ONTARIO SUPERIOR COURT OF JUSTICE
SMALL CLAIMS COURT
Toronto
ORDER OF THE COURT
Claim No. SC-24-00007529-0000
B E T W E E N
ABIGAIL MORIAH
and
Plaintiff(s)
ABA HUGHES; BRENT HUGHES
BEFORE: Deputy Judge Mirilyn Sharp
Defendants(s)
HELD BY: ☒ In person ☐ Videoconference ☐ Teleconference ☐ In writing ☐ Hybrid
DATE: March 11, 2026 at 10:00 AM EDT
EVENT TYPE: Trial
APPEARING:
Plaintiff(s):
ABIGAIL MORIAH
Present ☒
Representative:
Defendant(s):
Representative:
BRENT HUGHES and ABA HUGHES
Present ☐
Present ☒
Present ☐
ORDER OF THE COURT
On 11-Mar-2026, a hearing was held in the above matter and in Court file SC-24-7529-00D1 and Judgment was reserved to written reasons. These are the written reasons for both actions:
The Plaintiff in Court file SC-24-7529, Abigail Moriah is also the Defendant in Court file SC-24-7529-00D1. She will be referred to as the “Homeowner”.
The Defendants in Court file SC-24-7529, Brent Hughes and ABA Hughes are also the Plaintiffs in Court file SC-24-7529-00D1. They will be referred to as the “Installers”.
The Contract
In or about August of 2023, the Homeowner and the Installers discussed the Homeowner’s need for four (4) Energy Star windows to be installed at her home at 75 Madelaine Ave. While the Installers never provided the Homeowner with a formal written contract, the discussions concerning the terms of the contract continued into October and November of 2023 as evidenced by the various invoices, emails and texts produced as Exhibit 1.
During these discussions, the Homeowner advised the Installers that she wanted to qualify for the Energy Star government rebate that was available at the time for Energy Star windows (the “Rebate”). As set out on pages 6 and 7 of Exhibit 1, the Homeowner exchanged emails in August of 2023 and October of 2023 with Peter Walling, a Certified Energy Advisor with Windfall Ecology Centre regarding what the Homeowner would need to qualify for the Rebate, which included a post-retrofit evaluation.
The Installers were aware when they agreed to provide and install the four (4) Energy Star windows that the Homeowner wanted windows that would qualify for the Rebate and that an inspection would be required following installation. I find that the requirement that the window installation would qualify for the Rebate was a fundamental term of the contract.
The Installers sent various Invoices to the Homeowner, each of which appear to be dated October 6, 2023, however some of the invoices contain a warranty while others do not. No explanation was provided by the Installers as to why the warranty appeared on some versions of the October 6, 2023 invoice but not on others.
The parties agree that prior to the installation of the windows, which was initially scheduled to take place in the Fall of 2023 but then re-scheduled for February 12, 2024, the Homeowner paid to the Installers a total of $4,127.89 of the $7,764.17 contract price.
While the installation was set to proceed at 9 am on February 12, 2024, requiring the Homeowner and her family to arrange their schedules to accommodate the Installers, the Installers called the Homeowner that morning to advise that due to illness, the installation would have to be re-scheduled to take place on February 13, 2024.
The Installers attended at the Homeowner’s premises on February 13, 2024 to install the four (4) Energy Star windows, however later that afternoon, the Homeowner noticed that the Installers had installed the wrong windows in two (2) of the four (4) rooms that were to have had new windows.
Specifically, and as the Homeowner advised the Installers on February 13, 2024:
(a) the large back bedroom window was supposed to have been a “casement” window, which could open fully and allow for proper airflow, but the Installers ordered and installed an “awning” window in the back bedroom which did not open fully; and
(b) the small bathroom window was supposed to have been an “awning” window, given the limited space in the bathroom, but the Installers ordered and installed a “casement” window in the bathroom.
- At this point, the Installers had breached the contract by failing to perform the contract in accordance with its terms.
Attempts Made to Rectify the Installer’s Breach of the Contract
The Installers sent an email to the Homeowner on February 15, 2024 at 9:59 a.m. (page 21 of Exhibit 1) in which the Installers acknowledged the error but blamed the window manufacturer. Mr. Hughes wrote “as discussed at the installation, we acknowedge that there was an error in manufacturing where they confused the style of the bathroom and the rear bedroom window” [emphasis added].
While Mr. Hughes blamed the manufacturer for the error when he wrote to the Homeowner in February of 2024, during his examination in chief at trial, Mr. Hughes admitted that the error was not a manufacturing error but rather was the Installers’ error in ordering the wrong windows. No explanation was given as to why Mr. Hughes misrepresented to the Homeowner that it was the manufacturer who had made the error.
The Installers offered to rectify the problem by ordering two (2) new windows in the size and style contemplated by the original contract.
The Homeowner agreed the Installers need only replace the back bedroom window, but they also asked the Installers to rectify a number of other issues with the installation.
Specifically, the Homeowner advised the Installers by email sent on February 16, 2024 (page 22 of Exhibit 1) of the following issues that needed to be rectified:
(a) The windows did not have the promised Energy Star stickers meaning the Homeowner could not receive a rebate that had been a very clear request from the beginning;
(b) The damaged window trim needed to be replaced or have the cost reduced;
(c) There were gaps in the metal flashing on the front window and the window was not sealed properly;
(d) There were issues with the seal around the metal flashing which was messy and which the Homeowner wanted to be properly finished; and
(e) There was a dent in the screen for the front window, which screen had not been installed and the Homeowner wanted a new screen.
Photos of the issues described in the February 16, 2024 email were attached to the email (pages 22-23 and 38- 41 of Exhibit 1). Additional photos of the exterior work done were sent to the Installers on February 17, 2024 by the Homeowner’s sister Deborah Moriah who was also an occupant of the house. She advised that the window installation was “far less than the expected level of quality as promised” and that the “sloppy work” needed to be “rectified immediately” (pages 26-30 of Exhibit 1). I agree with her assessment.
The Installers ordered the new window and responded to the Homeowner’s other concerns on March 20, 2024. Various discussions by email and phone ensued in March and April of 2024 in an attempt to allow the Installers to rectify their breach of the contract.
The Homeowner made it clear in her April 9, 2024 email (page 34 of Exhibit 3) that she wanted the Installers to complete the list of items set out in her email and that after installation, the Homeowner would have the work inspected by a third party before she could satisfactorily sign off. She wrote “In particular, if the energy auditor finds fault with the installation and/or stickers, we will need to revisit items.”
The Installers responded on April 10, 2024 (page 35 of Exhibit 3) setting out their view on the remaining items and noting that “whilst all of the items listed above are within our agreement, I cannot accept any unilateral decisions to impose any third party”. Mr. Hughes confirmed that final payment of the remaining amount had to be made “upon installation”.
In his evidence in chief, Mr. Hughes testified that he was willing to provide the Energy Star stickers to the Homeowner to be affixed to the windows before the back bedroom window was replaced and the deficiencies rectified.
It was Mr. Hughes’ view that the Homeowner could claim the Rebate on the basis of a post retrofit inspection conducted by the inspector before the job was completed. In other words, he wanted the Homeowner to have the auditor conduct his inspection on the existing windows, knowing that the Homeowner fully intended to replace the back bedroom window and have the other windows rectified after the inspection.
The Installers’ suggestion concerning this proposal was confirmed in an email dated April 10, 2024 (page 11 of Exhibit 2). The Homeowner expressed her understandable discomfort with such an arrangement in her April 13, 2024 email (page 10 of Exhibit 2).
Numerous emails were exchanged between April 13, 2024 and April 22, 2024 with each side expressing their frustrations and making threats to escalate the matter. The Installers threatened to register a Lien on the property and the Homeowner threatened to initiate a complaint to the Ministry of Public and Business Service Delivery (the “Ministry”).
The discussions eventually broke down completely as set out in the April 22, 2024 and April 23, 2024 emails. The Homeowner refused to allow the Installers to return to the property to rectify the deficiencies. The back bedroom window was never replaced, and rectification of the deficiencies in the remaining windows was never undertaken.
In her email of April 22, 2024 (pages 25-26 of Exhibit 4), Deborah Moriah wrote to the Installers on behalf of the Homeowner, noting:
(a) That as the parties had been unable to reach an amicable resolution, and based on the Installers’ declaration of their intention to place a Lien on the property, the Homeowner intended to submit a complaint to the Ministry;
(b) That despite repeated requests, the Installers had failed to provide a contract outlining the warranties, guarantees, terms and conditions of the contract;
(c) That all of the deficiencies, including the installation of the wrong windows in the back bedroom and the bathroom, remained outstanding;
(d) That the Homeowner had grave concerns about the quality of both the product installed and the installation; and
(e) That the Homeowner was mainly concerned that the window installation would not pass the energy audit.
- The Installers were also advised in the April 22, 2024 email that “due to the number
of deficiencies yet to be addressed, we are also requesting indulgence to have the energy auditor inspector authenticate the efficiency of the windows once installation is complete and before remitting the final payment.”
The Installers responded by email dated April 23, 2024 (pages 24-25 of Exhibit 4) agreeing to rectify some of the issues, but refusing to make payment dependent upon an energy auditor inspection. Specifically, the Installers wrote “Your concerns regarding passing the energy audit are outside our scope of work. Regrettably your request for “indulgence… authenticate the efficiency of the windows…before remitting the final payment” cannot be entertained as this would alter the terms of our existing agreement”.
In the end, the Installers never returned to replace the back bedroom window with the correct window nor did they rectify any of the issues with the remaining windows.
The Homeowner never received the Rebate. She testified that the government rebate program ended in December of 2025 meaning the Rebate is no longer available to her.
Attempts Made to Resolve the Issues After Discussions Broke Down
The Installers threatened to and/or did place a Lien on the property and the Homeowner reported the Installers to the Ministry.
The parties attended a mediation held by the Ministry. While Mr. Hughes advised the Court that the mediator found in his favour, in fact, when I took him to the August 24, 2024 Decision of the Ministry (page 90 of Exhibit 3), he agreed that the only finding made by the mediator was that “continuning to mediate is not likely to result in a resolution to the dispute”.
Eventually both the Homeowner and the Installers commenced the within lawsuits.
The Plaintiff’s Claim and The Defendants’ Claim
- The Homeowner commenced the within Plaintiff’s Claim in August of 2024 seeking
$1,943.57 as the cost she anticipated would be required to rectify the faulty installation.
While the $1,943.57 figure was an estimate made by the Homeowner of the cost to rectify the issues with her windows, she testified at trial that in May of 2025 she obtained an actual quote of $3,500.00 from A. IANNETTA CONTRACTING to rectify the issues with her 4 windows (the “IANNETTA Quote”).
The Homeowner testified that the Rebate opportunity (which expired in December of 2025) would have resulted in a $1,600.00 rebate for her four (4) Energy Star windows had a successful post retrofit inspection taken place that would qualify her home for the Rebate.
Notwithstanding that the proper window for the back bedroom was never installed, the remaining issues with the windows were never rectified, and the Homeowner never received the Rebate, the Installers sued the Homeowner seeking $7,332.10 made up of:
(a) the remaining $3,636.28 the Installers claimed was owing for the installation of the four
(4) Energy Star windows per the original contract;
(b) $1,180.82 in lost profits as a result of the Installers being unable to sell the used back bedroom window;
(c) $2,250.00 for time spent by Mr. Hughes at $150 per hour dealing with the Homeowner in their unsuccessful attempts to schedule a rectification of the Installers’ own errors;
(d) $80.00 for printing and postage; and
(e) $185.00 for legal fees and court filing costs.
In the Homeowner’s Defence to the Defendants’ Claim, the Homeowner offered to pay an additional $1,695.24 to the Installers which, together with the $4,127.89 already paid by the Homeowner, would work out to a total payment of $5,823.13 to be made by the Homeowner to the Installers.
This $1,695.24 offer was calculated by dividing the total contract price of $7,764.17 by four (4) to get a price of $1,941.04 for each of the 4 windows, and multiplying the $1,941.04 by 3 to get the price for three windows (total $5,823.13). Essentially the Homeowner was offering to pay for 3 of the 4 windows in order to resolve the Defendants’ Claim.
The Homeowner reserved the right to plead any damages she suffered in relation to the installation, in her Plaintiff’s Claim.
The Installers did not accept the offer made by the Homeowner notwithstanding that it remained open for acceptance until the trial.
The Homeowner advised the Court at the outset of the trial that she had prepared an Amended Plaintiff’s Claim which she sought to file. She also sought an adjournment of the trial so she could file additional documents and have her paralegal assist her at trial.
The Installers objected to the adjournment request, the request to file an Amended Plaintiff’s Claim and the request to file additional documents. I denied the adjournment request and the request to file an Amended Plaintiff’s Claim as I did not think either was necessary.
As noted, during her examination in chief, the Homeowner testified that after filing her original Plaintiff’s Claim in August of 2024, she obtained a quote from another contractor to rectify the items that the Installers had failed to rectify (the IANNETTA Quote). As I wanted to see the items an independent party determined required rectification, I asked the Homeowner to provide a copy of the IANNETTA Quote to the Court and to Mr. Hughes.
I advised Mr. Hughes that the Installers would have an opportunity during his examination in chief to challenge any of the amounts or items set out in the IANNETTA Quote. While Mr. Hughes reviewed the one page IANNETTA Quote, he did not challenge any of the amounts set out therein, nor comment upon any of the items referenced therein.
The IANNETTA Quote specified that the following work needed to be done:
Outside work - remove caulking 3 windows & properly seal, side bedroom window, bathroom window gaps in metal flashing front windows
Inside work – replace trim 4 windows front, side bedroom, back bedroom & bathroom
$3,500 - To remove all windows & reinstall ADD $2,500
The Issues
- The Issues to be determined by this Court are:
(a) Did the Installers breach the contract with the Homeowner by ordering and installing the wrong windows for two of the four rooms that were to have received new windows, failing to install the remaining windows and screens in a good and workmanlike manner, and/or failing to complete the job in a manner that allowed the Homeowner to claim the Rebate;
(b) If so, was the breach so fundamental that it relieved the Homeowner of the obligation to allow the Installers to rectify the deficiencies;
(c) If there was not a fundamental breach of the contract by the Installers, did the Homeowner make reasonable efforts to allow the Installers to rectify the deficiencies;
(d) Did the Homeowner have the right to insist that an inspection for the purposes of the Rebate take place after the back bedroom window was replaced and the Installers had rectified the deficiencies but before final payment was made; and
(e) What amounts, if any, are the parties entitled to in light of these findings.
The Law
- In Tambeau Construction Ltd. v. Hopper, 2025 ONSC 5926, https://canlii.ca/t/kg08l, the Superior Court referenced the well known principles set out in the 2013 decision in Grainger v. Flaska, 2013 ONSC 4863, https://canlii.ca/t/g021n (“Grainger”) as follows [emphasis added]:
76I return to the Court’s decision in Grainger, which held that a contractor who has not breached their contract should be given an opportunity to repair deficiencies before the court will require them to pay for another contractor to carry out the repairs: Grainger, at paras. 45 and 53.
- At paragraphs 45 and 53 of Grainger, the Court held [emphasis added]:
45I have the following concerns about the probative value of Mr. Hope’s deficiency report:…
b) Mr. Hope valued many minor items as deficiencies but Mr. Grainger was never given an opportunity to return and repair these items, including minor patching and touch up painting. A contractor who has not breached his contract should be given an opportunity to repair deficiencies before the court will require him to pay for another contractor to carry out the repair.
53Having considered the evidence of the parties regarding the deficiency items listed in Mr. Hope’s report and Mr. Flaska’s Scott Schedule, I set out the court’s findings for each item listed in the Scott Schedule. For minor items of deficiency where small touch ups or adjustments are all that was needed Ms Flaska ought reasonably to have given Mr. Grainger an opportunity to return and rectify the item. By failing to do so she failed to properly mitigate and is not entitled to compensation. In the Scott Schedule I have indicated my finding that Ms Flaska ought reasonably to have allowed Mr. Grainger an opportunity to rectify an item but failed to do so with the abbreviation “NOTR6”.
- In 1632093 Ontario Inc. v. York Condominium Corporation No. 74, 2019 ONSC 5789, https://canlii.ca/t/j2t2d (“York”), a decision upheld by Ontario Court of Appeal at 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, https://canlii.ca/t/jcb99), the Court said this [emphasis added]:
[21] Although I agree with the general proposition that the failure of a complaining party to allow the other side to return to the job site and rectify the deficiency is an important factor to consider in assessing that
complaining party’s set-off claim, as stated by Master Albert at paragraph 23 of the decision in Grainger… context is everything.
(“Bachly”) the Court held that it was an implied condition of the contract that the
contractor’s work would be done in a workmanship manner. The Court considered whether the entirety of the work was so defective so as to go to the root of the contract such as to amount to a fundamental breach of the contract. The Court noted that this was essentially a fact driven determination.
In Bachly, the Court determined that the homeowner in that case had ulterior motives in questioning the work done by the contractor, including a desire to simply pocket insurance proceeds. In those circumstances the Court concluded that the homeowner, without justifiable cause, denied the contractor access to the work site and the opportunity to complete the contract. The Court was not prepared to award the homeowner damages based on her own costs of correction.
In Turano’s Home Improvement Inc. v. Stern. 2018 ONSC201, 2018 ONSC 201, <https://canlii.ca/t/hpmqg, (“Turano”) the Court confirmed that it is an implied term of a construction contract that the work is to be done in a good and workmanlike manner and that while expert evidence is important on technical matters, where the court needs unbiased, third party, professional assistance as to industry and statutory baseline standards of construction, there are instances where the deficiencies are so obvious that the court can reach a conclusion without expert assistance.
The Court in Turano found that the contractor was in breach of contract on account of his deficient work. The Court went on to consider whether there was a repudiation of the contract, holding that [emphasis added]:
[63] When a contractor is in breach of contract on account of deficient work, it is incumbent on the owner to give the contractor a reasonable opportunity to correct the deficiencies. There is clear law that such a duty rests on the party alleging damages for deficiency correction work. This duty is viewed as a part of the owner’s duty to mitigate damages, as was
stated by Justice Hill in C.S. Bachly Builders Ltd. v. Lajlo, October 28, 2008, CV- 04-1823, at paragraph 87. There is no dispute that Ms. Zittell did not give Mr.
Turano notice of these deficiencies and an opportunity to correct them. Mr. Romano relied heavily on this proposition in argument.
64Normally, this would be fatal to any back-charge for deficiency correction damages; see Grainger v. Flaska, 2013 ONSC 4863 (Ont. Master) at
paragraph 45. However, as indicated in the Bachly decision at paragraph 87, that is not the case when there has been a fundamental breach of the contract by the contractor. A fundamental breach of contract is one that goes to the root of the contract, namely a breach that renders the contract commercially unreasonable.
Findings on the Issues – Issue (a)
The first issue is whether the Installers breached the contract with the Homeowner by ordering and installing the wrong windows for two of the four rooms that were to have received new windows, failing to install the remaining windows and screens in a good and workmanlike manner, and/or failing to complete the job in a manner that allowed the Homeowner to claim the Rebate.
Having heard the testimony of both the Homeowner and Mr. Hughes, and having read the emails and examined the photographs produced, I am of the view that most of the deficiencies are not only readily admitted to by the Installers, those deficiencies are so obvious that this Court can reach a conclusion without the benefit of expert evidence.
I find that the Installers breached the contract by ordering and installing the wrong windows in two of the four rooms that were to have received new windows, failing to install the remaining windows and screens in a good and workmanlike manner, and. most significantly, failing to complete the job in a manner that would allow the Homeowner to claim the Rebate.
Findings on the Issues – Issue (b)
The second issue is whether the breach was so fundamental that it relieved the Homeowner of the obligation to allow the Installers to rectify the deficiencies.
As noted in Turano, a fundamental breach of contract is one that goes to the root of the contract, namely a breach that renders the contract commercially unreasonable.
In the present case, the Homeowner initially gave the Installers an opportunity to rectify the deficiencies. However, once it became clear that the Installers would require immediate payment of the outstanding amount owing on the contract before a third party could inspect the windows for the purposes of ensuring the Homeowner qualified for the Rebate, it is my view that the Homeowner was justified in refusing to allow the Installers to attend at her premises to rectify the deficiencies.
I find that it was clear from the outset that the Homeowner wanted to qualify for the
$1,600.00 Rebate. I find that this was one of the essential terms of the contract. The Installers’ position on this issue amounted, in my view, to a fundamental breach of the contract, as did their failure to supply two out of four windows in accordance with the specifications set out in the contract.
- I find that the Installers were the authors of their own misfortune by failing to acede to the Homeowner’s reasonable request to have the energy auditor inspector authenticate the efficiency of the windows once installation was complete and before final payment was made. If the Installers had properly installed the windows, there would be no reason for the Installers to deny this eminently reasonable request.
Findings on the Issues – Issue (c)
If I am wrong about whether there was a fundamental breach of the contract by the Installers, the third issue is whether the Homeowner made reasonable efforts to allow the Installers to rectify the deficiencies.
As was noted by the Court in York, context is everything.
The numerous emails exchanged between the parties following the Installers’ breach of the contract in February of 2024 and the eventual breakdown of the relationship in April of 2024 reveal that the Homeowner had lost confidence in the Installers and their ability to properly correct the deficiencies in a good and workmanlike manner at a date and time that would be convenient for the Homeowner and others living with her.
Likewise, those emails reveal that the Installers had reached a point of frustration such that Mr. Hughes refused the Homeowner’s reasonable request to allow a third party to inspect the windows post rectification for the purposes of ensuring the Homeowner qualified for the Rebate before insisting upon payment of the remaining $3,638.28.
I find that the Homeowner made reasonable efforts to allow the Installers to rectify the deficiencies, and that the Homeowner was justified in eventually denying entry to the Installers when it became apparent that the Installers were not prepared to allow a third party inspection for the purposes of the Rebate before insisting upon payment.
Notably, Mr. Hughes advisd the Court during the trial that he could not guarantee that the house and windows would pass an inspection. His explanation for why he thought the inspection might not result in a Rebate was based on things he had read on the government website as opposed to on the basis of his own experience with such inspections. He admitted during cross-examination that he had never been involved in an audit for Energy Star rebates and had no idea how such inspections worked.
Findings on the Issues – Issue (d)
The fourth issue is whether the Homeowner had the right to insist that an inspection for the purposes of the Rebate take place after the back bedroom window was replaced and the Installers had rectified the deficiencies but before final payment was made.
In light of my finding that the Rebate was an essential term of the contract, I am of the view that the Homeowner had the right to insist that an inspection for the purposes of the Rebate take place after the back bedroom window was replaced and after the Installers rectified the deficiencies but before final payment was made to the Installers.
The Installers’ suggestion that the inspection could take place prior to installation of the new back bedroom window and prior to the remaining deficiencies being rectified was unreasonable. It would have required the Homeowner to misrepresent to the inspector that the installation was complete, when she knew that it was not.
Findings on the Issues – Issue (e)
- The fifth and final issue is what amounts, if any, are the parties entitled to in light of my findings:
(a) that the Installers breached the contract by ordering and installing the wrong windows in two of the four rooms that were to have received new windows, failing to install the remaining windows and screens in a good and workmanlike manner, and failing to complete the job so that the Homeowner could claim the Rebate;
(b) that this was a fundamental breach of the contract that would have relieved the Homeowner of the obligation to allow the Installers to rectify the deficiencies;
(c) that even if there was not a fundamental breach of the contract, the Homeowner made all reasonable efforts to allow the Installers to rectify the deficiencies and that the Homeowner was justified in eventually denying entry to the Installers when it became apparent that the Installers were not prepared to allow a third party inspection for the purposes of the Rebate before insisting upon payment; and
(d) that the Homeowner had the right to insist that an inspection for the purposes of the Rebate take place after the back bedroom window was replaced and the Installers had rectified the deficiencies but before final payment was made,
- In light of these findings, and subject to my comments below, I find that the Installer is not entitled to any of the amounts claimed in his Defendants’ Claim and the Homeowner is entitled to damages for:
(a) the cost of rectifying the work done by the Installers in the amount of $3,500.00 per the IANNETTA Quote; and
(b) reimbursement for the $1,600.00 Rebate she should have received had the Installers properly fulfilled the contract before the opportunity to claim the Rebate expired.
Can the Homeowner Recover More than What Was Claimed
- Within her Plaintiff’s Claim prepared on August 10, 2024, the Homeowner sought
$1,943.57 as the amount she anticipated would be required to rectify the faulty installation. She also claimed pre-judgment interest from April 24, 2024 which, at the pji rate of 5.3% would result in a total claim of $2,141.01.
At the time she prepared her Plaintiff’s Claim, the Homeowner did not have an actual quote for the cost of rectifying the work done by the Installers, nor did she have any way of knowing that the entitlement to the Rebate would expire in December of 2025.
Having found that the Homeowner is entitled to $5,100.00, the Court must now determine whether I have the discretion to grant Judgment in that amount in the face of the Plaintiff’s Claim that seeks only $2,121.01.
As noted above, the Homeowner asked at the outset of the trial whether she could file an Amended Plaintiff’s Claim. The Installers objected. I denied the request without knowing that the evidence would reveal:
(a) that the Homeowner had a quote of $3,500.00 to rectify the deficiencies; and
(b) that the Rebate program was no longer available to the Homeowner as of December 2025.
- Had I known these two facts, I would have allowed the self-represented Homeowner to
amend her Plaintiff’s Claim to claim a higher amount.
Rule 1.03 (1) of the Small Claims Court Rules provides that the primary objective of the rules is to enable the court to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act (the “CJA”).
Rule 2.01 provides that a failure to comply with the rules is an irregularity, and that the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute. Rule 2.02 provides that if necessary in the interest of justice, the court may dispense with compliance with any rule at any time [emphasis added].
Rule 12.01(1) provides that a Plaintiff’s claim may be amended by filing the claim with the clerk, and Rule 12.01(3) provides that filing and service of the amended claim shall take place at least 30 days before the originally scheduled trial date, unless, the court, on motion, allows a shorter notice period.
I find that in light of the primary objective of the rules, I have the discretion to dispense with the requirement that an amended claim be served and filed at least 30 days before the trial and that I can allow a shorter period.
Further, in that the Homeowner was self represented and the Court was not aware when the initial ruling was made denying the Homeowner’s request to file an Amended Plaintiff’s Claim that the evidence would disclose the higher amounts to which the Homeowner would be entitled, I have determined that I have the discretion to (a) dispense with compliance with any rule at any time and (b) award the Homeowner Judgment in the amount of $5,100.00 notwithstanding that her Plaintiff’s Claim sought only $2,121.01.
I have considered whether the Installers would be prejudiced by my decision to allow such an amendment at this stage rather than at the outset of the trial as was initially requested, and have determined that no prejudice resulting from the late amendment would be suffered by the Installers.
The Installers were given the opportunity to challenge the $3,500.00 amount set out in the IANNETTA Quote and chose not to do so. The Installers were also free to challenge the Homeowner’s evidence that the opportunity to claim the Rebate expired in December of 2025. They did not do so.
In all of the circumstances, I am satisfied that it is appropriate to grant Judgment in favour of the Homeowner in the amount of $5,100.00 notwithstanding that the Plaintiff’s Claim sought a lower amount. The Defendants’ Claim is dismissed in its entirety.
Costs
As the successful party, the Homeowner is entitled to costs of both SC-24-7529 and SC- 24-7529-00D1.
Pursuant to Rule 19.05, the court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense.
As such, the Court may order that each of the 2 unsuccessful parties, Brent Hughes and AVA Hughes pay the self-represented successful Homeowner a maximum of $500.00 for a total maximum of $1,000.00 in SC-24-7529 and a total maximum of $1,000.00 in SC- 24-7529-00D1.
Because the Homeowner offered to pay an additional $1,695.24 to the Installers to resolve the Defendants’ Claim, and because the Homeowner’s offer was better than the result achieved by the Installers at trial, Rule 14.07 applies.
Rule 14.07 (2) provides that when a defendant (in this case the Homeowner) makes an offer to settle that is not accepted by the plaintiff (in this case the Installers), the court may award the defendant (the Homeowner) an amount not exceeding twice the costs awardable to a successful party, other than disbursements, from the date the offer was served, if the following conditions are met:
The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.
The offer was made at least seven days before the trial.
The offer was not withdrawn and did not expire before the trial.
I find that pursuant to Rule 14.07 (2), the Homeowner is entitled to claim twice the costs
awardable on the Defendants’ Claim. This would entitle the Homeowner to claim twice the
$1,000.00 that could be awarded on the Defendants’ claim ($2,000.00).
Per Rule 14.07 (3), if an amount is awarded under 14.07(2) to a self-represented party, the court may, despite rule 19.05, “also award the party an amount not exceeding $1,500 as compensation for inconvenience and expense”. This would entitle the Homeowner to claim an additional $1,500.00 as compensation for inconvenience and expense.
Section 29 of the CJA provides that an award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 percent of the amount claimed unless the court considers it necessary in the interests of justice to penalize a party for unreasonable behaviour in the proceeding.
15 percent of the amount claimed in the Plaintiff’s Claim SC-24-7529 using the original amount claimed of $1,943.57 would be $291.54. 15 percent of the amount claimed in the Defendants’ Claim SC-24-7529 - 00D1 ($7,332.10) would be $1,099.82.
Rule 19.06 provides that If the court is satisfied that a party has unduly complicated or prolonged an action or has otherwise acted unreasonably, the court may order the party to pay an amount to another party as a penalty, as provided in s. 29 of the CJA.
The Homeowner filed a Costs Summary showing legal fees and disbursements incurred of $2,041.21 for a paralegal to assist her with these actions. These are out-of-pocket expenses actually incurred by the Homeowner to deal with this matter. For comparison, the Installers sought $2,250.00 for time spent by Mr. Hughes at $150 per hour plus
$265.00 for printing, postage, legal fees and court filing costs for a total claim of $2,515.00.
- I find that the Installers’ relentless efforts to avoid settling this claim with the Homeowner were unreasonable, and that these relentless efforts forced the Homeowner to devote significant time, effort, and money to defend the allegations made within the Installers’ 110-page Defence to the Homeowner’s Claim and within the Installers’ Defendants’ Claim. While I am limited by the CJA to awarding costs of $291.54 plus disbursements in favour of the Homeowner in SC-24-7529 and costs of $1,099.82 plus disbursements in favour of the homeowner in SC-24-7529-00D1, I order the Installers to pay an additional
$1,500.00 to the Homeowner ($750.00 in SC-24-7529 and $750.00 in SC-24-7529-00D1) as a penalty for the Installers’ unreasonable behaviour, including failing to accept the offer.
Conclusions
- I grant Judgment in SC-24-7529 in favour of the Homeowner in the amount of $5,100.00
plus costs in the amount of $1,041.54 ($291.54 plus $750.00) plus disbursements of
$500.00. I dismiss the Defendants’ Claim in its entirety in SC-24-7529-00D1 and award costs in favour of the Homeowner in the amount of $1,849.82 ($1,099.82 plus $750.00) plus disbursements of $500.00. The total of $8,991.36 is to be paid by the Installers to the Homeowner within 30 days after the release of this Order.
March 16 yr. 2026
Date Signature of Judicial Official