CITATION: Caird-Hall Construction Ltd v. ROM Contractors Inc. et al., 2022 ONSC 2584  
COURT FILE NO.: CV-17-63086  
DATE: 20220516  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
IN THE MATTER OF the Construction Act, R.S.O. 1990, c. C.30  
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B E T W E E N:  
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CAIRD-HALL CONSTRUCTION LTD.  
) D. Schmuck, for the Plaintiff  
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Plaintiff )  
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ROM CONTRACTORS. Carrying on business as ) K. Movat, for Defendants  
ROSS CLAIR CONTRACTORS INC. and THE  
CITY OF HAMILTON  
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Defendants )  
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) HEARD: May 18 to May 28, 2021, June 4 and  
11, 2021, January 12 to Jan 14, 2022  
The Honourable Justice A. Skarica  
JUDGMENT  
OVERVIEW  
[1]  
On May 14, 2015, the City of Hamilton contracted with Ross Clair Contractors to construct  
the Waterdown Memorial Hall renovation for a price of $1,974,000 inclusive of HST (the “prime  
contract”). Ross Clair Contractors in turn subcontracted with the plaintiff, Caird-Hall Construction  
Inc., to preform construction work valued at $689,802.85 inclusive of HST (the “subcontract”).  
[2]  
Substantial completion of the project was scheduled for January 31, 2016.  
[3]  
However, the project was not substantially completed until June 16 of 2017, and the  
project, in addition, was over budget.  
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[4]  
Ross Clair blamed Caird-Hall for the construction problems. Ross Clair refused to pay  
Caird-Hall’s latest invoices, totaling approximately $200,000, and claimed that Caird-Hall owed  
Ross Clair a significant amount of money over and above $200,000 that Ross Clair refused to pay.  
[5]  
Accordingly, Caird-Hall sued for payment of its invoices and Ross Clair defended the  
action and made its own Counterclaim.  
ISSUES  
[6]  
1. Is Caird-Hall Constructed Limited (Caird-Hall) entitled to be paid for its unpaid invoices,  
including extra work not included in the original written contract (quantum meruit claim)?  
2. Is Ross Clair entitled to be paid the amounts outlined in its Counterclaim?  
FACTS  
[7]  
Given the contradictory claims made by the parties, a determination of the credibility of  
the witnesses, called by the parties, is an essential component of any decision required to resolve  
this dispute. An assessment of the credibility of the witnesses who testified at this trial will follow.  
Note: Numerous documents were filed in CaseLines by both parties. These documents will be  
referred to by tab number or by page number or both.  
PLAINTIFF’S WITNESSES  
JIM HANNAN  
[8]  
James “Jim” Hannan is the president of Caird-Hall.  
[9]  
He testified that Ed Burns, CEO of Ross Clair, contacted him regarding the Waterdown  
renovation project (Waterdown project). Eventually, a contract was signed where Caird-Hall  
would do subcontract work on the Waterdown project – see page A48. The contract stipulated a  
start date of July 2, 2015, with an anticipated substantial completion date of January 31, 2016.  
Caird-Hall was to be paid $610,445.00 plus HST of $79,357.85 for a total of $689,802.85.  
[10] In addition, Mr. Hannan was to be paid, by a separate contract, $6,000 per month plus HST  
to manage the site as site superintendent. The contract was between Mr. Hannan’s company  
(“247”) and Ross Clair.  
[11] The on-site “guy” was Jim Hannan’s son, Martin Hannan, whose title was project manager  
coordinator. Martin Hannan was the site superintendent for the final 5 months of the project. Shane  
Babony from Caird-Hall was also the site superintendent. Ross Clair did not have anyone on site  
as a project manager or site superintendent. The City was asking the contractors to do major  
renovations on a World War I era building. The owner of the property was the City of Hamilton.  
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Workshops Architecture were the architects who were authorized to make changes in the work by  
way of Change Orders, as required.  
[12] It is to be noted that numerous Change Orders were issued by Workshop Architecture –  
approximately 60 plus – which increased the original contract value from $1,747,000 to  
$1,944,872.82 – an increase of $197,872.82 – see page A71 and page B1-150 to B1-153.  
[13] Jim Hannan testified that on June 6, 2017, HVAC for Life was asked to do work authorized  
by a Change Order issued by Workshop Architecture. HVAC for Life was a contractor for Caird-  
Hall. The Change Order lists the contractor as Ross Clair Contractors. By June 6, 2017, Caird-Hall  
had removed themselves from this work. HVAC did the work on July 14, 2017, after receiving  
access from Ross Clair – see page A332, Tab 64. (Note: this occurred after the substantial  
performance date of June 16, 2017).  
[14] Per Item 44, Tab 42 (A290), a major source of delay was a requirement that Horizon  
Utilities had to put in cables for a whole new electric feeder line. The parking lot had to be  
excavated.  
[15] It was not until November 2015 that Ross Clair provided a $50,000 cheque for Horizon  
which Jim Hannan delivered to Horizon. Forsyth then connected the building to a new transformer  
and the new power went in sometime in August 2016. The Minutes of Construction Meeting # 22-  
June 1, 2016, shows Horizon delayed their involvement until May 2016 (page A1889) with the  
switching over of power in July 2016.  
[16] Tab 58 (A321) is an invoice for HVAC for Life dated June 12, 2017, for duct work in the  
amount of $10,350, addressed originally to Caird-Hall. This invoice, with adjustments, was sent  
to Ross Clair and is stamped paid 09/11/2018 (A322). Jim Hannan “presumed” that Ross Clair  
paid this invoice. The paid invoice sent to Ross Clair totaled $9,936.00 after certain credits and  
legal fees were adjusted from the original invoice sent to Caird-Hall.  
[17] Jim Hannan testified he was on site virtually every day from June to December 2016 – see,  
for examples, invoices sent to “Jim” at Tabs 71, 72, 73, 75 at page A347 to A349 and A352.  
[18] Per Tab 81, on July 10, 2017, and page B-1-148, the architects prepared a list of  
deficiencies totaling $27,814.95. Jim Hannan testified that none of the deficiencies were the  
responsibility of Caird-Hall.  
[19] Jim Hannan testified that Ross Clair got Caird-Hall to do more than expected. For example,  
Ross Clair asked Caird-Hall to clean the site and bill Ross Clair at the end of the month – see  
examples at Tab 25 (a) page 5 of 13 – page A2001 (labour – 32 hours - $2,522.73) for April 2016  
and Tab 29A – page 8 of 16 – page A201 (labour and materials for $7,291.85) for July 2016.  
[20] There were 2 sets of Change Orders:  
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1) Official Change Orders issued by the architect.  
2) Caird-Hall Change Orders issued to Ross Clair for extra work asked of Caird-Hall  
by Ross Clair.  
[21] Daily job logs were kept by Caird-Hall as to who was on the site. The Ministry of Labour  
requires these logs to be kept. The daily logs kept by Caird-Hall ends on Wednesday, December  
21, 2016 – see Tab 147, A2350. Jim Hannan testified that the last job log he provided to plaintiff’s  
counsel was “maybe” the December 21, 2016, log.  
[22] Jim Hannan testified he sought out lower pricing for the job and probably saved $100,000.  
[23] Shane Babony was removed from the site in December 2016. There were no complaints  
from Ross Clair that any of the work was deficient. Before 2017, there was no complaint by Ross  
Clair that the project was delayed. Caird-Hall never received a Notice of Default.  
[24] Jim Hannan outlined the following reasons for the delays involving the project:  
1. One of the big delays was getting power into the building (as previously detailed).  
2. There was an issue regarding the water main – the original pipes had to be replaced by  
steel pipes.  
3. The gas line had to be replaced and this caused a delay.  
4. The parking lot had to be excavated to allow for the work described above to be done  
– it took months to get a permit.  
5. Regarding the excavation work, there was a carry-on between two City departments.  
6. Some of the Ross Clair trades were reluctant to provide work due to outstanding  
monetary issues with Ross Clair.  
[25] As a result, the completion date of January 31, 2016, which was ambitious, could not be  
met.  
[26] There was a problem with the roof hatch – there was a misreading of the plans. A railing  
had to be put in to remedy the problem.  
[27] In cross-examination, Jim Hannan indicated Caird-Hall was instructed to do extra work by  
Nick Chiappetta, the project manager from Ross Clair - see Minutes of Construction Meeting of  
June 1, 2016, report at Tab 117, A1890, where Nick Chiappetta is listed as project manager for  
Ross Clair.  
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[28] The extra work was added onto the bill and sent to Ross Clair. The first 16 invoices were  
paid by Ross Clair (see Tab 35-A253), and this confirmed that Ross Clair agreed to pay for it.  
[29] The final Schedule of Values at Tab 47-A307, dated March 2017, shows a Cash Allowance  
of $160,629.43. It was suggested that you normally would expect to see only approximately  
$10,000. Jim Hannan testified that this approximate $150,000 increase was due to Ross Clair’s  
representative, Nick Chiappetta, instructing Caird-Hall to do extra work and then submit a bill and  
call the extra billing a Cash Allowance. Jim Hannan didn’t know if there was any written  
documentation confirming this arrangement.  
[30] It was pointed out that in Jim Hannan’s discovery, he never said anything about Nick  
Chiappetta. Jim Hannan indicated that Ross Clair are not fools and they would not pay $160,000  
for work not contracted for. Jim Hannan indicated that Ross Clair stopped paying because they did  
not want to lose money.  
[31] On December 5, 2016, Caird-Hall advised Ross Clair that Shane Babony, site supervisor,  
was moving to another site – see B1-134. Jim Hannan’s interpretation of this document was that  
Caird-Hall had not been paid for 3 months and the job had reached the stage where there was very  
little to do. The City of Hamilton indicated to Ross Clair on December 19, 2016, that Caird-Hall  
appeared to be no longer involved in the project – see B1-138.  
[32] On February 15, 2017, Beth Hannan advised Forsyth Electrical that Caird-Hall was no  
longer on the site and Beth Hannan forwarded their invoice to Ross Clair – see B1-141.  
[33] In addition to the City Change Orders, Caird-Hall billed for extra work requested by Ross  
Clair. There was no difficulty with previous invoices sent to Ross Clair, but on the last 4 invoices,  
at the end of the project, Ross Clair refused to pay. Sean Richardson was taking the position that  
Ross Clair was paying for additional items not approved by Ross Clair – see B1-144-145.  
[34] Tab 47, A307, Schedule of Values shows that by March 2017, almost all of the work  
required to be done by Caird-Hall was complete. All of the subtrade work under the control of  
Caird-Hall was done. As previously mentioned, a subtrade of Caird-Hall, HVAC for Life, returned  
to the site in July 2017.  
[35] The original completion date was January 31, 2016. Substantial completion didn’t happen  
until the middle of June 2017 – 16.5 months later. Jim Hannan attributed the delays to lots of  
Change Orders and work added. For example, the electrical work required wasn’t engaged until  
April, May 2016. Jim Hannan agrees that he didn’t go to a single meeting in 2016 – the City did  
not want him there.  
ELIZABETH (BETH) HANNAN  
[36] Beth Hannan was the office administrator for Caird-Hall. She is in charge of payroll,  
accounts receivable and accounts payable.  
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[37] Regarding the Waterdown Memorial Hall project, in the beginning, she worked closely  
with Nick Chiappetta, the project coordinator. Jim Hannan, Martin Hannan and Nick Chiappetta  
helped on the invoices.  
[38] Tab 35-A253 is a list of invoices. Total payments received were $951,351.05. At the  
bottom of A253 is a list of invoices that were overdue and unpaid. They totaled $211,044.38.  
[39] Regarding the Tab 58 HVAC bill from June 12, 2017, HVAC billed both Ross Clair and  
Caird-Hall.  
[40] In cross-examination, Beth Hannan agreed that there were architect Change Orders and  
non-architect Change Orders for additional work. There was no documentation designating  
invoices as Cash Allowances. The invoices and emails were delivered to Nick Chiappetta.  
[41] In re-examination, Beth Hannan indicated she submitted the extra work in Cash  
Allowances and submitted the invoices to Ross Clair in 2015-2016. No one at Ross Clair said they  
didn’t authorize it. An example of her sending invoice and receipts to Nick Chiappetta appears at  
Tab 179 – January 2016 receipts at A2470-A2484.  
MARTIN HANNAN  
[42] Martin Hannan was the project manager for Caird-Hall Construction at the Waterdown  
Memorial Hall project.  
[43] Martin reviewed a number of items of extra work requested by Ross Clair. Martin testified  
that Nick Chiappetta instructed Beth to do it on a Cash Allowance.  
[44] An example of Ross Clair not paying subcontractors and slowing work down appears at  
Tab 176, A2433, November 30, 2016, to December 2, 2016. Shoreway Flooring did not show up,  
as promised. Ross Clair was not paying them. Eventually, an agreement was reached, and they  
came to the site to finish.  
[45] As indicated in Tab 174, A2392, April 4, 2017, Caird-Hall’s response to Sean Richardson,  
it is confirmed that Ross Clair’s manager, Nick (Chiappetta) instructed Caird-Hall to bill for costs  
outside the contract as Cash Allowances, along with invoices, and forward them to Ross Clair.  
[46] An example of Ross Clair requesting extra clean-up work appears at Tab 158, A2373, May  
27, 2016, where Nick Chiappetta indicates, “Go ahead with the bin and labours to get the existing  
building and outside cleaned up and submit the invoice like you have been doing.”  
[47] On June 7, 2016, Nick Chiappetta emails Martin Hannan and tells him to go ahead with  
the lift and we (Ross Clair) will cover it – see Tab 160, A2375.  
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[48] On June 23, 2016, Nick confirms with Martin Hannan that labour for site clean-ups will be  
covered – see Tab 161, A2376.  
[49] Other examples appear at page 18 of the plaintiff’s submissions.  
[50] Tabs 163-170 at page A2379 to A2386 show bills for significant costs for labour from June  
2016 to December 2016, with a note that hours for labour can be confirmed by the site logs.  
[51] In cross-examination, it was confirmed that for most of the items billed and not in the  
contract, the extra work was done basically on mostly verbal instructions from Nick Chiappetta.  
DISCOVERY READ INS FROM SEAN RICHARDSON TESTIMONY  
[52] Page 7-8 – Nick Chiappetta, the project coordinator, was let go in August, September 2016  
because the job was a disaster. Sean Richardson stepped in to try to get the job done. In response  
to the question, “And was Nick fired from the company at that time”, Sean Richardson replied, “I  
believe towards the end of September.”  
[53] Page 12 – Ross Clair was involved in 13-14 other projects. They got help on this project  
because it was a minor job “for us”.  
[54] Page 14-15 – “Sean” from Ross Clair took over as site superintendent when Caird-Hall  
abandoned it in December 2016.  
[55] Page 17 – Nick was on the job site once or twice a week from July 2015. Nick was being  
trained by other project managers.  
[56] Page 20 – Jim Hannan’s 13 invoices from Jim Hannan’s Consulting Services, 247  
Company, in July 2015 to August 2016 were paid, and Sean Richardson testified, “I know they  
were paid and that was part of the reason Nick got fired.”  
[57] Page 22 – The process for approving invoices, in general, in 2015-2016 was:  
1. Nick reviewed and approved the invoices and brought them to accounting.  
2. Accounting would then approve to pay the invoice and cheques were cut.  
3. 3 people would sign the cheques: Anne Richardson, Sean Richardson, and a controller.  
[58] Page 45-46 – HVAC for Life completed a Change Order for $10,000 and Ross Clair  
engaged them directly to do that…the Change Order done by HVAC for Life near the end of the  
project was not in the Caird-Hall scope of work but was a Change Order by the architect.  
[59] Page 47 – Ross Clair got emails from Caird-Hall at the end of 2016 that Caird-Hall  
wouldn’t be attending anymore – they thought they finished the job.  
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[60] Page 49 – The Caird-Hall invoice for November 2016 was not paid – the invoices were  
overbilled. They were billing for Cash Allowances that they never paid…we paid for all those…  
[61] Page 59 – Change Orders were issued to Caird-Hall that added $126,000 to the contract.  
[62] Page 92 – Mr. Movat indicates, “We say the very cause of the delay was Caird-Hall’s  
inability to manage the job.”  
[63] Page 100, 106, 116 – Sean Richardson frequently resorts to salty language – i.e., “The  
arbitrator told him to fuck off”; “Babony (Shane Babony) there fucked it up”; “At the end of the  
day, I’ll be bold with you, it was piss poor, fucking – the job was run so badly. It was unbelievable.”  
[64] Page 119-120 – Regarding the delays, Mr. Richardson blamed Caird-Hall, explaining, “If  
you’re going to wipe your ass after a shit every time, that’s going to delay the process.”  
[65] Page 120 – Nick Chiappetta was a junior guy – he was collecting paperwork. At $6,000  
per month, Jim (Hannan) was to look after the job.  
[66] Page 126-127 – In 2017, Sean Richardson was running four different companies. Nick  
Chiappetta was the project coordinator and Sean Richardson was not sure if anyone was  
supervising or monitoring Nick.  
[67] Page 131-132 – Regarding HVAC being asked for work on July 25, 2017, Sean Richardson  
sent HVAC for Life a Change Order and got a quote and issued them a purchase order and,  
subsequently, paid them for it.  
[68] Page 149 – Ross Clair is waiting to be paid $300,000 by the City of Hamilton.  
[69] Page 152 – When Ross Clair received the architect’s deficiency report on February 22,  
2017, Caird-Hall was not asked to look after any of the items because Caird-Hall abandoned the  
job in December.  
[70] Page 153 – The quality of work done by Caird-Hall was definitely an issue. Sean  
Richardson lost his temper with their superintendent quite a few times – Sean had to walk away –  
“The guy doesn’t deserve to be called a superintendent.” However, before 2017, Ross Clair did  
not put in writing there were deficiencies in the work that needed to be corrected. Sean explained  
that the work wasn’t finished so there was nothing put in writing.  
SHANE BABONY  
[71] Shane Babony was the site supervisor for the Waterdown Memorial Hall project and joined  
the project in January 2016.  
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[72] There were site meetings weekly and bi-weekly. Nick Chiappetta was the Ross Clair  
representative and was later replaced by Sean (Haughey). Shane Babony attended most of the  
meetings.  
[73] Daily logs were kept of who was at the site. Nick Chiappetta never asked to see the daily  
logs.  
[74] By 2017, Shane was no longer the site superintendent. There were money issues and trades  
were not showing up. Shane had dealings with Sean Haughey from Ross Clair in the last quarter.  
Sean stated that Shane Babony was competent.  
[75] There were numerous problems at the site, i.e., material in the parking lot had to be moved  
around; there were problems with the footings and layout of the building – new site directions and  
drawings were required; doors were not propped properly and were eventually scrapped. Sean  
Haughey had come in to fix the doors. He ignored advice not to drill the doors in a certain way.  
The doors were drilled and were ruined.  
[76] Waterlines were constantly flooding. The basement had leaks. Water was coming in the  
door. Water had to be pumped out of the basement – see A1777. There was mould in the basement.  
There was flooding in the basement near the elevator shaft. Two bathrooms in the basement had  
to be re-done. All of these problems caused delays. According to Mr. Babony, government  
agencies were involved in the delays. For example, the Ministry got involved in the mould  
statement which had been done pursuant to Ontario government mould guidelines – see Tab 41,  
A288 – May 27, 2016.  
[77] The City has promised that the adjacent parking lot could be used for use of materials and  
vehicles. When that did not happen, material had to be continually moved around. There were  
problems with footings and layout of the building, which required new site directions and  
drawings. The engineer did not calculate the load for the curtain wall correctly; as a result, work  
on the elevator shaft and curtain wall were at a standstill and there was a delay of 2 weeks. This  
problem was allocated to the owner (City) and not to Ross Clair or Caird-Hall.  
[78] The existing 4” sanitary sewer was condemned by the City of Hamilton building inspector,  
and new sewer and waterlines had to be installed – see A2392 and A2399.  
[79] The water leaks recorded in the daily logs resulted from decades-old plumbing. The leaks  
resulted in mould growth that had to be cleaned up.  
[80] Mr. Babony addressed some of the concerns outlined in Questions 1-10 by Sean  
Richardson in his April 4, 2017 email to Caird-Hall at B1-144:  
Questions 2 and 3 – The boom was approved by Nick Chiappetta for Ross Clair’s carpenter,  
Rob McBride, for concrete panels on the roof. Ross Clair did not provide a boom and  
scaffold.  
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Question 4C – The charge for winter protection was to keep the poured concrete from  
freezing in December-January.  
Question 4D – A new survey had to be done for the existing building as the original survey  
was not accurate.  
Question 4G – The charge for rebar sorting was necessary as they were not given the area  
in the City parking lot, as promised. The rebar, accordingly, had to be moved “umpteen”  
times.  
Questions 4H and 4I – Additional pump charges and elevator topping were incurred to  
prevent water damage.  
Question 4J – The mezzanine needed a guard rail plate.  
Question 6 – Southwestern Elevator was difficult to work with. The hydraulic fluid became  
contaminated with water.  
Question 7 – The roof hatch was put in incorrectly by Ross Clair’s carpenter, Rob McBride.  
the latch location was put in incorrectly due to the drawing being crude and incomplete.  
Caird-Hall accepted the location but wanted a handrail.  
[81] Sean Richardson came in after Nick was gone. Sean made the declaration he was now in  
charge after Nick was gone. Sean told Martin Hannan that money is not in the contract - it was in  
lawsuits and Change Orders. He said it in the parking lot. There was another argument in the  
parking lot where Martin asked Sean to pay his trades as they were not showing up.  
[82] In cross-examination, Mr. Babony reviewed the daily logs. Mr. Babony was the site  
supervisor and made no distinction between the trades. Some trades would not come in due to  
unpaid invoices. Martin Hannan looked at the daily logs and created the invoices, for example,  
Martin Hannan would have added the miscellaneous labour invoice for 32 hours in the April 2016  
invoice at Tab 25A-A1997, A2001.  
ASSESSMENT OF CREDIBILITY OF PLAINTIFF’S WITNESSES  
[83] The plaintiff’s witnesses, Jim Hannan, Beth Hannan, Martin Hannan, and Shane Babony  
all provided straightforward accounts of their involvement in the Waterdown Memorial Hall  
project.  
[84] On numerous instances, their evidence was confirmed/corroborated by the voluminous  
documentary evidence filed by the parties. There were no material inconsistencies or  
contradictions in cross-examination, conducted by a very experienced and able counsel.  
Accordingly, I find that all the plaintiff’s witnesses gave credible and reliable evidence, which I  
intend to rely upon.  
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DEFENCE EVIDENCE  
ED BURNS  
[85] Mr. Burns is the CEO of Ross Clair.  
[86] On June 15, 2015, Mr. Burns met with Jim Hannan and Martin Hannan at Rogue Bar in  
Hamilton. There would be an approximate 50/50 split between who would do what – see Tab 4-  
A51 and Tab 89-A433. They discussed the contract price and Caird-Hall was to be paid  
approximately $610,000 plus HST – see Tab 3, A48-A49.  
[87] In addition, Jim Hannan was to be paid as project manager for $6,000 per month.  
[88] It was agreed that they would split 50/50 on profits for any extra work regardless of which  
subtrade did the work.  
[89] Mr. Burns was a credible witness.  
SEAN RICHARDSON  
[90] Sean Richardson is the president of Ross Clair. He testified he had minimal involvement  
with the Waterdown Memorial Hall renovation project until 2016. The contract between the City  
of Hamilton and Ross Clair for the renovation was for $1,747,000 not including applicable taxes.  
[91] A contract between Ross Clair and Caird-Hall was drawn up and Caird-Hall was required  
to do work as outlined in a Schedule of Values (SOV), lines 1-24. The start date of the contract  
was July 2, 2015, with a completion date of January 31, 2016. The purchase order amount (contract  
amount) was for $689,802.85 – see Tab 3.  
[92] In August of 2016, Sean Richardson got a nasty letter from the City of Hamilton regarding  
the state of the jobs.  
[93] A Schedule of Values is the amount that Caird-Hall is expected to get paid for its work –  
see the original Schedule of Values for 2015, Item 244-A2039.  
[94] A subtrade summary for Ross Clair and Caird-Hall is set out at Tab 89, A433-A434.  
[95] For Caird-Hall, to get more, a Change Order has to be approved by the City of Hamilton.  
[96] A final Change Order Summary for the project appears at B1-153. There were 63 Change  
Orders for the project totaling $197,872.82. This raised the original contract price from $1,747,000  
to $1,994,872.82 – see B1-153.  
[97] The Change Orders are generated by Workshop Architecture on behalf of the City of  
Hamilton. Substantial completion of the project was granted by consultants in June 2017.  
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[98] According to Ross Clair’s calculations, Caird-Hall was entitled to $116,959 due to the  
Change Orders – see Change Order Summary at B150-151. This would mean that Caird-Hall’s  
contract would increase from approximately $610,000 to $726,000 due to the approved Change  
Orders.  
[99] On December 5, 2016, Sean Richardson received an email from Martin Hannan, project  
manager for Caird-Hall, that as of December 12, 2016, Shane Babony would no longer be on site  
as a site supervisor. The City of Hamilton started to issue Notices of Default.  
[100]  
Their guy on the project was Nick Chiappetta, an employee of Ross Clair who  
worked in the office. Nick’s responsibility was to take Caird-Hall’s paperwork and send it to the  
City of Hamilton. In August of 2016, Nick had troubles and left. Nick had a nervous breakdown.  
[101]  
In August of 2016, the job was in a bad state. The schedule had been overridden by  
7 months. The City of Hamilton was aggravated with the project.  
[102]  
On December 19, 2016, the City of Hamilton contacted Sean asking who the new  
project manager and site supervisor were going to be – see B1-138. The Ministry of Labour  
requires a site supervisor as long as subtrades are on the job. Sean Haughey was put in as site  
supervisor along with Sean O’Donnell.  
[103]  
In February 2017, Beth Hannan emailed to indicate that Caird-Hall was no longer  
on the site and that she was telling the subtrade to bill Ross Clair directly – see B1-141.  
[104]  
Sean Richardson noted irregularities with the Caird-Hall billing, and he testified he  
“fired” off a series of additional issues/questions at B1-144, April 4, 2017. Caird-Hall’s response  
is listed at Tab 174-A2392.  
[105]  
Sean Richardson questioned the extra billing done by Caird-Hall. Sean Richardson  
claimed that Ross Clair was not responsible for a number of items billed to them by Caird-Hall.  
For example, the Caird-Hall invoice for September 2016 billed for 260 hours of labour for a total  
of $14,300 plus HST: Sean Richardson testified he had no idea what it was for. There was no  
request for labour. It was a generic bill that he was expected to pay. Nick Chiappetta was off the  
job in August. The bill, accordingly, would go to accounting. Sean couldn’t remember if he looked  
at it in October.  
[106]  
Sean Richardson went through a number of Caird-Hall bills that Sean indicated  
they were not responsible for.  
[107]  
However, regarding Tab 158, A2373 – May 27, 2016; Tab 160, A2375, June 7,  
2016; Tab 162, A2378 – June 27, 2016, Nick Chiappetta gave instructions to pay these bills and  
Sean Richardson testified that they have to stand by that.  
- 13 -  
[108]  
Sean Richardson continued to pay Caird-Hall’s invoices until the final 4 from  
November 2016 onwards.  
THE COUNTERCLAIM  
[109]  
The Scott Schedule (Scott Schedule #1) that was filed at the beginning of the trial  
regarding the amount claimed appears at B1-445. The Scott Schedule itemizes 23 items of claims  
for a total of $419,731.57 inclusive of HST.  
[110]  
At the end of trial, a revised Scott Schedule was filed (Scott Schedule #2). 12 of the  
original 23 items claimed were deleted. The Counterclaim was now reduced to $246,209.14 plus  
HST of $19,133.50, for a total of $265,342.64. Accordingly, the Counterclaim currently has been  
reduced by $154,388.93 from the original Scott Schedule #1.  
[111]  
Sean Richardson addressed the largest part of the Counterclaim – Labour to  
complete work - $138,377.12 inclusive of HST, in examination-in-chief. The details of the labour  
claim are set out at page B311-315. The labour claim starts April 24, 2016, and extends to October  
23, 2017, for a total of 1,910.75 hours for a claim of $113,494.26. With an added claim for Job-  
Costing and Transaction Report, Scott Schedule #2 has the claim for $122,457.63 plus HST of  
$15,919.49, for a total of $138,377.12.  
[112]  
Sean Richardson testified that this Ross Clair labour cost would not have occurred  
if Caird-Hall had managed the job properly.  
[113]  
The second highest claim in Scott Schedule #1 is a claim for Door Hardware-  
Trillium at $70,273.24.  
[114]  
[115]  
The third highest claim in Scott Schedule #1 is $39,027.21 for Horizon Utilities.  
The fourth highest claim on the Scott Schedule #1 is $26,253.09 for CRS  
Rentals/United. Sean Richardson testified that normally subtrades supply their own “stuff”.  
Further, Ross Clair has $1,000,000 worth of their own equipment. Mr. Richardson testified that  
Caird-Hall arranged for these rentals and then charged them to Ross Clair. Mr. Richardson found  
out in late November 2016 that Caird-Hall was renting stuff on his account.  
[116]  
The fifth highest amount is “landscape not done” with a claim of $24,408 in Scott  
Schedule #1. Mr. Richardson indicated that Caird-Hall never did this work but billed it in the fall.  
[117]  
The next highest amount – sixth highest – is $23,911 for payment for lien bonds.  
Mr. Richardson indicated they left the site at the end of December 2016 and had 45 days to file a  
lien but did not do so until 7 months later. Accordingly, the lien is invalid. A former Caird-Hall  
subcontractor, HVAC for Life, did do work in July 2017 pursuant to a Change Directive, which  
was outside the original contract, and Ross Clair dealt with HVAC for Life directly and paid them  
directly – see B1-710 – B1-713.  
- 14 -  
[118]  
The next highest amount – seventh highest – is $14,540.63 for Home Depot. Mr.  
Richardson testified that these were expenses and costs required to rectify Caird-Hall’s  
deficiencies. Accounting provided the total of $14,540.36 – see B1-417.  
[119]  
The remaining smaller items on Scott Schedule #1 were all the responsibility of  
Caird-Hall as a result of:  
1. Deficient and/or incomplete work.  
2. Avoidable costs due to Caird-Hall’s mismanagement.  
3. Costs incurred due to delays in the construction work, which was Caird-Hall’s  
responsibility.  
[120]  
Sean Richardson summarized the effect of the project on Ross Clair as follows:  
1. Ross Clair received a 5-year suspension from the City of Hamilton.  
2. The City of Hamilton was “pissed” by the work – the work was completed 16 months  
late.  
3. Caird-Hall fought with the City of Hamilton over minor things.  
4. The City of Hamilton laid the blame on Ross Clair. Ross Clair should have got rid of  
Caird-Hall.  
5. This project damaged Ross Clair’s 50 year standing.  
CROSS-EXAMINATION  
[121]  
Sean Richardson was cross-examined for the better part of 3 days. The cross-  
examination raised a number of concerns regarding his reliability/credibility. Examples include  
the following:  
GENERAL ISSUES  
[122]  
1. At the beginning of the cross-examination, Sean Richardson was referred to  
correspondence from the City of Hamilton dated December 2, 2015, to Ross Clair’s director of  
administration, Kathy Hogeveen – see Item 314, Tab 196. In that letter, described as a 2nd written  
notice, the City indicates at Tab 196, page A2994, in part, “The City is concerned with the  
perceived lack of experience of Ross Clair’s co-ordinator…after a recent site meeting (October  
21, 2015) the project co-ordinator from Ross Clair (Nick Chiappetta) admitted to the City and  
Prime Consultant that he does not have experience with projects similar to Waterdown Memorial.  
Understanding that this is a complex, highly political renovation and addition project…but also  
has challenging site constraints, the City is requesting an experienced project manager be assigned  
- 15 -  
to this project immediately.” This report was initialed by Lu-Ann Duxbury, Project Manager for  
the City of Hamilton.  
[123]  
Mr. Richardson disagreed that it was a complex, challenging project. It was a  
simple project for an experienced person – that it was why he hired Jim Hannan.  
[124]  
At the time, Mr. Richardson was running Ross Clair and 4 other companies. It was  
pretty well impossible for him to give this project his full time and attention – see page 4 of June  
4, 2021, transcript. A $2,000,000 project was not on his radar in the fall of 2015. Mr. Richardson  
was involved in a multi-billion dollars project at the time. Mr. Richardson indicated that Ms.  
Duxbury was not very experienced herself. Regarding Mr. Nick Chiappetta, he was not  
inexperienced. Mr. Chiappetta had worked on other projects for about 1.5 to 2 years. Mr.  
Richardson didn’t have anyone else.  
[125]  
Mr. Richardson was not sure if he discussed the project status with Nick in 2015.  
In the response letter to the City of Hamilton, Ross Clair indicates, at page A2997, Ross Clair  
(Kathy Hogeveen) indicates: “Experience: to address your concern about project experience from  
Ross Clair, we specifically chose Martin Hannan to act as Project Manager because he has  
extensive experience with these types of projects and working with the City of Hamilton.  
Secondly, we have no concerns about Nick Chiappetta’s experience as a project co-ordinator.”  
[126]  
Later, in the third day of Mr. Richardson’s cross-examination, at page 73 of the  
June 4 transcript, this exchange takes place:  
Q. Who was responsible for preparing and submitting  
the Ross Clair bills to the City?  
A. It would have been Nick and Accounting. They  
would have just taken what Caird-Hall submitted to them and put it  
on the schedule and sent it.  
Q. Sir, you're just guessing, aren't you? That's  
hearsay.  
A. Yeah. I was - as I said I wasn't involved with  
the project at this time.  
Q.  
So you don't know whether Nick delivered the  
charge....  
A. I was not involved in the project at the time.  
Q. Since this case started, you didn't reach out to  
Nick to find out why, right?  
- 16 -  
A. Nick didn't know his head from his ass. That's  
why this job went this way.  
[127] In examination-in-chief, Mr. Richardson testified that their guy on the project, Nick  
Chiappetta, had a nervous breakdown. Mr. Richardson then took control of the job in August 2016  
as the job was in a bad state. Although technically not part of the cross-examination, Mr.  
Richardson indicated in the discovery read-in that Mr. Chiappetta was “let go” and was fired  
towards the end of September, and Mr. Richardson stepped in to try to get the job done as it was a  
“disaster”. He got one of his top superintendents, Sean Haughey, to go onto to the job – see page  
7-8, 12-13 of the discovery read ins. At page 20 of the discovery read ins, mention is made that  
Jim Hannan and Company 247 got paid from July 2015 until August 2016 – a total of 13 invoices.  
Mr. Richardson responds, “I know they were paid and that was part of the reason Nick got fired.”  
[128]  
Throughout the cross-examination, Mr. Richardson frequently blamed the delays  
on Caird-Hall’s mismanagement of the project. For example, this exchange takes place at page 23-  
24 of the June 4, 2021, transcript of Mr. Richardson’s cross-examination:  
Q.  
And despite the fact this project was years  
behind schedule, would you agree with me that the City never  
imposed any liquidated damages penalty on Ross Clair for late  
delivery?  
A.  
Q.  
A.  
It was threatened.  
But did they?  
Well they still owe me 60 grand so they did  
get their pound of flesh out of me.  
Q.  
Did they impose liquidated damages?  
A.  
They were on the table, but we managed to beg  
them to rescind it. It was more than liquidated damages, they  
wanted us to pay for all the overtime for the consultants,  
additional storage, quite a number of things.  
- 17 -  
Q.  
So Ross Clair was able to convince the City  
that there are a number of delays to the project that were the  
fault of the City or its consultants and that’s why they backed  
off on those failures?  
A.  
Q.  
No. No.  
So they were just throwing you a couple of  
hundred thousand dollars for the sake of being nice?  
A. No, I had to be professional as a gentleman and  
try to get things done and they realized that you know we are a  
victim of, of – we tried to hire Caird-Hall to do the job or  
whatever and they made us look like assholes.  
[129]  
The plaintiff’s evidence was that there were regular construction meetings while  
they were on the project. Minutes were prepared of these minutes. People who attended the  
meetings are marked with an “A” on the front page of the minutes. The minutes indicate that they  
are considered accurate, unless discrepancies are reported in writing. Minutes of Construction  
Meeting No. 35 appears at page A1946-A1950. The date indicates Thursday 8, 2016, but I assume  
it is December 8, 2016, as the meetings were to occur bi-weekly and page A1950 indicates the  
next site meeting is to be December 20, 2016. Mr. Richardson is listed as project manager for Ross  
Clair Construction and his name is listed as an attendee as well as Shane Babony as attendee.  
[130]  
The next Minutes of Construction Meeting is listed as No. 36 at page A1951-A1955  
for January 12, 2017. The last page at A1955 indicates Sean Richardson as representative for Ross  
Clair Construction. Jim Hannan and Martin Hannan appear as site superintendent and project  
manager on Construction Meeting No. 35, but their names have been removed from Construction  
Meeting No. 36 in January 2017 on the last page, consistent with the plaintiff’s evidence that  
Caird-Hall was no longer at the site effective mid December 2016. Sean Richardson is listed as  
attendee on Construction Meeting No. 35. No one from either Ross Clair or Caird-Hall appears to  
have been at Construction Meeting No. 36 but Martin Hannan and Shane Babony are listed as  
participants on the first page. Both the Minutes No. 35 and No. 36 contain this paragraph – 11G1  
– at page A1947 and A1952 respectively:  
11G1: Substantial completion date of February 19th, 2016 will not be met. Due to  
delays from unforeseen site conditions (Gas line – presented August 12, 2015 and  
resolved September 9, 2015. Correct survey benchmarks – presented October 8,  
- 18 -  
2015 and resolved November 6, 2015. Existing electrical to meet ESA standards –  
presented July 15, 2015 and resolved November 13. Horizon new electrical utilities  
order – cheque requested to be sent November 16, 2015 and sent on November 19,  
2015, Horizon notes earliest start date is early to mid-January with a minimum 10  
week construction period making mid to late March the earliest before the addition  
will have power.) Ross Clair is in the process of creating a new construction  
schedule to reflect these delays that will be submitted by the next construction  
meeting on December 16, 2015. These delays have slowed the construction process  
and any momentum due to trades having to remobilize until correct information is  
provided by the consultants. A delay claim will be submitted by Ross Clair to reject  
these dates. New dates will be established once the change order is received for the  
sanitary line – A new SP date will be set upon all details of the sanitary line work  
being known ie permits/locates.  
Ross Clair are to review schedule to condense and scope of work if possible.  
[131]  
Should there be any doubt that paragraph 11G1 is not Mr. Richardson’s position in  
December 2016-January 2017 (when Caird-Hall removed itself from the site), that doubt is  
removed by a letter dated December 12, 2016, sent to the City of Hamilton by Ross Clair under  
the signature of Sean Richardson – see page A3006-A3007.  
[132]  
The letter is 2 pages long and contains these excerpts:  
As we have stated through minutes and during the course of site meetings, the  
introduction of CD 33 has had a large effect on the completion of this project. The  
installation of sanitary and water lines at the end of a project has been cause to  
reschedule and delay elements that should have been undertaken as scheduled. The  
simple issuances of the change directive has caused significant delays, as you are  
well aware. The first issuance of the directions lacked sufficient information that  
should have come from your own consultants. You consultants have failed to attend  
the site since the beginning of 2016. It is not our responsibility to provide  
information to prepare a change directive, yet we did so to help the project along.  
…
The quality of RFIs and changes on a project of this size and nature have also  
had a negative effect, as you know. The RFIs now total 135 and the changes are at  
50, which would only lend itself to the quality of the contract documents which  
have also lent its self to a hoard of on-site discrepancies. The original building  
layout and subsequent work sequencing took much longer then should have, these  
are again not contractor issues. We expect that our time is respected and proper  
drawings are provided to actually perform the work, this has not been the case.  
- 19 -  
The work that was delayed due to the issuance of CD 33 has proceed and as you  
are well aware nearly complete, this was undertaken to expedite the completion of  
this project and a decision made by us to do so. It is extremely difficult to schedule  
work when we are relying on you to release change orders, this was discussed  
during many meetings. The act that CD 33 has been lingering for this amount of  
time and just cancelled, does not work to the benefit of the project.  
In close, ROSSCLAIR Contractors Inc. has committed to completion of this  
project as discussed with Ms. Tina lacoe from procurement, regardless of your  
opinion. We do not see being adversarial at this point to anyone’s benefit nor does  
the contract documentation support you laying blame on the contractor.  
[133]  
There is no reference at all in December 2016-January 2017 in these documents  
authored and/or endorsed by Sean Richardson attributing blame to either Ross Clair or Caird-Hall  
for the delays. The delays are blamed on (1) unforeseen circumstances, (2) City Charge  
Orders/Directive and (3) failure of City consultants to attend the site in 2016.  
[134]  
This appears to have been Ross Clair’s position throughout the time Caird-Hall was  
at the site. At page A2997, Ross Clair indicates on December 8, 2015, that the delays are due to  
unforeseen site conditions including incorrect benchmarks issued for construction drawings.  
[135]  
Nick Chiappetta, in a letter dated January 22, 2016, at Tab 197, A2998, details a  
delay of 12 weeks and 4 days due to issues involving (1) unforeseen gas line, (2) incorrect survey  
benchmarks and (3) bad weather.  
[136]  
Nick Chiappetta, again, in a letter dated May 11, 2016, at Tab 199, A3001-A3002  
outlines and details 7 reasons for delay of 115 days. None are attributed to Caird-Hall. The  
conclusion is that the delay is due to unforeseen circumstances.  
[137]  
In a letter dated May 26, 2016, at Tab 200, A3003-A3005, Michael Weeks refers  
to Mr. Chiappetta’s letters of January 22, 2016, and May 11, 2016, and adopts the contents.  
Michael Weeks is the director of operations for Ross Clair.  
[138]  
Mr. Richardson testified that lots of Caird-Hall work was deficient. He was asked  
if there was a deficiency list. Mr. Richardson indicated there was a deficiency list, but he doesn’t  
have them. When asked if there was anything in writing regarding a deficiency list, Mr. Richardson  
testified, “Probably not”. Mr. Richardson indicated he was sick of them – there was no point in  
doing it – he had to get the job done.  
[139]  
As referred to earlier, Michael Weeks, director of operations for Ross Clair, in a  
detailed, lengthy letter dated May 26, 2016, responds to a City of Hamilton incident report where  
the City of Hamilton expresses concern about the lack of progress on the project. In that very  
detailed letter, there is no reference to any subpar performance by any of the subcontractors. It was  
- 20 -  
also pointed out by counsel that in Mr. Richardson’s letter dated December 12, 2016, at Tab 201,  
A3006-3007 to the City, there is a no mention of anything about the subcontractors.  
[140]  
On July 10, 2017, Workshops Architecture prepared a deficiency list on behalf of  
the City of Hamilton. It totals $27,814.95 – see B1-148. Mr. Richardson claims this is damages  
suffered by Ross Clair due to Caird-Hall leaving the job site. However, calculations on B1-148  
show Ross Clair responsible for $9,500 of deficiencies, leaving Caird-Hall responsible for  
$18,314.95. In the June 11 transcript at page 64-65, Mr. Richardson testifies that he did the  
calculations that appear at B1-148.  
[141]  
Ross Clair did not do the repairs on the list. Mr. Richardson says they were  
attempted but not accepted and “we said just take the money and that’s it” – see page 64-65 of the  
June 11 transcript.  
[142]  
It is suggested to Mr. Richardson that in his Statement of Defence, not one of the  
23 items that he is now raising as a Counterclaim is mentioned. Mr. Richardson is told to raise any  
items either in his testimony or by way of re-examination. There was no response to this  
suggestion. The Statement of Defence does not appear to detail the 23 items in the Counterclaim.  
[143]  
It was pointed out that by February of 2016, Caird-Hall was billing more than the  
original value of the contract - $798,908.21 - see Tab 22, A128, Schedule of Values. Mr.  
Richardson indicated that Ross Clair management was definitely negligent in not realizing that  
Caird-Hall, by February 2016, was already billing more than the total Mr. Richardson says was  
payable at the end of the project – see page 18 of the June 4 cross-examination. Mr. Richardson  
agreed that Caird-Hall was paid all of 2015 and 2016 invoices until the last payment December  
30, 2016. He did not deny that he approved five payments to Caird-Hall after he took over the  
project and discovered this mess.  
[144]  
Mr. Richardson stopped payment when he did his reconciliation – see page 18-19  
of the June 4 transcript. Sean Richardson described Caird-Hall as being sneaky and “I would say  
there was a little deceit there” – see page 17 of the June 4 transcript. At page 26 of the June 11  
transcript, Mr. Richardson indicated most of the payments were pretty prompt “until we found out  
that we were getting scammed.” At page 37 of the June 4 transcript, Mr. Richardson indicates after  
his reconciliation he found out “we were being ripped off by Caird-Hall.”  
[145]  
Mr. Richardson is asked at page 131-132 of his June 11 transcript: “Are you saying  
that Mr. Babony lied to CRS and said I work for Ross Clair and I want to order something on its  
account?” Mr. Richardson testified, “It’s actually that easy, yes. It is actually that easy.”  
[146]  
Mr. Richardson goes on to testify that he probably should have charged Mr. Babony  
with fraud and “Probably should charge Caird-Hall with fraud too.”  
[147]  
The Statement of Defence does not allege fraud; neither does Mr. Movat’s final  
submissions. There is absolutely no evidence of anyone having any fraudulent intent and/or actions  
- 21 -  
in this case and that includes Mr. Richardson as well. The evidence before me involves a contract  
dispute between respectable contractors with past good reputations.  
[148]  
Tab 89-A433 and Tab 4-A51 is a subtrade summary and it lists the various trades  
and who is hiring them. Mr. Richardson agrees that Ross Clair was to hire 20 subtrades and Caird-  
Hall was going to hire 19 subtrades. Caird-Hall was going to hire the mechanical and electrical  
subtrades that tend to bill the most in most projects. The big picture is that Caird-Hall was going  
to hire approximately half of the subtrades and manage the project, but Ross Clair was getting two  
thirds of the money payable by the City and Caird-Hall was getting one third.  
[149]  
At page 46 of the June 4 transcript, this exchange takes place:  
Now, sir, you mentioned in your examination in-chief  
something to the effect that Caird-Hall was always billing the  
exact same amount of hours for its miscellaneous labour charges  
every month. So I went through the invoices that Caird-Hall sent,  
and I did not see one instance where Caird-Hall billed the exact  
same number of hours in more than one month. Can you point me to  
any such invoice where you say they did that?  
A.  
It was the same as - I could look but I believe  
it was September 2016, October 2016 where I believe the amounts  
were around $4,000 - 260 - $14,000, 260 hours and I believe there  
was another consecutive month where it was like 160 hours that  
tallied up to about - they merely changed the date on the invoice  
and fired it off to see if they could get away with it.  
[150]  
As previously reviewed in Martin Hannan’s evidence, Tabs 163-170 at page A2379  
to A2386 bill significant totals from June 2016 to December 2016. Both the invoices and Martin  
Hannan indicated the labour hours billed can be confirmed by the site logs. These labour bills  
indicate:  
1. TAB 163-A2379-06/30/2016 – 143 HOURS - $7,865 PLUS $1022.45 HST.  
2. TAB 164-A2380-07/28/2016 -74 HOURS - $6,453 PLUS $838.89 HST. Note:  
included in the above was $311 for materials plus HST.  
3. TAB 165-A2381-08/02/16 – 149 HOURS - $8,195 PLUS $1,065.35 HST.  
END OF AUGUST  
- CHAIPPETTA LEAVES  
- 22 -  
- SEAN RICHARDSON AND EMPOLYEES TAKE  
CHARGE OF SITE  
4. TAB 166-A2382-09/02/2016 – 176 HOURS - $9,680 PLUS $1,258.40 HST.  
5. TAB 167-A2383-09/30/16 – 260 HOURS - $14,300 PLUS $1,859 HST.  
6. TAB 168-A2384-10/31/2016 – 260 HOURS - $14,300 PLUS $1,859 HST.  
7. TAB 169-A2385-11/30/2016 – 180 HOURS - $9,900 PLUS $1,287 HST.  
8. TAB 170-A2386-12/30/16 – 60 HOURS - $3,300 PLUS $429 HST.  
The only two months with identical totals of labour were September and October  
[151]  
2016, of 260 hours each. They both indicate that “All hours can be confirmed by the daily site  
log.”  
[152]  
It would be a simple matter to check these invoices by checking with Ross Clair’s  
representative to confirm these hours by referencing the representatives’ observations on the job  
and reviewing the daily job logs. However, that clearly was not done. Mr. Richardson testified as  
follows at page 4 of the June 11 cross-examination:  
Q. Okay. I'm now showing you an excerpt from the  
daily job logs of Caird-Hall. This is tab 145, page A2304 and  
its' dated October 31, 2016. Do you see that?  
A. I do.  
Q. Now, did you ever review these daily job logs  
while the project was ongoing?  
A. I've never seen them until this case. They were  
never sent to this office, sir.  
Q. Okay.  
A. We didn't even know they existed, to be honest  
with you.  
[153]  
The contract between Caird-Hall and Ross Clair appears at Tab 3, A48-A50. At  
A49, Supplementary Condition #1 incorporates CCA1 2008 Stipulated Price Contract. CCA1 2008  
Price Contract appears at Tab 175, A2402-A2432. Clause 7.1.2 at A2422 requires the contractor  
- 23 -  
to give a Default Notice and instruct the subcontractor to correct the default in 3 working days.  
Clause 7.1.4 gives the contractor rights to cancel the contract or deduct the cost of the default from  
any payment to the subcontractor.  
[154]  
Clauses 8 and 10 of the Ross Clair – Caird-Hall contract also provide for Notices  
of Default for deficient work – see A49. Mr. Richardson acknowledges his awareness of these  
provisions but did not comply with them. This exchange appears at page 2, 16-21, 27, 28 of the  
June 11 cross-examination:  
MR. SCHMUCK:  
Q.  
Now to go back to 2016 on the  
project and we've seen that around December 19, 2016, you received  
an email that Shane Babony would be leaving the job site because  
Caird-Hall felt work was virtually done. Did Ross Clair at any  
time send a notice about default to Caird-Hall, or terminate Caird-  
Hall's contract?  
A.  
I don't believe so.  
I mean they, they  
basically said they were gone, and we didn't get a job done.  
…
MR. SCHMUCH: Q. Now, we've looked at the document  
I have up on the screen before, Mr. Richardson. This is the  
purchase order Ross Clair issued to Caird-Hall, correct?  
A. It would look like it.  
Q. Page A48.  
THE COURT: Page A48?  
MR. SCHMUCH: Yes.  
THE COURT: Okay.  
MR. SCHMUCH: Q. And it has some supplementary  
conditions attached to it, is that correct?  
A. Yes.  
Q. And do you see on the screen now the  
supplementary conditions attached to the Caird-Hall purchase  
- 24 -  
order at page A49 and A50?  
A. Yes. You're going up and down with it though.  
Q. I'll stop there.  
A. Okay.  
Q. I'm going to focus on paragraph number 1 first  
and if you could just peruse that to yourself if you need to  
refresh your memory on it? Tell me when you're ready to go.  
A. Go ahead.  
Q. Okay. So was one of the terms of your contract  
with Caird-Hall that the terms and conditions in the CCA1 2008  
stipulate a price subcontract were incorporated?  
A. It, it would tie to it, yes.  
Q. Now I'm going to show you the CCA1 document.  
So this is item 291. Is that the standard construction  
document, CCA1 2008 that we see up on the screen now?  
A. That's what it states.  
Q. Page A2402, purchase....  
THE COURT: A?  
MR. SCHMUCH: A2402.  
THE COURT: Thank you.  
MR. SCHMUCH: Q. I'm going to refer you to a  
clause, sir, which we call SCC7.1.  
THE COURT: On what page?  
MR. SCHMUCH: This is on page A2422.  
THE COURT: A2422, okay.  
MR. SCHMUCH: Right.  
MR. SCHMUCH: Q. Sir, you've dealt with this  
contract many times?  
A. Yes. We have people in the office that do this  
- 25 -  
all the time.  
Q. And the Ross Clair standard terms and  
conditions refer to this contract in every instance?  
A. They did at that time.  
Q.  
Can I – can you look at clause 7.1.2? I'll  
let you read it to yourself if you need to and tell me when  
you're finished.  
THE COURT: 7.1, point?  
MR. SCHMUCH: 2.  
THE COURT: 2? Okay.  
A. Yes.  
MR. SCHMUCH: Q. I'm going to paraphrase it, sir.  
It says, if the subcontractor - and that's not Caird-Hall –  
neglects to prosecute the subcontract work properly or otherwise  
fails to comply with the requirements of the subcontractors  
substantial degree, the contractor may give notice in writing  
that the subcontractor is in default and instruct the  
subcontractor to correct the default in three working days. Can  
you point me to any notice in writing that Ross Clair gave to  
Caird-Hall until this clause saying to Caird-Hall the project is  
taking too long? You're not prosecuting the work quickly  
enough, you've breached your contract?  
A. No. I cannot.  
The simple fact that it wasn't  
finished and we didn't pay them.  
Q. I'm now going to refer you to clause 7.1.3.  
THE COURT: All right. Just a second, I just have  
to make some notes. 7.1.3?  
MR. SCHMUCH: Yes.  
THE COURT: Okay.  
- 26 -  
MR. SCHMUCH: Sorry, 7.1.4.  
THE COURT: Okay.  
MR. SCHMUCH: Q. I'll read it, sir. If the  
subcontractor fails to correct the default in the time specified  
– and I'll paraphrase, the contractor may correct such default  
and deduct the cost or terminate the subcontractors right to  
continue with the subcontract work, or terminate the  
subcontract. Did Ross Clair – can you point me to anything in  
writing where Ross Clair exercised its rights in number 7.1.4 on  
this project with Caird-Hall?  
A. No. I didn't think we had to when they  
abandoned site by their own admission. We were trying to get the  
job done. Fooling around with Caird-Hall, they had fooled  
around with the job was a waste of time.  
Q. Were you making the decision about whether to  
give the notice of default or notice of termination to Caird-  
Hall?  
A. I was concerned with satisfying the City of  
Hamilton, getting the job done. That was my, that was my – the  
legalities doesn't get a job done. We're already a year behind  
on our job that we had hired Caird-Hall to manage. My main  
objective was always and only to complete the job. I wasn't  
looking backwards, I was looking forward to get the job  
completed. And no, before you ask again, we didn't issue this.  
They had abandoned the site and paperwork wasn't going to get  
the job finished.  
Q. You're not a big fan of paperwork, sir?  
MR. MOVAT: Objection.  
THE COURT: Yes, that's not a fair question.  
- 27 -  
MR. SCHMUCH: Q. Sir, were you the one at Ross  
Clair making the decision about whether to terminate Caird-Hall?  
A. We never terminated, they abandoned site.  
Q. No. But were you the one....  
A. A year, a year after their scheduled completion  
date.  
Q. Were you the one making the decisions about  
whether to stick with Caird-Hall or to do the work yourself or  
bring in others?  
A. We had no choice. Caird-Hall abandoned site,  
for which they had been paid to manage.  
Q. Sir, was it you or somebody else at Ross Clair?  
Sir, was it you or somebody else at Ross Clair that was making  
these decisions in 2017?  
MR. MOVAT: Your Honour....  
A. For what? The decision was made by Caird-Hall  
to abandon the site.  
MR. SCHMUCH: Q. Yes. And....  
A. We didn't have any decisions to make. We just  
had to get on with the job. Caird-Hall abandoned....  
Q. One decision, one decision Ross Clair could  
have taken was to write to Caird-Hall and say, immediately come  
back to the site and immediately restore your full-time site  
superintendent. Ross Clair did not do that. Who was making  
those types of decisions at this time?  
A. I made the decision not to bother with making a  
phone call because Caird-Hall had been proven worthless on this  
job. The job was a year overdue. It was a mess. It wasn't  
even worth spending a quarter to phone them. It was terrible.  
- 28 -  
The City of Hamilton was pissed. We were pissed. Jim Hannan  
hadn't been on the site for a year, why bother? Okay? He, he –  
it's – they were a waste of time and to see them prove it over  
and over again. How do you run a job that's less than two  
million dollars a year over schedule? You can't. And it's not  
us just saying it, it was the consultants and it's the city.  
Q. Sir, is it your evidence that you did not have  
five minutes to prepare a notice of default and send it to  
Caird-Hall in or around December....  
THE COURT: That isn't a fair question. Mr.  
Schmuch, it's already been established there's  
nothing in writing. He thought it was a waste of  
time to contact them, so he didn't. That's pretty  
well clear enough.  
MR. SCHMUCH: Q. Can you tell us, sir, why Ross  
Clair did virtually no work in January, February, March and  
waited four months to send the billing for the period December  
to the end of April if you were so focused on finishing the  
project ASAP?  
A. We – you can't bill for deficient work. The  
bulk of the work was redoing what Caird-Hall had done. We don't  
send unionized men at their wages out to a jobsite to sit  
around. It doesn't happen that way. And the fact that the, the  
substantial completion wasn't issued until June, I mean, you can  
tell what's going on.  
...  
Q. Looking at clause 8 of these same supplementary  
conditions. Do you agree, sir, that the terms that Ross Clair  
- 29 -  
put forward in this subcontract required Ross Clair to provide  
two days notice to Caird-Hall to remedy what you thought was a  
default under its contract before you were allowed to go ahead  
and have the work performed that you had asked it to do?  
A. It's typically the case. But when you abandon  
the jobsite, it makes it a little different dynamic.  
Q. You were unable to send a letter and give two  
days notice? Is that what your evidence is?  
A. They sent us notice they were abandoning the  
jobsite.  
Q. Which is a breach, which might entitle you if  
they were being paid to back charge them and send the notice.  
But the point is, you didn't send the notice, did you?  
A. What would a bit of paper – how would the paper  
have got the project finished and the city off our back? I'll  
remind you, I got a five year suspension because of Caird-Hall's  
performance here.  
Q. Sir, I'm going to refer you to paragraph 10 of  
the same document. Do you agree that your terms and conditions  
required you to give two weeks to Caird-Hall after receiving the  
formal deficiency report to correct deficiencies before Ross  
Clair was allowed to have somebody else doing them and back  
charge Caird-Hall?  
A. Again, the situation was different. They had  
indicated they were abandoning site.  
Q. Do you agree with my interpretation of that  
clause from your contract, sir?  
A. That's the interpretation regarding this  
contract, but not this situation.  
- 30 -  
[155]  
It is to be noted that Martin Hannan, in an email to Sean Richardson dated  
December 5, 2016, at B1-36, advises that Shane Babony is no longer on the site. Mr. Hannan  
concludes the email as follows:  
“We will schedule and handle all of our sub trades accordingly for any deficient  
work this Friday.”  
[156]  
Jim Hannan testified that some of Ross Clair’s trades were reluctant to provide  
work due to outstanding monetary issues with Ross Clair.  
[157]  
An example appears at page 9 and 28 of the June 11, 2021, cross-examination. At  
Tab 225, A3560, an email appears wherein Martin Hannan indicates on October 5, 2016, that  
Shane Babony has compiled a list of everything needed to be done “to wrap this project up”. Martin  
Hannan indicates, “We really need to have this project done, so we can all get out there and get  
paid…please contact Shane @ 905-220-6858 to schedule the outstanding work within the next 10  
days.” Later that day, Gary Chiesa from Shoreway Flooring responds, stating that, “Martin, as  
discussed last week, we will not be returning until we are paid up 100% current.”  
[158]  
Mr. Richardson, at page 9 of the June 11 cross-examination, does not deny that  
Shoreway Flooring is a sub of Ross Clair and Ross Clair was getting invoices from Shoreway  
Flooring.  
[159]  
In a letter dated December 19, 2018, Grant Brailsford, Solicitor for City of  
Hamilton, indicates, in discussing the Waterdown Memorial Hall project, that Shoreway Flooring  
has an outstanding account with Ross Clair and has hired a collection agency to pursue the debt –  
see Item 149-A938-A939. The letter indicates that $283,387.80 is still owed to Ross Clair out of  
a total payable of $2,199,477.26 for the Waterdown project. $1,916,089.46 had been paid to Ross  
Clair for the Waterdown project by the City of Hamilton.  
[160]  
At page 29 of the cross-examination, Mr. Richardson agrees that Ross Clair had not  
paid Shoreway Flooring. Mr. Richardson explained at page 29 that the City of Hamilton hadn’t  
paid Ross Clair and “this is two years past the substantial date of completion.” Mr. Richardson  
indicates, “Look at the date, December 2018. The substantial was issued in 2017 and yet, we’re  
out all this money still.”  
[161]  
Mr. Brailsford, in his December 19, 2018 letter, refers to HVAC for Life and Caird-  
Hall commencing lien actions against Ross Clair and the City.  
[162]  
In his cross-examination of June 11 at page 72, Mr. Richardson is referred to Tab  
91, page A1739, which indicates that City Change Orders totaled $235,148.26 plus HST. Mr.  
Richardson indicates at page 72 he billed that amount but that is not what they were paid. At page  
- 31 -  
75, he indicates the city still owed him $54,000-$55,000 on the whole project overall and not just  
the Change Orders.  
[163]  
It appears that as early as August 2016, a number of subcontractors were phoning  
the City of Hamilton and the City of Hamilton contacted Nick to get the phone calls to stop – see  
A3011. Mr. Richardson’s response was that the emails didn’t specify the trades – see page 73-74  
of the June 4 cross-examination.  
[164]  
Finally, it is to be noted that at Tab 191, A2870, Martin Hannan, on October 24,  
2016, at 6:28 p.m., emails Sean Richardson that 5 subtrades are MIA and that 4 of them, who are  
all named, including Shoreway, are looking for payment.  
[165]  
As previous discussed, the City of Hamilton communicated to Ross Clair that they  
felt Nick Chiappetta was not a competent project manager. The City requested a better, more  
experienced project manager – see A2994-A2997.When Nick Chiappetta was fired in or about  
August of 2016, Mr. Richardson testified he took over the project, which he described as a disaster.  
In the Minutes of Meeting No. 35, in December of 2016, Sean Richardson attended the meeting,  
according to the Minutes, as Project Manager – see A1946-A1950.  
[166]  
As previously indicated, the City found out in December 2016 that Shane Babony  
was leaving as the site supervisor. Lu-Ann Duxbury, on behalf of the City, on December 19, 2016,  
sent an email to Sean Richardson and reminded him that the contract between the City and Ross  
Clair requires Ross Clair to provide updates regarding PM (project manager) and site supervisor  
overseeing the project. She indicates, “Please advise who is now taking over as the Project  
Manager and Site Supervisor at Waterdown Memorial” – see B1-138, B1-139.  
[167]  
At page 39-40 of the cross-examination on June 11, Mr. Richardson indicates he  
was the owner of the company and “I wasn’t really project coordinator. I was taking a role to  
complete the project.” Mr. Richardson indicates he didn’t appoint anyone as the project  
coordinator for 2017.  
[168]  
Regarding 2016, this exchange takes place at page 3-4 of the June 4 cross-  
examination of the Sean Richardson:  
Q. Now we've heard earlier that Nick either quit  
or was fired at Ross Clair in mid-August 2016. Would you agree  
with me that Ross Clair did not appoint one person to be the  
project coordinator for the balance of that contract?  
A. I stepped in.  
Q. I couldn't hear that answer, sir.  
A. I said, I stepped in personally.  
- 32 -  
Q. Okay. Well is it your evidence that you became  
the Ross Clair sole project coordinator for the balance of this  
project sometime in August of 2016?  
A. Well I wasn't the coordinator, but I came in  
to, to try and get the job back on the rails.  
Q. All right. But my question was, did Ross Clair  
appointment one person to be the project coordinator for the  
balance of this project?  
A. I stepped in personally.  
Q. Were you giving this project your full-time  
attention after mid-August 2016?  
A. I brought a super in also with me, but no, I  
brought in numerous companies, pretty much impossible, that's  
why I was still trying to rely on Caird-Hall to get this done.  
They were the ones that were hired to do the job and they were  
intimate with it.  
Q. And who was this person you brought in to be  
this site super?  
A. I believe at that time it was Sean Haughey who  
I brought in there. I'd have to look back.  
THE COURT: Again, this is it. Our final day of  
evidence. So if you're going to look back at it,  
you're going to have to do it at recess.  
A. I will do, sir. Your Honour.  
THE COURT: It's okay, you can call me sir or Your  
Honour, whatever else you want.  
MR. SCHMUCK: Q. Are you saying that you had Sean  
Haughey as a site super starting in mid-August of 2016 to work  
alongside Shane Babony?  
- 33 -  
A. I have to look back at the break just to see  
exactly when that happened.  
[169] Later in the June 11 cross-examination, Mr. Richardson indicates they were too  
busy for the Waterdown job and that is why they sublet it to Caird-Hall. Mr. Richardson didn’t  
assign a coordinator – he was just trying to get the job done and he brought his guys in. Mr.  
Richardson denies he was a full-time project coordinator for Waterdown Memorial – “But I had  
guys out there I could rely on.” Mr. Richardson indicates he didn’t really designate a site  
supervisor. Mr. Richardson indicates he was there to try to get it finished…Mr. Haughey: “when  
he had time, he’s the more senior guy there – yes.” Later in the cross-examination, Sean  
Richardson agrees that Sean Haughey’s main job with Ross Clair in 2017 was his project in  
Mississauga – see pages 87, 88, 89, 91, 117 of the June 11 cross-examination.  
[170]  
I note that a review of the site meetings from August 2016 to January 2017 reveals  
the following:  
1. Nick Chiappetta is listed as the Ross Clair Construction Project Manager in Site  
Meetings 27, 28 held on August 10, 2016, and August 22, 2016, respectively – see Tab  
122, A1911, and Tab 123, A1916-A1920.  
2. In Site Meeting 29, held on September 8, 2016, Nick Chiappetta is no longer listed.  
Sean Richardson is now listed as Ross Clair Project Manager – see Tab 124, A1921-  
A1925.  
3. In Site Meeting 30 to Site Meeting 35 held from September 20, 2016, until December  
8, 2016, Sean Richardson is listed as the Ross Clair Project Manager – see Tabs 125,  
126, 127, 128, 129 from A1926-A1950.  
4. In Site Meeting 36 held on January 12, 2017, Sean Richardson is listed under Ross  
Clair Construction and there are no persons listed as having any project manager/site  
supervisor positions – see Tab 130, A1955.  
5. Sean Haughey’s name does not appear to be listed on the front page as a potential  
attendee on any of the above site meetings save and except the last one – see Site  
Meeting No. 36, Jan 12, 2017, where he did not attend – see Tab 130, A1951-1955.  
[171]  
At page 8-9 of the June 4 transcript, Mr. Schmuck points out that at the September  
8, 2016, October 5, 2016, to the January 2017 meetings, Mr. Richardson didn’t bring anyone from  
Ross Clair. Mr. Richardson indicated he didn’t need somebody to hold his hand to go to a  
construction meeting.  
[172]  
At page 38 of the June 11 cross-examination, Mr. Richardson indicates that after  
Caird-Hall left the site full-time in December, Mr. Richardson brought in Sean Haughey, and he  
believes it was Chris Stewart, or it might have been Paul Stewart and Sean O’Donnell. These  
- 34 -  
people were licensed union carpenters. Their role in 2017 was to get the job finished. At page 39,  
Mr. Richardson indicates, “All three of them had their own jobs they were looking after. So when  
I could get them freed up to get out here, they would do it. You name it, everything. Deficiencies,  
incomplete work. I mean, the job wasn’t finished.”  
[173]  
At page 40 of the June 11 transcript, Mr. Richardson testifies that Sean, Chris, Paul  
and Sean would be more knowledgeable on a day-to-day basis than Mr. Richardson. When asked  
if anybody was keeping formal daily site logs in 2017, Mr. Richardson testified, “I believe they  
have, yes.” Mr. Schmuck indicated he hadn’t received these daily logs and asked if Mr. Richardson  
was guessing or not producing them for some reason. Mr. Richardson indicated, “I can’t recollect.”  
Mr. Richardson then indicated that if they have them, they would be in archives – he didn’t realize  
he needed to introduce them. Mr. Richardson agreed that daily logs are the most accurate record  
of what was done on a daily basis, and it is common for the construction industry to keep daily  
logs.  
[174]  
Mr. Richardson is “pretty sure” Ross Clair took photographs of work done in 2017.  
When asked why these photos haven’t been produced, Mr. Richardson responded, “I don’t know.”  
Mr. Richardson was sure there were photos taken of incomplete work or deficient work done by  
Caird-Hall. Mr. Richardson could not say why the photos weren’t produced. He wasn’t responsible  
for productions.  
[175]  
Mr. Richardson agreed that it “might be common” for the construction industry to  
take photos to demonstrate deficient or incomplete work, but it’s not mandated – see page 40-42  
of the June 11 cross-examination.  
[176]  
Ironically, when Mr. Schmuck referred back to Caird-Hall’s daily logs, Mr.  
Richardson described the logs as deplorable – “They’re probably the worst rendition of a daily log  
I’ve ever seen.” When Mr. Schmuck pointed out the Caird-Hall dailies were better than the dailies  
Ross Clair produced, Mr. Richardson responded, “Okay. All right” – see page 50-51 of the June  
11 cross-examination.  
[177]  
The cross-examination of Mr. Richardson revealed that Ross Clair’s trades, on  
occasion, did not show up as scheduled and this caused delays.  
[178]  
For example, at page 44 of the June 11 cross-examination, Mr. Richardson is asked  
if he got involved in talking to his subtrades to get them moving. Mr. Richardson indicated, “I  
can’t recall.” Mr. Richardson is referred to an email chain at Item 307, A2865, involving E & E  
Custom Steel, in the transcript referred to as “EMD Custom Steel”. The email chain indicates that  
Martin Hannan is requesting shop drawings and samples immediately from E Kerikes from E & E  
Custom Steel, with a copy to Sean Richardson – see page 43-44 of the June 11 cross-examination.  
At page A2865, Mr. Richardson writes Mr. Kerikes from E & E Custom Steel on September 7,  
2016, indicating, “We are on site and we do not see your men on site installing the steel nor have  
you picked up this template. It’s complete unacceptable and you are continually delay other trades  
now.” Mr. Richardson agreed he wrote that and said it was true – see June 11 cross-examination  
- 35 -  
at page 45. Mr. Richardson blamed the whole situation on Caird-Hall mismanagement – see June  
11 cross-examination at page 43-46.  
[179]  
Another example of a Ross Clair subtrade not returning to the site appears at page  
54 of the June 11 cross-examination. At A2868, Caird-Hall writes Mr. Richardson giving an update  
about work to take place. The elevator company – a Ross Clair subtrade – advised that they were  
not returning to the site as they had not been paid. Mr. Richardson again blames Caird-Hall  
indicating, “I believe this was an argument over the overtime Caird-Hall caused.”  
[180]  
I find that throughout the cross-examination, Mr. Richardson was often evasive and  
often answered questions with answers that did not address the specific questions, but answered  
and/or volunteered blanket statements indicating that Caird-Hall was negligent, incompetent or  
outright dishonest.  
[181]  
Examples from the June 4 and June 11 transcripts include the following testimony  
from Mr. Richardson:  
1. “I mean the way Caird-Hall ran the job left a very sour taste in our mouth and you  
know, quite frankly I am just done with it.” – page 13 – June 4.  
2. “Yeah absolutely, the gouging continued all the way until I caught hold of it and didn’t  
pay anymore until it got reconciled. Without a doubt, Ross Clair was well aware that  
one of our employees was taking advantage of them and was incompetent too.” – page  
17 – June 4.  
3. “It was very sneaky to throw in a SOV [Schedule of Values] for your contract and you  
have a SOV for your change orders and you’ve got a Cash Allowance, Caird-Hall will  
admit that. I would say there was a little bit of deceit here.” – page 18 – June 4.  
4. “…we tried to hire Caird-Hall to do the job or whatever and they made us look like  
assholes.” – page 24 – June 4.  
5. “Why are we having a court case? Caird-Hall just billed whatever they wanted.” – page  
62 – June 4.  
6. “They helped us out of a jam? They put us in an effing jam, a big jam.” – page 71 –  
June 4.  
7. Regarding the following question, “Since this case started, you didn’t reach out to Nick  
to find out why, right?” Mr. Richardson's response was, “Nick didn’t know his head  
from his ass. That’s why this job went this way.” – page 73 – June 4.  
8. “I believe most of the payments were pretty prompt until we found out that we were  
getting scammed.” – page 26 – June 11.  
- 36 -  
9. “It’s no wonder this was such a disaster. Fuck.” – page 45 – June 11.  
10. “It was an abortion.” – page 108 – June 11.  
11. Regarding the lack of Notice and not following the terms of the contract between Caird-  
Hall and Ross Clair: “Absolutely. Because Caird-Hall didn’t give a shit.” Page 120 –  
June 11.  
12. In response to a question, “Are you saying Mr. Babony lied to CRS Rental Limited and  
said I work for Ross Clair and I want order something on its account?”, Mr. Richardson  
responded, “It’s actually that easy, yes. It is actually that easy.” – page 12 – June 11.  
13. Regarding charging Mr. Babony with fraud, Mr. Richardson responded, “I probably  
should have, probably should have. Probably should charge Caird-Hall with fraud too.”  
– page 132 – June 11.  
14. “It just goes to show you that they have no idea what they were doing, none. Not a clue  
or how to run a project.” – page 134 – June 11.  
15. “Well, we forwarded a letter from the City yelling and screaming, didn’t we?” – page  
124 – June 11.  
16. “We’ve wasted enough time here now, so don’t worry about the clock.” – page 105 –  
June 11.  
17. At page 46-47 of the June 11 cross-examination, Mr. Schmuck complains that the  
witness is volunteering information in response to his question. Mr. Schmuck asks the  
Court to ask their witness not to talk or add things himself and just answer his questions.  
I indicate that is Mr. Richardson’s way of answering the question, but I also indicate to  
Mr. Richardson that it’s not really answering the question. I indicate that I understood  
his position – “You’ve stated it many times, the job was a disaster. It should have been  
completed a year earlier – try to answer more specifically the question.” Mr.  
Richardson indicates he will.  
18. However, as the summary above illustrates, Mr. Richardson eventually returned to his  
old ways.  
COUNTERCLAIM – CROSS-EXAMINATION OF MR. RICHARDSON  
[182]  
I have grouped the cross-examination for the Counterclaims in order to match the  
way they were grouped in examination-in-chief. In the cross-examination of Mr. Richardson, Mr.  
Richardson’s counsel explained that the $39,207.21 for Horizon Utilities is no longer part of the  
Counterclaim. At the time of Scott Schedule #1, the defence didn’t know what the basis of Caird-  
Hall’s Cash Allowances were as they didn’t correspond to Cash Allowances. Accordingly,  
- 37 -  
according to defendant’s counsel, this was just evidence that it was not paid by Caird-Hall but,  
rather, by Ross Clair.  
COUNTERCLAIM ISSUES  
[183]  
A)  
SCOTT SCHEDULES #1 AND #2  
1) ITEM LABOUR  
SCOTT SCHEDULE #1 - $138,377.12  
INCLUDING HST  
SCOTT SCHEDULE # 2 - $122,457.63  
PLUS $15,919,49 HST EQUALS  
$138,377.12  
At page 85 of the June 11 cross-examination, Mr. Richardson agrees that the labour claim is for  
labour to complete the work and correct deficiencies of Caird-Hall. He repeats this evidence at  
page 98 of the June 11 transcript.  
[184]  
At page 86-87 of the June 11 transcript, Mr. Richardson agrees that the labour  
charges include time that Caird-Hall was on the site. It appears nothing was put in writing  
regarding deficiencies as Mr. Richardson wasn’t involved with the job at the time. Mr. Chiappetta  
was on the job at least until end of August 2016.  
[185]  
Mr. Richardson has no evidence to dispute that Ross Clair’s forces and subtrades  
were doing their own work – there were 20 subtrades of Ross Clair that were supposed to do half  
of the work – see page 85-87 of the June 11 cross-examination.  
[186]  
As an example, Mr. Richardson could not say what work his employees, such as  
Mark Meechan, Robert McBride, or Christopher Stewart, were doing for the labour hours claimed  
in December 2016.  
[187]  
Mr. Richardson testified he would have to look at the time sheets. However, these  
were not produced at trial. Mr. Richardson testified he could get them, but Mr. Schmuck pointed  
out, “It’s a bit late now” – see page 89-90, June 11 transcript. When asked if at any time before  
the lawsuit, “Did you write Caird-Hall and say you owe me $138,000 for labour costs I incurred  
to correct or complete the work?”, Mr. Richardson did not answer the question directly, but  
indicated, “The job got reconciled after” – see page 94, June 11 transcript.  
[188]  
A time sheet appears at Tab 217 at A3506 for Mr. Haughey. The time sheet  
indicates Sean Haughey working at the Commerce Court job in Toronto and Change Directive 58  
for the Waterdown job in March 2017. Mr. Schmuck points out that the Counterclaim can’t include  
work done for work being paid for by others. Mr. Richardson responds, “Well, to a degree. It  
depends, I mean, we'd have to ask him exactly what he was doing.” – see page 113, June 11  
- 38 -  
transcript. Mr. Richardson indicates he can’t determine what he was doing – you would have to  
ask Mr. Haughey – see page 114, June 11 transcript.  
[189]  
Mr. Richardson agrees that Mr. Haughey’s main job with Ross Clair was Ross  
Clair’s project in Mississauga – see page 117, June 11 transcript.  
[190]  
Mr. Richardson repeatedly indicated he had to react because of the lengthy delay.  
He did not send emails to Caird-Hall about work not getting done.  
[191]  
B)  
SCOTT SCHEDULES #1 AND #2  
2) ITEM #3 – DOOR HARDWARE  
TRILLIUM  
SCOTT SCHEDULE #1 - $70.273.24  
SCOTT SCHEDULE #2 - $0.00  
3) ITEM #1 – HORIZON UTILITIES  
T SCOTT SCHEDULE #1 - $39,273.21  
SCOTT SCHEDULE #2 - $0.00  
5) ITEM #13 – HARDSCAPE NOT DONE  
SCOTT SCHEDULE #1 - $24,408 ($21,600  
PLUS $2,808 HST)  
SCOTT SCHEDULE #2 - $0.00  
The three items listed above – Items 3, 1, 13 – were the second, third and fifth largest claims in  
Scott Schedule #1. They were all abandoned at the trial. Scott Schedule #2 makes no claim at all  
for items 3, 1, 13.  
[192]  
C)  
SCOTT SCHEDULES #1 AND #2  
4) ITEM # 9 – CRS RENTALS/UNITED  
SCOTT SCHEDULE #1 - $26,253.09  
INCLUDING HST  
SCOTT SCHEDULE #2 - $26,253.09  
Item #9 - CRS Rentals/United - is the fourth largest item in the Counterclaim. This claim has been  
maintained in Scott Schedule #1 and #2 at an identical amount.  
[193]  
There is a claim for a mini excavator in January 2017 for $1,595 due to unfinished  
work by Caird-Hall. There is a rental receipt for scaffolding for July 2016. Mr. Richardson  
- 39 -  
indicates he has scaffolding in his yard and wouldn’t rent it for anybody (This was at a time Mr.  
Chiappetta was project manager for Ross Clair). Mr. Richardson indicated Mr. Babony lied to CRS  
and put it on Ross Clair’s account.  
[194]  
Mr. Richardson claimed he raised it with Caird-Hall to stop renting it on his  
account. Mr. Richardson stated it was done on site and it’s in a few emails. Mr. Schmuck indicated  
he has not seen an email or invoice or letter from Mr. Richardson to that effect. Mr. Richardson  
indicated he should have charged Mr. Babony and probably Caird-Hall for fraud – see page 128-  
133, June 11 transcript.  
[195]  
There is an August 22, 2016, invoice for the rental of a boom. Mr. Richardson  
indicated Ross Clair didn’t rent a boom. Caird-Hall did it on their account. Mr. Richardson  
indicated that in August or September or October or November or December, he asked Caird-Hall  
for reimbursement. He put it in writing. When asked for the date of that email, Mr. Richardson  
said it was the date when the job got reconciled - April 4, 2017 at B144.  
[196]  
D.  
SCOTT SCHEDULES #1 AND #2  
6. ITEM #23 – LIEN BONDS  
SCOTT SCHEDULE #1 – 4 years x  
$5,191.00 = 23,911.00  
SCOTT SCHEDULE #2 – 5 years x  
$5,191.00 = $29,102  
This was the sixth largest item on Scott Schedule #1. The claim has been increased to $29,102 in  
Scott Schedule #2 due to the passage of time. The lien claim also involves HVAC for Life for 3  
years as they are one of Caird-Hall’s trades. That bond was ordered cancelled on January 18, 2021  
– see Item 27, B1-724.  
[197]  
E)  
SCOTT SCHEDULES #1 AND #2  
7. ITEM #20 – HOME DEPOT EXPENSES SCOTT SCHEDULE #1 - $14,540.63,  
TO RECTIFY CAIRD HALL WORK  
INCLUSIVE OF HST  
SCOTT SCHEDULE #2 - $14,540.63  
The Item #20 Home Depot Expenses were the seventh largest claim item in Scott Schedule #1.  
The items and value in Scott Schedule #2 have been maintained.  
- 40 -  
[198]  
Tab 20 of the defendant’s list of claims regarding Home Depot appears at B1-417.  
However, no invoices are included. Mr. Richardson could not say if these expenses were required  
for deficiencies or work not done. Mr. Richardson does not know if back charges or letter of  
deficiencies were sent to Caird-Hall.  
[199]  
Back up invoices are set out at B1-159-B1-249. The summary chart at B1-159 are  
dates from the invoice dates. There are no pictures of the deficiencies and no architecture  
deficiency list for 2016, but, according to Mr. Richardson, there are Default Notices from the City  
of Hamilton.  
[200]  
The list of invoices in the summary chart at B1-159 indicates that of the $14,540.63  
claimed, $8,816.98 are from invoices from June 2016 to December 17, 2016, with an additional  
$3,543.19 by January 17, 2017 (total of approximately $12,360.17) and an additional $1,130.95 in  
February of 2017, for a total of $13,491.12. Approximately another $1,000 was spent to the  
completion date.  
[201]  
At page A3006, Sean Richardson wrote to the City of Hamilton on December 12,  
2016, and laid the blame for the delay on Change Directives issued by the City of Hamilton. There  
is no mention at all that the delays have been caused by deficient or incomplete work by Caird-  
Hall. Caird-Hall is not even mentioned in that December 12 letter.  
[202]  
This is at about the time that Martin Hannan advised Sean Richardson that as of  
December 12, Shane Babony was no longer supervising the site. Martin Hannon advised that they  
will schedule their subtrades to do deficient work “after this Friday” – see B1-136 and A3006,  
A3007.  
[203]  
On December 17, 2016, $8,816.98 of the $14,540.63 had been billed on 61% of the  
total. By January 17, 2017, 85% of the Home Depot invoices had been accumulated with no  
reference in the documentation as of January 17, 2017, alleging deficient/incomplete work.  
Further, Martin Hannan had advised, in December 2016, that they were prepared to schedule their  
subtrades for any deficient work.  
[204]  
F)  
SCOTT SCHEDULES #1 AND #2  
8. ITEM #15 – RE: WATERLINES NOT  
SCOTT SCHEDULE #1 - $14,522.76  
SCOTT SCHEDULE #2 - $0.00  
DONE  
This was the eighth largest amount claimed in Scott Schedule #1 and is no longer being claimed.  
[205] g) SCOTT SCHEDULES #1 AND #2  
9. CLAIMED INTEMS IN SCOTT SCHEDULE #1 ORIGNALLY UNDER $10,000  
- 41 -  
As indicated earlier, Scott Schedule #2 abandoned 12 claims of the 23 items covered by Scott  
Schedule #2. Three items increased in claims in Scott Schedule #2 – Item #23 (lien bonds) which  
has been already discussed. Another item – Item 19.1 and 19.2 – regarding Forsyth in Scott  
Schedule #1 have been deleted in Scott Schedule #2, but a larger amount of $15,650.72 has been  
substituted.  
[206]  
In addition to Items 3, 1, 13, 15 in Scott Schedule #1, which were deleted in Scott  
Schedule #2, as previously discussed, the following items were also deleted:  
Item 2 – Testing  
Scott Schedule #1 - $5,605  
Scott Schedule #2 - $0.00  
Scott Schedule #1 – $5,600.17  
Scott Schedule #2 – $0.00  
Scott Schedule #1 – $7,650  
Scott Schedule #2 – $0.00  
Scott Schedule #1 - $565.00  
Scott Schedule #2 – $0.00  
Item 4 – Gas Lines  
Item 5 – Install Door  
Hardware  
Item 10 – Fine Line Paving  
Item 11 – Planter Excavation Scott Schedule #1 - $858.80  
not done  
Scott Schedule #2 – $0.00  
Item 14 – Sign Foundation not Scott Schedule #1 - $2,000  
done  
Scott Schedule #2 – $0.00  
Item 17 – Voice/Data work  
Scott Schedule #1 - $5,650  
not done/required  
Scott Schedule #2 – $0.00  
Item 19.1 – Forsyth Invoice  
19.2 – Forsyth Invoice  
$926.04  
$5,106.50  
Scott Schedule #1 – claim as outlined above in 19.1 and 19.2  
Scott Schedule #2 – above claims deleted - 19.1-substitued as  
detailed below - 19.2 - $0.00 - but 19.1 in Scott Schedule is now  
- 42 -  
being claimed at $15,650.72 as set out in Tab 19 of the Ross Clair  
Damages Brief  
[207]  
The remaining amounts in Scott Schedule #1 and Scott Schedule #2 remain  
relatively consistent with some minor variation – i.e., the Item 16 elevator work overtime claim  
has increased from $4,634.93 in Scott Schedule #1 to $5,970.75 plus $776.20 HST in Scott  
Schedule #2. This is the third item that has been increased from the original Scott Schedule #1  
total.  
[208]  
Regarding Item 18 – misplaced roof hatch CH – claim of $4,500 – the City of  
Hamilton paid Ross Clair for the roof hatch: $9,484.10 plus HST – see Tab 192, A2877 and page  
95-96 of June 11 transcript.  
[209]  
Regarding the original Item 13 landscape claim in Scott Schedule #1, it is no longer  
being claimed in Scott Schedule #2. Mr. Richardson testified a lot of that work would have been  
in the labour claim – see page 97, June 11 transcript.  
[210]  
Regarding Item 7, in both Scott Schedules, which is a claim of $3,015.78 for  
finishing drywall, that is work done in the fall of 2016 by CDS when Caird-Hall was still on site.  
[211]  
Mr. Richardson agrees “absolutely” that he didn’t follow the terms of his own  
subcontract by given written Notice to Caird-Hall before doing work he had hired them to do. Mr.  
Richardson explained his reason for not giving Notice was “because Caird-Hall didn’t give a shit.”  
– see page 118-123 of June 11 transcript.  
[212]  
Mr. Richardson could not point to any email or letter that Ross Clair sent in the fall  
of 2016 directing that Caird-Hall complete the drywall work – see page 124 of June 11 transcript.  
[213]  
Regarding Greenfield Painting, Greenfield’s January 25, 2017, invoice is to Ross  
Clair. Mr. Richardson agreed that the painting was contract work and none of the invoices said  
correction or deficiencies. Invoice 6047 is for patina work that is in Ross Clair’s scope of work.  
Mr. Richardson indicated, “I’m saying I have to look into it.” – see page 127 of June 11 transcript.  
[214]  
Mr. Richardson testified Ross Clair asked Caird-Hall to do the painting in 2017 but  
he has no documents to support that. In his business, they use the telephone.  
[215]  
Regarding Reimar, Items 12.1 to 12.7 in both Scott Schedules, Reimar sued Ross  
Clair for over $60,000 ($66,935.90) because they were not getting paid – see Item 153 A946-  
A966. In its Statement of Defence at paragraph 7, Ross Clair denied owing any monies to Reimar.  
At paragraph 10, Ross Clair indicates Reimar has claimed for Change Orders not approved by  
Ross Clair. At paragraph 13, 14, Ross Clair states that Reimar did its work negligently, carelessly,  
unskillfully, and Ross Clair back-charged due to Reimar’s deficient and/or incomplete work and  
Reimar’s failure to meet its contractual obligation - see A958, A959.  
- 43 -  
[216]  
Mr. Richardson indicated that the claim was settled for $15,000. The holdback was  
$23,000. Mr. Richardson doesn’t know how the amounts were apportioned. Paragraph 3 of the  
Statement of Defence makes it clear the proceedings arise out of a construction project at  
Waterdown Memorial Hall. The Statement of Claim refers to work/materials supplied from July  
2, 2015, to January 24, 2017.  
[217]  
Regarding Item 12.1 – FCN-01 – on the two Scott Schedules, there are no  
documents that Ross Clair paid it. Regarding 12.5 – FCN-07 – re-bar sorting labelled EXTRA –  
Ross Clair got billed by Reimar $1,446.60. Mr. Richardson testified that this is Caird-Hall’s  
responsibility as they asked for it.  
[218]  
Regarding Item 12.3 – Survey Benchmarks – FLN-04 - $2,079.20 – Mr. Chiappetta,  
at Tab 195, A2979, November 5, 2015, indicates he will pay for it. Mr. Richardson indicates that  
Mr. Chiappetta was out of his realm and that he needed to go through proper procedures. That is  
why Mr. Chiappetta was let go.  
[219]  
Regarding Item 12.6 in both Scott Schedules regarding winter heat/behind schedule  
– the email chain between Mr. Chiappetta, Reimar and Caird-Hall at Tab 195, A2981-A2984 in  
February, March 2016, it indicates that Nick Chiappetta authorized the work and asked for a  
separate invoice to Ross Clair for this item.  
[220]  
Nick Chiappetta’s email dated November 10, 2015, at Tab 228, A3567, authorizes  
payment by Ross Clair for FCN – 001 to FCN 006, which covers Item 12.1 to 12.4 Reimar work  
in both Scott Schedules. Mr. Richardson indicated that the reason for this was “Hannan” was not  
running the job properly.  
[221]  
On November 5, 2015 – see Tab 228, A3570 – Nick Chiappetta authorizes billing  
to Ross Clair for the re-bar sorting itemized as Item 12.5-FCN-07 on both Scott Schedules.  
[222]  
Regarding Item 12.7 in both schedules, asking for $858.80 for delay time, there are  
no emails where Ross Clair advised Caird-Hall that Ross Clair was seeking that Caird-Hall was to  
pay for Reimer delay costs.  
[223]  
Regarding Item 16 – elevator delay – Scott Schedule #1 asks for $4,634.93  
inclusive of HST. This rises to $5,970.75 plus HST of $776.20, for a total of $6,746.95 in Scott  
Schedule #2.  
[224]  
The invoice from Southwestern Elevator to Ross Clair at Tab 16 at B405-B406  
shows a total invoice of $4,634.93 (also the total claimed in Scott Schedule #1, Item 16), but Mr.  
Schmuck points out that the invoice only bills $314.25 for overtime. Mr. Richardson indicates that  
Ross Clair had to pay overtime because the elevator team came prematurely.  
[225]  
Regarding Item 18 in both Scott Schedules – misplaced roof hatch – there is a claim  
for $5,085. The City issued a Change Order for this roof hatch – see Tab 218 A3526, A3527. At  
- 44 -  
Tab 192, A2877, it indicates the City paid Ross Clair $9,494 for the Change Order regarding “roof  
access hatch”. Mr. Richardson indicates this claim is mostly for the time and cost of the roofer.  
[226]  
Regarding Forsyth Electrical, this is Item 19.1 and 19.2 in both Schedules. In Scott  
Schedule #1, the claim is for $926.04 and $5,106.50. In Scott Schedule #2, the total claim rises to  
$15,650.72. In its submissions, at page 28, the plaintiff concedes that there should be a credit for  
Forsyth invoices totaling $12,173.68. Where the plaintiff’s amount comes from, I do not know.  
The plaintiff indicates at page 56 of its submissions that the Forsyth invoices at B1-407 can be  
removed from Caird-Hall’s claim. The invoices at B1-407-B1-413 total $15,650.72 as indicated  
by the defendant in its Scott Schedule #2 at Items 19.1 and 19.2.  
[227]  
Regarding Tab 21 of both Scott Schedules, there is a claim for $2,455.15 for  
WeirFoulds expense for waterline dispute. Mr. Richardson indicated there was a mediation  
between Ross Clair and the City caused by Jim Hannan. Ross Clair cancelled the mediation and  
paid for cancellation expenses. Mr. Richardson explained there was no merit in Jim Hannan’s  
stance, and they walked from it.  
GENERALLY  
[228]  
At page B-459, Mr. Richardson indicates these are the Change Orders authorized  
by the City, and outlines what Caird-Hall is entitled to as opposed to the numbers Caird-Hall made  
up. Caird-Hall, after a deduction for Change Order 60 for deficiencies of $27,814.95, is entitled to  
compensation of $132,822.65 due to authorized Change Orders.  
[229]  
Regarding the Minutes of Construction No. 36, dated January 12, 2017, the Minutes  
do not outline any work to be done by Caird-Hall. Mr. Richardson indicated that Caird-Hall did  
not help Ross Clair to complete any work in 2017.  
[230]  
By April 4, 2017, Mr. Richardson had lots of concerns and sent them an email –  
see B1-144. At B1-145, there is a list of “RCC Counterclaim amounts against CH.” It totals $544,  
668.18 plus HST.  
[231]  
Mr. Richardson indicated Caird-Hall responded to the April 4, 2017, email – “they  
sent some BS.”  
[232]  
At Tab 209, A3032, there is a deficiency report prepared by Workshop Architecture  
labelled Deficiency Report 01 - February 22, 2017. This is the first deficiency inspection after  
Caird-Hall left. It was suggested by Mr. Schmuck there are at least 20 items in the Scott Schedule  
#1 that are not there. Mr. Richardson indicated there was lots of activities in those two months  
after Caird-Hall walked off the job on December 15, 2016.  
[233]  
In re-examination, Mr. Richardson indicated that Items 1.3 - 1.5 in the Deficiency  
Report are in Scott Schedule #1 at #7-CDS, to finish ceiling/dry wall. Items 7.1 - 7.3 in the  
Deficiency Report are in Scott Schedule #1 at #8, Greenfield Painting.  
- 45 -  
[234]  
The Deficiency Report 01 indicates a large number of the deficiencies that were  
addressed on February 27, 28, 2017. Pictures of deficiencies are attached to the report and at first  
glance, the deficiencies photographed appear to be relatively minor.  
CONCLUSION RE CREDIBILITY/RELIABILITY OF SEAN RICHARDSON  
[235]  
Sean Richardson, on numerous occasions, was evasive and refused to answer  
questions or simply answered that Caird-Hall completely mismanaged the project throughout and  
was incompetent. His statements in cross-examination were either not supported by documentary  
evidence or often contradicted by them. His claim that Caird-Hall’s work was incomplete and  
deficient throughout the project is simply not supported and/or contradicted by other testimonial  
evidence and documents, including Sean Richardson’s own letters and email. After considering  
Mr. Richardson’s evidence and testimony, which has been exhaustively summarized, I find Mr.  
Richardson to be a charismatic, no nonsense, forceful type of individual. I also find, however,  
based on the evidence tendered before me, that Mr. Richardson is not a credible or reliable witness.  
REPLY EVIDENCE  
SEAN CHICKOWSKI  
[236]  
Mr. Chickowski is the senior estimator and part-time project manager for Reimar  
Construction. Ross Clair and Reimar had a contract dated July 15, 2015, for $258,442.30 for the  
Waterdown Project – see Tab 226, A3562. Reimar was not paid in full to include all charges.  
Reimar sued the City of Hamilton and Ross Clair for $66,935.90 – see A946. Reimar settled for  
$15,000 plus HST.  
[237]  
Tab 228, A3567, is an email chain on November 10, 2015, where Nick Chiappetta  
approved FNCI – FCNG. Nick Chiappetta approved the survey benchmark work outlined at Scott  
Schedule #1 at Item 12.3 – see Tab 228, A3570. Nick Chiappetta also approved the re-bar sorting  
that is included in Scott Schedule 12.5 – see Tab 228, 3572-A3574.  
[238]  
On November 4, 2016, Sean Richardson authorized the concrete pouring of  
footings, which is a cost that was not part of the original contract – see Tab 195, A2977.  
[239]  
Mr. Hannan advises Sean Chickowski, at 3:39 p.m. on November 4, 2016, that he  
can’t approve the concrete pouring and that Sean Richardson’s approval is required. A November  
4, 2016, email at 3:41 p.m. from Sean Richardson indicates, “Guys, what’s been poured here  
footings. Let’s go.” Accordingly, it took Sean Richardson about two minutes to approve a cost that  
was not in the original contract. Mr. Chickowski testified that sometimes Sean Richardson waited  
days – this time there was a quick response.  
MARTIN HANNAN  
- 46 -  
[240]  
Martin Hannan was recalled in reply by the plaintiff. Regarding Sean Richardson’s  
April 4, 2017, email to Caird-Hall outlining 10 additional issues/questions, Mr. Hannan responded  
to those concerns at Tab 174, A2392-A2399 and included photos.  
[241]  
Mr. Hannan testified that Mr. Richardson had little to no knowledge of what was  
going on. Mr. Richardson never responded to the 10 explanations provided by Caird-Hall. Caird-  
Hall answered the questions as they were operating in good faith and expected to get paid for their  
work.  
[242]  
Mr. Hannan responded to the items listed on the Scott Schedule #1. There is no  
need to summarize any testimony regarding the items that have been deleted from Scott Schedule  
#1. Regarding the remaining items that appear in Scott Schedule #1 and #2, Martin Hannan  
testified as follows:  
[243]  
1.  
Mr. Hannan stated that this amount was grossly inflated.  
2. Regarding Item 7 – CDS to finish ceiling/drywall:  
Regarding Item 6 – Labour to complete work and complete deficiencies:  
[244]  
Mr. Hannan testified that the drywall subtrade had completed 98% of the work by  
December 2016. He never received an email that the drywall work was not  
satisfactory.  
[245]  
[246]  
3.  
Regarding Item 8 – Greenfield Painting:  
The Greenfield Invoice at B1-337 refers to a special coating on metal. This was  
scope of work that was in Ross Clair’s responsibility, as was the installation of steel  
handrails and stairs – see Item 109, A822.  
4.  
Regarding Item 9 – CRS Rentals Limited:  
Martin Hannan testified that this was for boom rental. Nick told Martin that they  
didn’t have that equipment and the rentals were not called off by Mr. Richardson.  
The mini excavator rented in January 2017 – see B1-341, 342 – was not required  
to do any deficiency work by Caird-Hall. Regarding the scaffolding and decking in  
July 2016, it was rented to complete work by Ross Clair for an addition.  
[247]  
5.  
Regarding Item 16 – Overtime claim for Southwestern Elevator:  
Martin Hannan testified that Nick approved the overtime charges. Southwestern  
was a Ross Clair subtrade. Nick approved the overtime hours to keep them happy.  
Caird-Hall didn’t call Southwestern Elevator to the site.  
- 47 -  
[248]  
[249]  
6.  
Regarding Item 18 – Misplaced roof hatch:  
Rob McBride, a Ross Clair carpenter, put the roof hatch in the wrong place – he  
had the drawing upside down.  
At Tab 224, page A3559, is a summary of billings to Ross Clair. $209,130.34 is  
still owing. The Caird-Hall invoices included Change Orders that were internal Change Orders  
between Ross Clair and Caird-Hall. Regarding the Cash Allowances totals, they were told to bill  
Cash Allowances plus contractual Cash Allowances. Caird-Hall didn’t make it up. Ross Clair  
approved it and that includes accounting, Nick and Sean.  
[250]  
Post-December 2016, Caird-Hall did come back for deficient work in 2017. There  
is an email at Item 353, A3601, May 3, 2017, that relates to HVAC and Drywall deficiencies that  
were addressed in January 2017.  
[251]  
In the January 12, 2017, Site Meeting No. 36, Martin Hannan and Shane Babony,  
from Caird-Hall, and Sean Richardson, are listed as participating parties.  
[252]  
Practical Plumbing was hired by Caird-Hall to do work regarding a Change  
Directive in March of 2017.  
[253]  
A 307 is the final Schedule of Values dated March 2017. It shows Change Orders  
totaling $155,789. Mr. Hannan testified that Nick told Caird-Hall to invoice Caird-Hall Change  
Orders with an asterisk. Nick told them to bill certain items as Cash Allowances. It was pointed  
out by Mr. Movat that at Tab 181, A2494, there is a list of Change Orders with no asterisks on the  
February 2016 Schedule of Values. Mr. Hannan indicated that they were sent to Mr. Chiappetta  
when he was around. He could distinguish between Change Orders for Caird-Hall and Change  
Orders internally. Only the City can issue Change Orders. However, Nick told Caird-Hall to put  
invoices in as a Change Order even though they weren’t true Change Orders. At Tab 181, A2488,  
Nick Chiappetta indicates, regarding Caird-Hall’s February invoices, they are waiting for the  
City’s payment to issue a cheque for Caird-Hall’s invoice.  
CONCLUSION REGARDING REPLY WITNESSES  
[254]  
I find Mr. Chickowski’s and Mr. Hannan’s evidence to be generally consistent and  
supported by the other reliable evidence. Their evidence was supported by a number of documents  
filed in the litigation. I find the reply evidence to be credible and reliable.  
LAW  
[255]  
The law regarding extras work outside the scope of the contract is succinctly  
summarized by Perell, J. in D & M Steel LTD. v. 51 Construction LTD, 2018 ONSC 2171 at  
paragraphs 57-60:  
- 48 -  
2.  
[57]  
Extras under a Construction Contract  
A contractor is only obliged to perform and may only charge for work and  
material included in its contract with the owner. The term, "extra" refers to extra  
work outside the scope of the contract, for which an additional charge is made by  
the contractor or subcontractor; an item specifically provided for in the contract is  
not an extra.  
[58]  
A contract may provide that the owner may order extras and specify a  
manner of payment but in the absence of such a provision, there must be a new  
express or implied agreement covering any extras. A contractor or subcontractor  
may charge for an extra where the owner or contractor expressly or impliedly  
instructed the contractor or subcontractor to do the extra work or to supply the extra  
materials. If no price is fixed for the performance of the extra work, the court will  
imply a promise to pay a reasonable amount on a quantum  
meruit basis. Conversely, when the contractor or subcontractor does work or  
supplies materials not called for by the contract (plans or specifications) without  
instructions, express or implied or without the consent of the other contracting  
party, the contractor is not entitled to charge for the additional work or materials.  
[59]  
The cost for the additional work must be reasonable in the context of the  
construction project.  
[60]  
Notwithstanding that a contract may require formalities in relation to  
requests for extras, where an owner has acquiesced in the provision of extras, it may  
be found to have made an implied promise to pay for them. An owner or contractor  
cannot orally request extra work be performed outside the scope of a contract, and  
then not pay for the work by relying on the written terms of the contract requiring  
confirmation of extras in writing. Orally requesting extra work outside the contract  
constitutes waiver by conduct.  
[256]  
Justice Broad in 2016637 Ontario Inc. o/a Balkan Construction v. Catan Canada  
Inc. et al, 2013 ONSC 4727 provided the following summary of the law on quantum meruit at  
paragraphs 11-14:  
[11]  
A contractor is obliged to perform only such work as is included in its  
contract, and accordingly, a contract may provide the owner with the right to order  
extra work and may specify some method of payment for such work, e.g. on a cost-  
plus basis. In the absence of such a provision in the contract there must be a new  
agreement between the owner and contractor covering the performance of, and  
payment for, any work not comprised in the contract. Such an agreement may be  
an express contract, or it may be an implied contract to pay for work done at the  
request of the owner and accepted by him/her. If no price is fixed for the  
performance of such work, the court will imply a promise to pay a reasonable  
- 49 -  
amount on a quantum meruit basis (see DIC Enterprises Ltd. v. Kosloski (1987) 26  
C.L.R. 85 (Sask Q.B.) at para. 30, quoting Goldsmith, Canadian Building  
Contracts (3rd) (1983) at pp. 81-82).  
[12]  
Whether a particular item of work is an extra or not must be determined by  
reference to the terms of the contract, the nature of the work, and the surrounding  
circumstances. The contractor will, therefore, be able to recover payment on  
a quantum meruit basis only if it has performed work for the owner in pursuit of a  
contract which changed so fundamentally that the payment provisions in the  
contract no longer have any application to the work actually performed. There  
would be an implied promise to pay what the work is reasonably worth  
(see McGrath v. Woodrow (1998) 2001 24163 (ON CA), 40 C.L.R. (2d)  
145 (Ont. Gen. Div.) at para. 56, quoting Hudson- Building Contracts (1996),  
paras. 4-27.  
[13]  
When a contractor performs work or supplies materials not called for by  
the contract without instructions, express or implied, from the owner, or the consent  
of the owner, it is not entitled to charge for this additional work or materials as an  
"extra". However, when the contractor performs work or supplies materials not  
called for by the contract on the instructions, express or implied, of the owner, it is  
entitled to charge for additional work or materials as an "extra". What amounts to  
instructions from the owner depends on the circumstances relating to each item. If  
the owner, without giving definite instructions, knows that the contractor is doing  
extra work or supplying extra materials, and stands by and approves of what is  
being done and encourages the contractor to do it, that will amount to an implied  
instruction to the contractor, and the owner is liable (see Chittick v.  
Taylor (1954) 1954 492 (AB QB), 12 W.W.R. (N.S.) 653 (Alta S.C.) at  
paras. 8-10).  
[14]  
Despite the fact that a contract may require certain formalities in relation  
to requests for extras, where an owner has acquiesced in the provision of extras, it  
may be found to have made an implied promise to pay for them (see Colautti  
Construction Ltd. v. Corporation of the City of Ottawa (1984) 7. C.L.R. 264 (C.A.)  
at para. 30). A provision in a contract requiring a written order as a condition  
precedent to payment for extra work may be waived by the owner's conduct or  
acquiescence, such as where the owner requests extras which he or she must, as a  
reasonable person, have realized would involve extra expense (see DIC Enterprises  
Ltd. v. Kosloski at para. 34 (quoting Goldsmith at pp. 87-88) and para. 37.)  
[257]  
Wilson J, in his dissent (where the conclusions but not the law were dissented  
from) Jessco Structural Limited v. Gottardo Construction Limited, 2016 ONSC 2189, a decision  
of the Divisional Court, reviews the the case law on extras and waiver as follow at paragraphs 47-  
50, 54 and 58:  
- 50 -  
[47]  
Responsibility for payment of extras is often contentious in construction  
cases. The usual fight about payment of extras is whether or not the extra as claimed  
by a subcontractor was included in the contract or not.  
[48]  
The decision of Justice Pierce in Anowara Construction Ltd. v. Tom Jones  
Corporation (2006), 54 C.L.R. (3d) 165 (Ont. S.C.), at paras. 18 and 20, provides  
guidance for what is considered “extra” work. She confirms the principles outlined  
in the cases that payment should be made for extra work outside the scope of the  
contract:  
18. The term, “extra” refers to extra work outside the scope of the contract,  
for which an additional charge is made by the contractor or sub-  
contractor. In Noranda Builders Ltd., Nash J. at par. 132 remarked that the  
court will imply a promise to pay on a quantum meruit basis where work is  
done at the request of the owner and for his benefit without a specific  
contract for payment.  
...  
20. The Noranda Builders Ltd. court adopted the following principles of  
Egbert J. in Chittick v. Taylor 1954 492 (AB QB), [1954] A.J.  
No. 23 (Alta. S.C.), par. 5:  
Rule 1. An item specifically provided for in the contract is not an ‘extra.’  
Rule 2. When the plaintiff supplied material of a better quality than the  
minimum quality necessary for the fulfillment of the contract, without any  
instructions, express or implied, from the defendant to do so, he is not  
entitled to charge the extra cost as an ‘extra.’  
Rule 3. When the plaintiff did work or supplied materials not called for by  
the contract (plans or specifications) without instructions, express or  
implied, from the defendant, or the consent of the defendant, he is not  
entitled to charge this additional work or materials as an ‘extra.’  
Rule 4. When the plaintiff did work or supplied materials not called for by  
the contract on the instructions, express or implied, of the defendant, he is  
entitled to charge for additional work or materials as an ‘extra.’” [Emphasis  
added]  
[49]  
As is clear from the Anowara decision, there is a distinction in the case law  
how extra work outside the scope of the contract is to be treated, contrasted with  
extra work within the scope of work contemplated in the written contract.  
- 51 -  
[50]  
Taken together, the courts in Ontario have been clear that when additional  
construction work not contemplated by the contract is completed at the request of  
the owner, (or in this case the contractor) the party providing the additional work  
should be paid, as the party requesting the extra work would reasonably expect to  
pay for it. Requesting this extra work outside the contract is waiver by conduct. The  
cost for the additional work must be reasonable in the context of the construction  
project: see Deminico v. Earls, [1945] O.W.N. 375 (H.C.).  
[54]  
As noted by Howard Wise in The Manual of Construction Law, loose-leaf  
(Toronto: Carswell, 1994), at page 3-15, the classic statement of the law for extras  
in construction projects outside the scope of the contract is from Master Marriott  
in Deminico. This statement was recently quoted by Master Sandler in Vallie  
Construction, at para. 129:  
Because contractors and builders have always been prone to make claims  
for extras, the Courts have laid down certain requirements to be met before  
such claims may be allowed. The ordinary law of contract does not find  
any place for extras, and unless the contract itself provides for it, a claim for  
any additional work must depend upon a new contract, either express or  
implied… An express contract may be either in writing or oral, but an  
experienced contractor will always endeavour to have the order in writing  
because the onus is upon him to prove it by a preponderance of  
evidence… An implied contract may be inferred from the conduct of the  
parties, but in all cases an essential element is that the owner at least knew  
that the work was going on an acquiesced in the contractor doing it. So that  
where the contractor goes ahead and does work he is not bound to do under  
the contract, and the owner knows nothing of it, the contractor cannot  
recover anything for it…In some cases it may be presumed that the owner  
consented to such extra work if so great that it must have been done with  
his knowledge or was necessary and not foreseen… Finally, in asserting a  
claim for extras the contractor must prove conclusively that the work done  
was not a part of the main contract, and for this purpose if the main contract  
is in writing it must be produced. [Emphasis added]  
[58]  
These cases confirm that an owner or contractor cannot orally request extra  
work be performed outside the scope of a contract, and then not pay for the work  
by relying on the written terms of the contract requiring confirmation of extras in  
writing. Orally requesting extra work outside the contract constitutes waiver by  
conduct. (See DIC Enterprises Ltd. v. Kosloski, [1987] C.L.D. 1211 (Sask. Q.B.),  
at paras. 30-32 and 34 (quoting Immanuel Goldsmith from Canadian Building  
Contracts, at pp. 87-88) and para. 37; 2016637 Ontario Inc. o/a Balkan  
Construction v. Catan Canada Inc. et al., 2013 ONSC 4727, 26 C.L.R. (4th) 84, at  
para. 14; Hydrastone Inc. v. Clearway Construction Inc., 2015 ONSC 2669  
- 52 -  
(); Domco Construction Inc. v. Aliva Holdings Inc., 2003 SKQB 506  
() ).  
[258]  
In Consulate Ventures Inc. v. Amico Contracting and Engineering (1992) Inc 2007  
ONCA 324, E.A. Cronk J.A. held at paragraph 99:  
99.  
Thus, where the claim for restitutionary relief is based on quantum meruit,  
as in this case, an explicit mutual agreement Change Orders compensate for  
services rendered is not a prerequisite to recovery. It suffices if the services in  
question were furnished at the request, or with the encouragement or acquiescence,  
of the opposing party in circumstances that render it unjust for the opposing party  
to retain the benefit conferred by the provision of the services. See Fridman, surpa,  
at pp. 290-92; Nicholson v. St. Denis (1995), 57 D.L.R. (3d) 699 (Ont. C.A.), leave  
to appeal to S.C.C. refused, [1975] 1 S.C.R. x (S.C.C.)  
ANALYSIS  
1. THE ORIGINAL WRITTEN AGREEMENT  
[259]  
Ross Clair contracted with the City of Hamilton on June 19, 2015, to do renovations  
at the Waterdown Memorial Hall for a contract price of $1,747,000.00 – see Tab 2, A47. Ross  
Clair had numerous other bigger jobs on the go and decided to subcontract a portion of the job to  
Caird-Hall. A contract was signed with Caird-Hall with a start date of July 2, 2015. Caird-Hall  
was to supply and install all work associated with the trades outlined in a Schedule of Values, lines  
1-24. The Caird-Hall contract was for $610,445.00 plus HST – see Tab 3, A48-A50.  
[260]  
A purchase order summary at Tab 4, A51-52 outlines the work to be conducted by  
the contractor/subcontractor. Caird-Hall was responsible for approximately 16 items of contract  
work and Ross Clair was responsible for 21 items.  
[261]  
Accordingly, Caird-Hall was responsible for 43% of the trades for 35% of the total  
contract price. At face value, this appeared to be a good deal for Ross Clair.  
[262]  
Ed Burns, in an email dated July 19, 2017, indicated that the parties had initially  
agreed the project would make $200,000 for the two companies – see Tab 204, A3016.  
2. THE ORAL AGREEMENT  
[263]  
Sean Richardson is the president of Ross Clair. He testified that their “guy” on the  
project was Nick Chiappetta, an employee with Ross Clair. Nick Chiappetta is listed in various  
documents as the project manager for Ross Clair – see, for example, December 2, 2015, Minutes  
of Construction Meeting No. 11 at A1829.  
- 53 -  
[264]  
Sean Richardson admitted he had minimal involvement with the Waterdown  
Project until 2016. Mr. Richardson was involved with numerous, much larger projects elsewhere  
and the expectation was that Nick Chiappetta would handle the project on Ross Clair’s behalf. A  
$2,000,000 project was not on Mr. Richardson’s radar, as he admitted. The City of Hamilton was  
concerned about Nick Chiappetta’s experience level. They expressed these concerns in a  
December 8, 2015, 2nd incident report – see Tab 196, 2994. Ross Clair responded that they had no  
concerns about Nick Chiappetta’s experience as a project coordinator – see A2997.  
[265]  
The City also expressed concerns about delays in the project and was concerned  
about the general contractor meeting the revised substantial performance date of February 19,  
2016.  
[266]  
The Caird-Hall Schedule of Values for December 2015 reproduced at B1-460-464  
shows that a lot of work still needed to be done with a total billed to date of $254,932.38 out of  
total “original contract value”, which had now increased to $779,047.48 due to Change Orders and  
an item titled ‘Cash Allowances’. At that time, the Cash Allowance billing, which was outside the  
contracted lines 1-24 or 1-25, was only $10,912.29. How did the Cash Allowance total come  
about? Jim Hannan testified that Nick Chiappetta requested extra work not included in the original  
contract and these were billed as Caird-Hall Change Orders or Cash Allowances. The first 16  
invoices were paid by Ross Clair spanning from September 25, 2015, to December 30, 2016 for  
invoices dated July 13, 2015 to October 31, 2016 – see Tab 35, A253.  
[267]  
The final Schedule of Values dated March 2017, at Tab 47, A307, shows a Cash  
Allowance total of $160,629.43.  
[268]  
Beth Hannan, Caird-Hall’s administrator, testified that in the beginning she worked  
closely with Nick Chiappetta, the project coordinator. She testified that there were non-architect  
Change Orders and Cash Allowances billed for extra work. The invoices and emails were delivered  
to Nick Chiappetta. She submitted the invoices to Ross Clair in 2015-2016. She testified that no  
one at Ross Clair ever said we didn’t authorize it. Martin Hannan, Caird-Hall’s project manager,  
confirmed that extra work was requested by Ross Clair.  
[269]  
Nick Chiappetta instructed Beth Hannan to do it on a Cash Allowance. Most of the  
extra work was done basically on verbal instructions from Nick Chiappetta. Martin Hannan  
testified in reply evidence that they didn’t make it up – Ross Clair approved it and that includes  
accounting, Nick and Sean.  
[270]  
In its final submissions, the plaintiff has prepared a chart at page 18 of extra work  
approved by Nick Chiappetta and Ross Clair. I adopt it as being correct and reproduce it as follows:  
- 54 -  
Extra Work Approved by Nick Chiappetta and Ross Clair  
By Oral Request  
As Testified To By Martin and/or Beth Hannan, Shane Babony  
Item  
Details - Invoice  
The steel decking inspection complete by Peter MacCallum  
A2563  
Exterior basement insulation which was work that was missed A2363  
during the tendering process by Ross Clair;  
The mezzanine safety rail which was a non-contractual A2015  
Change Order  
Toilet rentals  
See all Don’s Portable Toilet  
invoices, such as in January 2016  
A2476  
Handwashing facilities  
Bin rentals  
See all Super Save Toilet Rentals  
invoices, such as B-1-633  
See all Budget Environmental  
invoices, such as June 2016 A2573  
Tiger Torches and labour to operate (to dry in preparation for A2361, and as non-contractual CO 22  
Ross Clair subtrade, Advanced Waterproofing)  
Concrete chipper rental used for all subtrades  
Drywall repair work  
at A2450  
A2365  
A2380  
Basement flooding – labour to clean up  
Weeping tile  
Caulking gun, wood  
Misc. Labour invoicing  
Rona receipt, A100  
A103  
Extra Work Approved by Nick Chiappetta and Ross Clair  
By Written Request  
Item  
Details - Invoice  
Mr. Chiappetta agreed to “bin and labours” by email  
A2373  
Mr. Chiappetta agreed to paying for replacing Caird-Hall’s A2368-2369  
submersible pump and costs associated with heating the  
basement by email  
Mr. Chiappetta agreed to pay for a construction lift by email A2375  
Mr. Chiappetta agreed to pay for miscellaneous labour by A2376-2377  
email  
Mr. Chiappetta requested a handwashing station rental  
Mr. Chiappetta requested rental of scaffolding  
A2378  
A3487  
Mr. Chiappetta requested labour to remove washroom A2377  
flooring  
Mr. Chiappetta requested labour to remove garbage  
A2377