Victor Landscaping & Excavation Inc. v. Osborne, 2020 NSSC 84

SUPREME COURT OF Nova Scotia Citation: Victor Landscaping & Excavation Inc. v. Osborne , 2020 NSSC 84 Date: 20200319 Docket: Hfx No. 477660 Registry: Halifax Between: Victor Landscaping & Excavation Inc. Plaintiff v. Robert Osborne Defendant Judge: The Honourable Justice Joshua M. Arnold Heard: December 16 and 17, 2019, in Halifax, Nova Scotia Counsel: Robert Mroz, for the Plaintiff Robert Osborne, Defendant, Self-Represented Overview [ 1 ] Victor Landscaping & Excavation Inc. provided excavation and landscaping services to Robert Osborne during his development of a lot located at 7383 St.

Margaret’s Bay Road in 2016 and 2017. The parties disagree as to whether Victor Landscaping did work on a time and materials basis or on a flat rate contract basis. [ 2 ] Victor Landscaping says that the work was initially started on a flat rate basis, but once the scope of the project was assessed, the parties agreed that the work would proceed on a time and materials basis.

As a result, it says that Osborne owes $84,242.65, plus interest, for unpaid time and materials. [ 3 ] Osborne says that the work was always to be done as a flat rate contract and that he owes nothing to Victor Landscaping as the contract was paid in full. Facts [ 4 ] During a pre-trial telephone conference held on December 13, 2019, Mr. Osborne raised the fact that he had previously appeared before me as a litigant in another trial. I was not aware of this prior to the pre-trial conference. I asked Mr. Osborne whether he felt that I was in conflict or should be removed.

He responded that he did not feel that I was in conflict and he was comfortable with me hearing the matter. I agreed, as I did not (and do not now) believe that I was in conflict in hearing the matter. [ 5 ] At the trial, Victor Landscaping called two witnesses, George Zinck and Nicholas Victor. It also referred to some of Mr. Osborne’s discovery evidence in accordance with Civil Procedure Rule 18.21. [ 6 ] Robert Osborne was self-represented and testified on his own behalf. He called no other witnesses. [ 7 ] Mr. Osborne wanted to develop a vacant lot located at 7383 St. Margaret’s Bay Road.

Nicholas Victor owns and operates Victor Landscaping. There is no dispute that Mr. Osborne requested Victor Landscaping to do work at his lot in 2016 and 2017. The scope of the work was initially detailed in Estimate 344 which states: Slab Pad. Total area= 36’x48’. Dig out 4’ existing ground. Leave tree stumps/rocks on site. Move good ground to opposite side of lot. Supply and spread 4’ of surge rock over the 36’x48’ area. Price includes to compact with diesel plate tamper. Note: Price does not include to haul any materials off site. Price includes 19 tandem truck loads of surge.

Price may vary depending on what the engineer/engineered slab specs require for depth, compaction and type of material. Any extra items will be billed accordingly.

Re Route culvert coming across St Margarets Bay Rd. Price includes to excavate 190’ trench 2’ wide/2’deep and line with surge. Note: Any extra items will be billed accordingly. Waterloo Biofilter Model 25 septic system. Supply and install all items required for Waterloo Biofilter model 25/ disposal filed as pr Trevor Adams (KVM) Lot 1RO Highway No. 3 design.

Price includes items provided with Waterloo Biofilter Model 25 2500/l pr day kit, 1800 gal custom septic tank, universal 1600 gal septic tank, gravels, sand, pipe and materials for disposal field/piping form tanks, labour/machine time to install system/disposal field. Note: All materials dug out where system is to be installed are to be left on site. Note any extra items will be billed accordingly. If ground is difficult to work with ie. large rocks or bed rock extra charges may apply. Note: Full Payment is due within 40 days of Invoice date.

Please sign and Date below on both pages of estimate in agreement to proceed with our services and our estimate/conditions. [ 8 ] Independent of Victor Landscaping, Mr. Zinck delivered fill to Mr. Osborne’s property. He confirmed that he saw Victor Landscaping doing work, including leveling fill and installing a septic system, at the site in 2016 and 2017. [ 9 ] Work started in June 2016. The first work done by Victor Landscaping was digging a test pit for the septic system. Mr. Victor said that in 2016, he completed the work on the slab pad and re-routed the culvert.

He said the work on the septic system did not commence until 2017. The scope of the project was expanded by Mr. Osborne and other work was performed in 2017 in addition to that detailed in Estimate 344. [ 10 ] According to Mr. Victor, the work was not billed in accordance with Estimate 344 because the arrangement changed partway through the project to one based on time and materials. He said that the development of the lot was a major job for him; the parking area alone was the size of a football field or slightly smaller.

Once he started excavation work at the site it became apparent that the area was wet and contained a lot of peat moss. This significantly impacted on the amount of excavation and landscaping required. He could not tell how extensive the peat issue would be and, as a result, he could not give an accurate estimate as to the final cost. Mr. Victor said that he told Mr. Osborne that he was not prepared to abide by Estimate 344 because of the peat. Mr. Osborne denies any agreement to time and materials was made. [ 11 ] On September 29, 2016, Estimate 379 was sent by Victor Landscaping to Mr. Osborne.

Both parties signed the bottom of both pages of the estimate.

Estimate 379 states: Equipment, labour, supplies and Material Rates for Robert Osborne at Lot 1RO, Highway No. 3, Boutiliers Pt. 11 ton Excavator: $125 pr/hr+tx Tandem dump truck: $75 pr/hr+tx 3.5 Ton mini excavator: $85 pr/hr+tx Wheeled Bobcat: $65 pr/hr+tx Labourer: $35 pr/hr+tx Tandem truck load of fill delivered: $140 Pr load+tx Tandem truck load of surge delivered: $300 Pr load+tx Deliver 11 ton Excavator: $180+tx Deliver Bobcat/Mini Excavator: $85+tx Deliver Tamper/water pump: $65+tx 4” trash Water pump pr day: $87+fuel+tx 20’ Suction hose pr day: $17+tx 50’ length of discharge hose pr day: $19+tx 1000 lb compaction diesel plate tamper pr day : $159+fuel+tx Note: There may be items that are not on list and may be required.

Both parties will discuss and agree to costs before using. Note: At end of each working day, a daily record sheet of machine hrs, labour hrs, supplies and materials will be recorded and signed by both parties.

Note: Once project has started, an invoice will be done and submitted on Friday at the end of every week and payment is due by the following Friday. Both Parties sign below on both pages in agreement to rates, supplies and materials. [ 12 ] Mr. Victor said that Estimate 379 clarifies that the parties discussed the work proceeding on a go-forward basis on time and materials. Mr.

Osborne acknowledged that Estimate 379 was sent to him, but said he believed it was merely Victor Landscaping’s price list in case he ever had other excavation or landscaping work to do in the future and was unrelated to the project in question. [ 13 ] Mr. Victor said that part-way through the job he became aware that Mr. Osborne needed financial assistance. Victor Landscaping agreed to delay billing as a result. Because of this, Victor Landscaping did not send out regular monthly invoices. However, Mr. Victor said that he regularly brought time (labour) and materials sheets to the worksite for Mr.

Osborne to sign. Mr. Victor personally attended the worksite either daily or every few days in order to have Mr. Osborne sign these time and materials sheets. He said that he personally saw Mr. Osborne onsite and witnessed him signing these work sheets. Daily time and materials sheets, commencing October 11, 2016, were tendered. The majority of these work sheets were signed by both Mr. Victor and Mr. Osborne. In addition to the work sheets, detailed invoices were sent to Mr.

Osborne reflecting the time and materials on the signed work sheets. [ 14 ] Victor Landscaping’s work stopped when the weather prevented continuation late in 2016. Its work at Mr. Osborne’s lot resumed in April 2017. Mr. Victor continued his practice of bringing time and materials sheets to the work site for Mr. Osborne to sign on almost a daily basis from April 19, 2017, to July 13, 2017. Victor Landscaping stopped working at the site at that time and resumed briefly in November 2017.

Time and materials sheets signed by both parties for this work, including one dated November 13, 2017, were also placed into evidence. [ 15 ] A detailed Final Invoice dated October 31, 2017, was prepared by Victor Landscaping in the amount of $105,426.22. Mr. Victor said that he tried to get in touch with Mr. Osborne to present the final invoice to him in person in October 2017, and on a couple of other occasions, but was unsuccessful. The Final Invoice was eventually sent to Mr. Osborne via email in February 2018. [ 16 ] As noted, Mr. Victor said that he did not bill Mr. Osborne regularly because Mr.

Osborne told him that he was having trouble financing the work. In effect, he said, he was helping Mr. Osborne to finance the job. Although Mr. Victor said the parties agreed to proceed by way of time and materials, on June 1, 2017, at Mr. Osborne’s request, he prepared Invoice 1045 which states: Quantity Description Rate Amount 1 Re Route water from culvert coming across St Margaret’s Bay Rd. Price includes to excavate 190’ trench 2’ wide/2’ deep and line with surge. Note: Any extra items will be billed accordingly. 1,525.00 1,525.00 1 Waterloo Biofilter Model 25 septic system.

Supply and install all items required for Waterloo Biofilter model 25/ disposal field as pr Trevor Adams (KVM) Lot 1RO Highway No. 3 design. Price includes items provided with Waterloo Biofilter Model 25 2500/1 pr day kit, 1800 gal custom septic tank, universal 1600 gal septic tank, gravels, sand, pipe and materials for disposal field/piping form tanks, labour/machine time to install system/disposal field. Note: Price does not include to dig down to solid ground and create base for pipe from lat tank to field. All materials dug out where system is to be installed are to be left on site.

Note any extra items will be billed accordingly. If ground is difficult to work with ie. large rocks or bed rock extra charges may apply. 24,193.00 24,193.00 1 Difference for 1000L tank required 820.00 820.00 1 Insulate outside of Waterloo tank. 300.00 300.00 1 Where solid ground is deeper than expected dig out ground and add good fill and compact. Price includes pipe from building to last septic tank. Price includes 9 loads of fill. 3,185.00 3,185.00 HST (NS)@15.0% 4,503.45 Total Tax 4,503.45 Total $34,526.45 [ 17 ] Invoice 1045 purports to value the septic work at a flat rate amount of $34,526.45. Mr.

Victor said that Invoice 1045 is a fake. He said that Mr. Osborne told him to prepare this fake flat rate invoice so that he could present it to his finance company. Mr. Victor said that Mr. Osborne told him that this amount is what he wanted the cheque from his lender to reflect. On Invoice 1045, underneath the total, in handwriting, is written the following: “Previous Payment -13 342” and “owing 21 184”. In explaining the circumstances of Invoice 1045, Mr. Victor testified:

Q. So Mr. Victor, why did you wait until February 2018 to deliver the invoice to the defendant? A. Because I tried, I had it done in October and I tried to get a hold of him a few times from October to February and I did get a hold of him and he’s been saying the next week would be better to look at it and then before that we had an agreement that I would help finance it for a reasonable amount of time, a few months. Q. Okay, when did that take place, when did that agreement take place, that you would help finance? A. It was in the, like when the work was ongoing in 2017. Q. Okay.

And then did you have any agreements with respect to when invoicing would take place? A. Not really, except he asked for a not real invoice at one point. Q. What do you mean by that? A. He asked for an invoice, for me to put together an invoice so that he could give it to his mortgage lender. Q. Okay, do you know why he asked for that invoice? A. I believe so that he could get a different mortgage, I believe. Q. Okay. So, let’s take a look at page 43, and that’s still at tab 7, Exhibit 1. Court. Sorry, what tab? Q. It’s at tab 7, page 43, My Lord. And, so have you seen this document before Mr. Victor? A.

I have, yes. Q. And what are we looking here at page 43? A. This is the invoice that Robert had asked me to make to give to his lender, his mortgage lender. Q. Invoice number 1045 dated June 1, 2007, or 2017, pardon me. A. That’s correct. Yep. Q. Okay, so you prepared this invoice? A. I did, yes. Q. And it was requested by Mr. Osborne, you indicated? A. It was yes. Q. Okay. A. It was told to him that it wasn’t real and that it would, all of the real invoice would be done on the time and materials basis. Q.

Okay, so if we’re looking at the work that’s in this description here on invoice 1045, what work is being described here? A. It’s just the septic basically. Q. So we’re talking about the… A. Waterloo Biofilter… Q. Waterloo Biofilter Model. A. Yep. Q. Okay, and insulation of the Waterloo tank? A. Yeah. Q. And the last item in that description box was you indicated earlier in reference to a previous estimate that we looked at, I believe estimate 378? A. That’s correct, yeah. Q. That it related to putting fill underneath the pipe… A. Yep. Q. that would run from the tank into the field?

A. Correct. Q. Okay, and so this, you’ve already indicated, this is not all the work that your company was performing, correct? A. No. Q. Okay. A. No, it’s not. Q. So, aside from these items that are on invoice 1045, what else was your company performing? A. There was the gravel, the back filling of the foundation, the fill for the parking lot, the spreading of the gravel for the parking lot, placing of rocks and boulders, there was probably almost 50 tandem truck loads of boulders delivered and spread around the outskirts of the property. Q. Around the perimeter of the property? A. Yeah. Q.

Okay, and that was work that the defendant requested? A. That’s right. Q. And is that the additional work that we were talking about earlier? A. Yes. Q. And so, this invoice that we’re looking at here, number 1045, I know you’ve indicated that it’s not a real invoice… A. Yep. Q. So to speak, but do you recall when this would have been delivered to the defendant? A. It would have been very close to the date that’s on it, in June of 2017. Q. June 1, 2017? A. Yeah, it would have been around. Q. And your work was not completed by then, was it? A. No, it was not. [ 18 ] Mr.

Victor said that he tried to get together with Mr. Osborne between October 2017 and February 2018 to discuss the final invoice. Mr. Victor said that Mr. Osborne put him off a couple of times. Then on February 12, 2018, Mr. Victor sent Mr. Osborne, via email, Invoice 1122 in the amount of $105,426.22, reduced to $84,242.65 as a result of payment applied to the invoice. Mr. Victor said that he and Mr. Osborne then spoke on the phone. Mr. Osborne said that he needed more time to pay and asked Mr. Victor not to place a lien on his property. [ 19 ] Mr.

Osborne challenged some of the materials for which he was charged by Victor Landscaping. He cross-examined Mr. Victor and pointed out that out of 51 materials tickets he was charged for relating to fill materials obtained from Gateway Materials, 19 say “Victor Landscaping 237-3654 7383 SMBR” (Mr. Osborne’s address) while the remainder generically say “Tantallon” or ‘Victor Landscaping Tantallon” (where Victor Landscaping has its office). Mr. Victor explained that he had no control over how Gateway Materials decided to print the materials ticket each time his company picked up materials for Mr. Osborne. [ 20 ] Mr.

Victor explained that all of the invoices from Mr. Osborne’s job were added to a daily work record. The materials tickets from Gateway correspond with the daily work sheets that were signed by both Mr. Osborne and Mr. Victor. [ 21 ] The following invoices were sent to Mr.

Osborne by Victor Landscaping: Invoice 923 in the amount of $287.50 on September 30, 2016; Invoice 932 in the amount of $13,342.88 on October 13, 2016; Invoice 934 in the amount of $19,942.73 was also sent on October 13, 2016; Invoice 936 in the amount of $4,528.13 was sent on October 31, 2016; and Invoice 1122 in the amount of $105,426.22 (reduced to $84,242.65) dated October 31, 2017, was sent in February 2018. [ 22 ] Invoice 982 in the amount of $1,932 was sent on February 4, 2017, outlining the following: 8 hrs for 11 ton excavator that was

schedule to work on Robert Osborne’s property installing culvert/moving materials to allow for septic field. Machine sat without work on Saturday February 4, 2017 Due to project being put on hold. Job was booked with us on January 2, 2017 and can be rescheduled for the end of February or start of March if booked now. 8 hrs for tandem dump truck that was

schedule to haul materials to Robert Osborne’s property to supply materials for installing culvert/moving materials to allow for septic field. Truck sat without work on Saturday February 4, 2017 Due to project being put on hold. Job was booked with us on January 2, 2017 and can be rescheduled for the end of February or start of March if booked now. [ 23 ] This invoice was not included in the final statement prepared by Mr. Victor, therefore, I have not included this invoice in my

calculations. [ 24 ] According to the Payment Receipts tendered at trial Mr. Osborne made the following payments to Victor Landscaping: October 13, 2016, $13,342.88 applied to Invoice 932; October 31, 2016, $287.50 applied to Invoice 923, and $19,712.50 applied to Invoice 934; January 19, 2017, $230.23 applied to Invoice 934; $4,528.13 applied to Invoice 936; and December 19, 2017, $21,183.57 applied to Invoice 1122. [ 25 ] Mr. Victor explained that none of the payments by Mr. Osborne had anything to do with Invoice 1045 (the fake invoice). [ 26 ] According to Mr. Victor, as of June 1, 2017, all of Mr.

Osborne’s outstanding debt from 2016 had been paid. Any work done after that was being billed at a time and materials rate. He said that Mr. Osborne was fully aware of this change, agreed to it, regularly signed time and materials sheets as a result, plus added additional work to the scope of the project in 2017 knowing that things would be billed on a time and materials basis. [ 27 ] Mr. Osborne repeatedly cross-examined Mr. Victor about Invoice 1045. Mr. Victor consistently explained that Invoice 1045 was a fake invoice prepared at Mr. Osborne’s request in an effort to assist Mr. Osborne with financing.

On one of these occasions, Mr. Victor stated: Q: Let’s go back to page 43, please, on tab 7. Down on the bottom right corner, Nick, you have a total. A: Yep. Q: Can you tell us what that total is? A: $34,526.45. Q: Okay, and right under that, what’s the pen written in there? A: So that’s you telling me what you wanted this total to be for… Q: Telling you what I wanted? A: Yep. So $13,342 was a payment from 2016 and you wanted $21,184 which was a little bit less, that’s what you wanted your, the cheque to be made out from your lender. Q: The cheque I made out for my lender? A: It was a few cents less.

Q: It was a few cents less was it? A: Yep. Q: Okay, so you’re saying that the money owing was paid December 22 nd of 2017? A: That wasn’t the money owing, that was a payment that you paid towards the real invoice, yeah. Q: Okay, Nick, no what I’m asking you is the $21,184 that you have there. A: Yep. Q: Is that actually the payment that was received in February of 2018 from my lender? A: They made a payment in December. Q: Or December. In December, I’m sorry. Was that the payment you received in December? A: I received an amount close to that, but it had nothing to do with this, no.

Q: Nick, I’m asking you, is this the $21,8… here let me switch to another question here. Can you please bring up the, this here called, Pre-trial Briefing Booklet. I’m not sure if Nick has… A: I don’t have that. … Q: Okay. Okay. It was December 17 that I recognized, December 19, 2017, that a payment was made to Victor Landscaping & Excavation Inc. for the amount of $21,183.57. So, $21,183.57, is that the $21,184 you’re showing at the bottom here? A: Yeah, you had wanted it made out, that’s what you wanted it made out to look for your, to look like for your lender.

Q: Alright, I never asked you if I wanted to make something out for me, Nick, I asked you is that the $21… Court: Mr. Osborne, again, you have to ask him a question, not give your evidence, okay, so telling him what you did, didn’t do, it has to be in the form of a question, because what you are saying otherwise is just, doesn’t advance the case at all. You’ll have a opportunity to

testify, but you need to make it a question for this witness. Q: Okay. Court: Okay. Q: Okay, so I’ll ask you one more time, Nick, was this $21,184, is this the invoice, this 1045, the invoice you sent to Aroy[?] for payment? A: It is, yes, because you asked me to. Q: Okay. … Q: Can we agree that this $21,184 was a final payment in December 17, 2017? A: No, we can’t agree. I can agree that’s the amount the cheque was for, but that was not the final payment for this because this invoice is not real. … Q: It’s identical to 378. Would you also say it is identical to invoice 1045? A: I believe it’s identical to 378.

Q: Can you flip to tab 7 please and have a look at 1045 for us on page… A: Yep. Q: Would you agree that’s pretty much mirrored? A: Pretty much. Q: Pretty much, eh? So that’s the second time you generated this invoice. Did I force you to do this? A: Probably, yeah. Q: I did, eh? A: Good chance of it. Q: Okay, alright. [ 28 ] Payment was made toward the project on December 19, 2017, in the amount of $21,183.57. This was applied toward the overall amount owing. This left a total outstanding amount owing of $84,242.65.

The explanation as to how a payment was received in December 2017, when the invoice was not sent via email to Mr. Osborne until February 2018, was explained by Mr. Victor during cross- examination as noted above. He also said: Q: You are stating on Invoice 1122 that we owe you … let’s get to tab 7 … that I so far as, page 46, tab 7, on the bottom right hand corner. A: Yep. Q: That I am in arrears to you for $105,426.22. Is that correct? A: No, it’s not correct. Q: No. What changed from the 10 th of October through to that time, through to the end of February?

A: You sent a cheque of $21,183.57 that went against that invoice. Q: And when was that invoice sent to Aroy[?], which is when, is that what you’re saying, went to Aroy[?]? A: Which invoice? Q: That invoice went to Aroy[?], this invoice 1122. A: No, this went to you. Q: I don’t want to go back over that again, we’ve already spoken about that and there’s no record of you giving this to me. A: Yeah, this one was emailed to you February, in February. Q: This one was emailed to me? And when? Oh, February 2018, I’m speaking 2017, I’m sorry Nick. So, let’s back track a little bit here.

This is October 31, 2017, can you see that on the top right corner under date?

A: Yep, I made it, yeah. Q: You invoiced for $105,000 is what I’m in arrears to, you received on what, where, if you put this together on the 31 st of October and then you send for payment from Aroy[?] and you send them invoice 1045, is that correct? A: Yeah, because that’s what you wanted me to send. Q: Okay, we already know that, I’m just saying, but you send them 1045, alright, why didn’t you send them the $105,000? A: Because you wanted it, you wanted the final invoice, cause you were trying to remortgage your property to pay the invoice. Q: Do you have that in email Nick? A: No, I don’t.

Q: Do you have a recorded conversation? A: No. Q: Do you have any witnesses? A: No. Q: So, it’s you stating that this is why you didn’t, as a company owner, try to retrieve what was, I would believe, most important as a company owner, their funds. Do you always just let jobs lapse on payment because people are, want to work it that way, is that general practice? A: Well, no, I was trying to be nice and help a person out, but that’s not how I run my business anymore. Q: It’s not how you run your business anymore, I see, so you ran it all the way for six or seven years until you met me then?

A: Pretty much, yeah. [ 29 ] In accordance with CPR 19.21, Mr. Victor referred to the following evidence from Mr. Osborne at discovery to support his position that Mr. Osborne requested Victor Landscaping to work on his property, that Victor Landscaping did the work, that Mr. Osborne expanded the scope of the work part-way through the project and that Victor Landscaping completed the work to the satisfaction of Mr. Osborne: Q. So when did you start development of the 7383 St. Margaret’s Bay Road property? A. We had inherited the property in the summer of 2016. Q. Okay. A.

It was from that point we started moving forward with development. Q. Okay. And who was the general contractor on that property? A. As far as the development of the land was myself. Q. Okay. A. I was a homeowner, yeah. Q. And do you have any background or experience in the construction industry? A. I’m a framer. So I’ve framed many of houses and you just pick up on the different trades as you go along. Q. Okay. And so what kind of role did you have in the construction of the property? A. In this role? Q. Yes. A. I formed the footings.

I had the foundation put in by another gentleman which he placed the forms and did the pour. I framed the building, me and my son. Well, mostly me, and my son helped out once in a while. I did the drywall, the insulation. The finish work, the interior. Q. Okay. Did you do any of the landscaping? A. No. Q. Okay. And is that what you hired Mr. Victor to do --- A. That is correct.

Q. --- among other items? A. Correct. … Q. Okay. And you used the term first agreement. Is that a reference to the first estimate you received? A. It was the first – we had started the job off with that original estimate. Q. Okay. And that --- A. And that’s --- Q. Sorry, go ahead. A. --- estimate had led to the season turn in October. I believe it was October. The weather was changing. The job wasn’t going to be complete. So, therefore, Victor Landscaping would have to return in the spring.

It was at that time during that period of Nick starting I had arranged for George Zinck to supply my next phase of that job which was filling the area in. Nick had the equipment there already, or Victor Landscaping had the equipment there already, so the idea was to perhaps get him to do the work, being there already. So that was the second part and the final part of the completion of work to be done by Victor Landscaping. … Q. Right. A. Yeah. Q. And that work took place over approximately late April to November of 2017? A. No, it happened until July. Q. Mid-July? A. In July. Maybe into maybe early August. Q.

Okay. A. Yeah, yeah, when the majority of everything had come into place. It was the remainder of Victor Landscaping’s work to install the septic was right at the very end. Q. And that would have been done around November 2017? A. I believe so, yeah. That was a part of the work that would have been done at that point, yeah. Q. Okay. And then you were present on the site, I assume, for a fair amount of it? A. A majority I tried to be there, yeah. I also – trying to develop on my own, had to deal with a lot of the parties. So I found myself coming and going a lot, and here and there, and all over.

So I tried to be there as much as I could because Nick himself was not. It was his employees that were there working on the job, and I was more interested in making sure they were staying around and doing what they were supposed to be doing. So I would be checking in, staying around doing work, leaving, coming back. What have you. Q. Okay. So you saw his employees there fairly frequently. You knew they were attending the site? A. When they were supposed to be onsite, I seen them there. Correct, yeah. Q. Okay. A. Yeah. … Q. And was all the work you engaged Victor Landscaping to perform completed? A.

At a slow fashion, yeah. Slowly manner, yeah, for sure. Q. Okay. And do you have any issues with the quality of the work? A. I -- not really. I mean, it was pretty much what it is I had asked for. And so I had foreseen it as being pretty decent. We did have a couple of issues as far as the bed being dug out before putting in the fill that was required for the septic field, and removal of old rubbish before putting the bed in. And that was pretty much it. Other than that it was -- we moved along at a pretty you know standard rate for what we were working with . Right. So, yeah. Q.

And you never had to engage anyone to repair anything that Victor Landscaping had done. Is that correct? A. No, no.

Q. Sorry, just we had a double negative there. It’s correct that you never had to hire anyone to repair Victor Landscaping work? A. Yeah, that makes more sense. No, I did not. Yeah. … Q . And when we talk about the extra work, that involves work that was done from April 2017 onwards. Correct? A. Well, it was -- as far as -- it kind of -- right out of the -- yeah, right out of the gate when we started back again, that extra work all started being incorporated into the remainder of the job. Correct. Q. Okay. A. Yeah. Q.

And so you had already received some invoices for the 2016 portion of the project, the surge pad work? A. I had received invoices from Nick for payment and it was in the range of I believe just under 40,000. Q. Okay. A. And -- but the work wasn’t complete yet that we had agreed on. It was work that was being carried on in the spring. Q. Right. And so do I have it correct that you paid the full amount of the estimated price for the invoice number 344 by the end of 2016? A. Correct. Q. Okay. With the understanding that work was going to carry forward into 2017? A. There was still all the septic work.

All the -- everything else had to be brought in which didn’t complete until I believe we said November of 2017. So there was work that was to be performed that was carried on, yeah. Q. And then we also had the extra work that we’ve talked about already. And you requested that in the fall months of 2016. Correct? A. I’m sorry, repeat that again? Q. The extra work, you requested that in 2016 as well? A. Yes, correct. At the end of 2016, yeah. Q. Right. So before the 2017 work --- A. Correct. [Emphasis added] [ 30 ] Mr. Osborne testified on direct examination and described his complaint about payment: Q. Okay Mr.

Osborne, what do you have to say? A. Uh, I would like to shed some light on an understanding that I had myself with regards to the work that was to be performed at 7383 St. Margaret’s Bay Road by Victor Landscaping Excavation Incorporated. When receiving estimate 344, it was of solid understanding that this would be the scope of work to be performed on my property excluding any backfill work that would be required in the main parking area, as well as the 56 loads of fill that went around the house.

When agreeing to estimate 344, Nick and his equipment and a few of his members of his team had arrived at my property to perform the work and myself had paid to Nick Victor the $13,000 first off which I had believed was part of, or is the installment of the slab pad and when the middle of June or the first of June came around my understanding was there was a balance that was owing from that point after the $13,000 was paid, that that would complete the septic. There was $20,000 given to Nick on a draft on October 31, 2017.

That was of an agreement that Nick would spread the soil and the sand, or the sand and fill that coming and being delivered by Nick Victor as well as rocks and what have wherever there may be and that they would be spread and the machine was sitting there in between doing the jobs that they were performing on my property.

Nick had also, Victor had also agreed that they would supply the crusher run stone for the parking lot and spread it as well and that was an agreement of $20,000 with Nick Victor, which was given to him on October 31, 2017, to cover that work, which in my eyes, or in my opinion, I believe, on estimate or invoice 1045 reflects that also along with invoice 920 or, along with invoice 932, point out that the work that was performed on 932 ended on invoice 932 and was billed of $13,000.

The pad work that it describes under the description was the start of that pad work and it would have been the end of it because the price tag I was given and believed to have been was $13,342.88 for that work. It was at that time that this work was completed that I had offered Nick to be part of the work going on in 2017 to spread the soil and the stone on my land and that is what the $20,000 draft was given to Nick for. There was no invoice. There was no estimate. There was nothing.

It was the $20,000 will cover that work and I will do it and we’ll stick to the invoice or to the estimate 344 for the work that has to be completed, and which he shows on 1045 in June 31 st that that there is truly the case and that the $19,000 was taken by, or the $20,000 draft was given to Nick, draft number 76808986 on October 31, and it was Nick that decided that that money should be put towards an extended invoice of 932 to be eaten up within the realm of the pad installation as opposed to that $20,000 actually showing stone being spread and material being spread that George Zinck was passing on to me on invoice for payment per load.

So in June 1, 1045, on June 1, 2017, I was anticipating moving forward with having the remainder of the work that was truly black and white under estimate 344 and invoice 1045 to be completing the septic work. I’ve surely pointed out on tab 30, picture 2, as well as Nick agreeing the work is still ongoing after June 1 for the work that I’ve already paid for. It kind of makes me truly understand why it is I didn’t receive invoice 1122 until October of 2017. It also makes me understand why Nick didn’t apply that $105,000 or $85,000 to my lender and ask them for the monies.

I told Nick at that time I have no more money and you can retrieve that money from my lender. All invoices from Gateway and any material up to June 1 I believe was covered under the payments made as well as the invoices provided up to that date. Any material or any invoices or any material for invoices or tickets up to that date, I believe, was included in the pricing of what was being performed under contract 344 invoice 1045, invoice 932 for the slab pad, it was all paid for already, but yet we go to tab 30, page 2 and Nick points out the work’s not done yet.

So how is it I’m still paying for extra material, double material, after June 1, for a job he’s already invoiced me for. These are the questions I surely would like to see answered or at least justified, and why it is once again why the monies couldn’t be addressed with my lender at the end. I would’ve surely received a call from my lender asking why it is I owe Nick Victor $105,000. It is for sure my lender would’ve put the brakes on my loan if he was aware that I owed Nick Victor $105,000 for material for a job that hadn’t even been framed yet as a house with which I was receiving money for.

I’m not sure how it is anybody would’ve received that money or given it forward to somebody that had a outstanding bill for work being completed for $105,000. I’m not sure anybody can ask that or answer that but Nick, alright, Nick Victor can answer that and that’s pretty much my statement for what it is. I’ve experienced here from August 2016 until February 2018. That’s all I have to say Your Honour. [ 31 ] Mr. Osborne’s answers to various questions on cross-examination were inconsistent with his testimony on direct and with other parts of his evidence on cross. This impacts on his overall credibility.

For example, he was asked about whether he was living in a camper on-site during the course of Victor Landscaping’s work. This would go to Mr. Victor’s testimony that he had work and materials sheets signed on-site by Mr. Osborne on almost a daily basis. Mr. Osborne initially denied living on-site and then changed his answer as the questioning continued: Q. As of the end of 2016, today, you’re able to recall that you received invoices for $20,000 and you also recall that you had paid $40,000 by the end of 2016 or thereabouts? A. That is correct. Q.

And so is it true that you lived out of a camper for a large portion of the project at the site? A. No, I had an apartment in Quinpool in Halifax. Q. Okay, were you sleeping in a camper at the site? A. My cousin slept in the camper. Q. You did not sleep in the camper? A. No. I did a few nights here and there. My cousin had slept in the camper.

Actually, you know what, I spent quite a few nights in the camper with him, so I can’t really say how many days I did, but yeah, I did stay in the camper and the period in which the camper was there to be stayed in and used as a homesite was from the very beginning up until the minute we moved into our home. So it was a residence, but I also did have a residence, so I guess that’s what I’m trying to clear up. I also had a residence where my wife stayed and my kids stayed. Q. Okay, I understand. [ 32 ] During cross-examination, Mr. Osborne suggested that Mr.

Victor told him that he was only getting the time and materials sheets signed daily for Revenue Canada. He then said that Mr. Victor told him they were being signed for his own year end, and finally said that it was for Mr. Victor’s “own safekeeping”: Q. Your evidence today is that you thought Mr. Victor was presenting these sheets to you so that you knew how much he was keeping track of for Revenue Canada? Is that correct? A. Well, I don’t know if it was… I’m just assuming Revenue Canada. He said for his records. Q. So, so you said Revenue Canada earlier and you said that the reason that Mr.

Victor stated that he was keeping tracking of these things for Revenue Canada, but now you’re saying it might have been for some other purpose? A. Well, I put together myself, it’s for business and I’ve already addressed with him that I am signing these and why and Nick Victor pointed out that this is for his own records and for me to say, okay, for your own records, is it for your own number keeping for Revenue Canada when I asked him and he said yes. So that is pretty much what I assumed. Okay, so my worries aren’t here, that’s your worries, Nick.

My worries are about what’s on estimate 344 and my also other worry is why am I paying double on this invoice $10,000 on June 7 when we’ve already gotten that taken care of. Q. Okay, so what you’re saying, Mr. Osborne, is that Mr. Victor would come down to the site almost on a daily basis, whether it was one day then the next or one day and then two later, he was coming down to the site almost on a daily basis just to show you how much money his company was keeping track of for someone else? A. No, so Nick could have record that the money he was receiving was actually coming from somewhere.

That’s the way I understood

it. Nick needed to be able to provide proof of the money he’s taken from me, that it was being distributed accordingly based on estimate 344, for his own keeping. Whether it was for Revenue Canada, he had mentioned it was for records, for year end, so that would tell me it was Revenue Canada. I don’t know what Nick’s plans are. I only went with once again I would believe, I was a sales person for Nissan Infinity and I did contracts with people and I was taught just with utmost respect for the client that if you’re going to invoice something and we’re going to end up in the courtroom Mr.

Osborne being spoken to as a manager, there has to be these copies here and when you’re filling out this contract you had better make sure that this contract is right. Q. Okay. A. And this here looks to me like he’s trying to push a contract on me for time and material and me myself do not have a copy of this. I do not, I do not recognize this as being an invoice for a time and material. I do not see a carbon. I do not see where signatures are copied. I do not see where copies are passed through or passed on, so when Nick expresses to me this is for his own safekeeping, it’s for Nick’s own safekeeping. [ 33 ] Mr.

Victor said that he witnessed Mr. Osborne regularly signing time and materials sheets. Mr. Osborne said that he was uncertain as to whether signatures on time and materials sheets were his: Q. Take a look at the next two pages please 87 and 88. A. I believe this here was all septic work, is what I do believe. Q. Okay, that’s fine. Do you remember receiving those sheets? A. I don’t, I’m just looking at the time and when it was completed. It’s, it’s, this here only reflects on estimate 344 and invoice 1045.

It doesn’t say what he was doing there, what he was bringing, where it was going, what it was for, what part of the job it was for, there’s nothing here, it’s just straight you owe me. Q. Yeah. A. And that’s what I see here. Q. Yeah. So we have records for the use of an excavator and the use of a dump truck and, Mr. Osborne, on these two pages 87 and 88 is that your signature on those pages? A. Uh, I’m sorry, Mr.

Mroz, but I’ve already expressed to you if I had my own copies in front of myself I would be able to legitly say to you that whether I remember signing like that or that is my signature or it’s not my signature, the truth would be told in the invoice that I’m holding as a copy in my hand while you yourself hold the other portion of the copy in your hand and you say is that your signature and I hold my copy and I look and say that’s my invoice so that’s gotta be my signature and that’s how I feel that this here should have been presented and it’s not because if at the point in time when these were sent were brought to my attention I would have said where’s my copy Nick.

Q. And you’d, so you’re not certain whether that’s your signature on those two invoices? A. And I gave you an explanation why I’m certain it’s not or certain it may be, I don’t know. Q. So you’re neither certain that it is nor certain that it isn’t? A. That’s correct. Q. Okay. A. So uncertain would be the word. Q. Yep. A. Okay. Okay. [ 34 ] Mr. Osborne cross-examined Mr. Victor extensively about Invoice 1045. He suggested to him repeatedly that it was the full agreement between them. Mr. Victor consistently denied this and said Invoice 1045 was a fake invoice prepared at Mr.

Osborne’s request to assist him with financing. Mr. Victor consistently testified that Invoice 1045 was meaningless. While being cross-examined, Mr. Osborne initially said he could not remember asking Mr. Victor to prepare Invoice 1045. Then he later told the court that he had requested Mr. Victor prepare Invoice 1045. This admission undermines Mr. Osborne’s entire position that Invoice 1045 was a genuine invoice that reflected the agreement between himself and Mr. Victor. As noted, Mr. Osborne gave two very different answers regarding the creation of Invoice 1045: Q. Who’s directing the scope of work? A.

Who’s directing the scope of work? Contract? Q. Well, you said the scope of work was being directed in so many different ways. Who chose the scope of work? A. I chose the scope of work under estimate 344. Q. So how is it being directed in many different ways?

A. Uh, it was directed with the change of the size of the slab pad and became more material. It went from $9,998 to $13,000 almost $14,000. So that was a change in the scope of work based just on the slab pad. The remainder of the work, which we’ve proven through all of the invoices and estimates that Nick has provided to that point, was still a contract to carry on with the septic work. Q. Okay. A.

The slab pad, the slab pad showed in 932, alright, on October 13, that that work was already completed for the slab pad and then Nick turns around and comes up after receiving the $20,000 from me marries right next to it another invoice of $19,900 and some dollars on estimate 934 to say this is carrying on with the slab pad and my cross-examination I pointed out and asked Nick Victor why couldn’t estimate 932 carry on as one solid invoice, like he’s shown in 1122, why the separation between them, there’s even space to carry on on 932 to show that this is ongoing work into the $20,000 that I gave you.

I’m saying that I believe one hundred percent Nick was hiding my $20,000 and scope of work in 2016 so he could produce these invoices here for time and material here and say I owe him all this money. So, Nick was paid, and what I understand and I never really experienced this back in Ontario, originally my family’s from here, but back in Ontario growing up people don’t pay people right up front for the whole scope of the job. They hold money back, and when the job’s done they pay it at the end. Here I recognize by doing jobs people pay right up front for the whole job which is probably the best way to do it.

And so me giving Nick all that money and the money that he received how Nick redirected that money and made his books, which I have no control on, I can’t enter into his software and move these numbers around and make them true or untrue. He can do that. So, for me to have presentation of an invoice that I never received, 934, and so therefore, Nick was paid and Nick was paid loyally and Nick was directed loyally. Nick was directed with honesty and integrity, alright, but Nick didn’t come back with that in return. There was no, uh, transparency there. Q. Okay. Did you ask Mr.

Victor to prepare invoice number 1045? A. Nick presented or prepared 1045. Q. I understand he prepared it. A. I couldn’t tell you whether I asked him. I don’t know. That’s a year ago. I couldn’t say if I asked him to. I don’t know. I don’t remember. Q. You cannot recall whether you asked him to prepare that invoice? A.

I know and I remember knowing that the $13,000 was being applied to what showed as being the same as estimate 344 and I have recollection of seeing, just like I’ve proven I haven’t received my copies, but I’m going to go with 1034 or 1045 was shown to me because I would only agree to say the $13,000 pays for the pad and the remainder scope of work is still the septic system and I owe you $19,000 or $21,000, and I said to Nick I’ve already, the twenty’s already been given to do the scope of work to do the spread of the fill and everything that’s coming in from George Zinck.

That $21,000, I don’t have the money and when Nick said we had a deal to work out, that was the deal, that the $21,000 would be paid toward the septic system at the end. Q. Okay, so Mr. Osborne, this was addressed with Mr. Victor during his cross-examination and you asked quite a few questions about this. I want to make sure you are understanding my question. Did you request that Mr. Victor prepare invoice 1045 so that you could present it to your lender? A. Yes, I did. Q. Okay. A. And I was going to address that too as well today if I can do that right now and I can explain why that is. Q.

Uh, well, My Lord, I think we have an answer to the question, there is an opportunity for redirect. A. I will do the same, yes. Q. Of course, I’m in Your Lordship’s hands. Court. Well, I think in this case that it might make sense if Mr. Osborne answers the question now, that way if there is any follow up questions we can just deal with it all together. Q. Fair enough, My Lord. Court. Mr. Osborne, if you want to address that issue go ahead. A. Okay, thank you.

It was actually my wife brought it to my attention last night which I shed light over this, but she remembers me myself calling Nick Victor and kept telling him, send your invoice to my lender. My lender has been waiting and this started in October. Send your invoice to my lender and let’s get this paid. Oh, oh, I haven’t got it together yet, I got this, I got that.

Nick, you need to get it together and I called him, I’m going to say three times, four times, in a matter of two months to have that covered and the reason behind that is, is because I was on a building loan, and with a building loan my interest rate was much higher and in order to get everything cleared out for that build I wanted to get everything paid so I would stop paying that high interest rate. Does that make sense? Q. I understand what you are saying. A. Okay. Q. And so, what you said there was that you had been calling Nick for, sorry, was it weeks or months, I didn’t…

A. It was from October, or… Q. October 16? A. It was about getting a final bill, is what it was. Q. Okay. A. It was about getting a final bill and getting that sent off. I didn’t receive anything, I don’t believe, there was nothing come through. I didn’t receive invoice 1122, what Nick made to be his final bill, uh, and overshadowed 1045 which would be the actual bill that Nick sent to my lender. Q. Okay, I see what you’re saying. So before invoice 1045 was generated, you had been asking for a final invoice for a couple weeks? A.

For the $21,000 that was on the invoice 1045 so my lender, because I had that money sitting there from my money that I had scope to borrow for my build to pay that to Nick. Q. Okay, and so you were asking for the final invoice for the project? A. So I could pay it. Q. Okay. A. Yeah. Q. And you had been asking for it for, I want to make sure I understand the dates, so you were asking for it for a couple of weeks or a couple of months? I didn’t catch that. A.

I believe it was October towards the end of October 2017 as we’re getting, because the only thing that was left was to get the electrical hooked up on the septic system. Q. 2017? A. In 2017. Q. Okay. A. Yes, so then Nick had done those transactions with my lender, Aroy[?], and then came out with the invoice 1122 and brought it to my attention. Q. So, Mr. Osborne, let’s look at page 43, it’s at tab 7 of the Exhibit Book. A. Okay. Q. That’s dated June 1, 2017, isn’t it? A. Okay. Q. Does that change your previous answer at all? A.

Absolutely not because I pointed out to you at this time before we moved forward and the pad work was done and everything else was finished, I had seen this, so I was aware that, or this was brought to my attention, and once again I will address with you the reason this came to my attention in this manner not in a time and materials is because this is what we agreed upon was a contract and the $13,342 was there to reflect that, well Nick, where’s the $13,342 going? He would say, oh, invoice 932 is showing for the pad work.

So the rest of the scope of the work and we agreed that I would give him $21,184 at the end and instead of having to pay for the $20,000 and have all the fill work and everything else pushed to the back, I had Nick claim this as $21,184 at the end. [Emphasis added] [ 35 ] Mr. Osborne agreed that neither Invoice 378, nor Invoice 1045, reflect all of the work done at his work site by Victor Landscaping: Q. Let’s go back to the question I had asked you before.

In these documents that we’re looking at, regardless of what anyone’s intentions were or whether you’ve seen them before, 378 and 1045, so estimate 378 and invoice 1045, no where in those documents is there any mention of all of the rest of the plaintiff’s work that was going on on your property, correct? All of the backfilling, all of the spreading, placing boulders, trucking, all of that work, none of that is listed here is it? A. In 43, on page 43. Q. So on page 43 or page 17. A. On page 17 this is not entered into anything, it is a piece of paper with writing on it.

As far as 1045, I entered into this under those pretenses. Court. Okay.

A. That’s what I’m trying to under… … Q. And My Lord, point well taken. I’ll ask only about page 43, so let’s just look at one document at a time. So invoice number 1045. Would you agree with me that this document does not contain any references to all the additional work the plaintiff was performing on your property through April, May, June, July of 2017? A. That is correct. Q. Okay. And let’s turn back to estimate number 378, and I understand what you’ve already said about this document, but you’d agree with me that no where in there is any of that additional work? A. Within the scope here, no it is not. Q.

Okay. And if we go to page 21, still at tab 4, the rates that are set out at 379 those were to be used for that work at the project, weren’t they? A. This here shows the rates and which are being used today and tomorrow and if they were going to change that I would be notified because I do a lot of work and so to say these are the prices, a price list, which you just pointed out, this is a price list, right, of what it is, the charges are for using Nick’s services, whether today, tomorrow or down the road, and that’s what that was anticipating with this. Q.

Okay, and you understood that those rates would apply in 2017? A. I understood that these rates would apply in 2016 and he never changed them, he never told me they changed or anything else, so in 2017 I would think they apply. Q. Okay. A. I would think in 2018 they would apply. Q. Okay, and they’d apply today, presumably… A. Correct. Q. because they’ve never been changed. A.

That’s never been changed, so if I was to go out and estimate a job and I needed to know what I’m going to need here and I’ve calculated, I can calculate this myself and give somebody an estimate because I don’t have anyone here that I use, back in Ontario I used a few guys all the time to do work and so I had the same kind of idea, I knew what I was looking at if I had to scope a job out and tell the homeowner what it is they are looking at. [Emphasis added] [ 36 ] Mr. Osborne agreed that he had no significant complaints about the quality of Victor Landscaping’s work.

Additionally, although at some variance with his answers at discovery, he did not seriously dispute that Victor Landscaping was on the job site when Mr. Victor said they were there: Q. Okay, so you have no reason today or ever to dispute that Victor Landscaping was actually at your property on days that are listed in this invoice? A. I don’t have any way of saying. I don’t have any way of not saying because I didn’t keep track of Nick Victor’s time, dates, hours, material, anything like that coming in.

I did George Zinck because I was on his truck everyday counting loads because Nick didn’t have that agreement with me, George Zinck did. Q. Right, and so, just to confirm you’re not disputing today that work was performed on your property on the dates listed in invoice 1122 by the plaintiff? A. I am disputing because I’m stating to you is those are invoices that were provided by Nick without a copy of mine for me to sit here on my own carbon copy and state that matches with that, that date matches with that date, that date matches with that date. I cannot not provide that to you, Robert. Q.

Okay, so I just want to make sure we’re understanding what you’re saying here. The, so there’s a difference between not being sure and disputing or saying no. So, are you saying that the plaintiff was not at your property on those days listed in invoice 1122? A. I’m saying I’m not sure. Q. You’re saying you’re not sure. A. Yes. Q. Okay. A. I would just reflect, Robert, that if I had my own invoice I would give you a solid answer.

Q. Okay. And you never maintained any kind of personal log book with respect to who was on your property working at any giventime? A. Yes, I did, for George Zinck. Q. Just for George? A. That’s correct. Q. Okay. A. Yeah. Analysis [37] Credibility is central to this trial. From the cases provided by Victor Landscaping involving similar disputes of time andmaterials versus some other method of billing and payment, such as Busch Mac Developments Ltd. v. Harris, 2009 NSSC 381, DLCElectrical Inc. v. Merks Poultry Farm, 2003 NSSC 132, and R & B Plumbing & Heating Ltd. v.

Gilmour, 2018 BCSC 1295, thecredibility of the parties is often pivotal. I am mindful of the principles governing credibility assessment as described in cases such asFaryna v. Chorny, , [1952] 2 D.L.R. 354 (B.C.C.A.). In Baker v. Aboud, 2017 NSSC 42, Forgeron J. discussedcredibility and stated: 13 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 100, which guidelines include the following: * Credibility assessment is not a science.

It is not always possible to "articulate with precision the complex intermingling of impressionsthat emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. c. Gagnon, 2006SCC 17 (S.C.C.), para.20. ... "[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise andcomplete verbalization:" R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. * There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate, Re,2008 NSSC 283 (N.S.S.C.).

On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weightto different parts of a witness's evidence, Novak Estate, Re, supra. * Demeanor is not a good indicator of credibility: R. v. Norman(1993), (ON CA), 16 O.R. (3d) 295 (Ont. C.A.) atpara. 55. * Questions which should be addressed when assessing credibility include:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, supra; b)Did the witness have an interest in the outcome or were they personally connected to either party; c)Did the witness have a motive to deceive; d)Did the witness have the ability to observe the factual matters about which they testified; e)Did the witness have a sufficient power of recollection to provide the court with an accurate account; f)Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.); g)Was there an internal consistency and logical flow to the evidence; h)Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant or biased; and i)Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [38] Mr. Victor testified in a very straightforward manner. When confronted with the issue of Invoice 1045 he explained repeatedlythat it was a fake. His testimony in this regard never waivered or varied. He was internally consistent.

Likewise, he never waivered inhis evidence on the evolution of the contract between the parties. He said that he initially gave an estimate for a flat rate price, but oncehe began work and discovered the scope of the job (particularly considering the wet ground/peat moss issue), the parties agreed to a“time and materials” contract. This explanation was consistent with the manner in which the project progressed, the invoices thatfollowed, and the daily time and materials sheets signed by Mr. Osborne and Mr. Victor. Both Mr. Victor’s reliability and hiscredibility were trustworthy. [39] In contrast, Mr.

Osborne was inconsistent and uncertain. [40] When asked to identify his own signature on various daily work and materials sheets, Mr. Osborne said that he could not, orwould not, identify his own signature on the sheets. Of course, as was stated in National Bank of Greece (Canada) v. Denis PetersonEfstatheu and Danny Tasos Efstatheau, [2005] O.J. No. 5158 (ONSC), “the onus lies on the plaintiff to establish on a balance ofprobabilities that the signatures on the documents are those of the defendant…” (para. 17). As the court noted in that case:

21 Although in a case of fraud a higher standard of probability is required, the burden of proof remains on the plaintiff "on a balance ofprobabilities" (see Ali v. Triple 3 Holdings Inc., (ON CA), [2002] O.J. No. 4405 (O.C.A.)). However, the court maydraw a negative inference from the defendant's failure to provide a handwriting expert to support his allegation that his signature wasforged (see Bank of Montreal v. Karimian, [2003] O.J. No. 14 (S.C.J.), and Otto Pick & Sons Seeds Ltd. v. W.D. Thomson EnterprisesLtd., [1989] N.B.J. No. 706 (New Brunswick Court of Queen's Bench)). [41] Mr.

Osborne did not directly dispute that he signed some of the time and materials sheets. He said that he was uncertain. Mr.Victor testified that he witnessed Mr. Osborne signing the time and materials sheets. Mr. Osborne said during discovery that VictorLandscaping was on-site, yet at trial said he was uncertain as to whether Victor Landscaping was at his job site as Mr. Victor reported. Mr. Osborne changed his testimony as to whether he was living on-site or on Quinpool Road while the work was being conducted. Significantly, he also changed his testimony as to whether he asked Mr.

Victor to prepare Invoice 1045. [42] From the documentation provided, I believe on a balance of probabilities that Victor Landscaping was initially hired on a flatrate contract as reflected in Estimate 344. Once Mr. Victor began work at the job site, it became apparent that there was wet ground/peatmoss involved. The agreement for the excavation and landscaping work then changed to that based on time and materials as reflected inEstimate 379. Mr. Osborne paid off the work for 2016 in the amount of $38,101.24. [43] The work continued in April 2017. The scope of the work expanded at Mr. Osborne’s request. Mr.

Osborne told Mr. Victorthat he was having financial issues, and he asked Mr. Victor to prepare a false invoice to present to his lender to allow for interimpayment. Therefore, out of an interest to be paid, Mr. Victor prepared Invoice 1045, dated June 1, 2017, which was false. Mr. Osbornewas aware that he was signing time and materials sheets for the ongoing work being done by Victor Landscaping. [44] The total amount for the work done by Victor Landscaping was $143,527.46. Mr. Osborne paid a total amount of $59,284.81. Once the work was complete, Mr. Osborne refused to pay. The remaining amount owing by Mr.

Osborne is $84,242.65. Conclusion [45] Victor Landscaping must prove its case on a balance of probabilities. I am convinced that it has done so in this case. Mr.Victor’s testimony was in accord with the preponderance of the evidence. Mr. Osborne’s testimony was internally inconsistent and wasalso inconsistent with much of the evidence. Mr. Osborne owes Victor Landscaping $84,242.65, plus interest. No amount for interestwas agreed upon by the parties. [46] Mr. Osborne requested the opportunity to make submissions on costs once I rendered my decision. Therefore, the court willmake arrangements with the parties to

schedule submissions on interest and costs. Arnold, J.