JeBailey v. Hawa’s Electric Limited, 2022 NSSC 101

SUPREME COURT OF Nova Scotia Citation: JeBailey v. Hawa’s Electric Limited , 2022 NSSC 101 Date: 20220407 Docket: Halifax , No. 507752 Registry: Halifax Between: Elias JeBailey dba Crossfield Ridge Investments v.

Hawa’s Electric Limited DECISION ON SMALL CLAIMS COURT APPEAL Judge: The Honourable Justice Joshua Arnold Heard: November 29, 2021, in Halifax, Nova Scotia Counsel: Elias JeBailey, self-represented Appellant Allison Godwin, for the Respondent Introduction [ 1 ] Hawa’s Electric Limited brought a claim in Small Claims Court against Elias JeBailey, doing business as Crossfield Ridge Investments, for payment of an outstanding holdback in the amount of $11,700 plus HST (totaling $13,455).

The holdback allegedly related to a construction contract under which Hawa’s would provide electrical work on a new 24-unit apartment building. Mr. JeBailey filed a defence, and counter-claimed for $33,638.13 plus interest and costs, although $25,000 is the limit in Small Claims Court. The trial spanned four days, concluding March 24, 2021. 75 days later, on June 7, 2021, Adjudicator Michael J. O’Hara released a 24-page, 128-paragraph decision, awarding Hawa’s $14,950, and allowing Mr. JeBailey’s counterclaim in

part in the amount of $1,400. The result was an order for a total payment of $13,550 to Hawa’s. [ 2 ] Mr. JeBailey appealed the decision on numerous grounds, many of which relate to alleged mistakes of fact by the adjudicator. He also says the adjudicator erred by awarding Hawa’s more than they actually claimed, and complains that the decision was released too long after the trial. [ 3 ] For the reasons that follow, Mr. JeBailey’s appeal is dismissed. Standard of Review [ 4 ] Section 32(1) of the Small Claims Court Act , R.S.N.S. 1989, c. 430 , sets out the available grounds of appeal: 32

(1) A party to proceedings before the Court may appeal to the Supreme Court from an order or determination of an adjudicator on the ground of (

a) jurisdictional error;

(

b) error of law; or (

c) failure to follow the requirements of natural justice, by filing with the prothonotary of the Supreme Court a notice of appeal. [5] In MacDonald v. Barbour, 2012 NSSC 102, Robertson J. discussed the standard of review for Small Claims Court appealsbased on error of law: [9] The standard of review as it relates to the appeal from the Small Claims Court is well-established in Lacombe v.Sutherland, 2008 NSSC 391, Justice Beveridge cites the decision of Justice Saunders in Brett Motors Leasing Ltd. v.

Welsford (1999),191 N.S.R. (2d) regarding the standard of review of a Small Claims Court decision, and goes on to state at para. 28: 28 It is well established that in the ordinary course, absent some special power on appeal, such as an appeal by way of a hearing denovo, the appellate court does not engage in a re-hearing of the dispute. Findings by the court below are accorded considerabledeference. They can only be interfered with in this regime if the appellant makes out one of the three grounds for an appeal. That is, anerror in law, jurisdiction or a breach of natural justice.

Even in an ordinary civil case an appellate court can only intervene if the trialcourt made an error of law or an error of fact that amounts to a clear and palpable error. [10] There are no transcripts of the proceeding of Small Claims Court. The adjudicator’s findings with respect to reliability andcredibility are made and reported in both the decision and

summary report, as is the evidentiary basis for making the decision. Thedecision can only be set aside for an error in law or breach of natural justice. Accordingly the threshold for overturning the adjudicator’sdecision is high. [Emphasis added.] [6] The appellant alleges both error of law and failure to follow the requirements of natural justice. In Caughey v. Gulliver, 2021NSSC 306, Bodurtha J. discussed the requirements of natural justice in the context of Small Claims Court proceedings: [15] The meaning of “natural justice” has been discussed extensively in the caselaw.

In 1995, Palmeter ACJ, in Shannon vForsyth, 125 NSR (2d) 118, wrote: “Natural justice is simply fairness, including procedural fairness.” [16] In Waterman v.

Waterman, 2014 NSCA 110, the majority of the Nova Scotia Court of Appeal wrote: 63 Natural justice has two important and distinct rules: an Adjudicator must be impartial, and the parties must have adequate notice,and an opportunity to be heard… [17] In CM MacNeill, LeBlanc J canvassed the Court’s caselaw on the meaning of natural justice in the context of the Small ClaimsCourt: 71 Saunders J. (as he then was) in Brett Motors, (NS SC), [1999 CarswellNS 410, 181 NSR (2d) 76 (NSSC)],explored the meaning of natural justice in the context of Small Claims Court hearings: 12 I think it helps to recall that the small claim court's purpose is to provide an informal and inexpensive forum for the resolution ofdisputes falling within its jurisdiction.

It is meant to be accessible to those citizens who need it. To keep costs down there is no transcriptof the evidence. Depending on whether the parties are represented by counsel, or other circumstances, an Adjudicator may often adopt amore active, inquisitorial role than do judges in other levels of court. . . . 72 In Gallant, [2010 NSSC 375], at para. 12, Rosinski J. quoted with approval para. 12 of Brett Motors, but then noted at para. 13: 13 Nevertheless, a minimum level of procedural fairness must always remain.

The parties are equally entitled to such protections toensure the outcome is "just" as between them. 73 Of similar effect are the findings of Van den Eynden J. in Parslow, [2014 NSSC 390]: 33 "Natural justice" is not a defined term in the Small Claims Court Act. Natural justice was discussed in Spencer v. Bennett, 2009 NSSC368at para. 15 and 16 therein provide as follows: 15 Natural Justice is not defined in the Small Claims Court Act. Nevertheless it is a familiar concept to the common law, althoughelusive of definition. In Lloyd v.

McMahone, [1987] A.C. 625 at 702, Lord Bridge puts it this way: ... the so called rules of natural justice are not engraved on tablets of stone...what the requirements of fairness demand when any body,domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of thedecision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. … 16 Natural Justice really means that the parties are entitled to a fair process... no one should be a judge in his own cause (the Adjudicatormust be independent) and that one should always hear "the other side." [7] Similarly, in Homburg Canada Inc. v.

Nova Scotia (Utility & Review Board), 2010 NSCA 24, MacDonald C.J., for the court,discussed how to examine the issue of natural justice on appeal: [66] With this issue, Homburg asserts that by deciding this matter on its merits, the Board denied Homburg natural justice. Becausethis type of issue involves procedural fairness, a standard of review analysis is not triggered, per se. Instead, after considering all the

circumstances, it simply falls to us to decide if the process was fair to Homburg. For example, in Creager v. Provincial Dental Board ofNova Scotia (2005), 2005 NSCA 9 , 230 N.S.R. (2d) 48 (C.A.) (Q.L.), Fichaud, J.A. said this: ¶ 24 Issues of procedural fairness do not involve any deferential standard of review: Moreau-Bérubé v. New Brunswick (JudicialCouncil), 2002 SCC 11 , [2002] 1 S.C.R. 249, at para. 74 per Arbour, J.; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC29 , [2003] 1 S.C.R. 539, at paras. 100-103 per Binnie, J. for the majority and at para. 5 per Bastarache, J. dissenting.

As statedby Justice Binnie in C.U.P.E, at para. 102: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard ofreview is applied to the end product of his deliberations. This point is also clear from Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817.Justice L'Heureux-Dubé (paras. 55-62) considered "substantive" aspects of the tribunal's decision based on the standard of reviewdetermined from the functional and practical approach but (para. 43) considered procedural fairness without analyzing the standard ofreview… Issues: 1. Should the appellant be permitted to introduce fresh evidence on this appeal? 2. Did the adjudicator lose jurisdiction by releasing his decision 75 days after the hearing concluded? 3. Did the adjudicator err in not finding extortion by the respondent? 4.

Was the adjudicator entitled to order damages in a higher amount than was claimed? 5. Did the adjudicator misinterpret the evidence and thereby render the decision fundamentally unfair? 6. Did the adjudicator err in determining the issue of Hawa’s alleged delay in completing the contract? 7. Did the adjudicator err in determining whether or not Hawa’s failed to complete the scope of the contracted work? 8. Did the adjudicator’s “lack of basic construction knowledge” render the verdict unfair? 9. Did the adjudicator err in considering damages for Hawa’s alleged failure to remedy deficiencies? 10.

Did the adjudicator err in finding estoppel? Analysis Issue 1: Could fresh evidence be admitted on this appeal? [8] The appellant mentioned introducing fresh evidence in his factum, but made no application prior to the appeal hearing. At thehearing the appellant said he wanted to introduce fresh evidence. Because he was self-represented, the court explained the process ofmaking a fresh evidence application to him and he then asked for an adjournment.

Respondent’s counsel advised the court that she wasabout to go on parental leave, so if the matter was adjourned, another lawyer from her office would have to assume carriage, andfamiliarize themselves with the file. I indicated that because the appellant was self-represented I would grant the adjournment, butadvised the appellant that he would likely be liable for costs. The appellant did not want to expose himself to liability for costs arisingfrom an adjournment, and asked to proceed on the spot with the fresh evidence application. The respondent agreed.

I heard the freshevidence application and provided the parties with my ruling during the appeal. Applying R. v. Palmer, (SCC), [1980] 1S.C.R. 759, and Patient X v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 41, I denied the application, concludingthat the appellant, with due diligence could have presented the evidence in question at the Small Claims Court hearing, and that theproposed fresh evidence would not have reasonably effected the result.

Issue 2: Did the adjudicator lose jurisdiction by releasing his decision 75 days after the hearing concluded? [9] Section 29(1) of the Small Claims Court Act states that the adjudicator may make an order “not later than sixty days after thehearing of the claim…and any defence or counterclaim…” Mr. JeBailey says that as a result of releasing the decision approximately 75days after the hearing, the adjudicator either lost jurisdiction, or overlooked or failed to consider evidence. He relies on Gallant v.United Campers, 2008 NSSC 381, where the adjudicator’s decision was some five months late, and D.

MacLellan J. declared it a nullity,on the basis that the adjudicator confused the evidence as a result of the delay. [10] In Towle v. Samad, 2013 NSSC 260, Moir J. undertook a thorough and helpful review of cases that considered the 60-day timeframe set out in s. 29(1). He concluded that the caselaw had established a precedent treating s. 29(1) as directory, not mandatory. Thisprecedent rested in part on applying caselaw dealing with the same issue in respect of the Supreme Court under the Judicature Act. Inparticular, Moir J. noted, Langille v.

Midway Motors, 2002 NSCA 39, had been applied in the Small Claims Court context in MacNeil v.MacNeil, 2003 NSSC 44, overruling Gordon Shaw Concrete v. Stavely Weighing, 1995 NSSC 46. He went on to consider thereasonableness of the resulting precedent: [46] Reasonableness of the Precedent. The idea that the

interpretation of the Judicature Act in Langille extends to the Small ClaimsCourt Act is troublesome. Just the same, the conclusion offered by MacNeil v. MacNeil is consistent with a contextualized reading of s.

29(1) , as required by Rizzo Shoes . [47] A directory meaning for s. 29(1) fits with purposes of the statute. The drastic consequence of the Gordon Shaw Concrete

interpretation is out of proportion to the call for quick results. The drastic consequence tends to undermine the very same purpose in cases of unavoidable or inadvertent delay…The call for quick results apparent in the Small Claims Court Act is more adequately served by a directory

interpretation when one bears in mind that the direction is to lawyers who are sworn to conscientiously perform an adjudicative function. Judges, in other words. [48] The scheme of the statute…does not fit with sending the parties back to square one when a decision is delayed, no matter how innocent and inconsequential the delay may be. [ 11 ] In considering a related complaint in Towle , where the appellant complained that releasing the decision past 60 days created unfairness, Moir J. said: [56] Alternative to the argument for giving the condition in s. 29(1) mandatory effect, it is argued for Mr.

Towle that the two-month delay offends the requirement for fairness. I cannot separate this argument from the criticisms of the adjudicator's fact-finding, and I will deal with these issues together. [57] I do not think that either Justice Douglas MacLellan's remarks at para. 39 of Gallant v. United Campers , [2008] N.S.J. 572 (S.C.) or Justice McDougall's remarks at para. 40 of Adams v. Crowe suggest any hard and fast principle for determining whether delay of a Small Claims Court decision causes unfairness.

This will always be a circumstantial inquiry in which the length of the delay, and the grasp of the evidence apparent from the decision or the

summary report of findings, will have importance. … [61] Two points need to be reiterated. The act by which one person believes, or disbelieves, another is primordial. It is seldom reducible to a full explanation, and it is never simply logical. That is one reason why appeal courts have to defer to triers of fact on credibility: R. v. McDougall , 2008 SCC 53 at para. 100 . [62] Secondly, the Small Claims Court is not a court of record, despite what the statute says. The criticisms Mr.

Towle makes assume that the hearing produced no evidence on these subjects beyond what we can make from the decision and the exhibits. In oral submissions, Mr. Robbins went so far as to suggest that we must assume there was no evidence on a point beyond what is recorded in the

summary report of findings. I disagree. The statute requires a record of the findings not a record of the evidence. At that, only a

summary of the findings is required. [Emphasis added.] [ 12 ] I agree with Moir J. that s. 29(1) is directory rather than mandatory. Additionally, in this case, releasing the decision 75 days after the hearing, instead of 60 days, created no unfairness. The trial was four days long, much lengthier than the average small claims court matter. The decision is very detailed. The release date was more than reasonable in the circumstances. Despite Mr. JeBailey’s extremely thorough submissions, he has not proven that the adjudicator overlooked or failed to consider evidence.

There is no basis to find that unfairness was created by this relatively brief delay. Issue 3: Did the adjudicator err in not finding extortion by the respondent? [ 13 ] The appellant alleges that the respondent extorted him. He made this claim at trial, as noted by the adjudicator: [2 ] In his written Defence, the Defendant states simply, “Contract failure. Extortion.” He goes on to counterclaim for some $33,000 stating, “Contract failure, interest, costs.” No other particulars were provided in that document . … [50] For his part, Mr. JeBailey apparently felt that Mr.

Hawa and his company were not devoting sufficient time to the project. Secondly, and perhaps most significantly, he felt he was unfairly pressured to have Mr. Hawa finish the job and to make the payment that he made to Mr. Hawa in November 2019. His explanation for continuing with the Claimant company was that its name was on the permits and at the point in question if he had changed electrical contractors it would most likely only have led to additional delays in the completion.

Nevertheless, he felt that he had been “extorted,” which is the exact word he used in his pleadings. … [123] In his written pleadings and in his evidence JeBailey uses the term “extortion”, I consider that an significant overstatement of the reality. Certainly he could not, in my view, claim duress or undue influence. And that this had been left to the final moment to deal with, was in a large measure due to his delay in the period September – late November. [Emphasis added] [ 14 ] Extortion is a criminal offence.

Section 346 of the Criminal Code states: 346

(1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done. [ 15 ] There is no basis advanced by the appellant on which to disturb the adjudicator’s finding that his allegation of “extortion” was not made out on the evidence.

Issue 4: Was the adjudicator entitled to order damages in a higher amount than was claimed? [ 16 ] The appellant says that natural justice should have prevented the adjudicator from awarding the respondent more than the amount claimed. In his November 22, 2021, factum he argues:

The Respondent (Claimant) put forth a claim to the Small Claims Court of Nova Scotia for total damages of $11,700+HST as per line [1]of the Adjudicator’s Decision. This amount was agreed upon by both the Respondent and the Appellant as the remaining holdback onthe total contract amount of $130,000+HST. However, the claim amount was found to be $14,950 (tax inc.) by the Adjudicator based on his calculations seen in lines [51]-[58] of hisDecision. Although the arithmetic shown in lines [51]-[58] is correct, this

section of the Decision is appealed based primarily on therequirements of natural justice: • Fig. 1 shows an e-mail between the Appellant and Respondent agreeing on terms of payment and holdback amount of$11,700+HST, a total of $13,455; this is the claim amount. Given that the two parties came to an agreement and that the claim amountwas based on the terms of agreement, the law of estoppel applies to hold the original claim amount of $13,455.

Moreover, the amountoriginally claimed by the Respondent for the hold back ($11,700+HST) was calculated based on actual payments made by the Appellantto the Respondent as seen in the paragraph below. • Fig. 2 depicts a cheque receipt for payment to the Respondent by the Appellant for holdback on the Respondent’s first invoice. Itshould be noted to the Supreme Court of Nova Scotia that while this piece of evidence was privy to both Claimant and Defendant, it wasnot exhibited during the Small Claims Court Trial. Nevertheless, this piece of evidence must be brought forth to serve the requirementsof natural justice.

The amount of $1,495 paid to the Claimant by the Defendant via the cheque in Fig. 2 is the difference in which theAdjudicator could not account for in the original claim amount. [17] I see no basis on which I can rule on appeal that there was an estoppel created by the parties’ alleged “agreement” respectingthe claim amount. Nor am I prepared to consider evidence that was allegedly known to the parties but was not before the Small ClaimsCourt.

Despite giving both parties the opportunity to provide written submissions following oral argument on the appeal, neither side wasable to locate any legal guidance directly on this point. In his December 14, 2021 factum, the appellant submits: The Statement of Claim filed by the claimant was for $11,700.00 plus tax, a total of $13,455.00. Myself as the defendant made acounterclaim for $25,000.00.

Within the decision of the Adjudicator, after reviewing the evidence, the Adjudicator made the followingdetermination (see para. 107): [107] As discussed above, I am allowing the claim in the revised amount of $14,950, inclusive of HST. For the counterclaim, I amallowing the amount of $1,400. The net amount payable by the Defendant therefore is $13,550. The Adjudicator increased the amount claimed by the Claimant. This was not done on any motion or request of the Claimant toamend its claim, nor did the Adjudicator indicate at the hearing that he would be entertaining an amendment to the Claim.

It is apparentthat the Adjudicator unilaterally amended the amount of the claim following the actual hearing of the claim. As the defendant, I was notafforded a proper opportunity to defend against this increased claim. As such, I submit that there was (1) an error of law by failing toseek a proper motion to amend the Statement of Claim and (2) an excess of the Adjudicator’s jurisdiction by unilaterally increasing theamount of the claim before the Small Claims Court.

Furthermore, (3) there was a breach of natural justice: I the defendant, was notafforded a proper opportunity to respond to the increased claim, as I had no notice that the increased amount was being sought and would have presented evidence regarding the increased claim (being that evidence which I endeavoured to admit at the appeal hearingbefore your Lordship). [18] The respondents rely on Eckland v Eckland, (ON SC), [1973] 3 O.R. 472 (Ont. H.C.), where Lerner J., on anapplication for leave to appeal, considered “catch-all” phrasing in an action where “such further and other relief” was claimed.

JusticeLerner stated that this language would give the court “the right to deal with all matters relating to the issues between the parties beforehim that were not definitively set out in the notice of motion.” [19] Likewise, the court’s own research has not revealed any authority for the proposition that an adjudicator loses jurisdiction, errsin law, or denies natural justice merely by awarding damages in excess of the specific amount claimed, after hearing and assessing theevidence.

It is theoretically possible that such a procedure could amount to a denial of natural justice or an excess of jurisdiction, but theappellant has not shown a basis to find that this happened in this instance. [20] Once all of the evidence and arguments were before the adjudicator, he was entitled to render a fair decision, includingcorrecting what he found to be erroneous mathematical calculations presented by the parties. That is precisely what the adjudicator didin the instant case when he concluded (regarding this issue): [56] In that very same email Mr.

JeBailey states that the amount of the holdback left on the contract is $11,700, which he then confirmsin response to an email from Mr. MacNeil that it is $11,700, plus HST. That amount is not accurate. [57] In his evidence, Mr. JeBailey said that there was no holdback on the very first invoice. That statement was also not accurate but Ibelieve this is what led Mr. JeBailey to think that as at November 25, 2019, the remaining holdback was $11,700, plus HST. The fact isthe first invoice was in the amount of $13,000, plus HST, for a total amount of $14,950.

The payment made on September 27, 2018, was$13,455, which is the after-tax amount of the invoice less 10%, i.e. $13,000 -$1,300 = $11,700 x 1.15 = $13,455. [58] The preceding analysis indicates that the outstanding balance of the invoicing less the payments is $14,950. I so find. [21] I find no merit in this ground of appeal. Issue 5: Did the adjudicator misinterpret the evidence and thereby render the decision fundamentally unfair? [22] On appeal, Mr. JeBailey essentially wanted every factual finding that was not in his favour to be reviewed by this court. Thehearing spanned four days.

Numerous witnesses testified and numerous exhibits were tendered. The trial was not recorded and notranscript is available to the appeal court. I have only the trial exhibits and the adjudicator’s decision and

summary of findings (which inthis case was also the trial decision). As noted above, the trial decision is clear, logical, detailed, and comprehensive.

[23] Although the issue was not raised by either party, in Lacombe v. Sutherland, 2008 NSSC 391, Beveridge J. (as he then was)discussed the challenges of appellate review of Small Claims matters due to the limited record and the potential pitfalls if an adjudicatorfails to file a

summary record, and stated: [33] My role in this appeal is to review the proceedings below to determine if there has been an error in law. Despite the provisionsof the Act that seem to envisage the proceedings in the Small Claims Court being recorded, it appears that no such recording here wasdone, nor is apparently being done on a day-to-day basis. There is therefore no transcript for review to determine what evidence wasactually before the adjudicator and hence no ability to assess the evidentiary basis for the findings of fact or mixed findings of fact andlaw by the adjudicator.

What the Small Claims Court Act does envisage to assist in meaningful appellate review is for the adjudicator tofile his or her report under s.32(4). Here the original report was not, in my opinion, a report within the meaning of s.32(4). It simplyreferred to his written decision of May 9, 2008. [24] In the instant case, the adjudicator’s decision contained a detailed review of the facts and in that way meets the requirements ofs. 32(4) of the Act. [25] In MacEwan v.

Henderson, 2003 NSSC 120, affirmed 2003 NSCA 133, Scanlan J. (as he then was) discussed the improprietyof interfering with findings of credibility and fact on a small claims court appeal: [15] (4) &

(5) The

summary report as prepared by the Adjudicator does not disclose any error of law in relation to the Appellant’sclaim. It appears that the Adjudicator correctly considered the applicable causes of action including fraudulent, negligent and innocentmisstatement and breach of collateral warranty.

In the original order the Adjudicator stated: There is no credible evidence before me that the Defendant innocently, fraudulently or negligently made any statement which amountedto a misrepresentation of fact with respect to the septic system or sewage disposal system. [16] Further on in the order the Adjudicator referred to the fact that there was no evidence the system did not work when theRespondent occupied the home.

He also referenced the fact there had been some work done by a contractor on the property and that isperhaps an explanation a to why the system was not working properly when the complainants occupied the home. These are questions offact and it would be improper for this Court to interfere with issues of credibility at this stage. [17] I am satisfied the appeal should be dismissed. [26] The scope of appellate review is clearly set out in the legislation and case law.

Despite the appellant’s arguments, theadjudicator’s findings of fact are not reviewable on appeal, except to the extent that an error of law or a breach of natural justice isalleged in relation to the adjudicator’s fact-finding or handling of the evidence. [27] In Brett Motors Leasing v.

Welsford, (1999) (NS SC), 181 N.S.R. (2d) 76 (S.C.), Saunders J. (as he thenwas) discussed the restricted scope of factual review on a small claims court appeal, in the context of error of law: 14 One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact asfound by the adjudicator. I do not have the authority to go outside the facts as found by the adjudicator and determine from the evidencemy own findings of fact.

"Error of law" is not defined but precedent offers useful guidance as to where a superior court will intervene toredress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been denied the benefit ofstatutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in theinterpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is noevidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects therebyproducing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In suchinstances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting the case for furtherconsideration. [28] Similarly, in Dupere v. Evans, 2006 NSSC 4, Leblanc J. said: [21] Before this Court can interfere with an adjudicator’s decision, there must be a clear error or failure to follow the requirementsof natural justice.

The appellant must show that the adjudicator misinterpreted documents or other evidence, that there was no evidenceto support the conclusion reached, that the adjudicator clearly misapplied the evidence, producing an unjust result or that he failed toapply important legal principles. Only in such instances may I overturn the decision of the adjudicator: see MacIntyre v. Nichols, 2004NSSC 36(S.C.) at paras. 35-38 and Desmond v. McKinlay, 2001 NSCA 24at para. 5. … [42] As to negligent or fraudulent misrepresentation, the adjudicator made factual findings which are clearly wrong.

I am mindful ofthe high standard required to override a finding of fact; there would have to be a total misapprehension of the evidence leading to anunjust result. In my view, however, the adjudicator made such an error. He determined that the Whitford report referred to a smell of oilunder the front steps. He stated at para. 6 that Jacques Whitford Ltd. “was told by the Defendants there was one spill in basement plus asmell noticed by [Ms.

Evans] coming from the tank located under the front steps.” Later, at para. 26, he stated that Whitford “wasadvised of, one oil spill, that being in the basement; however, they were also advised of the removal and replacement of the oil tankunder the steps as a result of ... Mrs.

Evans, smelling oil.” [43] In fact, the February 2004 Whitford report makes no reference to the smell of oil or to the replacement of the tank under thefront steps… [29] It must be kept in mind that a trier of fact is not obligated to reference every single piece of evidence that is elicited at trial. [30] In relation to the fact-finding process, the adjudicator found credibility issues with both Mr. Hawa and Mr. JeBailey, but

moreso with the latter. Regarding Mr. Hawa, the adjudicator simply said: [124] For his part, Mr. Hawa’s repeated statements in the evidence that he received no statement of deficiencies defies credibility . In an earlier paragraph, I enumerated the various lists that had been circulated in the August 2019 – January 2020 period. All but one of these had been sent to Mr. Hawa. Perhaps of most significance was the email of January 5, 2020, which appears to be the most recently issued list. While for the reasons given above, this did not comply with

Article 6.3, it does nevertheless show that Mr. Hawa had received objective notification of what remained to be done. There was next to no evidence that his company addressed these items. [125] As I have already indicated. It appears that most or perhaps all of the items referred to in January 5 th , 2020, email were ultimately completed by Jeremy Clowater. I have awarded all of the costs associated with Mr. Clowater’s services. Based on the evidence, it totals $1,400. [Emphasis added] [ 31 ] Like every trier of fact, an adjudicator can accept some, none, or all of a witness’s evidence.

Here, the adjudicator made several references to issues with the credibility of Mr. JeBailey. For example, he said, at various point in his decision: [102] This item is for $3,507.50 inclusive of HST and is for work the Defendant says he himself did, for which he charges at $75/hr and for two labourers to install light breaks in 50-75% of the units. [103] Starting with the light bulb installation, I cannot see where that would be included in the scope of work. The Defendant has not shown where it falls under the terms of the contract.

I disallow that . [104] I would mention as well on this particular item what appears to be significant over-reach. The Defendant says he had two labourers working for five days to install light bulbs in 50-75% of the units. By my calculation that works out to 6.6 hours per person per unit to install light bulbs . That is not credible and is the sort of evidence that causes one to be skeptical of the rest of the evidence put forward by the party . … [110] The Defendant put forward a position before this Court which was very much at odds with the position communicated in his email of November 25, 2019.

As I stated above, any objective reader of the email of November 25, 2019, would infer that the outstanding items which, according to the wording in that email the parties were aware of, were relatively minor and probably within the holdback amount.

That hypothetical reader would be quite surprised to subsequently learn that there was actually a counterclaim amount totally approximately $33,000. [111] Given such an extreme shift in position, any judge or adjudicator is going to be particularly vigilant in his or her consideration of the items comprising such a large counterclaim . … [123] In his written pleadings and in his evidence JeBailey uses the term “extortion”, I consider that an significant overstatement of the reality. Certainly he could not, in my view, claim duress or undue influence.

And that this had been left to the final moment to deal with, was in a large measure due to his delay in the period September – late November. [Emphasis added] [ 32 ] It is through this lens of eroded credibility that Mr. JeBailey’s evidence in particular was examined. I will now discuss some specific points raised by the appellant in respect of fact-finding by the adjudicator.

Confusing submissions with evidence [ 33 ] The appellant says the adjudicator misconstrued counsel’s submissions for actual evidence, because he wrote, as noted in the appellant’s factum: “First, as stated by council for the Claimant, the original date for substantial performance of July 1, 2019, had come and gone and essentially was “off the table”.

In saying this…” , the Adjudicator is using the comments of the Claimant’s council as testimony in forming part of his decision. [As appears in original] [ 34 ] Clearly, in the context of the written decision, the adjudicator was merely agreeing with counsel for Hawa’s, not somehow confusing oral submissions with evidence. Delay [ 35 ] The appellant says the adjudicator was wrong in finding that Hawa’s was not responsible for the delay in completion of the project and the associated cost overruns.

In relation to the issue of delay, the adjudicator said the following: [62] First, as stated by counsel for the Claimant, the original date for substantial performance of July 1, 2019, had come and gone and essentially was “off the table.” In saying this, given the other evidence of other work that was going on and was still yet to be done, it is clear that there would have been no possibility of the electrical work being completed by July 1, 2019. The point was also made that the failure to substantially comply by July 1 cannot be attributed to the electrical contractor.

It is also pointed out that there was a significant delay by the Defendant in having the transformer pad installed. As I understood the evidence, this was upwards of nine months of delay. [63] Then there was the delay, again attributable to the Defendant, between early September and late November when there was no response to the lawyer’s letter of September 6 th .

[64] Perhaps most fundamental in considering this aspect of the counterclaim is that the Defendant has not met his burden.

He bears the burden of proving on a basis of probabilities that it is more likely than not that the Claimant was solely responsible for the one month delay in the tenants moving in. [ 36 ] Furthermore, after referring to written communication between the parties on November 25, 2019, and January 5, 2020, the adjudicator said: [68] This series of emails of November 25 th constitutes a significant piece of evidence in this case and, as I will elaborate on, in my view it constitutes in law a waiver or estoppel by representation that prevents the Defendant from now making a claim for delay. [69] An objective reader of the email of November 25 th from Mr.

JeBailey would infer from the contents thereof that any outstanding items were somewhat minor and within the amount of the holdback mentioned in that email. The conclusion is not dispelled by the communications that followed the November 25 th email and which were sent by Mr. JeBailey to Mr. Hawa. Indeed, they affirm that general understanding. I refer here to text message of November 26 th from Mr. JeBailey to Mr. Hawa as well as the January 5, 2020, email from Mr. JeBailey to Mr. Hawa [70] Notably absent from this was any suggestion that Mr.

JeBailey had, or would be, or even might be pursuing a further claim against Hawa’s Electric for delayed tenancies. In my view that constitutes a representation by omission when considering all the circumstances here including the email of August 23 from Mr. JeBailey where he states that he will be leasing units on October 1, 2019, refers to some items that were yet to be completed, and states that should Mr.

Hawa fail to complete, he would be suing for the delays. … [72] So, even if the Defendant would otherwise have had a claim for delay, I would find that by the November 25 th email, he cannot later seek to enforce those rights. This view considers the communications in August and September, that there was an impasse in that period, and that this was effectively a resolution of that impasse. I also note that the Claimant, as a result of this payment, apparently did what it needed to do to complete the fire alarm certification, the CO certification, and the final NSP inspection.

All of these things had to happen before tenants could move in and the Defendant facilitated all of this. [73] Given all of this, it would be inequitable to allow the Defendant to enforce his strict rights regarding a claim for lost tenant revenue having regard to the dealings that had thus taken place between the parties. [As appears in original] [ 37 ] The November 25 correspondence was referenced again by the adjudicator in discussing the holdback: [110] The Defendant put forward a position before this Court which was very much at odds with the position communicated in his email of November 25, 2019.

As I stated above, any objective reader of the email of November 25, 2019, would infer that the outstanding items which, according to the wording in that email the parties were aware of, were relatively minor and probably within the holdback amount.

That hypothetical reader would be quite surprised to subsequently learn that there was actually a counterclaim amount totalling approximately $33,000. [111] Given such an extreme shift in position, any judge or adjudicator is going to be particularly vigilant in his or her consideration of the items comprising such a large counterclaim. [ 38 ] The adjudicator properly considered the issue of delay, weighed the evidence, and simply made a decision that was contrary to the arguments tendered by the appellant. There is no ground to find error.

Jurisdiction [ 39 ] The appellant also says the adjudicator was “outside of jurisdiction” in concluding that he had not proven the delay was the respondents’ fault on the strength of leases from prospective tenants. The adjudicator stated: [65] This is a significant amount of money for consequential damages. In order to find in favour of the Defendant I would need more evidence about the whole project’s state of completion vis a vis actually accepting tenants and preferably from a third party, independent witness.

I do not think having painting or drywalling invoices from August prove that. [ 40 ] On this point, the respondent says: 22 Mr.

JeBailey presented a standard form lease in trial as evidence, and so described the Adjudicator’s findings that he would have needed more evidence regarding tenancies in paragraph 65 of his decision as equivalent to “conclud[ing] that a lease is not a legal document,” and argues this conclusion is out of his jurisdiction. 23 That claim is not an error of law and not a question of jurisdiction; the Adjudicator made no such finding in his decision and, again, made a finding based on the facts and evidence given before him that the Respondent was not solely responsible for delay of the project’s completion.

There were no comments made on the legal status of a standard form lease. [ 41 ] I agree with the respondent. It is trite to say, but the appellant’s disagreement with the adjudicator’s weighing of the evidence and findings of fact does not make those issues subject to appellate review by this court. The adjudicator made a finding of fact. The appellant has not provided any basis to fit this finding within any of the categories mentioned in Brett Motors . No error by the adjudicator has been established on this issue.

Issue 6: Did the adjudicator err in determining the issue of Hawa’s alleged delay in completing the contract?

[ 42 ] In his factum, the appellant says: The most basic and perhaps most significant pieces of evidence presented by the Defendant to support the delay in the Claimant’s work is the contract between the Appellant and Respondent – herein referred to as the Contract – and the Claimant’s invoices.

Both pieces of evidence were not taken into consideration in the Adjudicator’s Decision as described below and in Sections 3.0/4.0 in this Brief. … During these months, it was argued that the Claimant was rarely on site, did not conduct his work with due diligence, and left the site for one month during the most critical point of construction.

In light of the Contract, leases, and other forms of evidence (discussed in subsequent sections of this Brief), the Adjudicator did not apply the basic forms of contractual law that would otherwise hold the Claimant responsible for not completing their work by the agreed upon date in the Contract; this does not conform to the natural requirements of justice [ 43 ] Contrary to the appellant’s assertions, the adjudicator did consider the actual contract and found that the parties had changed the terms of the agreement as the project progressed: [16] When asked about leaving the site in August 2019 he said that he did that for a big reason – Mr.

JeBailey was offering his workers side jobs behind his back and made them offers. [17] He was aware that the intended occupancy was October. He stated that all units had power by November 6 th . [18] When asked why it took a year to issue an invoice for the extras Mr. Hawa indicated that he did not know what all the additionals would be.

That first extras invoice was issued in April, 2019. … [62] First, as stated by counsel for the Claimant, the original date for substantial performance of July 1, 2019, had come and gone and essentially was “off the table.” In saying this, given the other evidence of other work that was going on and was still yet to be done, it is clear that there would have been no possibility of the electrical work being completed by July 1, 2019. The point was also made that the failure to substantially comply by July 1 cannot be attributed to the electrical contractor.

It is also pointed out that there was a significant delay by the Defendant in having the transformer pad installed. As I understood the evidence, this was upwards of nine months of delay. … [68] This series of emails of November 25 th constitutes a significant piece of evidence in this case and, as I will elaborate on, in my view it constitutes in law a waiver or estoppel by representation that prevents the Defendant from now making a claim for delay. [69] An objective reader of the email of November 25 th from Mr.

JeBailey would infer from the contents thereof that any outstanding items were somewhat minor and within the amount of the holdback mentioned in that email. That conclusion is not dispelled by the communications that followed the November 25 th email and which were sent by Mr. JeBailey to Mr. Hawa. Indeed, they affirm that general understanding. I refer here to text message of November 26 th from Mr. JeBailey to Mr. Hawa as well as the January 5, 2020, email from Mr. JeBailey to Mr. Hawa [70] Notably absent from this was any suggestion that Mr.

JeBailey had, or would be, or even might be pursuing a further claim against Hawa’s Electric for delayed tenancies. In my view that constitutes a representation by omission when considering all the circumstances here including the email of August 23 from Mr. JeBailey where he states that he will be leasing units on October 1, 2019, refers to some items that were yet to be completed, and states that should Mr.

Hawa fail to complete, he would be suing for the delays. … [72] So, even if the Defendant would otherwise have had a claim for delay, I would find that by the November 25th email, he cannot later seek to enforce those rights. This view considers the communications in August and September, that there was an impasse in that period, and that this was effectively a resolution of that impasse. I also note that the Claimant, as a result of this payment, apparently did what it needed to do to complete the fire alarm certification, the CO certification, and the final NSP inspection.

All of these things had to happen before tenants could move in and the Defendant facilitated all of this. [ 44 ] Based on the evidence before him, the adjudicator found as a fact that the appellant was by and large responsible for any delay. The appellant has not shown any error reviewable by this court. Issue 7: Did the adjudicator err in determining whether or not Hawa’s failed to complete the scope of the contracted work? [ 45 ] It is apparent from the adjudicator’s reasons that he concluded that the parties did not communicate clearly on many aspects of their professional relationship.

For example, the adjudicator said: [10] On March 3, 2020, Jamie MacNeil, counsel for Mr. Hawa wrote to Mr. JeBailey indicating that more than 60 days had passed since substantial completion and that therefore the holdback of $11,700 would be released. Mr. JeBailey responded on March 3 to the letter stating that Mr. Hawa had been negligent in completing the work with due diligence and the he would not be releasing the holdback. [11] By letter dated March 4 th , Mr. MacNeil requested documentation and specifics of the deficiencies or unfinished work. Mr.

JeBailey responded on March 16 that he was not interested in mediating and goes on to state, “ Should your client wish to see any evidence whatsoever, it will be through a Small Claims Court procedure .”

[12] Mr. Hawa was asked and he again stated that he had never received any deficiency specifics or list. He stated that he did do some “warranty work” but never had specifics or an opportunity to remedy alleged deficiencies. He also stated that he never received any electrical engineer report(s). [13] Mr. Hawa was asked about the electrical drawings done by Electec Engineering. He stated that the only copies he received until August 2018 were the ones dated November 2, 2017 (02/11/17).

These, he says, were the ones that he had when he did his quote of January 17 th and when he signed the contract on February 21, 2018. Perhaps the most significant change between the first version and the subsequent versions is the change on drawing E-850 was where the service was changed from 125 amp to 250 amp with changing transformer(

s) from 112.5 KVA to 225 KVA. He stated there were other changes as well although he did not provide specifics. [14] On cross-examination Mr. Hawa acknowledged that certain of the bullets, including bullet 9 dealing with exterior wall mounted lights and bullet 13 dealing with two exterior light poles, are consistent with the revised drawings and are not consistent with the original drawings. [15] Mr. Hawa also acknowledged that he received an email of March 6 from Mr. JeBailey. That email appears to have revised electrical drawings attached but while Mr.

Hawa confirms he received the email he says he did not receive the attached PDFs. [16] When asked about leaving the site in August 2019 he said that he did that for a big reason – Mr. JeBailey was offering his workers side jobs behind his back and made them offers. [17] He was aware that the intended occupancy was October. He stated that all units had power by November 6 th . [18] When asked why it took a year to issue an invoice for the extras Mr. Hawa indicated that he did not know what all the additionals would be.

That first extras invoice was issued in April, 2019. [As appears in original] [ 46 ] In relation to this issue, the appellant raised five separate items at the hearing, and the adjudicator dealt with each item separately. They were: telephone intercom ; east side exterior lighting and fan switch; astronomical timers and sensors; temporary lighting, plugs, panels and breakers; and heat pump disconnects. [ 47 ] While the contract mentions installation of the intercom in

Part 3.3, the adjudicator found as follows: [23] He was referred to a November 13th text dealing with some deficiencies and stated that all those were remedied. With respect to the intercom, Mr. Hawa stated they do not have a “ticket”. He stated that this was discussed between him and Mr. JeBailey and his company’s responsibility was to provide power and attach the fire alarm. He stated that they did their side. … [78] Against this, Mr. Hawa testified that this item was discussed between himself and Mr.

JeBailey and, as I understood his evidence, it was agreed that this would not be the responsibility of Hawa’s Electric. In fact, Mr. Hawa stated that his company does not have the “ticket” to do that type of work. In support of this, I note that Mr. JeBailey was invoiced by and apparently paid Total Install Video by invoice dated February 16, 2018. This was right around the time of the signing of the original contract. If he had not agreed that this would be his responsibility, the question that arises is, why would he have ordered that material.

Also, I note that this item is not in any of the “deficiency lists” between August 2019 and January 5, 2020.

There are eight such lists which for completeness I enumerate as follows: • August 23, 2019, email from JeBailey to Hawa and Maddalena • October 9, 2019, email from JeBailey to Hawa • November 13, 2019, text from JeBailey to Hawa • November 14, 2019, email from JeBailey to Hawa, with attached email of November 7 th from Bob Rundell of Rundell Engineering; • November 26, 2019, text from JeBailey to Hawa • November 27, 2019, email from Electec Engineering/Rodney Bona to JeBailey (Note: this email was not copied to Mr.

Hawa) • December 6, 2019, email from JeBailey to Hawa • January 5, 2020, email from JeBailey to Hawa [ 48 ] The adjudicator considered the evidence on the issue of the intercom and preferred the position presented by the respondent. The appellant bore the burden of proving this claim on a balance of probabilities, and failed to do so.

The appellant has not shown any error by the adjudicator. [ 49 ] With respect to the east side exterior lighting and fan switch, the appellant says the adjudicator was “not capable of interpreting the evidence” on this issue: Line [80] of the Decision indicates that the Adjudicator was not capable of interpreting the evidence “I found the evidence was somewhat confusing” .

This is an unfair evaluation and does not serve the requirements of natural justice especially given the clarity of evidence presented to the Adjudicator: • Fig. 20 – Page E-814 of the drawing set in Appendix C, which accompanies Bullet 9 of the Contract, clearly depicts ten lights on the east side of the building to be installed by the Claimant (fixtures supplied by Owner per Contract).

• Fig. 21 – A photograph of the east side of the building showing just one of the 10 lights installed by an electrician other than the Claimant. • Fig. 22 – A quote by a third-party electrician to complete the work not done by the Claimant. The Adjudicator was confused as who would supply the lights and how many needed to be installed. The quote in Fig. 22 quote clearly states “customer supplied lights” (per the Contract) and only six lights to be installed instead of nine. The quotation is for less work than what was required by the Claimant.

A fan switch was also being sought after by the Defendant; a photo of the switch that needed to be installed is seen in photo 18 of Appendix B. [ 50 ] The contract states the following on this point at

Part 3.3 (2), (8) and (9): • Supply and install wiring throughout the entire building. The Owner will supply unit, corridor, and exterior wall mounted fixtures as outlined in the drawings: all other fixtures supplied by electrical Contractor . Contractor will install all fixtures. … o All exterior light fixtures (including pole) to be supplied and installed by Contractor as per the Contract Documents . … • Supply and install switches, plugs, and wiring as per drawings (interior and exterior) • Wire and install all exterior wall mounted lighting (fixtures supplied by owner).

Exterior lighting shall be c/w astronomical timers. … [ 51 ] On this point, the adjudicator found as follows: [80] The contract and apparently the drawings make reference to exterior lighting but I found the evidence was somewhat confusing with respect to how many Mr. JeBailey was saying were not complete. I note in the January 5 th email it refers to an exterior light over the northeast exit door, from which I understood there to be one light in question. I also note that photo 18 shows one light above east exit installed by Jeremy.

The invoice of September 10, 2010, from Jeremy refers to, “put light in front building” and to fix fan in 2 nd floor bathroom. I also note that bullet 9 of the contract refers to “install” but not supply exterior lights. Based on the preceding, I find that it is appropriate to allow for the labour only for the installation of one light by Jeremy Clowater. That is, four hours at $50 per hour, being $200. I will allow that amount. [ 52 ] The appellant was required to prove his counterclaim on a balance of probabilities.

The adjudicator found the appellant’s evidence confusing and determined that he failed to establish his claim. While the appellant may wish that his evidence clearly established his position at trial, this was not the reality of the situation in the adjudicator’s view. The adjudicator was entitled to make the finding he did.

The appellant has not identified an error that would allow the court to set aside this finding. [ 53 ] With respect to sensors and astronomical timers, the appellant submits as follows : In line [81] of the Decision the Adjudicator indicates that the materials required to install the timers and sensors were not in the scope of work. It is an error in law.

Contrary to the Adjudicator’s statement on line [81], bullet 12 of the Contract indicates that the parkade lights are to be “C/W” (completed with or come with) either timers or sensors at the owner’s discretion; note that Page E-810 of Appendix C, it calls for sensors; therefore, the owner thought it would be more appropriate to follow the drawings and use sensors instead of timers. As for the astronomical timers, the Claimant supplied and installed manual timers for the outdoor lights, whereas astronomical timers were required as per bullet 9 of the Contact.

Failure to apply contractual law by the Adjudicator does not follow the requirements of natural justice. Moreover, A photograph of the type of manual timers supplied and installed by the Claimant are shown in photo 21 of Appendix B; the proper astronomical timers supplied by the owner and installed by Jeremy Clowater are depicted in photos 19 and 20 of Appendix B. [As appears in original] [ 54 ] With regard to the astronomical timers, the contract states at

Part 3.3 (9): Wire and install all exterior wall mounted lighting (fixtures supplies by client owner). Exterior lighting shall be c/w astronomical timers. [ 55 ] With regard to the sensors, the contract states at Part 3.3(12): Provide temporary service, lighting, and panels throughout the project. [ 56 ] The adjudicator stated on this point: [27] With respect to installing the sensors, Mr. Hawa said that when they went to the site, Mr. JeBailey said he did not want those. Mr.

Hawa also stated that his company installed the exterior lights and that based on photo 17, he could not see what allegedly had been done. … [81] Under the contract, the Claimant was required to wire and install exterior lighting and underground parking lighting. The claim is for materials but I do not see that that is called for the scope of work. However, I note that Jeremy Clowater appears to have installed

both of these as shown by the invoices of May 19, May 29, and July 13, which total nine hours. While this is dealt with in another

section of the counterclaim, I will deal with it here and allow the $450 for the counterclaim. [ 57 ] Again, the adjudicator considered the evidence, made a determination supported by the evidence he accepted, and awarded $450 for the counterclaim on this issue. As with the other items where the appellant’s argument is based on his own reading of the contract, the adjudicator had the benefit of evidence respecting the ongoing relationship between the parties.

Once again, the appellant has shown no error on the part of the adjudicator, only a desire to have the facts re-litigated and re-weighed on appeal. [ 58 ] With respect to heat pump disconnects, the appellant says: In line [84] the Adjudicator dismisses the heat pump disconnects because it was not clear if the heat pump disconnects were part of the Claimant’s scope. Again, the Adjudicator has failed to apply contractual law: The Contract specifies all plugs and switches to be installed per the drawings on bullets 1 and 8 of the Contract.

By definition, a disconnect is a switch as depicted to the Adjudicator in the invoice for the disconnect material per Fig 23. In Fig. 23, the line item for the disconnects are clearly marked as a switch. Moreover, the Adjudicator could not find the disconnects in the drawings: this can be easily found in Fig. 24. The drawings also show a disconnect for the elevator (Fig. 25) that was both supplied and installed by the Claimant as per the Contract.

Given the callout to supply switches in the Contract per the drawings, given that a disconnect is a switch, and given that the Claimant installed and supplied other disconnects within the building but not the heat pump disconnects; evidence and the law of estoppel support the counterclaim and outweigh the probabilities outlined in line [84] by the Adjudicator. [ 59 ] The contract states on this point at

Part 3.3 (1), (7) and (8): Contractor will carry out electrical work, supply, and install all electrical materials and fixtures as outlined in the latest revision of the electrical drawings by “Electec Engineering”. … Wire each unit for all appliances, ventilation equipment, mini split heat pump, fans and ranges as per the Contract Documents . Supply and install switches, plugs, and wiring as per drawings (interior and exterior). [ 60 ] On this point the adjudicator said: [84] This is said to be required under bullets 7 and 8 of the contract.

In evidence was that the heat pump disconnects were installed by the Claimant. This counterclaim is for materials cost only. Bullet 7 refers to wiring only, and bullet 8 refers to supplying and installing switches, plugs and wiring as per drawings. It is not clear that that would include heat pump disconnects.

Further, I was not referred to any part of the drawings which would make that clear and in my review of the drawings I did not find any such mention. [ 85] Based on the preceding, I disallow this part of the counterclaim. [ 61 ] The appellant may wish that he presented his evidence differently during the four-day trial, but he cannot remedy his trial strategy on appeal. Once again, the adjudicator considered all of the evidence and made findings based on all the evidence. The appellant has not established an error on this point, either in the fact-finding process or in consequential legal conclusions.

Issue 8: Did the adjudicator’s “lack of basic construction knowledge” render the verdict unfair? [ 62 ] The appellant also complains that because the adjudicator preferred the evidence in support of the respondent’s position, and because the adjudicator’s decision was contrary to what the appellant says is “basic construction knowledge”, he erred in his findings on the issue of delay in completion of the work.

He says that because the adjudicator did not refer to specific evidence in the body of the decision to support attributing a nine-month delay in installing the transformer pad to the appellant, there has been a denial of natural justice. The appellant says that the adjudicator’s lack of basic construction knowledge rendered his decision wrong and unfair. He made this assertion, and related claims, both in his written submissions and during oral argument. Some further examples include the following: In each

section of this Brief, the comments by the Adjudicator and the evidence submitted during trial are used to support errors and injustices. In many instances, testimony documented in the body of the Decision contradict the comments made by the Adjudicator. There are also several pieces of evidence submitted in trial which strongly refute the comments by the Adjudicator; they may have been overlooked or not reviewed as indicated above.

The Adjudicator’s lack of basic construction knowledge and how it led to unfair decisions is also elaborated upon . … Additionally, Appendix A, the Claimant’s evidence book, does not contain any evidence supporting “ other work that was going on and that was yet to be done ”. To the contrary, Fig. 11-14 (trade invoices) submitted by the Defendant show the last stages of construction being complete three months before the building was energized by the electrical contractor (Claimant/Respondent).

Fig. 11-14, witness testimony (discussed later), and basic construction knowledge (electrically energizing a building always conducted well before the final stages of drywall taping and painting) support construction progress and the delay by the electrical contractor.

Where no evidence by the Claimant supports the Adjudicator’s theory in building progression but evidence (Claimant invoices, trade invoices, Claimant testimony, and Defendant witnesses) by the Defendant does, it is believed that the Adjudicator did not weigh the likelihood in probabilities and again served injustice. … Documented evidence presented to the Adjudicator showed work deficient by the Claimant that is yet to complete or was completed by

others. The Defendant also provided evidence of contacting the Claimant via e-mail, notifying the electrical contractor of the remaining work not yet complete (Fig. 4-10), and indicated that legal action was to be taken should the Claimant not complete all his work as outlined in the Contract with due diligence (Fig. 4).

The Contract clearly outlines the work to be done and based on photographic evidence (Appendix B), quotes, receipts and e-mails presented to the Adjudicator, the Claimant failed to uphold their contractual obligations; here, the Adjudicator did not take into consideration contractual law, which does not serve the natural course of justice . … In all Canadian codes, the Engineer is responsible for the design and has authority over the trade completing the designed work. They fabricate the drawings and are ultimately responsible for the design.

The Engineer also has a due diligence by the municipality to provide an A-form confirming that their firm has inspected the work in question and that it meets all forms of safety requirements needed for occupancy. The electrical contractor who has engaged in the work per the engineer’s drawings therefore has the responsibility to remedy any items the Engineer deems unsafe before occupancy. In the notes

section of the electrical drawings, page E-880, it states that substantial performance is achieved when all deficiencies noted of all previous inspections for the Division 16 (certified electrician) have been completed (Fig. 26). It is believed that the Adjudicator lacks this construction knowledge and therefore made a significant error in judgement. While this construction knowledge is basic,

Section 5.2 of the Contract between parties clearly states that the Contractor will be compensated for their work based on both the quality of their work and the amount of work completed as inspected by the Owner (for completion per the Contract) and Consultant (for quality, adherence to drawings, and safety ). [Emphasis added] [ 63 ] The adjudicator did exactly what is expected of a trier of fact. He heard viva voce evidence, reviewed the documentary evidence, and applied the law to the facts as he found them. What the appellant is really complaining about is that the adjudicator did not agree with him.

The adjudicator’s presumed lack of construction expertise is irrelevant. There was no error on the part of the adjudicator. Issue 9: Did the adjudicator err in considering damages for Hawa’s alleged failure to remedy deficiencies? [ 64 ] In addition to the appellant’s complaint regarding the adjudicator’s alleged lack of basic construction knowledge, he also says that the decision is unfair because the respondent testified that he spoke to an electrical engineering firm in relation to deficiencies.

In his factum, the appellant says on this point: Lastly, while the Adjudicator states that the Claimant was not aware of the electrical deficiency list prepared by the Engineer, he also writes on line [19] that “ Mr. Hawa stated that he did get one call from someone at the engineering firm who raised the issue of the strapping of wires and they discussed over the phone ”. It is confirmed by the Claimant testimony that he was in fact contacted by the electrical engineering firm and the issue of securing high voltage wires in the electrical closet was discussed. This is an error in the law where Mr.

Hawa was aware of his deficiency and where it is part of Hawa’s due diligence within the electrical code in addition to the Contract/drawings to remedy the deficient work as per the Engineer. As discussed in the paragraph above, it is indicative that contractual law was not applied. Due to an error in law evident in the Claimant’s testimony and due to failing to follow requirements of natural justice (contractual), it is believed that this dismissal of the counterclaim is unjust.

A second electrical contractor was required to fix the deficiency noted on point #7 of the Engineer’s deficiency list (Fig. 28), which the Adjudicator had confused for point #8. Note that the Defendant did not require compensation from the Claimant for fire stopping and smoke covers – points #8 or #9 – nor were there any exhibits submitted to the Adjudicator for damages on these points. Fig. 27 indicates the cost to remedy point #7 only – the securing of high voltage wires – faulty work by the Claimant. [ 65 ] The adjudicator determined on this point: [19] As to the involvement of electrical engineer, Mr.

Hawa stated that he did get one call from someone at the engineering firm who raised the issue of the strapping of wires and they discussed that over the phone. He heard nothing further after that from the engineering company. … [28] With respect to the engineer, Mr. Hawa stated that he deals with Nova Scotia Power, not the engineer. He stated that because Mr. JeBailey changed to a bigger heat pump they needed different disconnect switches. … [87] Of relevance to this

section is

Article 3.3 in the first bullet of the contract. This reads: 3.3 The Contractor shall perform all work per the Canadian Electric Code (CEC). The Contractor scope shall contain the deliverables outlined in the electrical quote dated January 17, 2018.

Additionally, the following shall be required by the electrical Contractor : • Contractor will carry out electrical work, supply and install all electrical materials and fixtures as outlined in the latest revision of the electrical drawings by “Electec Engineering.” [88] With respect to the electrical closets it was not shown in evidence that Hawa’s work did not comply with either the drawings or the CEC.

I note that the November 27 th list prepared by Electec was not sent to Hawa. [89] I also note that photo 12 and accompanying comments state that fire stopping was not under Hawa’s scope of work. [90] I disallow this item. [ 66 ] The adjudicator went on to address a range of other alleged deficiencies in the performance of the contract (paras. 91-101), finding on the evidence, variously, that they were not proven to be within the scope the work required (paras. 91-93, 100) or that it was not proven that the work did not comply with the Electrical Code (paras. 97-98).

Further, in respect of some items it was not established

that the respondent had received notice of the deficiencies (paras. 88, 91, 95). [ 67 ] Again, the appellant’s objections to the adjudicator’s findings can be boiled down to a disagreement with the adjudicator’s weighing of the evidence and holding that the appellant had not met the burden of proving this issue, and the majority of his counterclaim, on a balance of probabilities. This does not raise a reviewable error.

Issue 10: Did the adjudicator err in finding estoppel? [ 68 ] The adjudicator determined that despite the terms of the contract, the subsequent behaviour of the appellant estopped him from relying on the originally agreed to terms. In reviewing the evidence, the adjudicator stated: [44] When asked why, if there were such issues with the Claimant, he had not intervened earlier, Mr.

JeBailey said the biggest reason was that the electrical permit was in the Claimant’s name and to have changed that would have meant “breaking the permit” and getting NS Power in and a new contractor and that could likely have been a delay of three or four months. … [112] Mr. JeBailey refers to and seeks to rely on the specific articles of the Contract as well as the referenced drawings. His counterclaim items are based on what would presumably be described as his strict legal rights arsing [sic] under the written Contract. One of the articles of the Agreement, which was not mentioned or relied on before me, is

Article 6.3 of the contract which reads: 6.3 The Owner through the Consultant shall promptly give the Contractor Notice in Writing of observed defects and deficiencies which occur during the one year warranty period. [113] The relevant Consultant here would have been Electec Engineering as referenced in

Article 1.1 of the Agreement.

No such notice in writing was given by the Defendant in this case. [114] To the contrary, when requested in March 2020 by the Claimant’s lawyer to provide written particulars, the Defendant responded by stating that he was “ not interested in mediating,” and then goes on to state that “ should your client wish to see any evidence whatsoever, it will be through a Small Claims Court procedure .” The Defendant is in breach of the terms of the very same agreement which he seeks to strictly rely on. [ 69 ] In determining that estoppel applied in these circumstances, the adjudicator considered the course of communications between the parties that culminated in an e-mail exchange in November 2019: [62] First, as stated by counsel for the Claimant, the original date for substantial performance of July 1, 2019, had come and gone and essentially was “off the table.” In saying this, given the other evidence of other work that was going on and was still yet to be done, it is clear that there would have been no possibility of the electrical work being completed by July 1, 2019.

The point was also made that the failure to substantially comply by July 1 cannot be attributed to the electrical contractor. It is also pointed out that there was a significant delay by the Defendant in having the transformer pad installed. As I understood the evidence, this was upwards of nine months of delay. [63] Then there was the delay, again attributable to the Defendant, between early September and late November when there was no response to the lawyer’s letter of September 6 th . [64] Perhaps most fundamental in considering this aspect of the counterclaim is that the Defendant has not met his burden.

He bears the burden of proving on a basis of probabilities that it is more likely than not that the Claimant was solely responsible for the one month delay in the tenants moving in . [65] This is a significant amount of money for consequential damages. In order to find in favour of the Defendant I would need more evidence about the whole project’s state of completion vis a vis actually accepting tenants and preferably from a third party, independent witness.

I do not think having painting or drywalling invoices from August prove that. [66] The preceding would, in my view, be sufficient to dispel any claim for lost revenue due to delay on account of the Claimant. In addition however, the facts here and, in particular, the email exchange on November 25, 2019, support a finding that the Defendant is estopped from claiming damages for delay given that communication of November 25, 2019. [67] As noted in the

summary of evidence, the Claimant had gone off site sometime in August 2019. This led to the email of August 19 th from Mr. JeBailey as well as a series of letters between legal counsel through to early or mid-September. This was a lull in that communication until November 25 th when Mr. JeBailey sends the following email: Email of November 25, 2019, 11:01 a.m. from Elias JeBailey to Michael Maddalena and James MacNeil Good morning Gentlemen, I am emailing to confirm the following: 1. A bank draft has been prepared for Hawa`s Electric in the amount of $54,826.25. Joe will be picking up the draft shortly.

The draft payment covers: a. The contract balance of $37,000.00 less hold back + HST. Note that there are still deficiencies and contract deliverables yet to be complete; both parties are aware. b. The full balance of Invoice 295.

c. The holdback from Invoice 5 128. 2. The amount of holdback left on the contract is $11,700.00 which will be held for 60 days after completing all work per NS Builder’s Lien Act. This is the total amount left on the contract. 3. Jamie – please confirm with Joe that you have received this email as once the draft is deposited, Joe is responsible for handling over all pertinent certification required for building occupancy (Dec 1 2019). This includes but is not limited to, fire alarm certification, CO Certification, and final inspection report by NSP.

Note that there is a due diligence to send all certification promptly to allow time for inspections and ensure the safety of the tenants when they move in on the 1 st of December. Should there be any questions please do not hesitate to contact the undersigned. Best regards, Elias JeBailey The following response came from Mr. MacNeil in about an hour: Email of November 25, 2019, 12:03 p.m. from James MacNeil to Elias JeBailey and Michael Maddalena Elias – I have confirmed everything with Joe and he will provide all documents. One clarification the holdback amount should be “plus HST”; please confirm.

Best regards, Jamie Mr. JeBailey replies that that same day: Email of November 25, 2019, 3:11 p.m. from Elias JeBailey to James MacNeil and Michael Maddalena Absolutely, 11,700.00 dollars plus hst Best, Elias JeBailey [68] This series of emails of November 25 th constitutes a significant piece of evidence in this case and, as I will elaborate on, in my view it constitutes in law a waiver or estoppel by representation that prevents the Defendant from now making a claim for delay . [69] An objective reader of the email of November 25 th from Mr.

JeBailey would infer from the contents thereof that any outstanding items were somewhat minor and within the amount of the holdback mentioned in that email. That conclusion is not dispelled by the communications that followed the November 25 th email and which were sent by Mr. JeBailey to Mr. Hawa. Indeed, they affirm that general understanding. I refer here to text message of November 26 th from Mr. JeBailey to Mr. Hawa as well as the January 5, 2020, email from Mr. JeBailey to Mr. Hawa [ 70 ] Notably absent from this was any suggestion that Mr.

JeBailey had, or would be, or even might be pursuing a further claim against Hawa’s Electric for delayed tenancies. In my view that constitutes a representation by omission when considering all the circumstances here including the email of August 23 from Mr. JeBailey where he states that he will be leasing units on October 1, 2019, refers to some items that were yet to be completed, and states that should Mr. Hawa fail to complete, he would be suing for the delays. [70] With respect to the law of estoppel, the adjudicator cited Can-Euro Investments Ltd. V.

Industrial Alliance Insurance , 2009 NSSC 20 : [ 71 ] In Can-Euro Investments … Beveridge, J. (as he then was) stated: [136] It is my view that the doctrine to be applied whether it be called waiver or promissory estoppel or variation of the contract or simply binding promises, stems from the words of Lord Cairns in Hughes v. Metropolitan R. Co. (1877), 2 App. Cas. 439 at p. 448 : ... it is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms

involving certain legal results--certain penalties or legal forfeiture--afterwards by their own act or with their own consent enter upon acourse of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will notbe enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not beallowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties. [72] So, even if the Defendant would otherwise have had a claim for delay, I would find that by the November 25th email, he cannotlater seek to enforce those rights.

This view considers the communications in August and September, that there was an impasse in thatperiod, and that this was effectively a resolution of that impasse. I also note that th

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