2013 ONSC 801, 2013 ONSC 801

CITATION : Landry v. Kemdirim , 2013 ONSC 801 COURT FILE NO.: 10-49267 DATE: 2013-02-04 IN THE MATTER OF The Construction Lien Act, R.S.O. 1990, c.C. 30 and amendment thereto ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Albert Landry ) ) ) Wayne D. Young , for the Plaintiff ) Plaintiff ) ) - and - ) ) ) Stella Kemdirim ) ) ) Self-Represented ) Defendant ) ) ) )) HEARD: December 17, 18, 19 and 20 , 2012, at Ottawa, Ontario Madam Justice B. R. Warkentin Reasons For Judgment [1] The defendant, Stella Kemdirim ("Kemdirim") owns a home in Ottawa.

In 2010 she hired the Plaintiff, Albert Landry ("Landry") to undertake some home renovations. The parties had worked together prior to 2010 when in 2008, Landry had provided renovation/repair services to Kemdirim on a rental property she owned.

[2] In April 2010, Landry provided an estimate to Kemdirim for certain repairs and renovations to her home that included a variety of projects including painting sixteen rooms, renovating four bathrooms and removing and installing a new floor in the kitchen. [3] After certain modest changes to the original estimate the parties agreed to the contract price of $33,867.50 plus GST of $1,693.38 or $35,560.88. It was Landry's position that the price quoted was for labour only and indeed, the written estimate specifically stated that the price was for labour only. [4] The work commenced in late April 2010.

Near the end of May 2010 the parties had a falling out and work on the project ceased. Landry now sues for recovery of certain out of pocket expenses he incurred for the purchase of materials for the project and for the balance he claims is owed to him for work he completed. Landry's claim was for $14,505.64 of which $9,268.89 relates to materials he claims to have purchased on Kemdirim's behalf.

During the course of the trial, the amount of the total claim was reduced to $13,663.14. [5] Kemdirim claimed that she does not owe Landry any money and that she will have to incur additional costs to finish the work that was started. Kemdirim also claimed that some of the work completed by Landry was deficient and has to be redone. She counterclaims for the sum of $5,234.00, which she alleges was the amount by which she has overpaid Landry.

Kemdirim agreed that Landry purchased some materials on her behalf which she claims totaled $4,032.95 leaving a balance owing to her after deducting the sum she alleges she overpaid Landry, of approximately $1,200.00. [6] In addition to this alleged overpayment, Kemdirim claimed the sum of $15,450.00 as the cost to repair deficiencies and to complete the contract. Kemdirim also sought reimbursement for lost rent for a basement rental unit in the

home, although the details of that alleged loss were not quantified by her at trial. [7] The claim for lien was vacated on February 3, 2012 when Kemdirim posted the sum of $17,994.74 with the Accountant of the Ontario Superior Court, which sum included security for costs. [8] The parties were in agreement that Kemdirim made an initial deposit to Landry of $5,000.00 and two installment payments, one in the amount of $6,112.00 and the second in the amount of $5,737.00.

It was when Landry insisted on the next installment, as well as reimbursement for materials he had purchased on Kemdirim's behalf, that the parties parted ways. [9] It was Landry's evidence that Kemdirim inserted an unrealistic completion date of May 31, 2010 into the estimate that he could only meet if the materials for the project were provided in a timely manner; there were no changes to the work required by Kemdirim and no hidden issues arose regarding the construction itself. [10] Landry claimed that Kemdirim failed to provide the materials he required in a timely fashion and made changes to the plans resulting in his inability to complete the project by May 31, 2010.

He also claimed that Kemdirim sought changes to the project that increased the costs such that the estimate could not be completed at the price quoted. It was Landry's evidence that Kemdirim insisted he proceed with the project with changes to the original estimate but without adequate compensation.

Landry testified that Kemdirim also insisted he both pick up and pay for materials she had ordered, as well as the materials she was supposed to supply for the project, and when he sought reimbursement she claimed she was unable to afford to either pay the 3 rd installment or pay for the materials he had purchased on her behalf.

[11] It was Landry's position that he had completed 55.9% of the total project before he left the job site. Based upon his calculations, 55.9% of the project was worth $21,035.00. From this sum he deducted the $16,850.00 he had received leaving a balance owing for work he completed of $4,185.00 plus GST of $209.25, together with the materials he purchased in the amount of $9,268.89 for his total claim of $13,663.14. [12] One of the significant disputes between the parties was the type of tile to be installed in the various bathrooms in the home.

It was Landry's evidence that the original estimate included the installation of ceramic tile throughout with the exception of some marble in an entryway. Landry testified that it was substantially more expensive to install marble and granite and that this would increase the cost and time frame of the project.

Landry testified that the cost would increase even more if there were any type of pattern introduced into the placement of the tile. [13] The evidence of both parties was that it was when Landry advised Kemdirim of the additional cost and insisted on the next instalment payment that he was told to leave the project. [14] Kemdirim claimed that she had always intended to install marble and granite tiles and that Landry was aware of her plans and that this was factored into the price of the project. [15] It was Kemdirim's evidence that Landry was significantly behind in the project and she therefore refused to pay the third installment until the project had reached her calculation of what 50% completion entailed.

It was her evidence that Landry had completed less than 30% of the total project. By her calculations Landry was entitled to the sum of $11,616.00 for the work he had completed instead of the $16,850.00 she paid, leaving a balance due to her of $5,234.00. As indicated above, from this she agreed she owed

approximately $4,000.00 toward materials that Landry purchased on her behalf. [16] Kemdirim claimed that the May 31, 2010 deadline for completion was firmly established and agreed upon and the changes she sought to the project were only modest and did not enhance the cost or complexity in any significant manner.

She also claimed that much of Landry's work was not completed in a workmanlike manner and was not in accordance with the building codes or practices in the industry. [17] Kemdirim introduced evidence she claimed showed the state of the work completed and the deficiencies through a video of the project at the time the work ceased as well as through an expert witness.

Notwithstanding that Kemdirim had not complied with the Rules of Civil Procedure regarding the filing of expert reports and the undertaking required of an expert in this type of litigation, I permitted her expert, Anthony Vigliotti to testify, after he had reviewed and executed the required undertaking. [18] Mr. Vigliotti had approximately 50 years in all parts of the construction industry, with his primary specialty in the area of preparing for and installing tile. He had viewed the property after Landry had left the project. It was Mr.

Vigliotti's opinion that the entire project was only about 20% completed with a number of deficiencies. Mr. Vigliotti's opinion was that Landry had failed to use correct moisture proof drywall in the bathrooms, had improperly constructed the bathtub deck for the ensuite bath, had installed tile incorrectly in some areas and had damaged the ceiling and door in the powder room. [19] Mr.

Vigliotti had some difficulty recalling the project when he was testifying, but when questioned about the extent of the project itself he testified that if he had been engaged to undertake the project it would have taken him a few weeks

longer to complete than the time frame allotted by Kemdirim. Mr. Vigliotti agreed with counsel for Landry that the cost of installing granite and/or marble tile was significantly more time consuming and expensive than the installation of ceramic tile. He also agreed that introducing even a simple pattern into the manner in which the tile is laid increases the cost of the tile installation. [20] It was Mr. Vigliotti's opinion that the cost to complete the project, including to remedy the items he considered to be deficiencies, would be between $20,000.00 and $22,000.00 [21] Having heard all of the evidence I make the following findings:

a) The project was not completed to the 55.9% stage that Landry has claimed when he left the project,

b) There were certain deficiencies in the work completed by Landry,

c) That Kemdirim made changes to the scope of the project that had the effect of increasing the project price beyond the estimated price,

d) That Landry was unable to maintain the

schedule imposed upon him by Kemdirim because he did not have some of the materials he required to proceed with the project and was hampered by having to pick up, pay for and deliver materials when this role should have been managed by Kemdirim, and;

e) Landry incurred expenses of $9,268.89 for materials for the project. [22] Regarding the state of completion of the project, I find that the project was approximately 40% complete. Based upon the estimate of $35,560.88 (inclusive of GST), Landry was entitled to the sum of $14,224.35 for the labour portion of the project. I also find that the cost of materials was not included in the project price. Landry is therefore also entitled to the sum of $9,268.89 for the cost of the materials he purchased.

The total owing by Kemdirim for the project is therefore $23,493.24 less the $16,850.00 Kemdirim has already paid, leaving a balance owing to Landry of $6,643.24, less deficiencies as set out below.

[23] I do not accept that all of the deficiencies set out by Mr. Vigliotti were in fact deficiencies. It was apparent from his evidence that had he been retained, he would have used different and more expensive construction methods; however, I accept Landry's evidence that the methods he employed were in accordance with acceptable building standards. [24] Based upon the evidence of Landry and that of Mr. Vigliotti, it was apparent that Mr. Vigliotti's workmanship was in a different category than that of Landry's.

However, Kemdirim was not looking for a premium contractor, but one who would charge her the lowest possible fee for the work performed. Landry offered to do that. Having made that decision, Kemdirim cannot now expect that the workmanship would be of the highest possible quality. Mr. Vigliotti was clear that he would neither have completed the project for the fee quoted by Landry nor would he have been able to complete the project in the time frame proposed by Kemdirim. [25] I do find that there were some deficiencies, most particularly the deficiencies in the laundry room. Mr.

Vigliotti estimated the cost to repair the damage in that room to be approximately $900.00 (which included the hole in the ceiling of the laundry room, the damaged drywall and the incorrect oak hardwood floor transition). I also find that the size of the tub surround for the ensuite bathtub was incorrect, but do not find that the design of the tub surround was a deficiency, but was rather a style issue. I find that the cost to repair the deficiency for the bathtub surround to be $500.00.

In total, I find that there were deficiencies totalling $1,300.00. [26] I therefore find that Kemdirim owes Landry the sum of $6,643.24, less $1,300.00 for deficiencies. There shall therefore be judgment to the plaintiff, Mr. Landry, in the amount of $5,343.24. [27] I do not accept that the alleged loss suffered by

Kemdirim of rental income is a legitimate loss in this litigation. Kemdirim claimed that she could not rent that unit because she had to use the bathroom in that part of the home when the other bathrooms remained unfinished. She failed to explain why she did not take steps to complete one of the other bathrooms after Landry left the project and I find that she failed to mitigate her damages as it relates to this issue. Costs [28] I asked the parties to provide me with their costs submissions in sealed envelopes at the conclusion of the trial.

I have now reviewed those submissions. [29] I also note that at the pre-trial and at the commencement of the trial, the parties were encouraged to pursue this litigation in Small Claims Court. The plaintiff agreed to transfer the matter to Small Claims Court, however, the defendant refused. The defendant confirmed that she was aware of the cost consequences of proceeding with a matter of this dollar value in the Superior Court. [30] The trial lasted 4 days.

The only offers to settle that fall within the time frames for such offers were the Plaintiff's offer to accept the sum of $10,000.00 made in November 2011 and the defendant's offer of a payment of $5,000.00 to the Plaintiff made in December 2011. Both offers were all inclusive offers. [31] Prior to assessing costs, my judgment on the issues falls between those two offers. There is no question that this case should have proceeded in Small Claims Court and not in the Superior Court.

Because of this and the fact that the plaintiff was awarded an amount greater than the sum offered by the defendant, I find that the plaintiff is entitled to his costs. [32] The plaintiff claims costs of $9,222.94. I award costs to the plaintiff in the amount of $6,500.00 inclusive of

prejudgment interest, disbursements and GST. [33] The plaintiff shall therefore be entitled to receive the sum of $11,843.24 from the funds held by the accountant and the balance of that fund shall be repaid to the defendant. ___________________________ Madam Justice B. R. Warkentin Released: February 4, 2013 CITATION : Landry v. Kemdirim , 2013 ONSC 801 COURT FILE NO.: 10-49267 DATE: 2013-02-04

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Albert Landry Plaintiff - and – Stella Kemdirim Defendant REASONS FOR JUDGMENT Warkentin J. Released: February 4, 2013