so as to cause the Wilsons to pay him a cash amount as a deposit for the promised/contracted renovations. The Wilsons suffered the loss of $50,000 as a result.

[95] I further find that Mr. Hill’s false representations to the Wilsons rise to the level of fraudulent misrepresentation: Mr. Hill knew from Mr. Wilson that he had received an inheritance and Mr. Hill, having no intention to do any renovation work for the Wilsons, embarked on a scheme to obtain a significant amount of cash money from the Wilsons, while planning to move and, effectively, disappear. See, Shaver-Kudell v. Knight, 2021 ONCA 925 and Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, at paras. 17-21.

Costs

[96] As the successful parties, the plaintiffs are presumptively entitled to their costs. The parties are encouraged to resolve the issue of costs. If they cannot agree, they may provide written costs submissions not to exceed three pages in length, exclusive of any Bill of Costs or Offers to Settle. The written submissions are to comply with the provisions of Rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The submissions are to be submitted via email to my attention, through the Trial Co-Ordinator.

[97] The plaintiffs’ costs submissions are to be served and filed within 14 days of the release of these reasons.

[98] The defendant’s responding submissions are to be served and filed within 7 days of the delivery of the plaintiffs’ costs submissions.

[99] If no costs submissions are received within 21 days of the date of these reasons, costs will be deemed to be settled and I will make no further order.

Justice L. Sheard Released: May 4, 2023