ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Construction Act, R.S.O. 1990, c.C.30
BETWEEN:
WALL SAVERS LTD.
Plaintiff
Arnold H. Zweig for the plaintiff,
Tel.: 416-593-9189,
Email: arnold@azweiglaw.com;
-and-
QUOVADIS APARTMENTS INC.
Defendants
Stephen M. Werbowyj for the defendant;
Tel.: 416-233-9461,
Email: Stephen@Werbowyj.com;
HEARD: September 10, 11, 12 and November 13, 2025
Associate Justice Wiebe
REASONS FOR JUDGMENT
I. INTRODUCTION
1The reference concerns only this action. The plaintiff, Wall Savers Ltd. (“WSL”), claims a lien and breach of contract damages in the amount of $253,615.37 (HST incl.). The defendant, Quovadis Apartments Inc. (“Quovadis”), denies this claim and asserts a set-off and counterclaim for breach of contract damages in the amount of $188,992.68 (HST incl.).
II. BACKGROUND
2Based on the evidence, the following facts appear not to be in dispute.
3The property in issue is a six-story apartment building with 58 units located at 30 Allanhurst Drive, Etobicoke, Ontario. The building is owned and managed by the unit owners. Management is done by a voluntary board of unit owners. The owners are primarily retirees of Eastern European origin. Each unit has a concrete balcony with railings. The balconies are aligned in vertical columns called “drops” with the top balcony covered by a canopy. There are 11 drops.
4In 2019 Quovadis wanted to perform repairs to its balconies. On or about March 11, 2019 Quovadis contracted with engineering firm, Brown & Beattie Ltd. (“BBL”), to assess the repairs, prepare and obtain tenders for the work, and review and administer the construction. In the BBL proposal, the latter scope was stated to be paid on a time basis with BBL recommending budgeting 7-8% of the construction costs for this work.
5WSL submitted a unit-price tender for the construction work, which was accepted. On August 16, 2019 Quovadis entered into a written, unit price contract with WSL whereby WSL promised to do the construction work, called “balcony repairs,” from August 26, 2019 to November 29, 2019 for an estimated price of $251,232.34 (HST incl.). This will be called “the Contract.” WSL’s unit prices were incorporated into the Contract. The consultant was stated to be BBL.
6The Contract had key provisions. It specified that changes to the work could only be done by change order or, if Quovadis and WSL could not agree on a change order, by change directive. It specified that WSL could claim a schedule extension and delay related costs only if it gave Quovadis written notice of the delay within 10 working days of the commencement of the delay. It specified that WSL would be entitled to a schedule extension in the event of a delay beyond WSL’s control. It specified that if either party wanted to claim a change in the contract price (ie. either an increase or a decrease), that party had to give “timely” written notice of the claim to the other party and BBL along with “a detailed account” of the amount claimed and the grounds for the claim to enable mitigation, whereupon BBL would render a decision on the claim.
7The person in charge for WSL was its founder and president, Krys Mackowiak. The BBL engineer in charge throughout was Allen Kim. Mr. Kim attended the site almost every week work was going on and wrote a Site Visit Report. There were 41 such Site Visit Reports in the end.
8The work proceeded; but there were delays. As noted by Mr. Kim in his 2nd Site Visit Report dated September 10, 2019, the first delay resulted from the discovery of corrosion with some of the balcony joists requiring a repair of those joists. Mr. Kim noted that the schedule could be in jeopardy due to this issue. He prepared a contemplated change notice.
9There were other issues noted in Mr. Kim’s reports in 2019, such as the waterproofing installation and inclement weather. In his 7th Site Visit Report in mid-November, 2019, Mr. Kim noted that inclement weather made it unlikely the project would be completed in 2019. It was not completed in 2019 due to winter conditions. WSL demobilized.
10Work resumed in mid-May, 2020. The pandemic was now in effect. In his 9th Site Visit Report of mid-May, 2020, Mr. Kim noted productivity delays involving the waterproofing membrane preparation and installation, and delays due to inclement weather. He also noted WSL damage to balcony railings that needed repair.
11Commentary about delay due to waterproofing membrane preparation and installation and “workmanship” in general recurred in Mr. Kim’s reports through 2020 along with notes about damaged railings. In his 10th Site Visit Report dated May 22, 2020 Mr. Kim noted an inadequacy in the thickness of the waterproofing basecoat on certain balconies requiring an application of further basecoat in those areas. Starting in his 19th Site Visit Report dated July 3, 2020, Mr. Kim noted delay due to the replacement of the slabs on the balconies in units 511 and 611. Starting in his 22nd Site Visit Report dated July 20, 2020, Mr. Kim also noted delay due to the implementation of safety measures for BBL inspections. In his 28th Site Visit Report dated August 27, 2020, Mr. Kim referred to Covid-19 protocols that WSL implemented. In his 35th Site Visit Report dated November 6, 2020, Mr. Kim noted that the WSL crew was off work for a short time due to having contracted Covid-19.
12Mr. Kim projected completion dates in his reports. These changed repeatedly. As of October 1, 2020 he projected a completion date of October 31, 2020. However, by the end of that month he reported that this was not achievable due to recent “labour issues with Wall Savers.” In November, 2020 emails to Mr. Mackowiak, Mr. Kim noted absences of workers, which Mr. Mackowiak confirmed. In his reports, Mr. Kim projected a new completion date of November 30, 2020. This deadline, however, was not met. In his 39th Site Visit Report dated November 27, 2020 Mr. Kim reported that weather conditions now required that waterproofing installations be postponed to the spring of 2021. WSL again demobilized.
13Work resumed in May, 2021. Substantial performance was reached on May 21, 2021. This was confirmed by Mr. Kim in his second letter to Quovadis of June 29, 2021.
14On May 21, 2021 WSL rendered its final contract invoice (invoice 2112) in the amount of $47,017.13 (HST incl.). WSL also billed its holdback in the amount of $22,187.27 (HST incl.). In his first letter to Quovadis of June 29, 2021 Mr. Kim indicated that Quovadis should pay this holdback on August 16, 2021.
15In his second letter to Quovadis of June 29, 2021 Mr. Kim approved WSL invoice 2112, but stated that, “the Client has decided” to offset against this amount just less than half the additional engineering costs Quovadis paid to BBL due to the project delay, namely just less than half of $55,970.41 or $27,635.56 (HST incl.). Quovadis paid only $19,381.57 of this invoice as a result.
16On June 30, 2021 WSL rendered another invoice (invoice 2118) in the amount of $213,046.52 on account of 10 alleged extras none of which were the subject matter of a change order or change directive. Five of these extras concerned delay; three concerned the waterproofing installation; two concerned the balcony slab replacements.
17On July 12, 2021 WSL registered a claim for lien in the amount of $253,615.37 (HST incl.). On September 1, 2021 WSL purported to perfect its lien by commencing this action and registering a certificate of action. Quovadis served a statement of defence and counterclaim claiming $240,970.41 in damages.
18On December 7, 2021 Mr. Kim sent Quovadis another letter stating that his declaration of substantial performance was based on his understanding that Quovadis was “willing to overlook various balcony deficiencies provided that Wall Savers completed the project and, in an effort to move on.” The letter then stated that the WSL claim for lien caused Quovadis to reconsider its position. Mr. Kim said he attended at the site to review WSL’s work on November 23, 2021. He described 7 deficiencies. An 8th item he said was brought to his attention by Quovadis, namely the unit 511 balcony being 3 inches shorter than the original. He budgeted the cost of these items (except for the balcony 511 enlargement) at figures totaling $107,500 plus a 15% contingency allowance for unforeseen conditions.
19On July 28, 2022 WSL obtained a judgment of reference from Justice Centa and on December 1, 2022 an order for trial from me. I became seized of the reference at the first trial management conference on February 6, 2022. I made orders for various interlocutory steps.
20On February 22, 2023 Mr. Kim wrote another letter to Quovadis confirming that he had, at Quovadis’ request, reattended the site on December 12, 2022 to examine again WSL’s deficiencies and warranty issues. He went to considerable length to explain that his declaration of substantial performance in June, 2021 did not pertain to deficiencies and warranty issues. He then itemized a list of 171 deficiencies in the project and budgeted the repair of these as costing $108,240 plus 15% as a contingency allowance for unforeseen conditions.
21On May 16, 2023 Quovadis commenced an action against WSL’s bonding company, Northridge General Insurance Company (“Northridge”) on the Northridge performance bond WSL provided. Northridge defended and third partied its indemnitors. In May, 2024 this civil action was referred to me for management and trial. It was resolved later in 2024 with an agreement that had Northridge hiring an expert, Vertex Construction Inc., to assess and supervise deficiency remediation work that was then done by WSL in the spring of 2025 to Quovadis’ satisfaction. This work did not include the two undersized balconies (units 511 and 611) and the damaged railings.
22At the sixth trial management conference on January 20, 2025 I scheduled a summary trial in this action to take place on September 10, 11 and 12, 2025.
23On January 31, 2025 Mr. Kim wrote another letter to Quovadis advising that, at Quovadis’ request, he reattended the site on an unspecified date with a representative of Xcel Construction Limited (“Xcel”) to review the two outstanding issues, namely the correction of the undersized balcony floors and the replacement of 9 damaged railings. He attached a quotation from Xcel for this work, signed by one Hashim Tahir, that totaled $125,746.12. Mr. Kim described this quotation as reasonable.
24The trial hearing commenced on September 10, 2025 with WSL’s fact witness, Mr. Mackowiak. Mr. Werbowyj questioned whether WSL will honour a judgment as Mr. Mackowiak admitted selling WSL in September, 2022. The issue was resolved when Mr. Machowiak and WSL jointly and severally undertook to Quovadis to honour any judgment.
25On the second day, September 11, 2025, I was told that Quovadis would not be calling its expert witness, Charlene Guo, whose report had been filed. Quovadis’ first witness, Halyna Bilyk, then started her cross-examination but was interrupted mid-morning when Mr. Werbowyj’s office suffered an internet shutdown. The trial was adjourned to the next day, September 12, 2025, and the closing argument was rescheduled to November 13, 2025. On September 12, 2025 there were the cross-examinations of the Quovadis witnesses, Halyna Bilyk, Zenon Sztelna and Mr. Kim, and the WSL expert, Frank Galati.
III. ISSUES
26Based on the evidence and submissions, I find that the following are the issues to be determined:
a) Is WSL entitled to its claimed extras for waterproofing installation?
b) Is WSL entitled to its claimed extras for the slab replacements?
c) Is Quovadis entitled to its backcharge for the undersized balconies?
d) Is Quovadis entitled to its backcharge for the damaged railings?
e) Is either side entitled to their claims for delay-related costs?
f) Is WSL entitled to interest on the holdback?
IV. WITNESSES
27Before I analyze the issues, I will comment on the credibility of the witnesses. In general, with the exception of Mr. Galati, I found credibility issues with all of the witnesses.
28Krys Mackowiak was WSL’s only fact witness. He was the former owner of WSL and, as a result, he showed in his affidavits and cross-examination an expected bias in favour of the plaintiff. This is usually mitigated by careful corroboration. That generally was not the case here. Mr. Mackowiak relied on some of Mr. Kim’s reports and some emails, but nothing more. In his affidavits and in cross-examination he also deviated readily from the facts and became argumentative, showing again his sloppiness as a witness. In his reply affidavit, he also inappropriately relied upon the hearsay evidence of a Vertex report without going to the trouble of calling Vertex to give evidence – further sloppiness.
29Most troubling though with Mr. Mackowiak was the penchant he showed in his affidavits for making claims as bargaining positions. The most glaring example was his statement in his first affidavit that, because Quovadis back-charged WSL $24,456.25 for “additional [BBL] inspections,” he decided to charge Quovadis an extra for the same amount due to these same inspections. He made no attempt to prove this claim either by showing the contractual basis for it or the alleged damages. He just called it “a quid pro quo.” The absurdity of this position was confirmed by the fact that the $24,456.25 was only half of the actual additional BBL inspections charged. This seriously undermined Mr. Markowiak’s overall credibility as it showed that he was capable of manufacturing and manipulating claims and evidence.
30Mr. Galati was WSL’s expert witness. He was accepted as an expert in deficiency valuation. His report dated August 29, 2024 was his evidence in chief. He said in his report that he attended at the site on January 31, 2024 to observe the alleged deficiencies. He focused his attention on the BBL report of February 22, 2023. He noted from the BBL report that Quovadis had been willing to overlook the deficiencies, suggesting to him “that the deficiencies are not significant.” He then proceeded to value the cost of repairing the noted deficiencies applying established estimating software programs. He concluded that the repair cost would total $80,017.58 (including 10% overhead and 5% profit). Given the resolution of the bond claim, the focus of Mr. Galati’s evidence at trial was on the cost of replacing the two undersized balcony slabs (which he valued at $17,000) and the repairing or replacing of the damaged eight railings (which he valued at $18,000).
31Mr. Galati was, in my view, a credible witness. He was careful to identify the sources of his knowledge and the evidence he relied upon. In cross-examination, he conceded the limitation of his opinion, such as the fact that his assessments did not include mobilization and demobilization costs and bonding costs. He conceded that his opinion did not include the issue of whether a repair such as the slab replacements was necessary.
32Quovadis’ first fact witness was Ms. Bilyk. She was the president of Quovadis during the project. Mr. Kim reported to Ms. Bilyk. In her affidavit, she stated that WSL’s mismanagement and deficiencies were entirely responsible for the project delay, that WSL’s workers lacked necessary equipment, that WSL’s claim for extras did not follow the Contract procedure for extras, and that the two undersized balconies needed to be replaced. Under cross-examination, however, Ms. Bilyk was embarrassed to admit that Quovadis never produced the BBL invoices it is back-charging to WSL. She also was clearly uncomfortable in not answering the question as to why Mr. Kim never mentioned the issues that he described in his December 7, 2021 and February 22, 2023 reports in his two June, 2021 letters. I found Ms. Bilyk’s evidence of little probative value as she largely reiterated Mr. Kim’s evidence. To the extent she added anything, I found Ms. Bilyk not credible. She was biased in favour of Quovadis and made no effort to counteract this bias with substantiation such as contemporary notes, photographs and correspondence. I gave her evidence little weight.
33Quovadis’ second fact witness was Mr. Sztelna, the present Quovaids president. Like Ms. Bilyk, Mr. Sztelna gave evidence that added little. In his affidavit, Mr. Sztelna repeated Ms. Bilyk’s criticisms of WSL’s mismanagement and deficiencies. He dismissed WSL’s claims and supported wholeheartedly the Quovadis back-charges. I also found him lacking in credibility. He was clearly biased in favour of Quovadis and made little effort to counteract that impression with corroboration. In cross-examination Mr. Sztelna was defensive. For instance, after admitting reluctantly that the balcony undersizing was not a structural problem, he suddenly offered new evidence, namely his opinion that this issue created drainage problems. He admitted not mentioning this to Mr. Kim or Vertex. I gave Mr. Sztelna’s evidence little weight.
34Quovadis’ major witness was Mr. Kim. He was a participating engineering expert who administered the construction. In his affidavit, Mr. Kim claimed to be “objective and accurate.” But I did not find him to be that way at all. In his affidavit, Mr. Kim showed a clear bias in favour of Quovadis. His discussion of the delay was a glaring example of this. Mr. Kim quickly blamed WSL for the entirety of the project delay. In his affidavit he stated that “the delay, in my opinion, was caused by circumstances in the control of Wall Savers as referred to in the Contract as a condition where the contractor is responsible for the costs of the delay to the owner.” As a result, he held WSL “clearly” responsible for the entirety of BBL’s additional charges due to the delay. He was quick to minimize other issues that justified the delay, such as the change concerning the corroded joists, the unexpected replacement of the canopy on drop 3, and the unexpected replacement of the balconies in units 511 and 611. He minimized the effect of adverse weather, despite the fact that adverse weather appears repeatedly in his reports. He went out of his way to avoid blame for delays caused by the pandemic but made no concession that the pandemic caused any delay.
35What seriously undermined Mr. Kim’s credibility, however, was his tortuous evidence about his declaration of substantial performance. This evidence called into question not only Mr. Kim’s objectivity but his professional integrity. It is undisputed that in June, 2021 Mr. Kim declared the project substantially performed as of May 21, 2021. Under the Construction Act section 2, the formula for the calculation of substantial performance expressly includes the cost of correction of “known defects.” In his affidavit, Mr. Kim, however, stated that his declaration “did not address workmanship and warranty issues.” On its face, this was a blatant misapplication of the law. In his report of December 7, 2021 Mr. Kim explained that his declaration resulted, not from his professional judgment, but from Quovadis’ negotiating position. He said Quovadis was “willing to overlook” deficiencies at that time to make sure WSL finished and “in an effort to move on.” He said this changed when WSL registered its claim for lien. As a result, Mr. Kim changed his position and assessed the correction costs at over $107,000. In cross-examination, he reiterated this evidence. He was then embarrassed to concede that the statutory formula for substantial performance put the costs of completion and correction at no more than $6,600 at the time of his declaration, not over $107,000. This all showed me that Mr. Kim was prepared to compromise his professional judgment to suit his client’s interests. I came away with the view that Mr. Kim was no more than a mouthpiece for Quovadis and should be treated accordingly.
36In conclusion, I found that the only witness with credibility was Mr. Galati. I assessed the evidence of the other witnesses on an issue-by-issue basis using whatever corroboration was provided and common sense.
V. ANALYSIS
a) Is WSL entitled to its claimed extras for waterproofing installation?
37WSL makes three claims for extras concerning the waterproofing installation on the balconies: (a) $6,000 for the installation of additional basecoat on 20 balconies on drops 2, 4, 6, 8 and 10; (b) $15,000 for the removal of the membrane in those same areas: and (c) $28,000 for the installation of new membrane in those areas. The total claim is $49,000. The problem was first noted by Mr. Kim in his Site Visit Reports of May, 2020.
38It is undisputed that, on these 20 balconies, BL decided to inspect and measure the basecoat during the installation, that the BBL measurements were lower than what was required by the manufacturer, Tremco, for basecoat installation, that BBL then directed WSL to install additional basecoat on these 20 balconies, that the eventual final membrane product in these balconies was too thick resulting in a bubbly and uneven surface as confirmed by the manufacturer Tremco, and that WSL then had to replace the membrane on these balconies altogether.
39Mr. Mackowiak’s evidence was that the initial basecoat application was at the proper thickness required by Tremco, that the basecoat settles to a lower thickness over a short time, and that the BBL measurements on these 20 balconies were unreasonably delayed causing the measurements to be made when the basecoat had settled to a lower thickness resulting in skewed measurements of thickness by BBL. Mr. Mackowiak stated that he told Mr. Kim about the problem with the timing of the measurements and that Mr. Kim did nothing about this.
40Mr. Kim denied that the BBL measurements were wrongly timed and skewed. However, he did say in his affidavit that there was a time lag between the application of the basecoat and BBL getting into the swing stage and riding up to make the measurements. This procedure was instituted due to Covid-19 restrictions and WSL’s failure to carry measuring tools. Mr. Kim also said that Tremco confirmed later that some curing would occur during this wait time, and that after this meeting with Tremco going forward WSL was equipped with the measuring tools to take the measurements itself at the time of application.
41As stated earlier, I found both of these witnesses, Mr. Mackowiak and Mr. Kim, generally lacking in credibility. On this issue, however, there is evidence that corroborates Mr. Mackowiak’s version. On July 12, 2021, when this issue was being discussed with BBL, Mr. Mackowiak made this noteworthy statement in an email to BBL: “On the rest of the drops your inspector stopped measuring the basecoat thickness during installation and we had no problems.” Mr. Mackowiak referred to this email in his initial affidavit. This statement of fact was not contradicted by BBL at the time and by Mr. Kim in his evidence at trial. I consequently accept it. Furthermore, as stated above, Mr. Kim’s own evidence indicates that on the balconies BBL measured there was a time lag between installation and inspection and that, as confirmed by Tremco, this time lag could cause settling. The evidence about what Tremco found was hearsay, but it was not disputed by either side and I accept it as a result.
42What this all indicates to me is that, despite the absence of a measuring tool, WSL was indeed installing the basecoat originally at the correct depth and that it was the intervention of BBL to measure the basecoat on some of the balconies using a faulty measuring process that caused this problem and the eventual membrane replacement. In short, it was an issue that was created by BBL, the Quovadis agent. That is what I find.
43Usually, this would give rise to a valid WSL claim for an extra or an increase in the Contract price. However, WSL did not follow the process mandated by the Contract. This was not a case to which GC 6.1.1 applies, as the subject work was not the result of “additions, deletions or other revisions to the Work” initiated by Quovadis. This was a case where Quovadis’ agent wrongly interfered with WSL’s means and methods of construction causing WSL additional work. It is a case to which GC 6.6.1 applies as it concerns a contractor’s claim to an increase in the Contract price.
44GC 6.6.1 specifies that, where the contractor, WSL, intends to make a claim for an increase in the Contract price, it must give “timely” notice in writing to the owner and the consultant of its intention to claim. GC 6.6.3 specifies that the contractor must then provide a detailed account of the claim to the consultant, BBL, “within reasonable time.” The consultant then must make a finding on the claim. There is a supplementary condition that strictly bars any claim for an increase in the Contract price that does not comply with Part 6 of the Contract. This provision states that “no verbal course of conduct, dealings or implied acceptance or alterations or additions to Work and no claims that the Owner has been unjustly enriched by any alteration or addition to the Work, whether in fact there is any such unjust enrichment or not, shall be the basis of a claim for additional payment under this Contract . . .”
45There is no dispute that WSL did not follow the process mandated by the Contract to claim an increase in the Contract price. There was no evidence that WSL gave timely notice of this claim of any kind, verbal or in writing, when the work was being done or thereafter for over a year. The claim itself was made for the first time in writing in the invoice that was rendered by WSL a year later on June 30, 2021 after substantial performance of the project. It was made after WSL rendered its May 21, 2021 invoice for “all labour, material and equipment” and solely in response to the Quovadis back-charge for extra engineering costs. In cross-examination, Mr. Mackowiak admitted discussing the claims in the June 30, 2021 invoice with nobody before that date. Quovadis maintains that this claim should be barred as a result of noncompliance with Part 6 of the Contract.
46I accept this argument. There is a well-established line of authority as to the critical importance of a contractual notice provision. The parties did not discuss this authority, but the authority is well-established, and I will proceed as a result. The leading case in Ontario is Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597. Here the Court of Appeal dealt with the issue of whether the failure by a contractor to make a claim in accordance with the notice provisions of the contract barred its claim. It found that it did. The notice provisions in the subject contract required that the contractor submit a detailed claim “as soon as reasonably possible and in any event no later than 30 Days after completion of the work affected by the situation.” There was an unexpected flood on the project which adversely affected the work for some time. The contractor submitted a claim for additional payment 2.5 years after the affected work was done. It was denied. The Court upheld the denial stating that the notice requirement in the contract was there for an important reason, to allow the owner to mitigate its losses through timely costs control mechanisms and perhaps a new contractor. The Court expressly referred with approval to another leading case on this issue of notice, Doyle Construction Co. v. Carling O'Keefe Breweries Of Canada Ltd.. Here the notice requirement in the contract was very much like the one in this case, namely a requirement to make a claim in writing “within reasonable time after first observance of such damage” giving rise to the claim. The court in Doyle dismissed the contractor’s claim for impact damages due to a change in scope and did so in part due to untimely notice. The contractor made its claim over a year after the problem arose. To support its decision, the Court of Appeal in Technicore referred to two other leading cases on notice: Corpex (1977) Inc. v. Canada, [1982] 2 S.C.R. 643; Bemar Construction (Ontario) Inc. v. Mississauga (City of), (2004), 30 C.L. R. (3d) 169.
47In the case before me, WSL’s absence of timely notice is, in my view, fatal to its claim. The alleged problem with the waterproofing installation was noted by Mr. Kim in his Site Visit Report for the first time in May, 2020. Had the WSL claim been made in writing at that time with an accounting as required by the Contract, Mr. Kim could have involved the manufacturer Tremco at the time of installation and minimized the costs created by this problem. The notice requirement must be enforced. I, therefore, have decided to deny this claim.
b) Is WSL entitled to its claimed extras for slab replacement?
48WSL initially claimed an extra of $20,596.92 plus HST for replacing the two balconies in units 511 and 611 plus $6,000 plus HST for the removal, storage and reattachment of the railings on those two balconies, for a total extra claim of $26,595.92 plus HST. In his reply affidavit, Mr. Mackowiak reduced the claim for the balcony replacements to $11,263.32 plus HST as he now recalled that Mr. Kim had approved this extra and gotten Quovadis to pay an additional $9,333.60 plus HST at the Contract unit rates for this work. That means that the claim is now the following: $11,262.32 plus HST for the balcony replacements plus $6,000 plus HST for the removal, storage and reattachment of the railings, for a total extra claim of $17,262.32 plus HST.
49The validity of the extra claim for the balcony replacement is not in issue. The original Contract scope of work concerned balcony repair, not replacement. But with these two balconies WSL found such corrosion that those balconies had to be replaced and were replaced by WSL under the direction of BBL. As stated above, Mr. Kim approved payment for the additional work at the Contract unit rates. The issue here is whether the Contract unit rates, which were for repair, were appropriate for this work, namely the demolition and replacement of the balconies.
50In his affidavits, Mr. Mackowiak stated that the Contract unit rates were not appropriate as this extra work required other ancillary equipment and work, such as full forms, shoring and roof hoists. He stated that he calculated the claim as a lump sum based on what he said was the “actual labour hours” spent plus the equipment and material that was used plus a markup for overhead and profit. I note that he did not produce any corroboration for this alleged “actual cost” such as time sheets and material and equipment invoices. Mr. Kim stated in response simply that the Contract rates were appropriate and that the existing compensation was adequate as a result.
51I find Mr. Mackowiak’s evidence on this issue more credible. It made more sense to me. The nature of this work and the equipment used for it (ie. demolition and reconstruction of new balconies) was obviously different from what was specified in the Contract scope, which was repair. As for the quantification of the WSL claim for the balcony replacement, while it lacked corroboration, it was also not challenged as to accuracy. I, therefore, accept it. As a result, I grant this WSL claim for an extra in the amount of $11,262.32 plus HST or 12,726.42.
52On the other hand, there is an issue as to the validity of the WSL claim for removing, storing and reattaching the railings on these two balconies. BBL rejected this claim. Mr. Kim stated in his affidavit that the removal of the railings “provided Wall Savers with greater access and work efficiencies.” The idea here appears to be that, according to Mr. Kim, this railing removal created efficiencies for WSL in its balcony removal work and that this nullified any justification for extra compensation. This view was not explained.
53Mr. Mackowiak responded in his reply affidavit by stating that Mr. Kim’s position made no sense. Once the concrete balconies were removed, the railings had to be removed, stored and reattached as well. They could not be suspended. He also stated that the claim was calculated based on the alleged “actual cost” (without markup) that was incurred by WSL. Again, there was no corroboration for this “actual cost.” I agree with Mr. Mackowiak and find again that Mr. Kim’s view makes no sense. Again, despite the lack of corroboration for the claim, WSL’s quantification was not challenged and I accept it. I, therefore, grant this WSL claim for an extra of $6,000 plus HST or $6,780.
54As a result, I grant WSL a total extra of $12,726.42 + $6,780 = $19,506.42 (HST incl.) for the slab replacements.
c) Is Quovadis entitled to its back-charge for the undersized balconies?
55It is undisputed that the new balcony slabs in units 511 and 611 are 3 inches shorter in width than required, a shortening of 1.67%. Quovadis claims $79,751.12 plus HST in damages to correct this deficiency. This figure comes from the Xcel January 31, 2025 quotation.
56The 3-inch deficit was confirmed by Mr. Galati who measured the balconies and whose evidence was credible. Mr. Kim did not detect this deficiency when he declared substantial performance in May, 2021. He only detected it when the problem was brought to his attention by Quovadis in preparing his report dated December 7, 2021, and then only in relation to unit 511.
57The issue here is not the existence of the deficiency, but the method and cost of the repair. Quovadis wants to replace the two balconies. It has not done so to date. It relies on the evidence of Mr. Kim in this regard.
58In his December 7, 2021 report, Mr. Kim made the following interesting statement when he discussed the undersize issue he had just learned about in relation to unit 511: “This appears to be a workmanship issue and in our opinion at this time is not likely a significant structural issue. The interior size (useable space) of the balcony was not affected by this discrepancy.” He did not provide a budget for this repair.
59On December 12, 2022, with this lien action and reference well underway, Mr. Kim was brought back to review the balcony deficiencies in greater depth. He issued a report on February 22, 2023. Concerning the undersize issue, he commented that the repair was an extension to the slab edge plus associated waterproofing and soffit repainting. He priced the repair cost at $20,000 per unit for a total of $40,000. There was no explanation for these figures. In cross-examination, Mr. Kim stated that he saw no need to replace the balconies.
60Over two years later, Mr. Kim was brought back again. On January 31, 2025 he reported on the two issues, the undersize issue and the damaged railings. There was by this time a Quovadis tender for the work of replacing the balconies and the damaged railings. Mr. Kim enclosed a quotation for this work from Xcel dated January 31, 2025. This quotation was signed by Hashim Tahir, who described himself as an estimator. Quovadis never called this person as a witness to explain this quotation. Therefore, it is inadmissible hearsay. In his letter, Mr. Kim described the Xcel quotation as reasonable and in line with his understanding of current market costs. He gave no explanation as to why this more extensive repair was necessary given his opinion in his December 7, 2021 and December 12, 2022 reports.
61WSL’s expert, Mr. Galati, provided his opinion on these repairs. He described in cross-examination that the repair should be chipping and a concrete and rebar extension to the balconies. This was a similar repair to what Mr. Kim described in his December 12, 2022 letter. Mr. Galati priced this work at $8,900 plus HST for unit 511 and $8,720 plus HST for unit 611 for a total of $17,620 plus HST or $19,910.60. In cross-examination, Mr. Galati conceded that his assessment did not include the costs of mobilization and demobilization and bonding which he said would be about $4,300 plus HST or $4,859. That makes his assessment of the total repair cost $24,769.60. Mr. Mackowiak in re-examination estimated this cost at $4,500 for each unit for a total of $9,000.
62Mr. Zweig argued that I should award only nominal damages of about $200 per unit (2% of the costs of reconstruction of each balcony), as there was no evidence of a structural issue, no evidence of an interference with the normal functioning of the balconies (as confirmed by Mr. Kim), no evidence of a loss in property value, and no evidence that WSL saved money on account of this deficiency. Again, Mr. Kim overlooked this issue altogether when he declared substantial performance in May, 2021. Mr. Zweig referred me to case authority that stands for the proposition that the court in such circumstances will only award nominal damages for “loss of amenity or personal preference or consumer surplus”; see Consolidated Development Co. Ltd. v. Diotte (NBCA) 140-13-CA, para. 2.
63Having considered this evidence, I find that there is no credible or admissible evidence supporting the Quovadis claim for a repair involving a balcony replacement costing $79,751.12. Mr. Kim vacillated wildly on this issue, beginning by overlooking this issue altogether in declaring substantial performance in May, 2021 and ending by supporting the Xcel quotation for a replacement costing over $79,000. As stated earlier, his evidence was not credible. Mr. Tahir was never called, thereby rendering the Xcel quotation inadmissible. On the other hand, I also do not accept the evidence of Mr. Machowiak on this issue as it was self-serving and uncorroborated.
64Concerning Mr Zweig’s argument, I am not prepared to award only nominal damages. Quovadis has shown a desire to complete the repair at a cost that is more than a nominal amount. Most importantly, I am also not convinced that the property value of each balcony will not be adversely affected if future buyers are made aware of this deficiency, as they should be.
65Concerning the quantum of the back-charge, I found Mr. Galati the most credible witness at the trial, and I accept his evidence here as to the repair method and costs. However, due to the failure by Quovadis to call any evidence as to the diminution in property value caused by this issue, I have decided to cut that figure in half. I, therefore, find that Quovadis is entitled to a back-charge due to this balcony undersizing issue in the amount of $24,769.60/2 = $12,384.80 (HST incl.).
d) Is Quovadis entitled to its back-charge for the damaged railings?
66Quovadis claims $45,995 plus HST for the cost of replacing eight damaged balcony railings in units 304, 404, 408, 411, 506, 507, 603 and 607. This figure also comes from the Xcel January 31, 2025 quotation.
67Whether WSL caused railing dents is not in issue. Mr. Kim’s reports have many references to WSL’s doing its work without adequate protection of the railings causing damage. Mr. Kim brought this to the attention of WSL to no avail. The question is the extent of the damage and the justification for replacing the eight railings.
68The evidence from Quovadis was somewhat confusing. In his December 7, 2021 report Mr. Kim stated that he “noted significant impact depressions” on seven railings. Three of these are not the subject matter of this claim. He made no mention of four of the eight that are now being claimed. He included photographs of four that are the subject matter of this claim, namely the railings on units 404, 408, 411 and 507. Only two railings (those in units 404 and 507) impressed me as being appreciably damaged. He budgeted $50,000 to replace the noted damaged railings.
69In his February 22, 2023 report Mr. Kim noted and photographed dents on the eight railings that are now the subject matter of this claim. On half of these, the dents are noticeable; not so much on the others. Mr. Kent suggested budgeting $5,000 to replace each railing for a total of $40,000.
70In his January 31, 2025 report Mr. Kim simply referred to the Xcel quotation dated January 31, 2025 which contained the estimated repair cost of $45,995 plus HST for the replacement of the eight railings. Again, the Xcel quotation was inadmissible hearsay as Mr. Tahir was not called as a witness to explain it. Again, all Mr. Kim said in the letter about the quotation was that it was reasonable and in line with his understanding of current market costs.
71Mr. Galati’s report was interesting on this issue. His opinion was confined to the method and costs of the repair of deficiencies. However, on page 4 of his report he noted that he was unable to determine whether the dents in the subject railings were in fact caused by WSL. While I am not prepared to go that far, I do note the equivocation in the Quavadis evidence on this issue: Mr. Kim overlooked this issue when he declared substantial performance in May, 2021 and he overlooked some of the subject dented railings in his December 7, 2021 report. In the end Mr. Galati assessed the cost of replacing the subject eight dented railings at $18,000 plus HST or $23,400.
72WSL again argues that these are minor deficiencies that should attract only a nominal award of damages. Mr. Zweig pointed out that there was no evidence that this deficiency interfered with the use of the balconies, no evidence that WSL made money denting the railings, no expert evidence of a loss in property value due to the dents, and, most importantly, no evidence that after four years of use Quovadis will actually replace the damaged railings.
73I do not agree. I am not prepared to award only nominal damages. As with the balcony slab undersizec issue, Quovadis has shown a bona fide intention to replace the dented balcony railings by getting the Xcel quotation. Furthermore, I am also not convinced that the property value of the units will not be adversely affected by this defect, which in most cases will be visible to buyers.
74Concerning the quantification of this back-charge, I accept Mr. Galati’s assessment of the cost of the damaged railings replacement over that of Mr. Kim. Again, Mr. Galati was the more credible of the two. However, due to the equivocal Quovadis evidence as to the causation of the dents and Quovadis’ failure to call evidence as to the loss in property value caused by the dents, I have decided to cut Mr. Galati’s figure in half. I, therefore, find that Quovadis is entitled to a back-charge on account of the subject dented railings in the amount of $23,400/2 = $11,700 (HST incl.).
e) Is either side entitled to their claims for delay-related costs?
75The trial focused primarily on the claims by both sides for costs related to the substantial delay in this project. The Contract required that the work be done in three months, namely by November 29, 2019. It was declared substantially performed on May 21, 2021. This is a delay of 18 months.
76WSL’s claim appears in its invoice 2118 dated June 30, 2021. They total $88,483.57. In closing argument, Mr. Zweig stated that these are delay related claims. They break down as follows:
a) $24,456.25 plus HST for the time allegedly spent by WSL during what it describes as excessive BBL inspections;
b) $21,400 plus HST for the cost of mobilizing and demobilizing for the 2020 season;
c) $5,600 plus HST for the cost of mobilizing and demobilizing for the 2021 season; and
d) $37,027.32 plus HST for the loss in productivity and material cost increases caused by the Covid-19 pandemic.
77Quovadis claims $55,970.41 plus HST on account of the additional engineering charges Quovadis paid to BBL beyond what the BBL contract with Quovadis required. This back-charge appeared for the first time in Mr. Kim’s letter to Quovadis dated June 29, 2021. In closing argument, Mr. Werbowyj stated that this back-charge resulted from WSL’s poor workmanship and low manpower commitment resulting in delay and numerous inspections.
78Neither side provided authority on delay claims. But the basic requirements are not contentious. In a leading case concerning delay claims, Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2021 ONSC 283, Master Robinson (as he then was) in paragraph 299 referred to the decision of Justice Quinlan J. in Total Meter Services Inc. v Aplus General Contractors Corp., 2015 ONSC 3830 at paragraph 29 and outlined the requirements to be met:
a) the cause of the delay must be isolated and defined;
b) the delay must be analyzed to determine whether it is excusable or the responsibility of the contractor;
c) if the delay is the contractor’s responsibility, the contractor must bear the cost; if it is excusable, the extent of the delay must be determined;
d) the contractor must prove that actual or constructive notice of the delay was given if required by the contractor;
e) it must be established whether the delay affected items on the critical path or whether it merely reduced or eliminated the float;
f) the contract must be reviewed to assess whether it provides that the contractor is entitled to a remedy of extension of time only or time and compensation; and
g) the quantum of compensation must be determined.
79I view these points as falling into essentially three requirements: there must be evidence (usually from an expert) as to the cause and effect of the delay, namely proof of what parts of the delay concerned the critical path and are, under the contract, compensable or excusable; there must be evidence that the notice and other requirements of the contract have been met; and there must be evidence of the quantum of the compensation to be awarded.
80Concerning the first requirement, the proof of the cause and effect of the delay, I found the evidence of both parties grossly inadequate. Neither side produced an expert to analyze the cause and effect of the delay, which is what is usually done. Instead, they relied upon the one-sided evidence of their principal fact witnesses, Mr. Mackowiak and Mr. Kim.
81I notice that Quovadis tried to portray Mr. Kim as a Rule 53 opinion expert by having him sign and file several Form 53s. But he was a participant expert, namely an expert who participates in the events in issue and who gives opinion evidence for the truth of its contents based on his observations of and participation in these events, which opinion was formulated using his skill, knowledge, training and experience while so observing and participating in these events; see Westerhof v. Gee Estate, 2015 ONCA 206 at paragraph 60. A participant expert such as Mr. Kim is a fact witness.
82Mr. Machowiak attributed the delay to extra work, inclement weather and the pandemic. While this opinion appeared to have merit in general based on Mr. Kim’s Site Visit Reports, Mr. Machowiak made no effort to analyze or corroborate the specific impact of these disruptions on the schedule. He also gave no credence to the disruptions and delays for which WSL was responsible, such as the poor workmanship and insufficient manpower that are also referred to in Mr. Kim’s Site Visit Reports and correspondence. Mr. Kim, on the other hand, attributed the delay almost entirely to WSL’s poor workmanship and productivity. While this opinion may have merit in general based on the references to these issues in his Site Visit Reports, Mr. Kim made no effort to analyze or corroborate the specific impact of these factors on the schedule. Furthermore, he also gave no significance to the disruptions and delays Mr. Machowiak identified. As previously discussed, both of these men lacked credibility. I find their evidence on delay particularly one-sided. What the court needed was an expert witness and detailed corroboration to help decipher the cause and effect of the delay. There was none.
83I note for the record the prevalence in this case of delays that appeared seriously to impact the schedule but that created no right to compensation, namely instances of excusable delay. Neither side appreciated the significance of these facts. The parties should have provided detailed evidence of the impact of excusable delay as opposed to compensable delay to give credibility to their claims. They did not. Here are the instances of excusable delay I noted:
a) Approved extras: Quovadis granted compensation for the extra work WSL did replacing the corroded joists on one balcony in late 2019 and two balconies in units 511 and 611 in 2020. The issue created excusable delay. Mr. Kim claimed that this extra work had minimal impact on the critical path of the project. But that appears not to be the case. For instance, based on the Kim Site Visit Reports, the joist work appears to have delayed the project into winter weather in 2019 thereby triggering the postponement of the work to the spring of 2020.
b) Inclement weather: It is undisputed that there were two winter shutdowns, each of five months duration, for a total of 10 months out of the total of 18 months of delay. There were also several references in the Kim Site Visit Reports to inclement weather causing delay in 2019 and 2020. Contract GC 6.5.3 specifies that delay caused by “abnormally adverse weather conditions” is excusable delay.
c) Pandemic: The pandemic was at its height in 2020 and 2021. Under GC 6.5.3 delay caused by the pandemic would be excusable delay as it would be beyond the control of WSL. That the pandemic impacted the schedule was undisputed. Mr. Kim admitted that in cross-examination. Mr. Machowiak blamed Mr. Kim for unreasonably requiring a 6-foot distance between workers, thereby reducing the number of workers on swing stages to one and undermining productivity. Mr. Kim blamed the public protocols.
d) Waterproofing: The waterproofing issue I discussed earlier appeared in several places in the Kim Site Visit Reports for 2020. I reiterate that I found BBL to blame for this issue, but I denied WSL damages due to the absence of the required notice. What this means is that any delay caused by this issue, which seems significant, is excusable delay.
84Concerning the notice requirement of delay claims, the evidence was clear that neither side gave the notice required by the Contract. For the contractor, GC 6.5.4 specifies that the contractor, WSL, will be given no extension to the schedule “unless Notice in Writing of the cause of the delay is given to the Consultant not later than 10 Working Days after the commencement of the delay.” The consultant was BBL. Under the Contract, a schedule extension is the precondition to compensation for the contractor. As for the owner, GC 6.6.1 specifies that “if the Owner intends to make a claim against the Contractor for a credit to the Contract Price, the [Owner] . . . shall give timely Notice in Writing of intent to claim to the other party and to the Consultant.” The witnesses for both sides confirmed that neither side gave these timely notices, or indeed any notice of any kind. Messrs. Machowiak and Kim said they did not want to interrupt the completion of the delayed project. That is an unacceptable explanation. As stated earlier in my discussion about the waterproofing issue, the notice requirements of the Contract are critical as they enable timely mitigation of damages. The failure of proper notice is alone fatal to the claims of both sides.
85Finally, concerning the damage quantification requirement for delay claims, again the evidence of both sides was grossly inadequate. As stated earlier, Mr. Machowiak essentially fabricated the quantum of the WSL claim for $24,456.25 plus HST in damages due to the alleged “additional inspections.” He said in his first affidavit that he claimed this amount as it was what Quovadis claimed in its back-charge for additional inspections. Mr Mackowiak astonishingly gave no evidence in support of the quantum for the WSL mobilization and demobilization and Covid-19 pandemic claims.
86On the other hand, the Quovadis evidence as to the $55,970.41 it back-charged for BBL’s costs of additional inspections and supervision was also dubious. The basis for the claim was the amount Quovadis said it expected to pay for engineering services in its contract with BBL dated March 11, 2019, namely 7–8% of the Contract price of $251,232.33, $20,098.58. Ms. Bilyk attached to her affidavit the cheques Quovadis paid to BBL which totaled $87,843.20. The difference between the two figures is $67,744.62. For some unexplained reason Mr. Kim picked a lesser number, $55,970.41, as the amount of BBL’s additional costs that was due to the alleged WSL delays.
87There were several problems with this evidence. First, the 7-8% in the Quovadis/BBL contract was expressly stated in that contract to be imprecise and subject to revision once the construction work was defined. The Contract was entered into five months later, and there was no evidence BBL provided a further and more precise estimate of its anticipated engineering costs. Second, despite several WSL requests for disclosure of the BBL invoices allegedly rendered to Quovadis, Quovadis never produced them. As a result, the BBL services that led to the Quovadis cheques could not be verified, thereby creating uncertainty as to the reasons for these payments. Third, as indicated in Mr. Kim’s letter of June 29, 2021, Quovadis initially chose to back-charge only about half of this amount, namely $27,635.56. Mr. Kim later tried to explain this position as Quovadis’ bargaining position, namely a position that was conditional on WSL agreeing to same and not making its own claim. That is not what Mr. Kim stated in his June 29, 2021 letter. The letter in fact makes it seem that Quovadis blamed WSL for no more than half of the delay.
88For all these reasons, I have decided to deny the delay-related claims of both sides. I do so.
89I make one final comment. It seemed to me throughout the trial that these delay claims were what provoked and drove the dispute between the parties, regardless of how baseless they were. There was much spite and animosity between the parties. What needed to happen was for the parties to step back from the fray and see their claims for what they were. That did not happen unfortunately.
f) Is WSL entitled to interest on the holdback?
90The holdback in the amount of $19,634.76 plus HST ($22,187.28) was billed by WSL on May 21, 2021. Mr. Kim declared the project substantially performed on May 21, 2021. He reported in his letter to Quovadis dated June 29, 2021 that the billed holdback was proper and should be paid on August 16, 2021. He described that date as the “holdback release due” date, namely “60 days after publication of Substantial Performance, provided there no liens registered against the property and all supporting documents are delivered.”
91By August 16, 2021 the only claim for lien that was registered was the WSL claim for lien. There were no subtrade claims for lien against the holdback. Quovadis had no back-charge against the holdback at that time. I have now determined that Quovadis had no back-charge against that holdback at any time. Yet, Quovadis chose not to pay the holdback until June 9, 2025, almost four years after Mr. Kim recommended to Quovadis that the holdback be paid. I have, therefore, decided to award WSL prejudgment interest on the holdback running from August 16, 2021 to June 9, 2025.
92The specified prejudgment interest rate under the Courts of Justice Act, R.S.O. 1990, c.C43 (“CJA”) is 0.5% per annum. The specified prejudgment interest increased dramatically during the almost four years between August 16, 2021 and June 9, 2025. It was as high as 5.3% per annum in the third quarter of 2024. Mr. Zweig argued for a 3% per annum interest rate to send a message of disapproval to Quovadis concerning this conduct. I agree.
93I award WSL prejudgment interest on the WSL holdback of $22,187.28 running from August 16, 2021 to June 9, 2023 (1,393 days) at 3% per annum, producing a total of $2,560.44.
VI CONCLUSION
94The May 21, 2021 WSL contract invoice#2112 in the amount of $47,017.13 (HST incl.) was otherwise approved by Mr. Kim for payment. It must be paid.
95Therefore, in conclusion, I find that WSL has a personal judgment against Quovadis for breach of contract damages in the following amount:
Invoice#2112
$47,017.13 (HST incl.)
Interest on holdback
$2,560.44 (HST incl.)
Slab replacement extra
$19,506.42 (HST incl.)
Less balcony undersize back-charge
($12,384.80) (HST incl.).
Less damaged railing back-charge
($11,700) (HST incl.).
TOTAL:
$44,999.19 (HST incl.)
96WSL has a lien in the amount of $42,438.75, namely the above amount less the interest on the holdback. There are no lien rights on interest. I dismiss the remainder of the claims of the two parties.
97As directed, the parties filed costs outlines prior to the closing argument. The WSL costs outline shows partial indemnity costs of $76,527.17 and substantial indemnity costs of $100,652.17. The Quovadis costs outline shows partial indemnity costs of $205,313.82 and substantial indemnity costs of $245,607.36.
98I encourage the parties to come to an agreement as to a costs. If they cannot, those seeking costs must serve and email me written submissions on costs of no more than seven (7) pages on or before May 8, 2026. Any responding written submissions on costs cannot be longer than seven (7) pages and must be served and emailed to me on or before May 22, 2026. Reply written submissions on costs of no more than two (2) pages may be served and emailed by May 29, 2026.
Released: April 24, 2026 _____________________________
ASSOCIATE JUSTICE C. WIEBE
CITATION: Wall Savers Ltd. v. Quovadis Apartments Inc., 2026 ONSC 2435
COURT FILE NO.: CV-21-668066
ONTARIO
SUPERIOR COURT OF JUSTICE
In the matter of the Construction Act, R.S.O. 1990, c. C.30
BETWEEN:
Wall Savers Ltd
Plaintiff
- and -
Quovadis Apartments Inc.
Defendants
REASONS FOR JUDGMENT
Associate Justice C. Wiebe
Released: April 24, 2026