Hafezi v. Divanbeighi, 2026 ONSC 182

[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Hafezi v. Divanbeighi, 2026 ONSC 182

COURT FILE NO.: CV-19-00627504-0000

DATE: 20260109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SARA HAFEZI

Plaintiff/ Defendant by counterclaim

– and –

SAMAN DIVANBEIGHI and APEX CONSULTING & MANAGEMENT INC. 10947121 CANDADA INC. CARRYING ON BUSINESS AS APEX CONSULTING & MANAGEMENT

Defendants/ Plaintiffs by counterclaim

Esmaeil Mehrabi, for the Plaintiff/ Defendant by counterclaim

John Mullen, for the Defendants/ Plaintiffs by counterclaim

HEARD: September 8,9,10,11,12,15,16, and 17, 2025

L. BROWNSTONE J.

REASONS FOR JUDGMENT

Introduction

1The plaintiff, Sara Hafezi, met the defendant Saman Divanbeighi through family friends. In 2017, Dr. Hafezi, who is a pathologist, was considering renovating her home at 12 Tabert Drive. Mr. Divanbeighi is a contractor, who carried on business under the name Apex Consulting and Management. The defendant corporation, however, was only incorporated after the events in question, so the proper defendant and contracting party is Mr. Divanbeighi personally.

2Dr. Hafezi and Mr. Divanbeighi engaged in discussions, and agreed that Mr. Divanbeighi would perform the requested renovations.

3In a not uncommon turn of events, the renovation did not proceed smoothly. Mr. Divanbeighi says that once the renovations were underway, he discovered problematic issues with the house that required remediation. He says the parties agreed on an expanded scope of the renovation.

4The parties agree there was a contract for the initial scope of work. Dr. Hafezi acknowledges some extra work was done, but states that some work was not authorized, some work charged for was not done, and some work was not performed in a workmanlike manner. She says she pointed out deficiencies to Mr. Divanbeighi that he was unable or unwilling to fix. Dr. Hafezi claims Mr. Divanbeighi breached the contract between the parties. In the alternative, if the court finds there was no binding contract between them, she claims she overpaid Mr. Divanbeighi for the work performed. In her statement of claim, Dr. Hafezi seeks damages of $40,000 for breach of contract and repair costs to remedy deficiencies, and $100,000 for unjust enrichment (although for some reason the matter was not commenced under the simplified procedure rules).

5Mr. Divanbeighi claims he is owed money for the extras performed. His counterclaim sought damages of $212,605.85. In closing submissions, he advised he seeks $57,049.66 in his counterclaim. I note that virtually all the parties’ calculations are net of HST; my calculations are therefore also net of HST.

6The court must determine:

a. whether there was a contract between the parties, and if so, the scope of the contract;

b. whether there was authorized extra work performed and, if so, to what compensation is Mr. Divanbeighi entitled for these extras;

c. whether the work was performed in a workmanlike manner? If there were deficiencies in the performance of the work, what are the damages?

Governing Law

7An enforceable construction contract requires certainty of three essential terms: the scope of the work to be done, the timeline for the work’s completion, and the price to be paid. If there is no written contract, the existence of the contract is to be determined objectively looking at the conduct of the parties. Part performance is a good indicator, but is not determinative: Goulimis Construction Ltd. v. Jason Smith, Eva Klein and Bank of Montreal, 2014 ONSC 1239 at paras. 17 and 19; Grelowski v. Koehler, 2022 ONSC 2902 at paras. 27-28.

8A client may order extra work in addition to that specified in a written contract. This possibility may be provided for within the contract. Otherwise, as stated by Broad J. in 2016637 Ontario Inc. o/a Balkan Construction v. Catan Canada Inc. et al, 2013 ONSC 4727, at paras. 11-13:

In the absence of such a provision in the contract there must be a new agreement between the owner and contractor covering the performance of, and payment for, any work not comprised in the contract. Such an agreement may be an express contract, or it may be an implied contract to pay for work done at the request of the owner and accepted by him/her. If no price is fixed for the performance of such work, the court will imply a promise to pay a reasonable amount on a quantum meruit basis (see DIC Enterprises Ltd. v. Kosloski (1987) 26 C.L.R. 85 (Sask Q.B.) at para. 30, quoting Goldsmith, Canadian Building Contracts (3rd) (1983) at pp.81-82).

12Whether a particular item of work is an extra or not must be determined by reference to the terms of the contract, the nature of the work, and the surrounding circumstances. The contractor will, therefore, be able to recover payment on a quantum meruit basis only if it has performed work for the owner in pursuit of a contract which changed so fundamentally that the payment provisions in the contract no longer have any application to the work actually performed. There would be an implied promise to pay what the work is reasonably worth (see McGrath v. Woodrow (1998) 2001 24163 (ON CA), 40 C.L.R. (2d) 145 (Ont. Gen. Div.) at para. 56, quoting Hudson- Building Contracts (1996), paras. 4-27.

13When a contractor performs work or supplies materials not called for by the contract without instructions, express or implied, from the owner, or the consent of the owner, it is not entitled to charge for this additional work or materials as an "extra". However, when the contractor performs work or supplies materials not called for by the contract on the instructions, express or implied, of the owner, it is entitled to charge for additional work or materials as an "extra". What amounts to instructions from the owner depends on the circumstances relating to each item. If the owner, without giving definite instructions, knows that the contractor is doing extra work or supplying extra materials, and stands by and approves of what is being done and encourages the contractor to do it, that will amount to an implied instruction to the contractor, and the owner is liable (see Chittick v. Taylor, (1954) 1954 492 (AB KB), 12 W.W.R. (N.S.) 653 (Alta S.C.) at paras. 8-10).

9Absent a specific exclusionary term in a contract, a contractor who supplies material and carries out work impliedly undertakes to perform the work in a good and workmanlike manner, to use materials of good quality fit for the required purposes, and to comply with the Building Code and other mandatory requirements: G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., (1983),1983 1719 (ON CA), 43 O.R. (2d) 401, 1 D.L.R. (4th) 262 (CA). Whether work is done to an owner’s satisfaction must be assessed by the standard of an owner who is acting reasonably: 2016637 Ontario Inc. at para. 46.

Was there a contract between the parties for the work to be performed by the defendants? If so, what was its scope?

General Findings about the parties’ credibility

10Determining the issues in this case requires the court to make credibility assessments. I will address here in a general way my findings on credibility. Relevant examples will be provided during discussions of specific issues.

11Assessing credibility is a complex task, requiring the court to consider many factors. The court may accept some, none, or all of a witness’ evidence. The court may consider such factors as internal inconsistency in the evidence, whether a witness answers questions in a straightforward manner, whether a witness becomes argumentative, whether the evidence is inherently improbable, whether a witness is able to make concessions, and whether the evidence is consistent with other evidence, including documentary evidence: R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20; R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 at paragraph 93; Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 DLR 354 at p. 357

12A witness’ reliability must also be considered. This assessment depends upon factors such as whether a witness had an opportunity to observe the events in question, and whether there are other factors that might affect a witness’ memory or ability to recount events in issue: R. v. H.C., 2009 ONCA 56 at para. 41.

13As will be seen below, I accept parts of each of party’s evidence. I find Dr. Hafezi was at times prepared to overstate problems and attribute them to Mr. Divanbeighi, and to understate her own knowledge of how the project was proceeding. She was occasionally evasive and argumentative, and at times her evidence was not plausible.

14I find Mr. Divanbeighi to understate, at times, the extent of repair that was required to work that he acknowledged needed repair. I found he at times could not remember details of the work done, especially when it was performed by subcontractors.

15I have reviewed and considered all the evidence. I refer below only to the evidence relevant and necessary to make the requisite factual and legal determinations in the case.

16With those general comments in mind, I will turn to the relevant evidence.

The parties’ discussions

17The parties met each other in 2015 and their families developed a friendship. The two parties started communicating about the renovation project to be performed by the defendant at the plaintiff’s home in the fall of 2017. Those communications included discussions about the scope of the work to be done. Dr. Hafezi had been considering whether to sell the property, and do only those renovations that would help with the sale, or whether to renovate the property and continue to live there. She also considered renovating the basement to create a rental unit or to have her parents live there.

18On December 11, 2017, Mr. Divanbeighi sent Dr. Hafezi a preliminary schedule for her review. Dr. Hafezi testified that following the receipt of the email, the two discussed doing some renovations to the bathrooms, replacing the windows, and doing some painting work on the main floor. They discussed a ballpark figure of $80,000 to $90,000, but did not commit that figure to writing. They had not finalized decisions about the basement.

19On December 31, 2017, Mr. Divanbeighi sent Dr. Hafezi the following email:

Good morning Sara,

We are in the process of finalizing the detail of scope of work @ 12 Tarbert Road.

As per our conversation and pro-activity, I have placed the order for windows, interior doors and trim work.

please consider this e-mail as a recipe (sic) for ;

$ 19,200.00 + HST = $21,696.00

Until we provide you with proper estimate and invoices,

Thank you,

20Dr. Hafezi testified that she then decided she would continue to live in the house, which meant she decided the renovation would be larger than it would have been had she decided to renovate only for sale purposes. After December 31, 2018, she decided the project would include changing all the bathrooms, thereby enlarging the project.

21In accordance with that enlarged scope, on January 31, 2018, Mr. Divanbeighi sent Dr. Hafezi a fairly detailed description of the steps to be undertaken for the renovation (one version at 7:08 am and a slightly revised version at 9:22 a.m.). In his evidence, Mr. Divanbeighi described the work to be done as major work on the first and second floor, including renovations of all the bathrooms, changing doors, baseboards, painting, crown molding, adding pot lights in main floor, and changing the plumbing fixtures.

22Dr. Hafezi then decided that she wanted to make additional changes to the basement so that her parents could live there.

23Mr. Divanbeighi sent, on February 3, 2018, a cost spreadsheet (marked as exhibit 8 and to which I will refer as such) that contained columns for material, labour, and amounts received for the newly broadened scope of the project, that is, including the basement work. The total cost in that document for itemized matters was $142,970, inclusive of the $19,200.00 previously paid.

24The cost spreadsheet also contained a number of blank costs, for “Material for open concept, Reconfiguration of BaseM, Leveling the floor, New fireplace, and Basement Wall/ door.” In addition, there were a list of other items outside of the material, labour, and amounts received columns, as follows:

Survey $1,700.00

Engineering $2,500.00 Budget

Permit Cost $1,500.00 Budget

Kitchen $8,000.00 Budget

Sink, Faucet $1,000.00 Budget

Tile flooring $1.500.00 Budget

Back splash $1,000.00 Budget

Opening Walk out $12,500.00 Budget

enlarging two windows $1,200.00 Budget

Entry door to baseM $1,200.00 Budget

$32,100.00 Budget

25Mr. Divanbeighi stated that “budget” meant that exact numbers were not yet available. He testified that he and Dr. Hafezi went through the document together, and she accepted his proposal to do the work based on this document.

26Dr. Hafezi testified that she understood the cost of the project to be the sum of the two columns, just over $175,000. She testified that she expected that the project may go over budget by 10 or 15%.

27Dr. Hafezi and Mr. Divanbeighi agreed the project would take between six and eight weeks to complete.

28One of the blank figures in exhibit 8 related to materials for the stairs. I accept Mr. Divanbeighi’s evidence that Dr. Hafezi wanted something new and different, so that the amount that would be spent on materials, the railing, could not yet be filled in. Mr. Divanbeighi sent her photographs of railings to choose from. This cost was anticipated to be added to the cost of the project. As will be seen later in these reasons, the cost of the railing was later added.

29Dr. Hafezi repeatedly testified she did not understand the scope of the work. I do not accept this evidence. I accept that she is not an expert in construction, but that does not mean that she was not able to understand and agree to the scope of the work. I do not accept that she was prepared to spend close to $200,000 for renovations to her primary residence without understanding, to a sufficiently specific degree, what she was getting for that money.

30I find the parties had an initial contract for the work to be provided by the defendant, and that its scope was set out in exhibit 8. I find that the parties agreed that Mr. Divanbeighi would perform the work set out in that document. I find the document, and the parties’ conversations that explained the work to be done, constituted a binding contract between them. I find the parties agreed on the prices that were included in exhibit 8, and agreed that some items, such as the stairs and other blank items, as well as the exact figures for “budgeted” items, would be added when the exact costs of those items were known.

31For the figures that were to be added, I find that an implied term of the contract was a promise by Dr. Hafezi to play the full amount of materials and a reasonable amount for labour on a quantum meruit basis.: 2016637 Ontario Inc. Mr. Divanbeighi repeatedly testified that he did not intend to mark up the price to take a profit because of the friendship between the parties. Indeed, this was why he shared exhibit 8 with her in the form he did. I accept this evidence and find the parties proceeded on the basis that Mr. Divanbeighi was not going to add a profit markup to the cost of the work he performed.

Was there authorized extra work performed? If so, to what compensation is Mr. Divanbeighi entitled for that work?

32The construction began in mid-February. Dr. Hafezi moved out of the house on March 1, 2018.

33After the work started on the house, demolition of drywall in the basement occurred. Mr. Divanbeighi testified that significant issues with the basement became apparent. The ceiling was sagging and there was water damage to the walls behind the drywall and the foundation.

34Mr. Divanbeighi also testified that there were holes in the joists that needed replacing. This is what was causing the ceiling to sag. The holes appeared to have been made to accommodate a former HVAC system in a previous renovation. Photographs were introduced that show holes of a significant diameter.

35Dr. Hafezi called Ali Nilforoushan, one of Mr. Divanbeighi’s subcontractors who worked on her house, to testify on her behalf. Mr. Nilforoushan was part of the second crew who worked on the house, the first having failed to complete the work and having left things in an unsatisfactory state.

36Like Mr. Divanbeighi, Mr. Nilforoushan testified that the holes in the joist were very unsafe and they had to be repaired.

37Mr. Zarrinpour, who worked with Mr. Nilforoushan and was called to testify by Mr. Divanbeighi, testified that he knew more about construction than did Mr. Nilforoushan, who was a blinds expert. They therefore worked on the project together. When they discovered the issues with the sagging joists, they called Mr. Divanbeighi. Mr. Zarrinpour then discussed the issue with Dr. Hafezi and told her it had to be fixed. Dr. Hafezi agreed.

38Mr. Divanbeighi also testified that the contractors discovered water behind the existing drywall in the basement, and that remediation work was required for this as well. I accept this evidence. It is consistent with subsequent events and subsequent work I find was performed by Mr. Divanbeighi.

39Dr. Hafezi consistently testified that she did not understand the matters that were presented to her, and that she relied on Mr. Divanbeighi because she thought he knew what he was doing. She denied seeing the ceiling sag but did acknowledge that she was asked whether she wanted a pole or a pillar in the basement for support.

40I do not accept that Dr. Hafezi was unaware of the work that was being done on the house. I have found she was aware of and agreed to the initial scope of work. I also find that Dr. Hafezi was told about the new issues identified in the basement, was told they were concerning, and agreed they needed to be fixed. I find that Dr. Hafezi authorized Mr. Divanbeighi to perform the extra work in the basement, both the structural work on the beams and joists, and the work required due to the moisture found behind the walls. I find these were authorized extras.

41Mr. Divanbeighi testified that he did not provide Dr. Hafezi with a quote for this work, as he did not want to wait for the subcontractors to prepare their estimates. Because time was a major issue and she wanted to move back in to her house as soon as possible, they proceeded on the basis of time and labour.

42I accept this evidence. I find that Dr. Hafezi knew of and agreed to this arrangement, at least implicitly.

43Mr. Divanbeighi explained in his answers to undertakings and acknowledged in cross-examination that the extra work in the basement as a result of the unforeseen water issue and the problems with the joists added up to $37,800.

44On May 30, 2018, Mr. Divanbeighi sent Dr. Hafezi an updated cost spreadsheet. A number of items had been added, including a vacuum, bar, a figure added for material for open concept, pvc pipe, and a new fireplace. The costs for pot lights and the basement floor had increased, and the price of the stairs, blank on the initial cost estimate, had been filled in. Costs for basement extras had also been added. Some of the labour costs had increased, some had decreased, and some additional labour for new items had been added. Further, a new column for basement extras was included.

45Given that I have found a fixed-price contract existed for the work set out in exhibit 8, Mr. Divanbeighi was not entitled to increase costs for the items that were included in that cost document: 2016637 Ontario Inc. at para. 10. However, he was entitled to charge Dr. Hafezi reasonable sums for the authorized extras.

46The May spreadsheet showed a total cost of $240,270.50 for the interior work. It contained a column for exterior work, some of which was done and some of which referred to future work, which was never undertaken.

47The additional items on the May spreadsheet were the $4,500 cost of the front and back doors, which were items that had been left blank in exhibit 8, pot lights were increased from $1,000 to $3,500, the stair price of $9,000 was added, and the basement floor had increased from $2,100 to $4,000. Additional items were vacuum for $3,600, a bar for $10,000, material for open concept for $1,500, PVC pipe for $700, and a new fireplace for $3,000.

48Mr. Divanbeighi was bound by the pricing for the pot lights and basement floor in the original agreement. There was no evidence about authorizing or providing a vacuum system or the requirement for the PVC pipe. The fireplace was agreed to and is an authorized extra (I will deal with the failure to provide it in the deficiencies review below).

49Some labour costs were increased and some were decreased. Again, as this was a lump-sum contract, the labour costs that were set out in exhibit 8 are fixed. Additional labour costs of $2500 for the bar, which had been added, are permissible. There was no evidence about additional HVAC costs or organiser costs for a master bedroom. There is no basis upon which to find those labour extras were authorized.

50Therefore, I find the following extras were agreed to and authorized, as reflected in the May 31, 2018, cost spreadsheet: the front and back doors for $4,500, the stair materials for $9,000, the bar for $10,000, material for the open concept in the living room for $1,500, and a new fireplace for $3,000. I find these costs reasonable and in the same range as the costs set out in exhibit 8. I find the extra labour of $2,500 for the bar to be a reasonable authorized extra expense. This totals $30,500.

51Additionally, the engineering, permit costs, and opening of the walkout that had been marked “budget” in the original agreement now had precise figures, which increased the costs by about $3,550. Some items were added to that list, but they are basement-related, so covered in the undertaking answer referred to above, or not proven as approved extras.

52I find additional extra costs were authorized in the summer of 2018, after there was a significant flash flood in Toronto. There was some flooding in Dr. Hafezi’s basement. Dr. Hafezi and Mr. Nilforoushan came up with the idea of erecting a structure with a canopy over the walkway to the basement until the drain at the bottom of the stairs could be fixed. Mr. Nilforoushan testified that this would protect her parents, who used those stairs, in the event of another large rain or snow. This was outside the contract work but Dr. Havezi requested it and Mr. Divanbeighi authorized Mr. Nilforoushan to perform the work.

53Mr. Nilforoushan testified that whenever he raised an issue with Mr. Divanbeighi, Mr. Divanbeighi’s answer was that they should do the work to make Dr. Hafezi happy. Mr. Divanbeighi produced an invoice indicating that the cost of the outdoor canopy structure was $4,500.00 I find that Dr. Hafezi authorized this work, that the cost is reasonable, and that this was an authorized extra.

54I find that Mr. Divanbeighi has not proven any other authorized extras.

55The payments to which Mr. Divanbeighi is entitled for the extras are therefore $37,800 for the basement, $30,500 for the approved extra materials and labour, $3,550 for the increase to the “budget” items, and $4,500 for the outdoor canopy and railing, for a total of $76,350.

56When this is added to the figures in exhibit 8, the total amount Dr. Hafezi owed to Mr. Divanbeighi was $251,420.50.

57Dr. Hafezi stated that a few days after she and Mr. Divanbeighi discussed the May cost estimate at the end of May, she asked Mr. Divanbeighi how much money he needed to finish what he had started and fix the problems. He told her he required $25,000 in cash, which she paid him in early June 2018. The parties agree that she had therefore paid him $244,200 in total.

58By October 2, 2018, the relationship between the parties had significantly deteriorated. Mr. Divanbeighi wrote to Dr. Hafezi seeking a further final payment of $42,500, stating he had had taken a loss of $47,500 because of some items for which he was responsible. He further stated he would ensure the deficiencies were corrected to Dr. Hafezi’s satisfaction. Dr. Hafezi testified that the last repair work on her house by Mr. Divanbeighi’s subcontractors was done in October 2018,

59Dr. Hafezi denied the work claimed had been done, and denied she owed Mr. Divanbeighi further funds. She told Mr. Divanbeighi that she felt she did not owe him any more money, but would pay him $17,000 just to be done with it. Mr. Divanbeighi sought a payment of $25,000. The parties could not come to an agreement.

60On Oct 7, 2019, Mr. Divanbeighi sent Dr. Hafezi an invoice for $212,409.85, the amount he claimed was owed to him based on the work he had done and the amount he had received from Dr. Hafezi to date. He provided documentation that shows the cost to him of the project was over $400,000. He testified that he had added a 15% profit to this invoice, because he was angry about how events had transpired, but that he is not seeking to be paid this 15%.

61I do not find Mr. Divanbeighi has proven those amounts are owing. I find there was a contract for the first part of the work (a position both parties took) and only the authorized extras above have been proven.

62I therefore find that Dr. Hafezi underpaid Mr. Divanbeighi by $7,220.50 ($251,420.50 owing less $244,200 paid).

Did Mr. Divanbeighi perform the contract and extras in a workmanlike manner or were there deficiencies?

63Dr. Hafezi claims Mr. Divanbeighi performed work she did not ask him to perform, included items on the May spreadsheet that he ought not have included, and failed to perform other work in an acceptable workmanlike manner in accordance with the applicable codes.

Work Dr. Hafezi says she did not authorize

64I do not accept Dr. Hafezi’s evidence that Mr. Divanbeighi removed stone arches from the outside of her home without her permission. I find that this was done in anticipation of further exterior stucco work, which was to be completed as a later phase of the renovation. Given the deterioration of the relationship between the parties, the exterior phase was never undertaken by Mr. Divanbeighi. Given the regular messages between the parties, I find that Dr. Hafezi would have communicated with Mr. Divanbeighi immediately had he undertaken such a drastic step without her knowledge or permission. Dr. Hafezi was not responsive to questions put to her on this subject, and became argumentative.

65For similar reasons I reject her evidence that she did not agree to the removal of her sizeable backyard patio. I accept Mr. Divanbeighi’s evidence that part of that concrete patio had to be removed to create the stairway to the basement and that Dr. Hafezi then wished to have the remainder of the patio removed. Again, there is no evidence of her complaining about this substantial change to her property. I find that she agreed to its removal.

Work Dr. Hafezi says was wrongly included in the May spreadsheet

66The parties agree that some of the work that appears on the May 31, 2018, cost analysis was not performed. They agree that Mr. Divanbeighi performed no roof or fence work, no landscaping, pool, sidewalk work, or work on the front of the house. Mr. Divanbeighi provided the quote for that work to her as she was considering exterior work in the future.

67Dr. Hafezi did not receive those services, nor did she pay for them. They are therefore irrelevant to this claim.

Deficiencies

68On June 23, 2018, and July 26, 2018, Dr. Hafezi sent Mr. Divanbeighi lists of deficiencies, which Mr. Divanbeighi forwarded to Mr. Nilforoushan.

69Of that list, Dr. Hafezi acknowledges that eight items were completed. She testified that several others were partly done, and some were not done at all. The list does not include all deficiencies for which she now seeks compensation.

70Mr. Nilforoushan testified that 99% of that work was completed but that some problems remained, largely in the bathroom. I find this overstates the work that was completed, as explained in more detail below.

71In March 2019, counsel for Dr. Hafezi sent Mr. Divanbeighi correspondence and a list of deficiencies that Dr. Hafezi claimed remained outstanding.

The expert evidence

72Both sides called expert witnesses.

73Dr. Hafezi called Mr. Allen Kim, an engineer who the court qualified to provide opinion evidence on construction deficiencies and compliance with applicable codes. He attended Dr. Hafezi’s house three times, in late 2020 and early 2021.

74Mr. Divanbeighi’s counsel objected to Mr. Kim’s evidence. For reasons attached at Appendix A, I permitted Mr. Kim to testify but noted that argument about the weight to be given to his evidence would be a matter to be argued and determined at the end of trial.

75I do not find Mr. Kim went so far as to be an advocate for Dr. Hafezi, but I do find he, in parts of his evidence, over-stated the issues. For example, Mr. Kim acknowledged saying in his report dated March 11, 2021 that “[i]f the investigation of concealed conditions is not initiated as soon as possible within 30 days then we shall be required to contact local Governing Authorities regarding the health and safety of the current building condition as directed by the Standards of our Professional Practice (Professional Engineers of Ontario).”

76Yet no such investigation was initiated, and Mr. Kim made no calls to the authorities. He says he did not do so because the legal process was “playing out”. But he did not explain how that would free him from the professional obligations he claims to have had given the dangerous situation he claims to have identified. I find that if he was as concerned as he claimed to be, he would not have blithely ignored his own concern and would have called the authorities. I therefore find he overstated several of his concerns.

77Mr. Kim acknowledged his inspection was limited to what he could see. He did not perform any destructive tests that would enable him to see behind the finishings. Mr. Kim testified that he was sufficiently concerned by the work he could see that he had concerns about the work he was unable to see without excavation. Mr. Kim concluded the deficiencies were significant and widespread. The cost to repair them could be greater than the cost to do the work to begin with. Disruptive investigations would be required to determine the full extent of the deficiencies.

78I accept some of Mr. Kim’s evidence, as set out below, but treat his evidence with caution for the reasons set out above.

79Dr. Hafezi also called Daniel Falzon, a civil engineer who the court qualified to provide opinion evidence quantifying the work completed and the cost to remedy the deficiencies. Mr. Falzon did not assess the work, but relied on the deficiencies found by Mr. Kim.

80Mr. Falzon assessed costs by visiting and measuring the site, sourcing the same materials as those used by Mr. Divanbeighi, adjusting the amounts using official inflation rates, and using publicly available wage data and a high 20% profit margin.

81Mr. Falzon concluded that it would have cost $176,842 to perform the work that was performed. This evidence is not relevant, given that I have found the parties agreed on the work to be performed and that Mr. Divanbeighi would bill the extras as approved.

82Mr. Falzon also quantified the deficiencies identified in Mr. Kim’s report as totalling $95,578.58.

83I found Mr. Falzon to be a credible witness. I have relied on his figures to quantify the deficiencies that I find below. I note that I have used Mr. Falzon’s figures net of a profit markup of 20%. That figure was, in Mr. Falzon’s own evidence, “generous”. Further, Mr. Divanbeighi was not provided with an opportunity to remedy many of the deficiencies I have found exist, and I have accepted his evidence that he would have remedied them without a markup.

84Mr. Divanbeighi called Mr. David Lehman, a structural engineer who the court qualified to give opinion evidence on residential structural engineering, code compliance and deficiencies. Unfortunately, I find Mr. Lehman’s evidence to be wholly unreliable. Mr. Lehman had, sadly, recently undergone a course of medical treatment that he acknowledged left his cognitive skills impaired. He was unable to answer many of the questions put to him. He had difficulty understanding what was being asked. His answers were tangential. He was confused and his evidence was vague and unclear. He often asked for questions to be repeated, and was unable to offer any explanation other than reading his report. I find he was not able to reliably assist the court, even on basic questions. I have not placed any weight on Mr. Lehman’s evidence.

85Mr. Divanbeighi also called Mr. Sanjay Verma, who was qualified to provide opinion evidence on the costs of construction work. He estimated the value of the construction performed by Mr. Divanbeighi to be $388,600 net of tax, using the median cost of elements and adjusting figures for inflation. This evidence is not relevant given my findings about the contract between the parties and the amounts I have found Mr. Divanbeighi reasonably charged for the authorized extras.

86I will address the deficiencies identified by Mr. Kim by grouping them. In so doing, I note that Dr. Hafezi did not herself testify to many of the deficiencies. Some of Mr. Kim’s evidence was based on what Dr. Hafezi told him, but Dr. Hafezi herself did not address the issues. In other cases, Mr. Kim based his conclusions on his own inspection. Where that happened, in some cases I find it apparent that the work traced back to Mr. Divanbeighi; in other cases, as noted, I find that connection was not made.

87I will also address, where relevant, the cost implications of the deficiencies.

Permit Issues

88Mr. Kim identified that the city permit had not been closed, meaning there had not been an inspection and approval by the city. Further, the canopy structure erected after the flood was not covered by the city permit. Mr. Kim acknowledged that the permit was ultimately closed. He acknowledged that generally speaking, this would signify satisfaction on the part of the city, but he remained concerned that the city was unaware of the full extent of the work. For example, the beam in the basement should have had a permit and did not. The main floor openings would have required a permit if the affected wall was load bearing.

89Mr. Divanbeighi testified that he had not checked to see if the permit had been closed, and learned during the litigation that it had not. He had the permit closed when he became aware that it was still open. Mr. Divanbeighi did not believe a permit was required for the basement beam, since it was simply replacing a beam that was already there.

90I find there have been no damages to Dr. Hafezi for leaving the permit outstanding. I find it has not been established that a permit was required to reinforce a beam that was failing, or to make changes in a wall on the main floor that already had openings in it. The other city permit was closed.

The backyard structure and canopy

91Mr. Kim testified that the plastic sheathing under the canopy structure was failing. He had concerns that the structure was not properly secured. He testified that these concerns exist whether it was intended to be a temporary or permanent structure. I accept this evidence.

92Mr. Divanbeighi stated that he told Dr. Hafezi that this temporary structure would need to be changed. She did not wish to proceed with a permanent structure. Nonetheless, the temporary structure is not secure. According to Mr. Nilforoushan’s evidence, the structure was intended to last at least through some snow fall.

93I find that the canopy structure is insufficiently secured and that the sheathing was failing by the time Mr. Kim inspected it. Mr. Falzon testified that the cost to demolish the structure is $963.00. There is no evidence of the cost to repair the structure. I accept that $963.00 is an appropriate measure of the damages for this improperly erected and failing structure.

The outdoor drain

94I do not find Mr. Kim’s evidence supports the conclusion that there is a problem with the drain at the bottom of the outside basement stairs. Mr. Kim relied on Dr. Hafezi telling him that there was a single incident of flooding to speculate that the drain may not be connected properly. But the flash flooding was not caused by any work Mr. Divanbeighi was contracted to perform. Mr. Divanbeighi testified, and I accept, that the amount of water that fell in the short time in the flash flood was well beyond what would normally be expected, and I accept his evidence that there was widespread flooding in the city from this flash flood.

95Mr. Divanbeighi and Mr. Zarrinpour also testified that there was a broken downspout that likely contributed to some of the problems. There is no evidence there have been any issues with the drain since that flash flood. I find there is no evidence of a problem with the drain.

Outdoor stair building code issues, basement door, and landing

96Mr. Kim testified that the handrails to the basement were not installed to code, that the stairs to the basement were not level, and that the variation in height was greater than permitted by code. Further, there is an insufficient landing space at the bottom of the basement stairs. He testified that one of the stairs was 1/8 of an inch over the code requirements. He also testified that the door at the bottom of the stairs contravenes the code.

97The stairs in front of the house were 3 inches too high. Mr. Kim acknowledged that if Mr. Divanbeighi had not altered the front step, but merely refinished it, the height was permissible. Mr. Divanbeighi testified that they repaired the stair but did not replace it and I accept his evidence. He is not responsible for any code issues with respect to the front stairs.

98These issues were inspected and signed off by the city. Mr. Kim acknowledged that this generally signifies acceptance that the code requirements have been sufficiently met. Dr. Hafezi did not identify any issues with the stairs or the railing, nor any intent to demolish or repair them. I find no deficiencies have been proven.

Concrete

99The concrete Mr. Divanbeighi laid outside was pitted. However, Mr. Divanbeighi testified that he poured the same concrete on the neighbour’s portion of the walkway the same day and there was no pitting or spalling visible on the neighbour’s concrete. The pitting therefore must have been caused by Dr. Hafezi overusing sand or salt. He testified that he saw salt at Dr. Hafezi’s residence on a visit there. I accept this evidence.

100I find Dr. Hafezi has not proven that the spalling was caused by Mr. Divanbeighi’s work.

Unfinished work on the exterior of the house

101Mr. Kim testified that the masonry archway was finished poorly, leaving openings where water could get in. The window installation was unfinished, with spray foam showing, and the windows needed caulking. There was no subsill flashing under the windows. Mr. Kim acknowledged that if it was unfinished, and stucco was to be applied, it could explain the issue. However, the wood should not have been left exposed, even for a short period.

102Mr. Divanbeighi suggested that it would cost a few hundred dollars to fix this problem and that the spray foam would adequately protect the house pending the planned stucco.

103I find that repair work of caulking and flashing is required. I find Mr. Divanbeighi is not responsible for the masonry work about which Dr. Hafezi complains. I find their agreement was that Mr. Divanbeighi would remove the archways and, in the next phase of the work, a stucco finishing would be applied. Therefore, he did not, and was not required to under the terms of their agreement, ensure the masonry was in perfect shape when he demolished the archways.

104Mr. Falzon’s evidence was that it would cost $1030 to install flashing and caulking. I accept this evidence.

Stove fan

105Mr. Kim suggested that the stove fan may not have been venting properly, as Dr. Hafezi reported there was a smell coming from the basement stove. He did not notice an odor himself. I do not find that Dr. Hafezi has proven that there is a venting problem with the stove fan.

Window wells

106The window wells on the basement windows did not have a 6-inch clearance, as required by the code. Mr. Kim testified that had the windows not been altered, the wells would not need to be deepened. If the size of the windows changed, there likely would need to be work on the window well.

107Mr. Divanbeighi acknowledged that the windows in the basement were widened. He stated that he changed the size of the window well. I accept Mr. Kim’s evidence that these wells were not as deep as required to be under the code.

108I accept Mr. Falzon’s evidence that it will cost $1,378.00 to fix this problem.

Fireplace

109Mr. Divanbeighi was to provide a fireplace in the living room. I find the fireplace was not provided. A hole was created in the living room wall, after which it was discovered that the walls were too thin to accommodate the fireplace.

110Mr. Falzon testified that it would cost $496.50 to fix this hole. I accept this figure. In addition, as Dr. Hafezi was charged for the fireplace that was never provided, she is entitled to a refund of the $3,000 for the fireplace on exhibit 8.

Door and window not closing

111There were issues with the patio door and the master bedroom window not closing properly. Mr. Kim did not know when the issues with the patio door began. He believes the issues arose upon installation of the door. He did not know whether there was a subsill flashing under the door.

112Mr. Divanbeighi testified that they put in sliding doors and there was no problem with the doors at that time. His scope of work included framing for the patio door. The concrete under the door did not need to be replaced. When Dr. Hafezi complained about the patio door, Mr. Divanbeighi sent Mr. Nilforoushan to fix it.

113I find this deficiency has been proven. I accept Mr. Falzon’s evidence that the cost to remediate these issues is $309.00 for the master bedroom window and $489.25 for the patio door.

Cosmetic and miscellaneous issues

114Mr. Kim identified a number of cosmetic issues. Some were easily reparable, such as affixing larger plates around some outlets, if available, and misaligned latches. He testified that there were deficiencies to the millwork in the basement.

115Mr. Kim was concerned the floor was squeaking and scratched, that the fridge was leaning backwards, and the dishwasher was not flush. He acknowledged the squeaking could have been from the original floor underneath the replacement floor.

116There were gaps between the vanity and the wall in the bathrooms. There was a slope on the second floor. He stated there was questionable location of outlet and switches

117I find the issues with the basement millwork were proven, but not the claimed issue about abrasion from the door latch, which I find not proven to be attributable to Mr. Divanbeighi. The cost to fix this is $476.70 plus $284.33, figures provided by Mr. Falzon which I accept. I do not find the open cover plate on the junction box is a proven deficiency. I find the removal of the light from the stairway is a proven deficiency and will cost $28.97 to remediate.

118As noted above, I do not find any basement structural issues have been proven.

119I do not find Dr. Hafezi has established that plugs and switches were installed where she did not want them, or in the wrong colour. She gave no clear credible evidence of this. I do not accept she has proven deficiencies in electrical work she says arises from the work provided by Mr. Divanbeighi.

120I do not find the squeaking floor has been proven to be of an extent and nature that constitutes a deficiency, nor do I find it has been shown to be attributable to Mr. Divanbeighi’s work.

121I find the dishwasher needs to be removed and reinstalled, at a cost of $115.88, and main floor millwork was deficiently done, with a repair cost of $787.00. I find the remainder of the main floor issues have not been proven.

Signs of water damage

122There were signs of peeling and water damage. Mr. Divanbeighi testified that he had advised Dr. Hafezi that there were problems with the roof, and that some water penetration was coming from there. He tendered photographs of the roof that he had taken in June 2018. He also provided photographs of the roof and the attic from 2021 which indicate problems with the roof. Mr. Divanbeighi testified that a pre-existing skylight also should be repaired to avoid water damage.

123I find that signs of paint peeling and water damage found by Mr. Kim are not shown to be attributable to the work done by Mr. Divanbeighi.

Pot light and attic insulation issues

124Mr. Kim testified that there was no vapour barrier protection in the ceiling pot lights, and insufficient insulation around the pot lights in the attic. Mr. Kim acknowledged that the attic working was not within the bounds of his opinion. He also testified that the attic hatch had no gasket or insulation.

125Mr. Divanbeighi testified that they installed self-sealing pot lights, and ran the wires to the existing junction box. He stated they did not impact the attic.

126I accept his evidence about this and find he is not responsible for issues in the attic.

Covering of heating vents

127Mr. Kim was concerned that vents had been covered over or not replaced; this was information provided to him by Dr. Hafezi. There were problems with the functioning of the registers that were there.

128Mr. Divanbeighi testified that Dr. Hafezi had Enercare attend the house in October 2018, when he was there, and that Enercare did not indicate there was anything that required repair. He did not believe vents had been covered but could not say for sure. Mr. Zarrinpour testified that he searched for the covered vent with a machine designed to detect metal and did not find it where Dr. Hafezi said a vent existed. I accept Mr. Zarrinpour’ s evidence.

129I find Dr. Hafezi has not proven there were issues with the heating vents.

Second floor

130I accept Mr. Kim and Dr. Hafezi’s evidence that the second-floor stair rail was loose and needs to be tightened, at a cost of $103. I accept that doors and latches have to be realigned at a cost of $154.50 and $126.51. I find Dr. Hafezi has proven the deficiencies in the installation of the vanity and trim in the second-floor bathrooms, which require remediation at a cost of $988.82.

131I find Dr. Hafezi has not proven deficiencies in the ensuite entrance or the master ensuite plumbing. Nor has she proven that sloping on the second floor was caused by any work provided by Mr. Divanbeighi.

Sum of deficiencies

132Dr, Hafezi is entitled to be put into the same position she would have been in had Mr. Divanbeighi performed his work in a workmanlike manner in accordance with the applicable code. Therefore, she is entitled to payment of $10,731.46 to rectify the deficiencies she has proven and quantified.

Disposition

133The claim and counterclaim are each allowed in part. Mr. Divanbeighi shall pay to Dr. Hafezi $10,731.46 so she can repair the deficiencies. Dr. Hafezi shall pay Mr. Divanbeighi $7,220.50 that she has not paid for work performed by Mr. Divanbeighi and authorized by her.

134The parties are strongly encouraged to agree on costs. If they are unable to do so, Dr. Hafezi may file 3 double-spaced pages of costs submissions, along with a bill of costs and any offers to settle, by January 26, 2026. Mr. Divanbeighi may respond, with the same page limits, by February 9, 2026. There will be no reply submissions without leave. Submissions may be sent to my judicial assistant at Katie.Ray@ontario.ca

L. Brownstone J.

Released: January 9, 2026

APPENDIX A

MID-TRIAL RULING ON THE ADMISSIBLITY OF MR. KIM’S EVIDENCE

1The defendant objects to the qualification of Mr. Kim, the plaintiff’s proposed expert witness, on the basis of relevance and impartiality. The defendant does not take issue with Mr. Kim's professional qualifications.

2The test for the admissibility of expert evidence is well known. To be admissible, expert opinion must be relevant, necessary to assist the trier of fact, given by a properly qualified expert, and must not contravene any exclusionary rule. A properly qualified expert is required to be qualified in the subject matter of the evidence, and is also required to be impartial and independent. The trial judge is to act as gatekeeper and ultimately must, if the threshold requirements of admissibility are met, balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks.

3As stated, the defendant does not take issue with Mr. Kim's professional qualifications. I take this also as agreement between the parties that the evidence to be given by Mr. Kim is properly the subject of expert evidence, in that it is engineering evidence related to construction and beyond the Court's general level of knowledge. I agree that the necessity criterion is met.

4The defendant argues that the proposed evidence is not relevant because in many instances, Mr. Kim has concluded that there is a mere possibility of deficiencies. The evidence does not meet the civil standard of proof and is therefore not relevant.

5The plaintiff counters that those of Mr. Kim’s conclusions that he qualifies as possibilities do not render the evidence irrelevant. Rather, they indicate that Mr. Kim has not overstated his opinion, but has limited it in accordance with rule 53 and his overriding duty to the court.

6Whether Mr. Kim considered the civil standard of proof in coming to his opinion does not, in my view, affect the relevance of the opinion. Mr. Kim is, as acknowledged, properly qualified in terms of his expertise to provide his opinion to the court about matters of construction and engineering. His conclusion that certain items may possibly be deficient may affect the weight to be given to his evidence, but I do not see how it renders the evidence irrelevant.

7The defendant's main objection is that Mr. Kim is not impartial; rather, he has demonstrated that he is an advocate for the plaintiff. One basis for this argument is that Mr. Kim used a significant number of items that were merely possible defects to assume that other defects are concerning. In this way, Mr. Kim was bootstrapping his own opinion. That is, the defendant suggests that Mr. Kim decided that, on the basis of mere possibility, he had major concerns about the defendant’s construction.

8Second, the defendant points to a section in his report in which Mr. Kim indicates that the work should be redone and supervised by a properly qualified engineer. Mr. Kim is such an engineer and therefore stands to benefit from his report.

9Third, the defendant argues that Mr. Kim is an advocate for the plaintiff. He raised the spectre of reporting the work to the authorities, but never did so. He did not seek explanations for decisions that were made when he ought to have done so.

10The Supreme Court of Canada in White Burgess v. Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 noted that the threshold for disqualification due to lack of impartiality, independence or the presence of bias is high. The evidence must demonstrate that the expert’s lack of independence renders him incapable of giving an impartial opinion in the case.

11I do not believe that any of the issues raised by the defendant reached this threshold. I do not find that he has demonstrated that Mr. Kim is not able to provide fair, objective, and non-partisan opinion evidence.

12With respect to the argument that he was bootstrapping his own opinion on the basis of mere possibilities, Mr. Kim disagreed with this proposition when it was put to him in cross examination in the voir dire. He stated that based on the deficiencies and code issues he did see, he was concerned about those that he could not see. This becomes a matter for evaluation of credibility and weight, not an issue that renders Mr. Kim impartial.

13With respect to the second argument, Mr. Kim never offered to do any of the remedial work for the plaintiff, nor is there any indication that the plaintiff ever approached Mr. Kim or his firm to do the work. The fact that he belongs to a class of people who he believes should oversee the work does not render him partial.

14The defendant’s essential argument is that Mr. Kim is an advocate who over states his opinion. If that is true, it is a proper issue to be taken into account in determining what, if any, parts of Mr. Kim’s evidence the court ultimately relies on, and what weight should be given to it. However, mere overstating, if that is indeed what Mr. Kim has done which I am not deciding now, does not render his evidence inadmissible. I do not agree that the defendant has demonstrated that this case is like Bruff-Murphy v Gunawardena (2017) 138 O.R. (3d) 584, 2017 ONCA 502, on which the defendant relies, in which the expert’s entire focus from the outset was to find problems with the other side’s case and find problems. The defendant has not shown that Mr. Kim approached his task with this position of advocacy and closed minded-ness.

15I find Mr. Kim’s evidence to be admissible. Nothing in this ruling precludes the defence from relying on their admissibility arguments to be considered at a matter of weight.

[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Hafezi v. Divanbeighi, 2026 ONSC 182

COURT FILE NO.: CV-19-00627504-0000

DATE: 20260109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SARA HAFEZI

Plaintiff/ Defendant by counterclaim

-and-

SAMAN DIVANBEIGHI and APEX CONSULTING & MANAGEMENT INC. 10947121 CANDADA INC. CARRYING ON BUSINESS AS APEX CONSULTING & MANAGEMENT

Defendants/ Plaintiffs by counterclaim