Court File and Parties
Court File No.: CV-21-00654545
Date: October 14, 2025
Superior Court of Justice – Ontario
Re: RDC Construction Ltd., Plaintiff
And: Erica Herbert, 1750466 Ontario Ltd., and Erica Herbert as Estate Trustee and/or a Litigation Administrator for the Estate of Kenneth Ramsubick also known as Kenny Ramsubick, Defendants
Before: Parghi J.
Counsel:
- William Rebeiro, for the Plaintiff
- Alfred Schorr, for the Defendants
Heard: August 14, 2025
Endorsement
Introduction
[1] This is a construction lien action that was heard by Associate Justice Wiebe via summary trial. Reasons for Judgment were released in October 2023, and his Costs Decision in November 2023. His report was released in November 2023. The Defendants oppose the confirmation of the report under rule 54.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and bring this appeal.
[2] The Defendants allege that the associate justice erred in his Reasons for Judgment and in his Costs Decision by doing the following:
(a) admitting the reply evidence of the Plaintiff, notwithstanding the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.);
(b) finding that Ms. Herbert ordered the doors and instructed the Plaintiff's employee to cut the doors to fit the frames, such that the cost of the door replacements did not need to be set off against the amount owed to the Plaintiff;
(c) finding that the soundproofing provided was adequate, such that it was appropriate to require Ms. Herbert to pay for it;
(d) incorrectly calculating the value of the Plaintiff's quantum meruit claim; and
(e) awarding $85,000 in costs to the Plaintiff.
[3] For the reasons below, I do not give effect to any of these grounds of appeal. I see no reason to interfere with the associate justice's decisions.
The Browne v. Dunn Issue
[4] The Defendants state that the associate justice improperly admitted evidence tendered by the Plaintiff in breach of the rule in Browne v. Dunn. In her responding affidavit for trial, Ms. Herbert alleged deficiencies in the size of the interior doors and deficiencies in the drywall, ceramic tile work, electrical work, and plumbing work. The Plaintiff then tendered reply affidavit evidence from three individuals to the effect that Ms. Herbert had in fact ordered the doors that she alleged were defective, had rejected the use of QuietRock soundproofing in the drywall, and had authorized the ceramic tile installation in the hallways that led to an invoice that she disputed. The Plaintiff did not cross-examine Ms. Herbert on that evidence. The Defendants argued, in their closing submissions, that the Plaintiff ought to have cross-examined Ms. Herbert if it wished to rely on the evidence, under the rule in Browne v. Dunn.
[5] The Defendants say the associate justice erred by finding that he did not need to exclude the reply evidence, and that the Defendants could have sought leave to file a sur-reply affidavit or tender viva voce evidence at trial in order to respond to the reply evidence. The Defendants say they were precluded from taking any such steps because the associate justice had set a timetable for the steps of the matter and had ordered that the trial proceed in a summary way with evidence in chief and reply evidence all going in by way of affidavit.
[6] While the Defendants do not clearly identify the standard of review that applies to this ground of appeal, the effect to be given to any breach of the rule in Browne v. Dunn is at the discretion of the trial judge. The standard of review for an exercise of discretion is whether the judge acted on a wrong principle of law (Toronto Transit Commission v. Spaeth et al., 2023 ONSC 3694, at para. 10). As such, the question before me is whether the associate justice acted on a wrong principle of law in admitting the reply affidavits.
[7] I find that he did not. The associate justice rightly observed that it was for Ms. Herbert to prove her case and to corroborate her damages. That obligation exists separate and apart from the rule in Browne v. Dunn. In her responding affidavit for trial, Ms. Herbert alleged the various deficiencies described above but did not provide any documentation in support of her claims. She did not rely on any expert evidence in support of her claims. It was for her to put her best foot forward in that affidavit, and to do so regardless of what, if any, evidence the Plaintiff tendered on reply.
[8] I also agree with the associate justice that Ms. Herbert was in fact asked about many of these issues in cross-examination. For instance, in her affidavit, she attested that the interior doors were too short and needed to be replaced. Under cross-examination, she was confronted with a text message in which she said that she ordered the doors. She then acknowledged that she was present at Downtown Lumber when the doors were ordered. That text message appears to have been tendered before she prepared her responding affidavit.
[9] The associate justice also rightly noted that the reply affidavits that the Defendants now complain about were in fact served on Ms. Herbert almost two weeks before the start of trial. He correctly observed that Ms. Herbert had an opportunity to review and address the evidence. She did not ask to serve a sur-reply affidavit or to testify viva voce at trial before her cross-examination on her affidavit began. Rather, she allowed the evidence to go in and only raised the issue in closing argument. The associate justice found that in these circumstances she was not ambushed. He admitted the Reply Affidavits into evidence.
[10] I agree with that decision. But I need not agree with it: it is sufficient for me to simply find, as I do, that the associate justice did not act on any wrong principle of law when he ruled that Ms. Herbert had not been ambushed by the evidence contained in the reply affidavits. He considered, appropriately, whether the principle of trial fairness animating the rule in Browne v. Dunn had been compromised by the reply affidavits. He decided, for the reasons described above, that it had not been. His decision was made in accordance with the correct legal principles. I see no reason to disturb it.
The Door Frames and the Drywall/Soundproofing
[11] The Defendants state that the associate justice erred in the factual findings he made regarding the offset claim for doors and drywall/soundproofing. They disagree with the associate justice's findings that Ms. Herbert ordered the doors, that the doors did not fit, and that she then instructed them to cut the doors down to size to fit the frames. They also disagree with his finding that the soundproofing was performed adequately.
[12] The standard of review for findings of fact is such that they cannot be reversed unless a "palpable and overriding error" was made. In this context, "palpable" describes an error that is plainly seen (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 1, 4-6, 10, 20).
[13] I am of the view that the associate justice made no such errors in his factual findings on either of these issues.
[14] I note, as a preliminary matter, that the associate justice found the Plaintiff's evidence overall to be more credible than that of Ms. Herbert. He found that the evidence of the Plaintiff's witnesses was detailed, well corroborated, and withstood cross-examination; and that Ms. Herbert's evidence was less credible, contained contradictions, was self-serving, contained uncorroborated statements, was argumentative, and was overall less credible than the evidence of the Plaintiff's witnesses. These findings on credibility are themselves owed a high degree of deference (Housen, at para. 24).
[15] Against this backdrop, the associate justice weighed the evidence on the door frame and drywall/soundproofing issues, including the Plaintiff's reply affidavits, which contained evidence that Ms. Herbert had ordered the doors she alleged were defective and had rejected the use of QuietRock soundproofing in the drywall; Ms. Herbert's affidavit, which he found less credible and contradictory and which provided no corroborating evidence to establish that she suffered damages as a result of having to repair alleged deficiencies with the interior doors or the drywall; and Ms. Herbert's concession in cross-examination that she was at Downtown Lumber when the doors were ordered. His factual findings regarding the door frames or the drywall/soundproofing were fully open to him on the record. I see no palpable or overriding error in them.
The Value of the Quantum Meruit Claim
[16] The Defendants state that the associate justice erred in the findings he made regarding the value of the work done.
[17] The associate justice found that there was no enforceable agreement for the 2018 work because the parties did not agree as to price, time, or material contract price. He further found that there was no enforceable contract for the 2019-2020 work, as there was no agreement as to scope of work or price. The associate justice nonetheless granted recovery based on the Plaintiff's alternative quantum meruit claim. He discussed the concept of "contractual quantum meruit," which applies where the parties have an existing contract or are negotiating one, and not all the essential elements of the further contract have been agreed upon, particularly price and scope. He described the essential elements of this cause of action – namely, that the parties agree that certain work will be done but do not agree on all aspects of the contract, the defendant accepts the work, the parties have or should have an expectation that the work is not gratuitous, and the payment sought is reasonable remuneration of the work done.
[18] The associate justice went on to find that the Plaintiff had established the foundation for a contractual quantum meruit claim for the work at issue. In so finding, he considered with some granularity the evidence in favour of the 562 labour hours claimed by the Plaintiff, in the form of original timesheets from the Plaintiff's workers. He considered whether the hourly rate applied to the hours by the Plaintiff was reasonable and explained why he concluded that it was. He discussed the evidence in support of the amount claimed for material costs, which consisted of invoices and proof of payment for a wide range of work. He concluded that the Plaintiff had established that its value of work was $56,554.67.
[19] It is not exactly clear which aspect of the associate justice's reasoning on the quantum meruit issue the Defendants appeal, and why.
[20] To the extent that they appeal his findings that there were no binding agreements in respect of the 2018 and 2019-2020 work, I reject that ground of appeal. These findings by the associate justice were ones of mixed fact and law, subject to review on the "palpable and overriding error" standard (Housen, at para. 36). In my view, the associate justice's finding that, on the facts, there was no agreement between the parties as to the price, time, or material contract price for the 2018 work is correct and should not be disturbed. The record supports, and his reasoning clearly explains, his finding that there was no enforceable agreement in respect of this work. Likewise, his finding that there was no agreement between the parties as to the scope of work or price for the 2019-2020 work is correct. He made no palpable or overriding error in making these findings.
[21] To the extent that the Defendants contest the factual correctness of the calculation of the quantum meruit claim, I also reject that ground of appeal. This was a finding of fact, subject to review on the "palpable and overriding error" standard. I see no basis on which to disturb it. He made this finding by assessing reasonable remuneration for the work done, having regard to the actual labour hours claimed, reasonable hourly rates for that labour, and the actual costs of material.
[22] The Defendants appear to suggest that the associate justice should have based his analysis at least in part on estimates for the work prepared by Ms. Herbert's insurer and another contractor. It is difficult to understand this reasoning. Estimates are merely estimates. The focus of a quantum meruit assessment is reasonable remuneration for work done. I can think of no better way of determining reasonable remuneration than looking at the actual work done, assigning a reasonable hourly rate to it, and adding in actual material costs. That is precisely what the associate justice did.
[23] I see no error at all, let alone a palpable and overriding error, in the associate justice's approach to calculating the quantum meruit claim.
The Costs Award
[24] Finally, the Defendants state that the associate justice erred in awarding costs to the Plaintiff of $85,000, which was between the Plaintiff's partial indemnity costs amount of $70,352 and its substantial indemnity costs amount of $97,750.30.
[25] The Defendants do not articulate exactly how they say the associate justice erred in making his costs decision. They appear to suggest, without explanation, that Ms. Herbert's conduct is not of the "reprehensible" variety that supports the imposition of solicitor-client costs. They also seem to question the associate justice's view that proportionality and the reasonable expectations of the parties should not be used to deny a party unavoidable costs.
[26] It is settled law that a costs decision is discretionary and is owed a "high degree of deference" (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 19). A costs decision should not be disturbed unless there is an error in principle or if the costs award is plainly wrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27). The question of whether a decision maker has made an error in principle or has made an award that is plainly wrong is informed by whether they applied the correct factors, in relation to the facts and circumstances of the case (Andersen v. St. Jude Medical, Inc. (2006), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), at para. 22).
[27] The associate justice's costs decision was five pages long, single spaced. In his reasons, the associate justice explained that Ms. Herbert's conduct at trial merited elevated costs. Her testimony was at odds with the documentary evidence on various issues, she advanced a claim for $44,000 in lost rent that she abandoned prior to trial, and overall, her conduct unreasonably lengthened the proceedings. He also considered the rule 49 offer to settle that the Plaintiff had served on Ms. Herbert, and the fact that the Plaintiff had to prepare seven summary trial affidavits compared to the Defendants' one.
[28] The associate justice gave detailed and thorough reasons. He considered all relevant factors. He did not consider any irrelevant factors. He appropriately exercised his discretion in making his costs decision. I see no basis on which to disturb it.
Conclusion
[29] For the reasons above, I dismiss the appeal.
Costs
[30] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I may consider the factors enumerated in rule 57.01. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.
[31] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 60, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then "step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable".
[32] Applying these factors here, I note, first, that the Plaintiff was entirely successful in this appeal and is therefore entitled to its costs. Additionally, the amount the Plaintiff seeks, of $13,423.50 in fees on a partial indemnity scale, plus disbursements, is reasonable in terms of hourly rates and time spent. The Plaintiff's written materials and oral argument at trial were helpful to the court. The Plaintiff did not engage in any conduct that needlessly lengthened the proceedings.
[33] Additionally, disbursements, exclusive of HST, are $780.80. The disbursements are themselves reasonable and rightly recoverable.
[34] I accordingly award costs against the Defendants in the amount sought of $16,050.86, inclusive of fees, disbursements, and taxes. In my view, this result is fair and reasonable in all the circumstances. Indeed, this amount is slightly lower than the partial indemnity amount the Defendants would have sought had they been successful, which underscores that it was within the reasonable expectations of the Defendants.
[35] This amount is to be paid within 30 days.
Parghi J.
Date: October 14, 2025