Court File and Parties

COURT FILE NO.: CV-22-683688 DATE: 20240417 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM WEISER and RHODEAN WEISER Plaintiffs – and – HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW EXTERIOR, HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW EXTERIORS, and HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW Defendants

Counsel: Adam Pennino, for the Plaintiff

READ: April 17, 2024

Papageorgiou J.

Overview

[1] This action arises from a flood that occurred on or about August 4, 2020, at a residential property located at 45 Tanbark Crescent, North York, Ontario, M3B 1N7 (hereinafter, the "Property").

[2] The Plaintiffs, William Weiser and Rhodean Weiser (hereinafter, the "Plaintiffs"), are individuals who were, at all material times, the owners, and occupiers of the Property.

[3] The Defendant, Hussein (Sam) Sumaida is an individual who resides in the Province of Ontario. Sam and Crew Exterior, Sam and Crew Exteriors, and Sam and Crew are the sole proprietorships of the Defendant, Hussein (Sam) Sumaida. Hereinafter, the Defendants will be collectively referred to as "Sam and Crew".

[4] In and around September 2016, the Plaintiffs entered into a contract with Sam and Crew to complete roof repairs and/or to install a new roofing system at the Property.

[5] On or about August 4, 2020, the Plaintiffs noticed significant amounts of water entering and within the Property (hereinafter, the "Water Leaks").

[6] The Water Leaks originated from the roof of the Property, which was resultant from the roof being improperly constructed/installed and/or negligently repaired/replaced by Sam and Crew in and around October 2016.

[7] The Plaintiffs suffered extensive damages from the Water Leaks and sued the Defendant.

[8] The main causes of action alleged are breach of contract and negligence.

[9] The defendant failed to defend the proceeding and was noted in default.

[10] The plaintiff brings a motion for default judgment.

Decision

For the reasons that follow I am granting the judgment as sought in the amount of $60,896.89 with interest.

The Issues

[11] The main issues are:

• Issue 1: Do the materials provide a basis for a finding of liability?
• Issue 2: If so, what are the damages to which the plaintiff is entitled?

Analysis

Issue 1: Do the materials provide a basis for a finding of liability?

Consequences of noting in default

[12] Pursuant to r. 19.02, having not defended the proceeding, a defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

[13] However, pursuant to r. 19.06 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[14] In particular, r. 19.05 provides that a motion for judgment which involves unliquidated damages shall be supported by evidence given by affidavit.

The test on a motion for default judgment

[15] The test on a motion for default judgement was set out in Elekta Ltd. v. Rodkin, 2012 CarswellOnt 2928 (ONSC) as follows: A. What deemed admissions of fact flow from the facts pleaded in the Statement of Claim? B. Do those deemed admissions of fact entitle the plaintiff, as a matter of law, to judgement on the claim? C. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitle it to judgement on the pleaded claim?

[16] I am satisfied that the plaintiffs have established that Sam and Crew are liable for negligence by satisfying all of the elements of negligence including duty, breach of the standard of care, causation, and loss. I am also satisfied that the plaintiffs have established that Sam and Crew are liable for breach of contract. This is based upon the following deemed admissions in the Statement of Claim:

• The plaintiffs entered into a contract with Sam and Crew to complete roof repairs in September 2016 that included installing a new roofing system.
• Significant leaks occurred through the roof and entered the plaintiffs’ property in or around August 2020
• The Water Leaks were caused because the roof installed by Sam and Crew were improperly constructed/installed and/or negligently repaired/replaced by Sam and Crew. The particulars of the negligence are that Sam and Crew:
  • (a) failed to strip/remove the Main Roof before installing the new roof system.
  • (b) installed a new roofing system over an older flat roof application.
  • (c) failed to properly carry out the Roof Repairs.
  • (d) failed to take reasonable care when conducting the Roof Repairs.
  • (e) failed to properly test and/or inspect the Roofs after performing the Roof Repairs.
  • (f) failed to properly test and/or inspect the Roofs in subsequent visits to the Plaintiffs' Property, after the Roof Repairs were completed.
  • (g) failed to properly test and/or inspect the materials used in the Roof Repairs in subsequent visits to the Plaintiffs' Property, after the Roof Repairs were completed.
  • (h) knew and/or ought to have known, or with the exercise or reasonable diligence should have known, that the Roofs contained several latent defects and could fail at any time; It failed to warn and/or properly warn the Plaintiffs that there were several latent defects in the Roofs that could cause the Roofs to fail.
  • (i) failed to properly install and/or design the Roofs to withstand normal weather conditions.
  • (j) failed to use the proper materials in the construction of the Roofs.
  • (k) failed to take reasonable care in the choice of which materials to use for the Roof Repairs.
  • (l) failed to properly test and/or inspect the materials used for the Roof Repairs.
  • (m) knew and/or ought to have known, or with the exercise or reasonable diligence should have known, that the materials used in the Roof Repairs could fail at any time.
  • (n) failed to warn and/or properly warn the Plaintiffs that the materials used in the Roof Repairs could fail and/or were prone to failing.
  • (o) failed to properly construct and/or install the roof membrane and/or the parapet for the Roofs to prevent water infiltration.
  • (p) knew and/or ought to have known, or with the exercise or reasonable diligence should have known, that the roof membrane and/or the parapet on the Roofs could fail at any time.
  • (q) failed to report and/or inform the Plaintiffs that the roof membrane and/or the parapet on the Roofs were improperly installed/constructed.
  • (r) failed to properly carry out the Roof Repairs pursuant to the requirements of the Ontario Building Code and the applicable by-laws of the City of Toronto; (u) It failed to act in a prudent and cautious manner and in accordance with the accepted standards governing its trade.
  • (s) failed to report and/or inform the Plaintiffs that the roof membrane and/or the parapet on the Roofs were improperly installed/constructed.
  • (t) failed to properly carry out the Roof Repairs pursuant to the requirements of the Ontario Building Code and the applicable by-laws of the City of Toronto.
  • (u) failed to act in a prudent and cautious manner and in accordance with the accepted standards governing its trade.
  • (v) did not execute the installation of the roof membrane in a proper and thorough manner.
  • (w) did not adequately secure the roof membrane to the parapet on the Roofs.
  • (x) failed or neglected to conduct the Roof Repairs in a good and workmanlike manner, having regard to inter alia, the roof membrane and the parapet, to prevent against water damage to the Plaintiffs' Property and/or the Roofs.
  • (y) failed to adequately, if at all, ensure that its employees, agents, contractors and/or subcontractors were capable of performing their job functions.
  • (z) their employees, agents, contractors and/or subcontractors were not physically fit and/or capable of performing their job functions.
  • (aa) employed or contracted with incompetent and/or improperly trained employees, agents, and/or subcontractors without proper knowledge.
  • (bb) failed to properly instruct, control, and/or supervise the work conducted by its employees, agents, and/or subcontractors.
  • (cc) failed to properly instruct and/or supervise its employees, servants, agents, independent contractors, or others in the importance of exercising due diligence during the Roof Repairs to prevent water damage to the roof.
  • (dd) failed to properly instruct and/or supervise its employees, servants, agents, independent contractors, or others in the importance of exercising due diligence during subsequent visits to the Plaintiffs' Property, after the Roof Repairs were completed, to prevent water damage to the Plaintiffs' Property and/or the Roofs.
  • (ee) knew or ought to have known, or with the exercise of reasonable diligence could have known, that the Plaintiffs' Property and/or the Roofs were vulnerable to water damage after the Roof Repairs, but took no steps, or no adequate steps, to prevent the Plaintiffs' Property and/or the Roofs from being vulnerable to water damage after the Roof Repairs.
  • (ff) did not execute the Roof Repairs in a proper and thorough manner.
  • (gg) failed or neglected to conduct the Roof Repairs in a good and workmanlike manner.
  • (hh) failed to follow proper procedures when conducting the Roof Repairs.
  • (ii) undertook to perform services, or contracted with a subcontractor, when it lacked the requisite licensing, experience, equipment, expertise, knowledge, and qualifications.
• The plaintiffs’ damages were caused by the negligence, want of care and/or breach of duty of Sam and Crew, its contractors, sub-contractors, agents, employees, servants, or those for whom in law it is liable by leaving the Plaintiffs' Property and/or the Roofs vulnerable to the risk of water damage.
• Sam and Crew’s repair work also breached express and implied terms of their contract including that the work would be done in a good, safe, and workmanlike manner in accordance with prevailing industry standards, that he would maintain insurance coverage and name the plaintiffs as insured and would reimburse the plaintiffs for all damages sustained arising out of the work. It also breached a warranty that the work done would be free from defects.

Issue 2: What are the damages to which the plaintiffs are entitled?

[17] Pursuant to Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at p 206C there can be concurrent liability in contract and tort and the plaintiff may elect to proceed pursuant to either.

[18] In this case the outcome of the damage assessment would be the same regardless of the way in which damages are calculated.

[19] The plaintiffs claim damages in the amount of $3,021.34 for emergency repairs, $30,652.75 for packing contents, cleaning, and permanent repairs to their property, and $2,362.80 for alternate living expenses for a total of $60,896.89 with prejudgment interest in the amount of $4,403.41 as of January 1, 2024, with post judgment interest from that date onwards at the rate in the Courts of Justice Act.

[20] The plaintiffs have provided sufficient receipts regarding these expenses as well as an inspection report and detailed interest calculations.

[21] I find that the plaintiffs have proven that they suffered these damages as a result of Sam and Crew’s negligence and/or breach of contract and award them.

[22] I find that the costs claimed in the amount of $3,015.02 are fair and reasonable and within the reasonable contemplation of Sam and Crew.

[23] Judgment to go.

Papageorgiou J.

Released: April 17, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM WEISER and RHODEAN WEISER Plaintiffs – and – HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW EXTERIOR, HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW EXTERIORS, and HUSSEIN (SAM) SUMAIDA as the sole proprietor of SAM AND CREW Defendants

REASONS FOR JUDGMENT

Papageorgiou J.

Released: April 17, 2024