CITATION: Prasher Steel Ltd. v. Pre-Eng Contracting Ltd. 2022 ONSC 3458  
COURT FILE NO.: CV-12-111980  
DATE: 20220613  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
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BETWEEN:  
PRASHER STEEL LTD.  
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Angela Assuras for the Plaintiff  
Plaintiff  
and –  
PRE-ENG CONTRACTING LTD.  
Emilio Bisceglia and Daniel Campoli for the  
Defendant  
Defendant  
) HEARD: May 14-16, 22-24 and 27-31,  
) 2019; August 9-13, 2021; and October 6-8,  
) 2021. Additional written submissions filed  
) October 8, 2021, November 1, 2021,  
) November 22, 2021, December 13, 2021 and  
) December 31, 2021.  
REASONS FOR JUDGMENT  
C. BOSWELL J.  
INTRODUCTION  
I.  
[1]  
Rick Hansen is a great Canadian. An athlete, activist and philanthropist, he has raised, or  
helped raise, many millions of dollars for spinal cord research. He is a member of the Order of  
Canada. It is unsurprising that a number of public schools are named after him. One is in Aurora  
and its construction is at the centre of this lawsuit.  
[2]  
Construction on the Rick Hansen School on Mavrinac Boulevard began in 2011. It took  
about a year to complete. The finished building was unofficially turned over to the York Region  
Page: 2  
District School Board (“YRDSB”) in August 2012. This lawsuit began in November 2012. It has  
taken about nine years to complete.1  
[3]  
The plaintiff is a steel fabricator and erector. The defendant is the general contractor hired  
by YRDSB to construct the school. The plaintiff entered into subcontracts with the defendant with  
respect to the fabrication and installation of the structural steel components of the school and with  
respect to the fabrication and installation of miscellaneous metal components throughout the  
project (collectively the “Subcontract Agreements”).  
[4]  
The plaintiff asserts that it performed the work required of it, by and large, but remains  
largely unpaid. The plaintiff registered a construction lien against the school property on October  
3, 2012 in the amount of $255,954.70. The defendant denies that any monies are owed to the  
plaintiff. It says the plaintiff did not complete significant portions of its contractual obligations,  
principally with respect to the miscellaneous metals work. It had to hire other contractors to  
complete unfinished work and correct deficiencies. It incurred significant costs in relation to that  
work, which it seeks to charge back against the plaintiff. The defendant counterclaims for  
$191,539.76.2  
THE LIVE ISSUES  
[5]  
The pleadings and proceedings and the positions advanced by counsel raise a significant  
number of questions to be determined by the court. They include:  
General Issues  
A. Did the parties enter into one contract or two?  
B. What are the terms of the contract(s)?  
C. Did Prasher preserve its lien rights in a timely way?  
D. Is Prasher’s claim statutorily barred by operation of the Limitations Act, 2002?  
Issues Relating to the Structural Steel Contract  
E.  
What is the value of the structural steel work performed by Prasher?  
1 The trial of this action commenced on May 14, 2019 during the Central East spring civil trial sittings. I am unable  
to comment on why it took seven and a half years for the case to reach trial. The trial was unrealistically scheduled  
for five days. It was not completed during the spring 2019 sittings and was adjourned to the fall sittings in October  
2019. It could not proceed during the fall 2019 sittings due to scheduling conflicts. Subsequently, the court’s spring  
and fall 2020 civil trial sittings were cancelled due to the Covid-19 pandemic. Scheduling issues again prevented the  
trial from continuing during the spring 2021 sittings. It finally continued during the weeks of August 9, 2021 and  
October 6, 2021. The parties made oral closing submissions on October 7 and 8, 2021 and supplemented them over  
the next ten weeks with written submissions.  
2 See Pre-Eng’s written closing submissions, para. 5.  
Page: 3  
F.  
What is the value of any extra work performed by Prasher in connection with the  
structural steel contract?  
G. How much has Prasher been paid for work performed under the structural steel  
contract, including extras?  
H. Is Pre-Eng entitled to back-charge Prasher for any expenses it incurred in correcting  
or completing work that fell within the scope of the structural steel contract?  
Issues Relating to the Miscellaneous Metals Contract  
I.  
What is the value of the miscellaneous metals work performed by Prasher?  
J.  
What is the value of any extra work performed by Prasher in relation to the  
miscellaneous metals contract?  
K. How much has Prasher been paid for work performed under the miscellaneous metals  
contract, including extras?  
L.  
Is Pre-Eng entitled to back-charge Prasher for any expenses it incurred in correcting  
or completing work that fell within the scope of the miscellaneous metals contract?  
And,  
M. Is Prasher responsible to compensate Pre-Eng for any delay with respect to the  
completion of the project?  
[6]  
I intend to canvass the evidence and make any necessary factual findings as I analyze each  
of the live issues in turn. Similarly, I will identify the parties’ positions with respect to each issue  
as the analysis proceeds. Having said that, a relatively brief overview of the facts and  
circumstances of the project and of the litigation in general will assist in putting the live issues into  
context.  
II.  
FACTUAL OVERVIEW  
The Protaganists  
[7]  
Pre-Eng Contracting Ltd. (“Pre-Eng”) is a general construction contractor, focused on  
institutional buildings, including schools and libraries. Its principal, or one of its principals, is  
John Gregoris. Pre-Eng was retained by YRDSB to act as the general contractor with respect to  
construction of the Rick Hansen School. Its project manager was Steve Raviele and its site  
supervisor was Isaac Sela.  
[8]  
Prasher Steel Ltd. (“Prasher”) is a steel fabricator and installer. The eponymous Manoj  
Prasher is its principal.  
Page: 4  
The Project  
[9] The project involved construction of a three-level elementary school on Mavrinac  
Boulevard in Aurora. The owner was, and remains, YRDSB.  
[10] The drawings and specifications for the project were prepared by CS&P Architects, who  
remained the consulting architects and payment certifier on the project (at least between the owner  
and the general contractor).  
[11] The engineering firm, Read Jones Christoffersen Ltd. (“RJC”), was retained as consulting  
structural engineers.  
[12] Construction on the school began in August 2011. It was ready for use by the time school  
commenced in September 2012, though the completed building was formally turned over the  
YRDSB on October 1, 2012.  
The Structural Steel Contract  
[13] At some point in the first half of 2011, Pre-Eng called for tenders from the trades necessary  
to construct the school.  
[14] Prasher submitted a quote to Pre-Eng for the structural steel work on or about May 17,  
2011. By way of edification, structural steel is any steel required for the support of the building,  
including columns, beams, joists and the like. Prasher’s quote covered the supply of shop  
drawings, fabrication of the necessary steel and erection. The amount of the quote was $220,000  
plus HST.  
[15] Prior to quoting on the work, Prasher was provided with copies of the tender drawings  
(which included structural and architectural drawings) and the specifications for the project so that  
they would understand the scope of the work they were quoting on.  
[16] Pre-Eng accepted Prasher’s quotation. The date of acceptance is unclear in the evidence.  
Mr. Prasher testified that “one day” he received a call to tell him that Pre-Eng was awarding the  
contract to his company.  
[17] Pre-Eng forwarded a draft subcontract agreement to Prasher with respect to the structural  
steel work on the project. Again, I am not clear on when the draft was forwarded to Prasher, but  
nothing really turns on that date.  
[18] The draft agreement is dated August 2, 2011. It is not disputed that Mr. Prasher signed the  
agreement and returned it to Pre-Eng, though I am not clear about how or when it was returned.  
A copy of the agreement, signed by Mr. Prasher, is included in Volume One of the plaintiff’s  
Documents Brief, filed as Exhibit 1 at trial.  
Page: 5  
[19] Mr. Prasher testified that he never received a fully executed copy of the agreement back  
from Pre-Eng.  
[20] Mr. Gregoris testified that he executed the agreement on behalf of Pre-Eng and returned it  
to Prasher. Pre-Eng included a copy of a fully-executed agreement in Volume One of its  
Documents Brief filed as Exhibit 34 at trial. Pre-Eng did not produce any evidence to corroborate  
Mr. Gregoris’ testimony that the fully-executed agreement was returned to Prasher.  
[21] At any rate, Prasher’s first task, after being awarded the structural steel contract, was to  
prepare shop drawings of the steel to be fabricated. Krushnekent Shaw was employed by Prasher  
as a project co-ordinator in 2012. He worked on the Rick Hansen School project. He testified that  
Prasher’s draftsperson prepared the necessary shop sketches based on the architectural and  
structural drawings provided by Pre-Eng. They were submitted to the architect for approval.  
[22] Once Prasher’s shop drawings were approved, they set about fabricating the necessary steel  
components.  
[23] The project plans and specifications called for roughly 141,000 pounds of steel. Prasher  
estimated that roughly 542 hours of labour would be required to complete the installation.  
[24] According to the daily reports of the site supervisor, Prasher commenced with erection of  
the steel on November 25, 2011. Prasher did not use its own in-house forces to erect the steel.  
Instead, they sub-contracted that work out to a third party, Bains Welding. At times, Prasher also  
used an installer called JJ Welding. Mr. Prasher testified that JJ Welding was used for extras added  
to the original scope of work.  
[25] Fixing the date when the erection of the structural steel was completed is a matter of some  
controversy. According to Prasher’s invoicing, it was 100% complete by July 25, 2012.  
[26] The consulting architect certified the structural steel work as 97% complete on April 24,  
2012. Adrian Phillips was employed as an architect with CS&P in 2011-2012 and worked on the  
Rick Hansen School. He testified that by April 11, 2012 the steel and masonry work on the entire  
building was roughly 100% complete. The consulting architect certified it as 100% complete in its  
payment certificate dated August 14, 2012.  
[27] Though it may have been fully completed sooner than Prasher’s July 25, 2012 invoice, I  
find that it was certainly 100% complete by no later than that date.  
The Miscellaneous Metals Contract  
[28] Pre-Eng also subcontracted the miscellaneous metal fabrication and installation work on  
the project to Prasher. Miscellaneous metal refers to anything made of steel other than the structural  
steel components of the building. On this project it included steel ladders, interior steel stairs and  
railings, bollards, door jams, brackets, coat hooks and chair dollies (rolling dollies used to hold  
stacking chairs under the stage in the gymnasium).  
Page: 6  
[29] Prasher submitted a quote on the miscellaneous metals work on August 4, 2011. The  
amount of the quote was $133,000.  
[30] At some point Prasher was advised that their quote was accepted and Pre-Eng sent them  
another subcontract agreement to execute. The agreement, dated September 6, 2011, was signed  
by Prasher and returned to Pre-Eng.  
[31] As was the case with the structural steel contract, Mr. Prasher testified that Pre-Eng never  
returned to him a fully-executed agreement. Prasher’s Documents Brief contains the miscellaneous  
metals contract signed only by Prasher. Pre-Eng, however, has produced in its Documents Brief,  
a fully-executed agreement. When it was executed by Pre-Eng and whether Prasher was ever  
provided with a copy of the fully-executed agreement are matters that remain unclear.  
[32] The evidentiary record is also not clear about when work on the miscellaneous metals  
contract began. Volume Ten of Prasher’s Documents Brief (Exhibit 10) includes a series of  
payment certificates issued by the consulting architects. These certificates permit one to track the  
progress of the project, but they are not complete for reasons unclear to me. They include Payment  
Certificates 1, 2, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14 (original and revised at substantial performance)  
and 15 (the release of holdback certificate), 16, 17 and 18 (final certificate).  
[33] Payment Certificate 7 was issued March 6, 2012. It reflects work completed to the end of  
February 2012. The structural steel was certified at 64.5% complete. Work had yet to commence  
on the miscellaneous metals components of the project.  
[34] Payment Certificate 8 has not been produced. It presumedly would have reflected work  
completed through to the end of March 2012.  
[35] Payment Certificate 9 was issued May 10, 2012 and reflects work completed to the end of  
April 2012. At that point the structural steel work was certified at 97.1% completed. The  
miscellaneous metals work was certified at 26.3%.  
[36] All this is to say that the miscellaneous metals work appears to have commenced at some  
point between March 1 and April 30, 2012.  
[37] Payment Certificate 10 is dated June 11, 2012 and reflects work completed on the project  
to the end of May 2012. The miscellaneous metals work was still certified at 26.3%, suggesting  
that no progress had been made on that work between at least the end of April 2012 and the end  
of May 2012.  
[38] Other Payment Certificates reflect the progress on the miscellaneous metals work as  
follows:  
67.2% at June 30, 2012  
78.1% at July 30, 2012  
96.3% at August 31, 2012  
99% at September 30, 2012  
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100% by December 31, 2012  
[39] I will take a deeper dive into the progression of the miscellaneous metals work later in  
these reasons. I note, for now, that Pre-Eng had sufficient concerns with Prasher’s execution of  
that contract, to direct large parts of the work to third parties to complete.  
The Removal of Work From Prasher’s Scope  
[40] On May 24, 2012, Pre-Eng’s project manager, Steve Raviele, faxed a letter to Prasher  
advising that they had yet to have even one set of stairs installed on the project and were continuing  
to incur the costs of renting a scaffold set of stairs. Mr. Raviele advised that he would be engaging  
others to complete Prasher’s work. He was not clear, however, on what specific work he was  
going to engage others to do.  
[41] Trying to piece together what was officially removed from Prasher’s scope of work in the  
miscellaneous metals contract is not easy.  
[42] Mr. Prasher testified that “to finish the work faster” some of his scope of work was  
removed. He indicated that the items removed were a handrail, an exterior galvanized gate and a  
set of stairs referred to as exterior stair #7. He later added that a roof access ladder, gas meter door  
frame and steel gates at the loading area were also removed from his scope of work.  
[43] Mr. Raviele testified that a significantly broader scope of work was removed from Prasher  
and completed by others. The evidentiary record more than bears out Mr. Raviele’s evidence on  
this point.  
[44] Much of the scope of work under the miscellaneous metals subcontract was completed by  
two third parties: North York Welding and Industrial Welding. These are companies owned by  
brothers, Sergio Mariani and Bruno Mariani, respectively. Attempts were made by counsel to  
compare the invoicing of North York Welding and Industrial Welding to the scope of the work  
included in Prasher’s miscellaneous metals subcontract. The exercise was made somewhat difficult  
due to three factors:  
(a) There is no single document by which Pre-Eng notified Prahser that a specific  
segment of its scope of work was being tasked to a third party. Instead, the project  
proceeded organically, with work within Prasher’s scope being directed to other  
parties as the need to do so arose;  
(b) Prasher, North York and Industrial did not always use the same terms to describe the  
same work. In the result, it was sometimes difficult to tell if work done by North  
York Welding or Industrial Welding was within or extra to Prasher’s scope of work;  
and,  
(c) The miscellaneous metals subcontract incudes a list of components to be fabricated  
and installed by Prasher. Included in that list is a catch-all category of “other metal  
fabrications required”. That provision is obviously vague and it was never made  
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clear what particular metal fabrications on this project fell within that category.  
Frankly, I do not believe anyone knows for sure.  
[45] In any event, perhaps the most significant dispute between the parties relates to charge-  
backs imposed by Pre-Eng on Prasher for the completion of the miscellaneous metals work on the  
project. The dispute includes whether the work done was properly part of Prasher’s work or  
whether it was extra to the contract, whether Pre-Eng had the right to remove the work from  
Prasher, and whether the charge-backs are reasonable.  
Extras  
[46] Experience has shown that most construction projects big or small involve  
modifications as they proceed. This project was no exception. It is not disputed that there were  
authorized extras involved in this project. What is disputed is the value of extra work completed  
by Prasher and whether all of the extras Prasher claims remuneration for were actually authorized.  
[47] Prasher asserts that it worked on twelve extras, with a total value of $86,723.59. Over the  
course of his testimony, Mr. Gregoris accepted, on behalf of Pre-Eng, the validity of $29,043.94  
worth of Prasher’s claims for extras on the structural steel contract, leaving $57,679.65 in dispute.  
[48] I will examine each of the claims for extras under the structural steel and miscellaneous  
metals subcontracts as I analyze the live issues between the parties below.  
Deficiencies  
[49] At the direction of YRDSB, Pre-Eng retained Butler Inspection Group Inc. (“Butler”), to  
conduct random inspections of the structural steel installation, to note any deficiencies and to  
prepare reports on the progress and quality of the structural steel work.  
[50] Butler produced periodic site reports that identified deficiencies in Prasher’s work. The  
deficiencies were itemized as “variations”, which is a term that reflects findings by Butler that  
certain aspects of Prasher’s work – or the work of its erectors varied from the project drawings  
and specifications or CSA standards.  
[51] Where variations were noted, it was incumbent upon Prasher to perform corrective work.  
Prasher’s response to identified deficiencies, or the lack thereof, is a source of disagreement  
between the parties.  
Charge-Backs  
[52] As I noted, the single biggest area of contention between the parties relates to the amounts  
Pre-Eng has back-charged Prasher for the cost of correcting deficiencies and, more significantly,  
the cost of using third party contractors to complete work within Prasher’s scope under the  
miscellaneous metals contract.  
[53] Pre-Eng purports to impose some $170,078.10 in charge-backs against Prasher across both  
contracts. Prasher is prepared to accept $11,638.12 in charge-backs, inclusive of HST.  
Page: 9  
[54] I will address the charge-backs in earnest below.  
The Lien  
[55] Prasher’s Claim for Lien was registered on October 3, 2012.  
[56] According to the registered document – and Mr. Prasher’s testimony here – Prasher’s last  
day of work on site was August 21, 2012 when it delivered five chair dollies and 60 metal brackets,  
which reflects work under the miscellaneous metals subcontract.  
[57] The Claim for Lien included the following statements, among others:  
Short description of services or materials that have been supplied: Supply  
and install structural steel and related materials.  
Contract price or subcontract price: $500,832.48.  
Amount claimed as owing in respect of services or materials that have been  
supplied: $255,954.70.  
[58] The amount of the lien clearly reflects the sum Prasher claims as owing pursuant to both  
the structural steel contract and the miscellaneous metals contract.  
[59] The registration of Prasher’s Claim for Lien was discharged on October 26, 2012 by order  
of Master Albert, upon Pre-Eng posting a bond in the amount of $319,943.38 with the Accountant  
of the Superior Court.  
The Pleadings  
[60] The Statement of Claim was issued November 14, 2012. Prasher seeks payment of the  
sum of $255,954.70 and to enforce its lien rights against the bond posted by Pre-Eng to discharge  
Prasher’s lien.  
[61] Prasher’s claim has been adjusted slightly. Its position, as reflected in a revised Scott  
Schedule filed by Prasher’s counsel during closing submissions, is that the total owing to Prasher  
on account of the two contracts, plus extras, is $469,541.65, inclusive of HST, less the amount  
paid of $208,559.46, inclusive of HST, and less $11,638.12 in accepted back-charges, for a net  
amount owing of $249,344.07.  
[62] Pre-Eng delivered a Statement of Defence and Counterclaim on or about December 4,  
2012. Pre-Eng denied owing the amount claimed, or any amount, to Prasher. Amongst other  
things, Pre-Eng asserted that:  
Page: 10  
(a) Of the extras alleged by Prasher only one, in the amount of $7,326.70, was approved  
by the consulting architect. Any others were not payable, pursuant to the terms of  
the subcontracts, because they were not approved in advance;  
(b) Expenses incurred by Pre-Eng to correct or finish work within Prasher’s scope were  
properly charged back to Prasher in the amount of $161,600.16;  
(c) Prasher substantially delayed the project, resulting in losses to Pre-Eng; and,  
(d) Prasher failed to preserve and perfect its lien in a timely manner.  
[63] Pre-Eng sought a total of $300,000 in damages by way of counterclaim.  
[64] With the foregoing brief overview in place, I will proceed with an analysis of the issues  
raised through the pleadings, the evidence and the positions of the parties.  
III.  
DISCUSSION  
A. Was there one contract or two?  
[65] I begin the analysis with the question of whether the parties entered one global contract for  
steel work, both structural steel and miscellaneous metals, or whether they had two separate and  
distinct contracts.  
[66] The determination of this issue is significant because, as Pre-Eng argues, each contract  
must be liened separately. As I will outline momentarily, Pre-Eng takes the position that Prasher  
attempted to preserve its Claim for Lien with respect to the structural steel contract, but did so out  
of time. And in Pre-Eng’s position, Prasher failed to preserve its Claim for Lien with respect to  
the miscellaneous metals contract at all.  
[67] This issue is easily resolved.  
[68] The structural steel contract and the miscellaneous metals contract were separately  
tendered. They were separately quoted on by Prasher. They were awarded separately and reflected  
in two separate written agreements executed on different dates. They were invoiced and paid as  
two separate contracts. The evidence amply supports the conclusion that there were two separate  
contracts. Even more compelling, however, is that Mr. Prasher admitted that there were two  
separate contracts.  
[69] Prior to trial, Pre-Eng served Prasher with a Request to Admit. One of the things Pre-Eng  
asked Prasher to admit was that there were two separate contracts at all material times. Prasher  
admitted that there were.  
Page: 11  
[70] Under cross-examination at trial, Mr. Prasher agreed that there were two separate contracts.  
He agreed that Prasher did two separate billings throughout the project. And they made two  
separate requests for holdback funds.  
[71] I find that there were two separate contracts.  
B. What are the terms of the contract(s)?  
[72] The dispute about the terms defining the parties’ relationship on this project boils down to  
this: Pre-Eng submits that the written Subcontract Agreements dated August 2, 2011 and  
September 6, 2011 govern; Prasher says that its quotations, as accepted by Pre-Eng, govern.  
[73] I agree with the position of Pre-Eng.  
[74] Mr. Prasher testified that he signed both Subcontract Agreements and returned them to Pre-  
Eng. He said he did not receive fully signed copies back. I accept that perhaps he did not. But  
there are at least three reasons why I find that the Subcontract Agreements establish the contractual  
terms between the parties.  
[75] First, I find that the Subcontract Agreements were fully executed. Pre-Eng has included  
fully executed copies in their Documents Brief. I am unable to say if or when the fully executed  
contracts were returned to Prasher. But Prasher’s counsel did not explore in evidence or argument  
whether the return of fully signed agreements to Prasher was a necessary pre-requisite to contract  
formation.  
[76] Second, I find that the parties governed themselves throughout the project in accordance  
with the terms and conditions of the Subcontract Agreements. In other words, their conduct  
evinced a shared intention to be bound by the terms of the Subcontract Agreements.  
[77] Third, I find that Mr. Prasher accepted, during his testimony at trial, that the Subcontract  
Agreements were binding agreements between the parties and governed their relationship with  
respect to the project.  
[78] During cross-examination, Mr. Prasher testified that he entered into a contract with Pre-  
Eng for structural steel dated August 2, 2011. He agreed in that contract to complete all of the  
structural steel work set out in sections 5100 and 5200 of the tender documents. He confirmed  
that the contract sets out the duties of the parties. He further testified that the miscellaneous metals  
contract was dated September 6, 2011 and included the same terms and conditions as the structural  
steel contract.  
Page: 12  
[79] The Subcontract Agreements mirrored one another save for the scope of the work covered  
by the contracts. Some of the more significant terms, having regard to the live issues in the case,  
are the following:  
Article II(1):  
Article III:  
The work is to be performed in a good and workmanlike manner.  
The Subcontractor will perform his portion of the work in  
accordance with the schedule or schedules to be provided by the  
Contractor.  
Article V(1):  
The Subcontractor shall make applications for payment, together  
with supporting Statutory Declarations and/or other documents when  
required, on or before the twenty-fifth day of each month (herein  
called the submission date) to the Contractor for approval and due  
processing as provided by the Contract Documents. The amount  
approved for payment, less the holdback as per the Contract  
Documents shall become due and payable not more than forty (40)  
days after the later of the submission date or the issuance of the  
Consultant’s Certificate.  
Article V(4):  
Article VI(2):  
Article VI(4):  
Any amounts due to the Subcontractor shall be paid ten (10) days  
after the Contractor has received payment of the Consultant’s  
Certificate from the Owner, provided that, as a condition precedent,  
the Contractor has been paid the Consultant’s Certificate, in which  
such amount has been included by the owner, and that the  
Subcontractor has fulfilled all his obligations under this Subcontract  
Agreement.  
If the Subcontractor should neglect to prosecute the work properly  
or fail to perform any provisions of the Subcontract Agreement the  
Contractor may notify the Subcontractor in writing that he is in  
default of his contractual obligations and instruct him to correct the  
default within two (2) working days of receiving the notice except  
that in case of an emergency the Subcontractor must act immediately  
in order to ensure the safety of life or property.  
If the Subcontractor fails to comply with the provisions of the above  
paragraphs the Contract may, without prejudice to any other right or  
remedy he may have:  
(a) Correct such default and deduct the cost thereof from the  
payment then or thereafter due the Subcontractor; or,  
(b) Terminate the Subcontractor’s right to continue with the work in  
whole or in part or terminate the Subcontract.  
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Article VI(5):  
If the contractor terminates the Subcontractor’s right to continue  
with the work in whole or in part or terminates the Subcontract under  
the conditions set out in this Article he is entitled to:  
…(b) Withold any further payments to the Subcontractor until the  
work is finished.  
Appendix A(9)  
The Subcontractor shall employ labour forces adequate to avoid  
labour disputes or disruption of the progress of the Work and prevent  
additional expenses to the Contractor.  
Appendix “A” (10) Unless otherwise provided by the Contract Documents, the  
Subcontractor shall not perform any changed or additional work  
without prior written authorization from the Contractor’s Head  
Office. Under no circumstances will payment be made for such  
work without such authorization.  
C. Did Prasher preserve its lien rights in a timely way?  
[80] The Construction Lien Act, R.S.O. 1990 c.C.30 (the “CLA”) governed the plaintiff’s lien  
rights at the time of the project in issue. It has since been replaced by the Construction Act, R.S.O.  
1990, c. C.30.  
[81] Section 14 of the CLA provided that a supplier of services or materials to an owner,  
contractor or sub-contractor, has a lien on the interest of the owner in the premises improved, for  
the amount of the services or materials. But liens arising under that section did not survive in  
perpetuity.  
[82] Section 31(1) of the CLA provided that a lien arising from the supply of services or  
materials to an improvement expired unless preserved. To preserve its lien rights, a party  
supplying services or materials to an improvement had to register its Claim for Lien within forty-  
five days of the date of last supply.  
[83] I have concluded that there were two separate contracts. Pre-Eng takes the position that a  
finding of two separate contracts inexorably leads to the further conclusion that Prasher failed to  
preserve its lien rights in a timely way in relation to either contract.  
[84] Pre-Eng’s argument is constructed as follows:  
(a) The provisions of the CLA that grant lien rights to suppliers are to be strictly  
construed;  
(b) A strict construction of s. 31(1) of the CLA dictates that each contract be considered  
separately in terms of the lien rights it gives rise to;  
(c) Prasher clearly failed to properly preserve its Claim for Lien for any amounts alleged  
to be owing under the structural steel contract, given that the date of last supply with  
Page: 14  
respect to that contract was no later than July 25, 2012. As I noted above, Prasher’s  
Claim for Lien was registered on October 3, 2012, well beyond the 45-day ceiling;  
and,  
(d) Prasher failed to preserve any Claim for Lien with respect to the miscellaneous metals  
sub-contract. Its registered Claim for Lien described the services or materials  
supplied as “structural steel and related materials”. There was no mention of  
miscellaneous metals.  
[85] The position of Pre-Eng gives rise to a series of sub-issues to be determined, including:  
1. Is each contract to be considered separately in terms of Prasher’s lien rights?  
2. If the answer to question one is yes, is the Claim for Lien with respect to the structural  
steel contract out of time?  
3. Does Prasher’s registered Claim for Lien include amounts purportedly outstanding on  
the miscellaneous metals contract?  
4. Was the lien for amounts owing under the miscellaneous metals sub-contract registered  
in a timely way?  
[86] I will address each sub-issue in turn.  
1. Each contract gives rise to its own distinct lien right  
[87] Lien rights arise under the CLA from the moment that a supplier first supplies services or  
materials to an improvement. (CLA s. 15). As I noted earlier, lien rights expire if not preserved  
in accordance with s. 31 of the CLA. For our purposes here, it is agreed that Prasher’s lien rights  
expired 45 days after the date of last supply (CLA s. 31(3)).  
[88] Pre-Eng submits that the provisions of the CLA that grant lien rights to suppliers are to be  
strictly construed. I agree.  
[89] Courts are generally compelled to construe statutory provisions liberally and in such a way  
as to promote the objects of a statute. See, for instance, s. 64(1) of the Legislation Act, S.O. 2006,  
c. 21.  
[90] The CLA, however, is a statute that is, in a number of respects at least, subject to strict  
interpretation. The justification for a policy of strict construction is grounded in the fact that the  
CLA grants lien claimants rights against property owners that they would not otherwise enjoy at  
common law. The CLA also grants them a limited priority over other creditors. The Court of  
Appeal for Ontario identified this justification in Rudco Insulation Ltd. v. Toronto Sanitary Inc.  
(1998), 42 O.R. (3d) 292, at page 298, where Justice O’Connor said:  
The first principle that I draw from the cases is the following: because the  
legislation creates a preference and a security for certain creditors that did  
Page: 15  
not otherwise exist at common law, it ought to be given a strict  
interpretation in determining whether a particular creditor is a person to  
whom the benefit is given.  
[91] The British Columbia Court of Appeal made similar remarks in Bank of Montreal v. No.  
249 Seabright Holdings Ltd., 2012 BCCA 4, at para. 62, with respect to the strict interpretation of  
the Builders Lien Act, S.B.C. 1997, c. 45:  
The jurisprudence is clear that because the Act creates new rights, the  
threshold question of entitlement is strictly construed; it is only once  
entitlement is established that the Act is to be construed liberally and with  
consideration to its remedial purposeThis principle is consistent with  
concern for certainty and fairness to all stakeholders in the construction  
industry. (Internal Citations removed).  
See also Gillies Lumber Inc. v. Kubassek Holdings Ltd. [1999] O.J. No. 2692 and Clarkson  
Co. v. Ace Lumber Ltd., [1963] S.C.R. 110.  
[92] Pre-Eng further submits that a strict construction of s. 31(1) leads to the conclusion that  
each sub-contract is to be considered separately in terms of the creation of lien rights. In other  
words, Prasher was required to register its Claim for Lien on the structural steel contract within 45  
days of its last supply under that contract. And it was required to register its Claim for Lien on the  
miscellaneous metals contract within 45 days of its last supply under that contract.  
[93] In support of its position, Pre-Eng cites the Supreme Court’s decision in Rocky Mountain  
School Division No. 15 v. Atlas Lumber Co., [1954] S.C.R. 589. There, Locke J. held, relying on  
the 1917 decision of the Saskatchewan Court of Appeal in Witlock v. Loney, [1917] 3 W.W.R.  
971, that:  
Where labour or materials are furnished under separate contracts, even  
though such contracts are between the same persons and relate to the same  
building or improvement, the contracts cannot be tacked together so as to  
enlarge the time for filing a lien for what was done or furnished under  
either, but a lien must be filed for what was done or furnished under each  
contract within the statutory period after its compliance.  
[94] Prasher demurs. It contends that it is not always improper to join two lien claims over a  
common project involving the same parties. To support this contention, it relies on Chute v. Bicon,  
[1997] O.J. No. 2306 (Gen. Div.).  
[95] The Chute decision was principally about slander of title. It involved a two-phase  
development of a ten-unit townhouse complex in Brantford, Ontario. The first phase consisted of  
four units, with the remaining six being constructed in phase two. The plaintiff was an excavation  
contractor who performed work on both phases. It was paid in full for its work on phase one. It  
Page: 16  
claimed that it was unpaid for its work on phase two. It registered a general lien over all six units  
in phase two as well as one unit in phase one.  
[96] The defendant claimed that phase one and two were separate contracts. The plaintiff, it  
said, had no valid Claim for Lien on the phase one unit. The defendant claimed the plaintiff had  
slandered title to the phase one property, resulting in damage to it.  
[97] The court reviewed s. 35(b) of the CLA, which provided that a person may be liable to an  
owner for damages where he or she preserves a lien where he or she knows or ought to know that  
he or she does not have a valid lien. The trial judge held that, in the prevailing circumstances, it  
was not unreasonable for the plaintiff to have believed that it had an agreement for an ongoing,  
two-phase, ten-unit project. In the result, the claim based on slander of title was not made out.  
[98] In my view, Chute does not assist Prasher here. Prasher did not believe it had one contract  
to do all of the steel work both structural and miscellaneous on the project. Prasher admits that  
there were two separate contracts. I have found that there clearly were two separate contracts.  
[99] In my view, s. 31(1), strictly construed, provides for the expiration of lien rights on a  
contract-by-contract basis. Such an interpretation is consistent with the Supreme Court’s ruling in  
Rocky Mountain. A lien claimant cannot enlarge the time limit for filing a claim for lien by  
artificially merging separate contracts performed on the same improvement.  
2. Prasher’s claim for lien under the structural steel contract was out of time  
[100] As I have noted, Prasher’s last day of supply under the structural steel contract was, at the  
latest, July 25, 2012. It had 45 days from July 25, 2012 to register its claim for lien. In other  
words, its lien rights under the structural steel contract expired September 8, 2012.  
[101] Prasher’s lien was not registered until October 3, 2012. To the extent that it references the  
supply of labour and materials under the structural steel contract, it was out of time.  
3. Prasher’s Claim for Lien included amounts purportedly owing under the miscellaneous  
metals contract  
[102] As I noted, Prasher’s Claim for Lien, as registered, described the services or materials  
supplied as, “Supply and install structural steel and related materials.” The contract amount was  
said to be $500,832.48.  
[103] The lien does not expressly mention the miscellaneous metals contract or services or  
materials supplied with respect to it.  
[104] Prasher urges the court to conclude that the phrase “related materials” includes  
miscellaneous metals. Pre-Eng’s position is that the lien exclusively referred to the structural steel  
contract. The reference to “related materials” must be read as being related to the supply and  
installation of structural steel.  
Page: 17  
[105] There is no doubt that the lien is poorly worded. The phrase “related materials” is, at best,  
equivocal. Having said that, there are two reasons why I am satisfied that the lien includes the  
supply of services and materials under the miscellaneous metals contract.  
[106] First, the lien has to be read holistically. It is clear, given the amount of the lien claim, that  
Prasher has liened for payments allegedly owing under both the structural steel and miscellaneous  
metals contracts. Similarly, the time period in which services were purportedly supplied  
encompasses both the structural steel and miscellaneous metals works.  
[107] In my view, Pre-Eng could not have been under any misapprehension that the lien, as  
registered, related only to the structural steel contract.  
[108] Second, the CLA contained a curative provision. In particular, s. 6(1) provided:  
6(1) No certificate, declaration or claim for lien is invalidated by reason  
only of a failure to comply strictly with subsection 32(2), 33(1) or 34(5)  
unless, in the opinion of the court, a person has been prejudiced as a result,  
and then only to the extent of the prejudice suffered.  
[109] The requirement of a brief description of the services or materials supplied is found in s.  
34(5). As such, it attracts the benefit of the curative proviso.  
[110] In my view, the poorly-worded description of the services and materials supplied by  
Prasher is a relatively minor error. It did not prejudice Pre-Eng in any way. To the extent  
necessary, the curative provision applies.  
4. Prasher’s Claim for Lien relating to the miscellaneous metals contract was registered  
in a timely way  
[111] The date of Prasher’s last supply under the miscellaneous metals contract is a matter of  
some dispute.  
[112] Prasher says that its last supply was August 21, 2012 when it delivered five chair dollies  
and 60 brackets to the site. The value of the chair dollies was $2,500.00. The value of the brackets  
was $3,000. Pre-Eng does not take issue with the delivery of these items but submits that they do  
not constitute the last day of supply. They were, Pre-Eng contends, a trivial delivery designed to  
artificially extend the deadline to register a lien.  
[113] Pre-Eng relies on Wildberry Homes Inc. v. Prosperity One Credit Union Limited, 2008  
70790 (S.C.J.) as authority for the submission that the performance of a trivial amount of  
work is not sufficient to revive a lien which has otherwise expired. Wildberry was a ruling on a  
motion to vacate a lien on the basis that it was registered out of time. The plaintiff had done work  
on a property in Milton, though the nature and extent of that work is not clear from the decision.  
The plaintiff was to be paid $1,500.00 per week for whatever the work was. The motions judge  
found that the plaintiff had ceased to work on the project no later than April 30, 2008, except for  
an attendance on site on July 6, 2008 to install an $84.00 grab bar in a bathroom.  
Page: 18  
[114] The motions judge found that the attendance on July 6, 2008 was trivial and a transparent  
effort to extend the time in which to register a lien. In the circumstances of that case, I completely  
agree with the motion judge’s conclusion.  
[115] The general purpose of the lien provisions of the CLA and its successor, the Construction  
Act, is straightforward. The intent is to see that suppliers of services and materials to construction  
projects get paid. The creation of a lien right prevents an owner from obtaining the benefit of  
improvements to his or her lands without paying for it. See, for instance, the dissenting reasons  
of Laskin J.A. in Gillies Lumber Inc. v. Kubassek Holdings Ltd., as above.  
[116] The CLA includes a scheme by which owners (and other payors on contracts and  
subcontracts) are required to hold back 10% of the value of the services and materials as they are  
supplied until all liens that may be claimed against the holdback have expired or been satisfied,  
discharged or otherwise provided for under the statute. The statutory lien gives contractors and  
subcontractors a potent right they would not otherwise have at common law. The time periods in  
which to exercise that right are important. Owners, or other payors, need to know when it is  
reasonable to release holdback funds and when they may safely proceed to order their affairs on  
the expectation that any potential lien claims have expired. Business efficacy the proper  
functioning of commerce requires that certainty.  
[117] Permitting parties to artificially extend the time limit in which to preserve a lien by the  
supply of trivial work or materials would undermine the certainty of the time limits in the CLA and  
the proper functioning of the Act.  
[118] Whether any particular supply is “trivial” will be a context-driven assessment.  
[119] In this case, I am not satisfied that the supply of the chair dollies and brackets was “trivial”  
or that it was an artificial attempt to extend Prasher’s lien rights. The value of the two items was  
about $5,500.00. That amount may not reflect a substantial percentage of the overall value of the  
work, but it could not, in my view, be characterized as “trivial”. Moreover, Prasher’s work on the  
miscellaneous metals contract appears to have proceeded in fits and spurts over a number of  
months. Indeed, Prasher’s apparent lack of focus and commitment to the work was an ongoing  
complaint of Pre-Eng. This is not a situation like Wildberry, where the contractor showed up two-  
and-a-half months after its last supply and installed a handrail in an obvious attempt to extend its  
lien rights. Prasher had been puttering away at the miscellaneous metals work for months.  
[120] I find that the lien, insofar as it relates to miscellaneous metals work, was registered in a  
timely fashion.  
D. Is Prasher’s claim statutorily barred by operation of the Limitations Act, 2002?  
[121] During closing submissions, Pre-Eng advanced the following limitations argument:  
(a) Prasher failed to preserve its Claim for Lien under the structural steel contract.  
Specifically, it failed to register a Claim for Lien within 45 days of its last supply of  
materials or services under that contract;  
Page: 19  
(b) Prasher failed to register a Claim for Lien at all with respect to any amounts claimed  
as owing in relation to the miscellaneous metals contract;  
(c) Prasher is not entitled to a personal judgment under s. 63 of the CLA because of its  
failure to preserve and perfect its lien rights with respect to either of the Subcontract  
Agreements; and,  
(d) Prasher is now barred from advancing a claim for a personal judgment on the  
miscellaneous metals contract by the provisions of the Limitations Act, 2002, S.O.  
2002, c. 24, Sched. B.  
[122] In the preceding section, I found that Prasher did properly preserve and perfect the Claim  
for Lien with respect to the miscellaneous metals contract. For that reason alone, the limitations  
argument fails, insofar as it relates to the miscellaneous metals contract.  
[123] Given that I have found that Prasher’s Claim for Lien with respect to the structural steel  
contract was not properly preserved, it remains to be determined whether Prasher’s claim for any  
amounts purportedly owing under that contract may continue as an ordinary contract claim for  
which a personal judgment may be rendered. If not, then Prasher will be out of time to commence  
a separate proceeding for that relief.  
[124] Section 63 of the CLA, now s. 63 of the Construction Act, provides as follows:  
Subject to paragraph 3 of subsection 36 (4) (sheltering), the court may  
award any lien claimant a personal judgment, whether the claimant proves  
the lien or not, upon any ground relating to the claim that is disclosed by  
the evidence against any party to the action for any amount that may be  
due to the claimant and that the claimant might have recovered in a  
proceeding against that party.  
[125] Pre-Eng submits that the court’s jurisdiction to grant a personal judgment is limited to lien  
claimants. A “lien claimant” is defined in s. 1 of the CLA as “a person having a preserved or  
perfected lien”. I have found that Prasher does not have a properly preserved or perfected lien  
with respect to the structural steel contract. Pre-Eng submits that it naturally follows that s. 63  
does not apply to any claim Prasher is advancing under that contract.  
[126] In support of its position, Pre-Eng cited Master Sischy’s decision in Tilar Roofing Ltd. v.  
John Boddy Developments Ltd., [1986] O.J. No. 2678. In Tilar, the plaintiff registered a claim for  
lien, which was subsequently bonded off by the defendant. The plaintiff commenced an action to  
enforce the lien, some 142 days after its last supply, which was significantly out of time to perfect  
the plaintiff’s lien rights.  
Page: 20  
[127] The Master concluded that the court did not have the jurisdiction, under s. 65 of the CLA  
(now s. 63), to grant personal judgment because the lien had not been properly perfected. He  
distinguished between cases where a preserved and perfected lien was not proven at trial and cases  
where a lien has been declared invalid prior to trial. In the latter case, the court, he said, did not  
have the discretion to award a personal judgment.  
[128] In at least two cases, subsequent courts have declined to follow the reasoning in Tilar,  
preferring a more generous interpretation of s. 63.  
[129] In 612354 Ontario Ltd. v. Tonecraft Corp., [1991] O.J. No. 1958 (Ont. Ct. Gen. Div.), the  
plaintiff failed to set its lien action down for trial within two years of the commencement of the  
action, as required by s. 37(1) of the CLA. The defendant moved to dismiss the action. The plaintiff  
moved to amend its claim to add a claim for a personal judgment.  
[130] Kozak J. disagreed with Master Sischy’s view, expressed in Tilar, that the court has no  
discretion to grant a personal judgment where a lien claim has expired in advance of trial. He held  
that to dismiss an action just because the lien expired prior to trial would force the plaintiff to  
commence a fresh proceeding for similar relief. This would result in unfairness and a multiplicity  
of proceedings. It would not adhere to the overarching purpose of the Rules of Civil Procedure  
which is to promote the just, most expeditious and least expensive determination of every civil  
proceeding on its merits. In the result, he dismissed the plaintiff’s claim to enforce its lien but  
permitted the action to otherwise continue as a personal action for breach of contract.  
[131] In Emco Supply a division of Emco Ltd. v. Anduhyaun Inc., [1998] O.J. No. 121 (Ont. Ct.  
Gen. Div.), Master Sandler similarly took a more generous approach to the interpretation of s. 63.  
He offered the opinion that the term “lien claimant” only requires the plaintiff to have what  
purports to be a preserved lien. To require otherwise would be inconsistent with the phrase  
“whether the claimant proves the claim or not” as found towards the end of s. 63. Master Sandler  
concluded that a party with an improperly preserved lien may still proceed under s. 63 to try to  
obtain a personal judgment on its contract claim. This conclusion, in Master Sandler’s expressed  
view, enables the court to do what s. 58(4) of the CLA directs it to do, namely, “try and completely  
dispose of the action and all matters and questions arising in connection with the action.”  
[132] The common theme in Tonecraft and Emco is that a multiplicity of proceedings is to be  
avoided. Where the pleadings allow for the just and efficient determination of all issues between  
the parties including personal claims for breach of contract those issues and claims should be  
permitted to proceed, even if the index lien is found to be invalid for one reason or another. In  
other words, s. 63 should not be interpreted in such a way as to impede doing justice between the  
parties. The modern approach to civil litigation, in a climate where there are profound concerns  
about access to justice, demands that a broad and generous approach be taken to the interpretation  
of s. 63.  
[133] In my view, the Claim for Lien filed by Prasher on October 3, 2012 purported to preserve  
its lien rights arising from both the structural steel and miscellaneous metals contracts. The fact  
that it may have failed to do so in one respect or another does not, in my view, undermine the  
Page: 21  
court’s jurisdiction to award a personal judgment on Prasher’s breach of contract claim, pursuant  
to s. 63 of the CLA.  
[134] There can be no reasonable dispute that Prasher has clearly sued for payment of amounts  
it claims as owing on the structural steel and miscellaneous metals contracts. The fact that it may  
not be able to enforce its lien in some or all respects should not be an impediment to the  
determination of the principal live issue between the parties, which is what, if any amount is owing  
from one party to the other in relation to the construction of the Rick Hansen School?  
[135] Pre-Eng took the position that Prasher’s claim should not be permitted to proceed under s.  
63 of the CLA, but that it (Pre-Eng) should be able to proceed on its counterclaim. To accede to  
that argument would be to permit a distorted picture of the accounts between the parties to be  
adduced. It could only result in injustice.  
[136] I have found that Prasher properly preserved and perfected its Claim for Lien with respect  
to amounts that may be owing under the miscellaneous metals contract. In the result, s. 63 is not  
engaged in connection with the claim under the miscellaneous metals contract. The limitations  
issue does not arise. Had I found otherwise, I would still have permitted its claim to proceed as a  
personal claim for damages for breach of the miscellaneous metals contract, under s. 63 of the  
CLA.  
[137] I have found that Prasher purported to preserve its lien rights with respect to the structural  
steel contract but failed to do so. Nevertheless, based on the reasoning in the Tonecraft and Emco  
decisions, I am of the view that it is fair and just to permit Prasher to continue to pursue a personal  
judgment in contract for any amounts it claims are owing pursuant to the structural steel contract.  
E. What is the value of the structural steel work performed by Prasher?  
[138] There is no dispute that the structural steel work called for in the structural steel contract  
was completed by Prasher. There were a number of deficiencies identified by Butler Engineering  
as the work progressed but those were adequately resolved over time.  
[139] The contract price for the structural steel work was $220,000.00 plus HST. Subject to an  
assessment of the value of any valid extras completed by Prasher and the validity of any back-  
charges applied by Pre-Eng, I find that Prasher is entitled to be paid the sum of $220,000.00 plus  
HST on account of the structural steel contract.  
F. What is the value of any extra work performed by Prasher in connection with the  
structural steel contract?  
[140] Prasher claims additional sums for extras it says it performed on the structural steel contact.  
It invoiced those extras from time to time as the project proceeded. In total, Prasher claims twelve  
Page: 22  
extras having a value of $86,723.59. Some are acknowledged as valid by Pre-Eng, though most  
are not.  
[141] Section 10 of Appendix “A” of the structural steel contract provides as follows:  
Unless otherwise provided by the Contract Documents, the Subcontractor  
shall not perform any changed or additional work without prior written  
authorization from the Contractor’s Head Office. Under no circumstances  
will payment be made for such work without such authorization.  
[142] Mr. Gregoris outlined the process for the approval of extras during his examination-in-  
chief. He testified that change notices (“CNs”) would be issued by the architect from time to time.  
Those notices do not always have a financial impact on the project. Pre-Eng would provide the  
change notices to their sub-contractors to determine if there was going to be a cost impact that they  
should know about. They would convey any cost impacts to the architect for consideration.  
[143] If a change was authorized to proceed, the architect would issue a change order (“CO”) for  
the work. The architect’s final payment certificate on this project, dated August 14, 2013, includes  
a schedule with all of the change orders issued on the project. This certificate was marked Exhibit  
22 at trial. It appears to reflect that some 93 change orders were issued throughout the life of the  
project.  
[144] Pre-Eng takes the position that, in accordance with s. 10 of Schedule “A” to the structural  
steel contract, Prasher is not entitled to payment for any purported extra unless it was expressly  
authorized by a certified change order.  
[145] I will tackle each of Prasher’s claimed extras one at a time.  
(i) Brackets (invoice 1638) - $7,326.70  
[146] On April 24, 2012, Prasher invoiced Pre-Eng for a “bracket made for forming company”  
in the amount of $7,326.70 plus HST. The evidentiary record is unclear about what exactly this  
work entailed. I am unable to determine, with reference to Exhibit 22, what change order  
authorized this work.  
[147] Having said that, Pre-Eng does not take issue with this claimed extra. They accept that the  
work was approved and that Prasher is entitled to the amount invoiced.  
(ii) Deflecting Beam (invoice 1639) - $46,860.00  
[148] The single most significant extra in dispute has to do with the cost of shoring up a beam  
that was deflecting to a degree not acceptable to the project engineers. The design of the beam  
was undersized for purpose.  
Page: 23  
[149] CN25 was issued by the architect on February 23, 2012. It addressed the work needed to  
shore up the deflecting beam. Mr. Gregoris testified that Pre-Eng provided CN25 to Prasher to  
quote on. Prasher submitted a quote for the work on March 1, 2012 in the amount of $46,860.00.  
Mr. Gregoris testified that Pre-Eng did not accept Prasher’s quote. Instead, the architect issued a  
change directive that the work be done on a time and materials basis.  
[150] A formal change order was not actually issued for over a year. After some negotiation  
about the value of the work on a time and materials basis, the architect agreed that Pre-Eng should  
be paid an additional $48,150.49 for the remedial work on the deflecting beam. CO89 was issued  
May 14, 2013 in that amount and Pre-Eng was paid that sum.  
[151] It appears to be common ground that Prasher supplied the steel for this extra. CO89 reflects  
that $9,000.00 was paid for materials. There is no evidence that anyone other than Prasher supplied  
steel and accordingly I find that Prasher is owed $9,000.00 for the supply of steel for this extra.  
[152] The parties dispute whose labour forces were utilized to complete the work. Mr. Prasher  
was under the belief that his forces completed the work, but he did not produce any supporting  
documents to corroborate that position. Pre-Eng asked Prasher to provide copies of its time sheets,  
or the time sheets of its sub-contracted forces, to support the hours they worked on this extra. No  
time sheets were ever provided.  
[153] Mr. Gregoris testified that Pre-Eng decided to have other forces do the work on this extra  
because Prasher was already falling behind on its contract work and they did not want to slow  
them down any further.  
[154] Steve Raviele testified that CN25 involved a significant change to the contract work. They  
were under pressure to complete the remediation work quickly. He testified that others were called  
in to do the work. These others included Advance Welding and Industrial Welding.  
[155] Mr. Prasher testified that Pre-Eng authorized Prasher to go ahead with the work based on  
their quote of $46,860.00. He denied counsel’s suggestion in cross-examination that there is no  
communication between Pre-Eng and Prasher that gave the go-ahead. When pressed, he pointed  
to a copy of an email dated February 29, 2012 from Isaac Sela to him in which Mr. Sela listed a  
number of items that they had discussed in an on-site meeting that morning. One of the items  
relates to reinforcing beams in accordance with CN25.  
[156] One immediate difficulty for Mr. Prasher is that his quote for the work was not prepared  
until the next day. Even if he and Mr. Sela had discussed CN25 on February 29, 2012 it was not  
until the next day that he submitted a quote for the work. He was unable to point to any  
communication from Pre-Eng subsequent to March 1, 2012 accepting his quote.  
[157] Mr. Prasher denied that Pre-Eng got someone else to do the work on CN25. He testified  
that Bains Welding worked on the deflecting beam for one day in March 2012. He accepted that  
Industrial Welding worked on the beam for a day and a half but said the rest of the work was done  
by J.J. Welding.  
Page: 24  
[158] Bahadur Bains testified that his company, Bains Welding, did the work remediating the  
beam. He did not provide any particulars of the work they did, when they did it, or how long it  
took. Under cross-examination, he said he could not confirm whether it was a one-day job or a  
ten-day job.  
[159] An invoice from Bains Welding for its work on Prasher’s behalf in March 2012 was filed  
at page 322 of Exhibit 3. It reflects work done by Bains at a number of different sites. During  
March 2012, they appear to have worked on the Rick Hansen School site only on the 15th, 19th  
and 20th. It is not immediately apparent from the descriptions provided in the invoice what, if  
any, work on those dates related to remediating the deflecting beam. Mr. Bains said, under cross-  
examination, that the 19th and 20th were not related to the deflecting beam. He agreed that, at best,  
a two-man crew worked on the beam for one day in March 2012.  
[160] J.J. Welding’s invoice to Prasher for work done on the Rick Hansen School in March 2012  
is found at page 340 of Exhibit 3. It reflects 22 hours of work on that site between March 13 and  
16, 2012. There is no description provided of the work done on those dates. No one from J.J.  
Welding testified at trial.  
[161] Mr. Prasher drew the court’s attention to a J.J. Welding invoice for work done at the Rick  
Hanson School site in April 2012. Between April 5, 2012 and April 14, 2012, J.J. Welding appears  
to have performed 35 hours of labour on the site. They billed $1,400.00 for that labour. Again,  
there is no description of the work performed on those dates. The remediation of the deflecting  
beam was a matter of some urgency. It seems unlikely to me that, in the circumstances, J.J.  
Welding worked on the beam for 3 days in March 2012 and then left it for a month before coming  
back to resume work on it in April.  
[162] Adrian Phillips is an architect and worked with CS&P during the time that this project was  
underway. He testified that the remediation work on the deflecting beam was underway by March  
14, 2012 and completed by April 11, 2012. On the basis of his testimony, it is not impossible that  
some of the work on the beam was in fact done by J.J. Welding in April.  
[163] Prasher included some $32,400.00 in labour costs when it provided its quote to Pre-Eng  
for the remediation of the deflecting beam. It was unable to support anything close to that level of  
labour either through time sheets or invoices from its suppliers. I find that while Prasher did supply  
some of the labour to this extra, the majority of it was supplied by others.  
[164] Pre-Eng utilized its own site supervisor’s daily logs to attempt to construct the number of  
hours that Prasher’s forces were on site working on the deflecting beam. They came up with a  
total of 44 hours. Valued at $75/hr., they accept that Prasher is owed $3,300.00 for labour on this  
extra, plus HST.  
[165] In my view, the hours estimated by Pre-Eng using its own site records is reasonable and  
consistent with the invoices produced by Prasher from J.J. Welding (including their April 2012  
invoice) and Bains Welding.  
Page: 25  
[166] In the meantime, Pre-Eng produced invoices from Advance Welding in the amount of  
$3,796.00 plus HST and Industrial Welding in the amount of $12,265.00 plus HST for work these  
firms performed on the deflecting beam.  
[167] CO89 reflects that the architect approved and the owner paid for steel installation work  
on this extra in the following amounts: Industrial Welding - $15,775.00; Advance Welding -  
$3,796.00; and Prasher - $3,300.00.  
[168] I am unable to explain the discrepancy between the amount of Industrial Welding’s invoice  
and the amount authorized by the architect and paid by the owner.  
[169] For the purposes of this extra, however, I am satisfied that:  
(a) Pre-Eng did not accept Prasher’s lump sum quote for the work;  
(b) The remediation work was instead performed on a time and materials basis;  
(c) Prasher supplied materials valued at $9,000.00 plus HST; and,  
(d) Prasher supplied labour valued at $3,300.00 plus HST.  
[170] In the result, I conclude that Prasher is entitled to be paid $12,300.00 plus HST for this  
extra.  
(iii) New Beam W360 x 45 and Bearing Plates (invoice 1639) - $2,043.36  
[171] On April 16, 2012, Prasher submitted a quote for the installation of a new beam, described  
as W360 x 45, with bearing plates at either end. The quote was in relation to CN19. The work is  
described in CO82 as the revision of a beam from reinforced concrete to steel.  
[172] CO82 reflects that Pre-Eng submitted a claim to the architect for this extra in the amount  
of $3,787.29 plus HST, which was approved and paid. The change order reflects that the work  
was performed by a sub-contractor but it does not identify who that sub-contractor was.  
[173] Mr. Prasher testified that Prasher supplied the steel and did the work on this extra. I have  
no evidence that suggests any party other than Prasher installed this beam. It seems highly likely  
that they fabricated it and supplied it to the project. I accept that they installed it, particularly in  
light of the fact that, as will be apparent momentarily, they supplied and installed a similar beam  
at the same time which Pre-Eng accepts as an extra.  
[174] I find that Prasher is owed $2,043.36 for this extra, plus HST.  
(iv) New Beam W310 x 33 and Bearing Plate (invoice 1639) - $1,719.46  
[175] Like extra (iii), Prasher submitted a quote for a new steel beam on April 16, 2012.  
According to CO84, this required beam had been omitted from the structural drawings. A total of  
$2,729.31 was approved and paid to Pre-Eng.  
Page: 26  
[176] Pre-Eng accepts this claim and I find that Prasher is owed, for this extra, the sum of  
$1,719.46 plus HST.  
(v) New Beam W310 x 39 and Bearing Plate (invoice 1639) - $2,279.65  
[177] Again, Pre-Eng accepts this extra and I find that Prasher is owed $2,279.65 plus HST for  
this work.  
(vi) OWSJ shoe support (invoice 1671) - $900.33  
[178] Pre-Eng also accepts this invoice as owing and I find, on that basis, that Prasher is owed  
$900.33 for this work, plus HST.  
(vii) Revision to Canopy Support at Stair 2 (invoice 1671) - $4,617.80  
[179] This is another extra accepted by Pre-Eng. Accordingly, I find that Prasher is owed  
$4,617.80 for this work, plus HST.  
[180] This is the last of the claimed extras that Pre-Eng agrees to. The balance of the claimed  
extras are not agreed.  
(viii) Installation of Angles and Stiffeners (invoice 1684) - $16,906.00  
[181] On August 25, 2012, Prasher invoiced Pre-Eng for two extras with a total value of  
$17,356.00. This first extra, billed in the amount of $16,906.00 is for work reflected in CN89 and  
authorized by CO86. Prasher refers to it as work reflected in sketch SK-1 dated March 20, 2012.  
In my view, it is unnecessary to drill down on exactly what the work entailed. It is not disputed  
that Prasher did the work.  
[182] Mr. Gregoris, for reasons that are not clear to me, denied that what Prasher billed for on  
August 25, 2012 was the extra for the stiffeners, despite the fact that the invoice clearly says that  
is what it is for. He expressed concern that the structural steel work was done by March 2012 and  
yet the invoice was submitted in August 2012. In his view, this was not an approved change.  
[183] The records of the architect belie Mr. Gregoris’ position. On April 30, 2012, Pre-Eng  
submitted a proposed change order to the architect seeking $14,209.80 for this extra which was  
approved. In November 2012, Pre-Eng submitted Prasher’s August 25, 2012 invoice to the  
architect and sought an increase to the amount previously approved. That increase appears not to  
have been approved.  
[184] The amount approved by the architect and paid by the owner was $14,209.80. Of that,  
$11,356 related to work performed by Prasher and $700.00 related to the fee of Prasher’s engineer  
for preparation of a site drawing. In total, $12,356.00 was, in effect, paid by the owner to Pre-Eng  
on account of Prasher’s invoice.  
[185] Paragraph (4) of Article V of the structural steel contract provides as follows:  
Page: 27  
Any amounts due to the Subcontractor shall be paid ten (10) days after the  
Contractor has received payment of the Consultant’s Certificate from the  
Owner, provided that, as a condition precedent, the Contractor has been  
paid the Consultant’s Certificate, in which such amount has been included  
by the owner, and that the Subcontractor has fulfilled all his obligations  
under this Subcontract Agreement.  
[186] Paragraph (4) is a “pay as paid” provision, also known as a conditional payment clause.  
Prasher did not argue that this clause was, for any reason, not enforceable, or not applicable in this  
instance.  
[187] I find that Prasher did the work on the extra, but that the architect did not value it as high  
as Prasher did. Pre-Eng was not reimbursed in the amount sought by Prasher. The pay as paid  
provision limits Prasher’s recovery to what Pre-Eng received.  
[188] Under cross-examination, Mr. Prasher testified that he understood his bills had to be  
approved by the consultant (i.e. the architect) and he was prepared to accept payment for whatever  
the consultant certified.  
[189] I find that Prasher is owed $12,356.00 plus HST for this extra.  
(ix) Installation of shim material (invoice 1684) - $450.00  
[190] This extra involved the installation of some shim material on top of a concrete post in order  
to ensure that a beam was level.  
[191] Mr. Bains testified that Bains Welding did this work. They probably did, though I have  
some concern about his evidence as it relates to extras on the project. He admitted under cross-  
examination that he did not specifically recall doing any of the work on extras. He assumed they  
did because it was structural steel work and they did all the structural steel work on the project  
(except of course where J.J. Welding did it).  
[192] Mr. Gregoris admitted under cross-examination that Prasher did this work. His position,  
however, is that it was not an extra.  
[193] I have no real means of determining whether this work was an extra or not. It is clearly  
not supported by a change notice. Prasher was surely obliged to ensure that its steel installation  
was level as part of its contract. On the other hand, if extra work was required to level a beam  
because the concrete installer had failed to meet the site specifications, then perhaps that work  
would be an extra to the contract.  
[194] On this evidentiary record, I am unable to determine whether this shim work was a proper  
extra to the contract. In the result, I am not able to conclude that Prasher is owed the sum claimed  
for it.  
(x) Installation of shim material (invoice 1685) $1,450.00  
(xi) Installation of wall plate (invoice 1686) $710.00  
Page: 28  
(xii) Adding washers and plate material (invoice 1687) $1,560.00  
[195] I have lumped these last three purported extras together because I make the same findings  
with respect to each of them.  
[196] Pre-Eng contests that any of the work invoiced as extras on invoices 1685-1687 was  
actually extra work. I am unable, on this evidentiary record, to determine if the work was extra or  
not. It might have been. It might not.  
[197] These extras were addressed in only a cursory way during the testimony of the various  
witnesses who addressed them. None are supported by change notices or orders. Nor is there any  
other written record authorizing Prasher to perform this work as an extra to the contract.  
[198] I accept that the work was done, but I am unable to conclude that it was extra to the contract  
or that Prasher is entitled to be paid for the work over and above the basic contract price.  
Summary  
[199] In summary, I find that Prasher is owed, on account of extras to the structural steel contract,  
the following sums:  
Brackets inv. 1638:  
$7,326.70  
12,300.00  
2,043.36  
1,719.46  
2,279.65  
900.33  
Deflecting Beam inv. 1639:  
Beam W360 x 45 inv. 1639:  
Beam W310 x 33 inv. 1639:  
Beam W310 x 39 inv. 1639:  
OWSJ Shoe Support inv. 1671:  
Canopy Support inv. 1671:  
Angles & Stiffeners inv. 1684:  
Total:  
4,617.80  
12,356.00  
$43,543.30  
[200] Subject to deduction for purported charge-backs, I find that the total owing to Prasher under  
the structural steel contract, including the base amount of $220,000 plus extras of $43,543.30 is  
$263,543.30, plus HST.  
G. How much has Prasher been paid for work performed under the structural steel  
contract, including extras?  
[201] The determination of how much Prasher has actually been paid on the structural steel  
contract is not as simple as one might expect it to be.  
Page: 29  
[202] Mr. Prasher testified that Pre-Eng paid Prasher $163,330.20 on the structural steel contract  
and also paid MBS Steel Ltd., on Prasher’s behalf, the sum of $28,279.38. These two sums total  
$191,609.58.  
[203] In her closing submissions, Prasher’s counsel submitted that Pre-Eng had paid Prasher  
$163,330.20 in total on both contracts, which I think was simply a mistake. On her revised Scott  
Schedule, submitted as part of her closing submissions, she indicated that Pre-Eng had paid a total  
of $208,559.46 on both contracts. I confess, I have not been able to figure out where that number  
came from.  
[204] Pre-Eng submitted a schedule, marked Exhibit “L” at trial, which detailed the amounts paid  
to Prasher on the structural steel contract. They include:  
December 31, 2011:  
January 31, 2012:  
February 29, 2012:  
March 6, 2012:  
April 20, 2012:  
April 30, 2012:  
May 31, 2012:  
$33,561.00  
22,374.00  
15,661.80  
51,460.20  
28,279.383  
22,374.00  
17,899.20  
9,568.574  
July 19, 2012:  
[205] Under cross-examination, Mr. Gregoris conceded that a $791 charge-back had been  
deducted from the sum paid on April 30, 2012, such that it should be reduced to $21,583.00. He  
further conceded that a charge-back of $4,655.66 had been deducted from the payment made May  
31, 2012, such that it should be reduced to $13,243.54.  
[206] After making the foregoing adjustments, I find that the total amount paid to Prasher, either  
directly or indirectly, on the structural steel contract was $195,731.49.  
H. Is Pre-Eng entitled to back-charge Prasher for any expenses it incurred in  
correcting or completing work that fell within the scope of the structural steel  
contract?  
[207] The most significant area of dispute between the parties involves amounts “charged back”  
against Prasher by Pre-Eng in relation to both contracts. The charge-backs relate, generally, to  
3 Paid to MBS Steel Ltd., a supplier of Prasher’s, with Prasher’s approval.  
4 Paid to Skyrider Equipment, a supplier of Prasher’s, to avoid a lien claim.  
Page: 30  
amounts Pre-Eng paid to third parties to correct purportedly deficient work and to complete  
unfinished work that fell within the scope of Prasher’s contracts.  
[208] The Scott Schedule completed by the parties lists 25 separate charge-backs, having a total  
value of $170,078.19, not including HST.  
[209] Going forward, there are certain factual findings that will largely guide my approach to the  
charge-backs with respect to both contracts. Those charge-backs related almost exclusively, I note,  
to work completed and invoiced by North York Welding and Industrial Welding. I will take a  
moment to summarize my general findings.  
(a) Prasher was overwhelmed  
[210] I find that Prasher was in over its head on this project. Throughout 2012 it had a number  
of projects on the go and was simply too busy to properly attend to this job.  
[211] Mr. Gregoris and Mr. Raviele both testified about how difficult it was to get Mr. Prasher’s  
attention with respect to this project. He often refused to respond to their attempts to contact him.  
Mr. Prasher admitted that there may have been times when he failed to return phone calls. I think  
there were many, many times. He testified under cross-examination that he “never wrote anything  
during the course of the project”. He said he is “not an email guy” and instead would “pick up the  
phone and call”. Except that he rarely picked up the phone and called Pre-Eng.  
[212] Mr. Prasher testified forcefully that Prasher did everything it was required to do and did it  
in a timely and competent way. He took the position that Pre-Eng decided to undermine him and  
used others to complete Prasher’s work at costs well above what Prasher had quoted. Beyond that,  
much of the work done by North York and Industrial was, in his view, “extras”.  
[213] I will be candid. I put little stock in Mr. Prasher’s testimony. He was a bombastic witness,  
prone to making lengthy speeches despite my numerous admonitions that he not do so. I found  
his testimony largely unhelpful because it was so difficult to separate rhetoric from fact. It was  
meandering, unfocussed and often generic in nature. One conclusion was obvious: he accepted  
little, if any, responsibility for the ramifications of not doing the work he was contracted to do.  
[214] A classic example of his approach to testifying was his absolute insistence that his firm had  
done all of the work on CN25 (the remediation of the deflecting beam). He said Pre-Eng “cannot  
run from this.” Nevertheless, he refused to provide his worker’s time sheets or any other evidence  
that corroborated his position that Prasher’s forces had performed the work. He strongly denied  
that Pre-Eng had someone else do this work. Yet the evidentiary record clearly supports the  
conclusion that his firm did not do anywhere even close to all of the work on this extra.  
[215] Mr. Prasher was equally adamant that Prasher did not leave deficiencies open for months  
on end. Butler a completely independent engineering firm found otherwise.  
[216] The Butler reports, which I have summarized at Appendix “A”, in terms of variations,  
demonstrate that Prasher was very delinquent in attending to the satisfaction of deficiencies on the  
structural steel contract. Moreover, Prasher’s Statement of Defence to the Bains’ action tends to  
Page: 31  
undermine Mr. Prasher’s testimony about the quality of the work done on this project. Prasher  
pleaded that Bains had not completed its work on this, and other, projects in a good and  
workmanlike fashion. Further, that Bains’ incompetence resulted in project delays and damages  
to Prasher.  
[217] Mr. Bains testified here that 2012 was a busy year for them. They were working on 6 or 7  
sites for Prasher. Wherever Mr. Prasher said they had urgent work, they would go there. He was  
juggling crews trying to manage Prasher’s various projects. I got the distinct impression that they  
moved from site to site “putting out fires”. Mr. Bains agreed, under cross-examination, that “it  
was crisis mode among the various sites”.  
[218] According to Mr. Bains, Prasher began to fall behind in its accounts with Bains by April  
2012. On April 20, 2012, Pre-Eng had to pay roughly $28,000 (including HST) to one of Prasher’s  
suppliers because Prasher did not have the money to pay it. Moreover, Prasher stopped paying  
Skyrider Equipment for the rental of boom lifts and other equipment it had on site. Skyrider  
threatened to lien the project. Pre-Eng eventually settled Skyrider’s account and paid it $9,568.57  
on July 19, 2012 on Prasher’s account.  
[219] I find that Prasher was in a state of crisis by the spring of 2012. They managed to, mostly,  
complete the structural steel contract, but were in real difficulty by the time work was to start on  
the miscellaneous metals contract. The evidentiary record is replete with correspondence from  
Mr. Raviele to Prasher imploring them to begin, carry on, or complete work on the miscellaneous  
metals contract and threatening to have third parties complete the work if Prasher did not attend to  
it.  
[220] Mr. Raviele testified that he had to follow up with Prasher far more than he did with other  
trades to get work completed. He said that in all of the projects he has been involved in over 20  
years, he has never had to manage a sub-trade in the way he had to manage Prasher. He had never  
had to go to a sub-contractor’s engineer directly in an effort to get deficiencies closed off. But he  
had to do that here, due to a lack of response from Prasher. He also said that in 20 years he had  
never had to get a replacement contactor in to perform work that a sub-contractor had contracted  
to perform. But he had to do that here.  
[221] I accept Mr. Raviele’s evidence, without hesitation, about the difficulties he experienced  
trying to persuade Prasher to attend to its obligations, particularly under the miscellaneous metals  
contract. His evidence was not only straightforward and compelling, but it was entirely supported  
by a substantial record of correspondence directed by him to Prasher. It is further consistent with  
the circumstances on the ground.  
(b) There were deficiencies in the work of Bains Welding  
[222] Prasher failed to keep the accounts of Bains Welding current on this and other projects. In  
the result, Bains Welding sued Prasher for what it claimed were outstanding balances on account.  
Bains’ action was commenced on December 19, 2013. Bains sought $114,627 in damages. Prasher  
defended the action by way of a statement of defence dated April 29, 2014. Amongst other  
allegations in the defence, Prasher alleged that Bains had not completed its work at the Rick  
Page: 32  
Hansen School in a good and workmanlike manner. Bainsfailures, Prasher said, resulted in back-  
charges of $18,000 on this project.  
[223] Bains and Prasher settled the Bains’ lawsuit for $55,000, meaning that Prasher got a  
discount of about 50% against what Bains said was otherwise owing. Whether any of that discount  
is a reflection of poor workmanship and charge-backs at the Rick Hansen School is a matter that I  
can only speculate about on this evidentiary record.  
[224] What is clear, however, is that Prasher represented to this court, in a publicly filed pleading,  
that Bains’ work on this project was substandard and was the basis for a number of charge-backs.  
(c) The invoices of North York Welding and Industrial Welding are generally reasonable  
[225] Sergio Mariani and his brother, Bruno Mariani, impressed me as being diligent, hard-  
working contractors who took immense pride in their work. They each kept detailed records of  
their work on this project and produced detailed invoices. Each was thoroughly prepared to testify.  
Prasher’s counsel urged me to approach their evidence with caution given how detailed it was. In  
my view, the fact that these witnesses were prepared and had detailed records and recall are not  
reasons to reject their evidence as credible and reliable.  
[226] Sergio Mariani testified that he first attended at the project site in early June 2012. He said,  
and I accept, that the status of the miscellaneous metals work was “horrendous”. The work that  
had been performed was “very rough” and the welds that had been done were unacceptable and  
not up to their standards.  
[227] I have no reservation in finding that both Bruno and Sergio Mariani did the work they  
purported to have done in the invoices they submitted to Pre-Eng. I find that this work, for the  
most part, was work that Prasher had contracted to do in its two contracts with Pre-Eng.  
[228] I accept that hiring trades on an urgent basis to correct and complete work of another  
contractor is a difficult business and generally results in costs that are in excess of the original  
contracted price. On the whole, I have no difficulty with the scope of the work done by North  
York Welding and Industrial Welding or with the reasonableness of their invoices. That is not to  
say that Prasher is 100% responsible for all of the work invoiced by North York Welding and  
Industrial Welding. As will become apparent as I work through the charge-backs, some of the  
amounts invoiced are for extra work that was outside the scope of Prasher’s subcontracts.  
(d) Prasher’s deficiencies on the structural steel work are independently verified  
[229] A significant difference between the structural steel work and the miscellaneous metals  
work undertaken by Prasher is that the owner, YRDSB, arranged for an independent inspector to  
regularly assess and report on the structural steel work.  
Page: 33  
[230] Hamadreza Haghshenas is a certified level three welding inspector. He was employed by  
Butler Inspection Group Inc. in that capacity in 2011-12 and continues in that employment to the  
present. Mr. Haghshenas conducted regular spot-check inspections of Prasher’s structural steel  
work on the Rick Hansen School project on behalf of the owner. He was not the only inspector  
from Butler assigned to this project, but he was the principal one.  
[231] Mr. Haghshenas had a practice of preparing a handwritten report on the progress of  
Prasher’s work when he was at the job site. A written report would subsequently be prepared and  
delivered to Pre-Eng. Mr. Prasher testified that their erector was given copies of the written reports  
on site. Subsequently, their office received copies of the typed reports.  
[232] Butler Inspections did not, as a policy, comment on workmanship issues. They noted  
where the work performed by Prasher’s erectors varied from either the project plans and  
specifications or Canadian Standards Association requirements. When variations were noted, it  
was incumbent upon Prasher to address them. Butler’s expectation was that variations would be  
addressed within a reasonable period of time. Of particular concern was that as the project  
proceeded, walls were going up and the building was being closed in. Variations needed to be  
addressed before structural steel components became inaccessible.  
[233] Sometimes work done to address a variation resulted in a structurally sound component,  
but one that did not align with the plans and specifications. When that happened, Butler required  
Prasher’s field engineer to prepare a field sketch for review and approval by the structural  
engineering consultant (RJC).  
[234] Butler appears to have prepared 19 typed inspection reports (two shop reports and 17 site  
reports) ranging in dates from December 6, 2011 to August 13, 2012. The two shop reports identify  
modest variations from the plans and specifications. It appears those variations were promptly  
attended to.  
[235] The site reports reflect a significant number of variations arising as the project progressed.  
There is no question that the variations were eventually resolved. They had to be, in order for an  
occupancy permit to be obtained.  
[236] Attached as Appendix “A” to these reasons is a chart which outlines the number of  
variations reflected in each site report. Outstanding variations are tracked in the last column of  
the chart. The chart readily demonstrates that many variations identified by Butler remained  
outstanding for considerable periods of time.  
(e) Prasher is responsible for field work sketches addressing variations  
[237] In a significant number of instances, field work detail sketches were required from  
Prasher’s engineer, ABM, for review by RJC before an open variation could be closed. Prasher  
and Pre-Eng did not, and do not, agree on who is responsible for paying ABM for those field work  
sketches. ABM appears to have generally charged $700 plus HST each time they had to visit the  
site and prepare a field work sketch. Butler appears to have required at least eighteen field work  
sketches in relation to identified variations in the structural steel work, so the cost was not  
insignificant. Prasher priced the structural steel work in a way that would have seen them realize  
Page: 34  
a profit of about $16,000 if everything had gone well. That was a slim margin and would have  
been all but erased by the cost of the field work sketches required by Butler.  
[238] Under cross-examination, Mr. Prasher disputed the suggestion that there were open  
variations for months, though Butler’s reports belie his position.  
[239] He agreed that Pre-Eng eventually called ABM directly to come out to the site and do field  
work sketches required by Butler. He said that Pre-Eng called him in advance for approval to  
contact ABM directly. He maintained, however, that Pre-Eng should bear the cost of those  
sketches. He acknowledged that Prasher was responsible for fixing up deficiencies (variations).  
But he testified that if Pre-Eng required a sketch of the corrected work, then it was an extra to the  
contract.  
[240] No one debates Butler’s impartiality. Prasher accepts that it was responsible for correcting  
any variations identified by Butler. Pursuant to Article VI (2) of the structural steel subcontract,  
Prasher had two days to correct deficiencies it was notified of. In the event it failed to correct a  
deficiency, Article VI (4) (a) provided that Pre-Eng could correct it and charge the cost of the  
correction back to Prasher.  
[241] In my view, the cost of correcting deficiencies includes the cost of any field work details  
(sketches) required to ensure the corrections were satisfactory.  
[242] Prasher was required to complete its work according to the site plans, drawings and  
specifications. Butler identified instances where Prasher failed to do so and noted them as  
variations. I understand that field work details stamped by an engineer were required whenever  
there was a variation from the approved plans and specifications. More particularly, I understand  
that those stamped sketches were required in order to ensure the structure continued to comply  
with Building Code requirements, such that an occupancy permit for the building could ultimately  
be obtained.  
[243] All of that is to say that the reason the field work details were required is because Prasher’s  
installers varied from the site plans, drawings and specifications from time to time. Those  
variations needed to be corrected and the corrections needed to be approved by an engineer as  
Building Code compliant. The cost of having the engineer do so was a direct result of Prasher’s  
installer varying from the contract requirements. It was Prasher’s responsibility to attend to the  
identified variations and any costs to do so are on Prasher’s account.  
[244] With those general findings in mind, I will dive into a discussion of the specific charge-  
backs Pre-Eng imposed with respect to the structural steel contract.  
(i) CB-11201 - $700 (+HST)  
Page: 35  
[245] CB-11201 relates to an ABM invoice of $700 plus HST dated April 16, 2012 and paid by  
Pre-Eng. Recall that ABM was Prasher’s consulting engineer. This ABM invoice relates to an  
attendance on site and the preparation of a sketch of a beam support.  
[246] This charge-back appears as item no. 10 on the Scott Schedule and it has been recorded by  
Pre-Eng as having to do with the miscellaneous metals contract. I am confident it was recorded  
improperly. It relates to the support of a structural steel beam. It was incurred at a time when  
Prasher’s contractors were erecting structural steel.  
[247] A letter from ABM to Pre-Eng dated April 16, 2012 outlines the purpose of the site visit  
and the subsequent sketch that was prepared. Behzad Mashhadi is the licensed engineer who  
operates ABM. He testified as part of Prasher’s case. Under cross-examination, he said that he  
was acting as Pre-Eng’s agent when he attended the site on April 16, 2012 and prepared the  
subsequent sketch, which he marked “SK1”. He indicated that the concern he was addressing had  
to do with the concrete. There was cracking at the area of a connection between a beam and a  
concrete wall. This was not, he said, Prasher’s issue.  
[248] According to Mr. Mashhadi, Prasher was generally responsible for steel to steel  
connections, but this was a steel to concrete connection. He said that if Prasher had proposed the  
connection detail that had not worked, this would be their problem. But he could not say that it  
had been Prasher’s design. No one else testified that it was Prasher’s design. This particular beam  
connection does not appear to have been identified by Butler Engineering as a deficiency in  
Prasher’s work.  
[249] In my view, this is not a proper charge-back and ought not to have been deducted from the  
amount paid to Prasher on April 30, 2012.  
(ii) CB-11202 - $4,120.05  
[250] CB-11202, in the amount of $4,120.05 (not including HST)5 was deducted from the  
payment made to Prasher on May 31, 2012.  
[251] This charge-back reflects an invoice from Industrial Welding to Pre-Eng dated April 11,  
2012. The work involved welding rebar to a number of base plates, installing lateral support  
brackets, removing a temporary guard rail, cutting out masonry blocks to access the base of a  
column and installing extra anchors in the base plate.  
[252] Mr. Prasher accepted that the sum of $3,160.50 of the $4,120.05 charged by Industrial  
Welding in this instance was a valid charge-back against Prasher. He otherwise disputed two  
aspects of the Industrial invoice. First, the sum of $585.00 relating to cutting out masonry blocks  
and installing additional anchors in the base plate of a column. Second, the sum of $374.55, being  
5 Unless expressly indicated otherwise, none of the amounts reflected in these reasons include HST. I will factor in  
HST in the final analysis.  
Page: 36  
a 10% mark-up charged by Pre-Eng on this and all other charge-backs. I will address each aspect  
in turn.  
[253] Relatively little evidence was tendered in relation to this charge-back, likely because of  
Mr. Prasher’s concession.  
[254] Recall that Bruno Mariani is the principal of Industrial Welding. He testified that he was  
first called by Pre-Eng to work on the Rick Hansen School on April 11, 2012. He described how  
he recorded his hours of work and how he prepared his invoices. He noted that all of the work on  
his April 11, 2012 invoice was structural steel work.  
[255] Mr. Prasher testified that some of the work on Industrial’s invoice was not part of the scope  
of his contract. In particular, he disagreed that Prasher should be responsible for Industrial Welding  
having to cut through masonry blocks to get at a base plate that needed additional anchors.  
[256] There is no dispute that Industrial did the work on its April 11, 2012 invoice. I am satisfied  
from the nature of the work that it was corrective work to a structural steel element. I am also  
satisfied that it was necessary for Industrial to cut through a block wall to gain access to the base  
plate that required additional anchoring. And I am satisfied that the reason that a block wall needed  
to be cut out is because of Prasher’s delinquency in attending to outstanding variations (as reflected  
in Appendix “A”). A beam that required further anchoring ended up walled in before the  
correction was made. That resulted in extra cost to gain access to the base plate. I am satisfied  
that the sum of $585.00 is a reasonable charge-back and recoverable against Prasher.  
[257] The more difficult issue raised by Mr. Prasher is that of the 10% mark-ups charged by Pre-  
Eng on all charge-backs.  
[258] Mr. Gregoris testified that there should be a 10% mark-up on all charge-backs. He  
described it as a nominal charge for their administrative costs in having to address the problems  
associated with the charge-backs. Mr. Prasher did not offer any evidence on the point. Neither  
side addressed it in closing submissions.  
[259] The parties’ relationship is governed by the written contracts. Nowhere in those contracts  
does it provide for a 10% mark-up in Pre-Eng’s favour where Pre-Eng has had to arrange for third  
parties to correct deficiencies in Prasher’s work. Instead, the contracts provide, at para. 4(a), that  
if Prasher failed to comply with a deficiency notice, Pre-Eng may “correct such default and deduct  
the cost thereof from the payment then or thereafter due” to Prasher.  
[260] In fairness, deficiencies in Prasher’s work are, in effect, breaches of contract. Pre-Eng is  
entitled to damages for those breaches, where they are proven. Damages payable as a result of a  
contractual breach are calculated according to the well-established rule in Hadley v. Baxendale,  
(1854) 9 Exch 341. Specifically, the measure of damages is the amount required to put the non-  
breaching party in the position it would have been in had the contract been performed as agreed.  
See also BG Checo International Ltd. v. British Columbia Hydro & Power Authority, [1993] 1  
S.C.R. 12, at para. 12.  
Page: 37  
[261] Having said that, there are limits to a plaintiff’s recoverable losses. In Hadley v. Baxendale  
the English Court of Exchequer attempted to define those limits by use of the concept of  
foreseeability. The value of the performance promised is generally limited to the damages that  
would fairly and reasonably be considered to arise naturally from the breach or which may  
reasonably have been in the contemplation of the parties. In other words, the damages sought must  
have either:  
(a) arisen naturally, according to the usual course of things; or  
(b) been in the contemplation of both parties at the time they made the contract.  
[262] I have no evidence that the parties mutually contemplated a 10% mark-up on charge-backs.  
[263] I accept that it would be reasonably foreseeable to Prasher that Pre-Eng would incur  
administrative costs in dealing with breaches. In theory, I accept that Pre-Eng is entitled to recover  
something for those administrative costs.  
[264] Mr. Gregoris suggests 10% is nominal. The total charge-backs in this case run to more  
than $17,000.00. I do not consider $17,000.00 in mark-ups to be a nominal figure. And I have no  
evidence of what specific administrative tasks were involved in addressing the charge-backs. I  
cannot, in the result, assess whether $17,000.00 is a reasonable estimate of those costs.  
[265] It may be that a 10% mark-up on charge-backs is commensurate with industry standards.  
I cannot reach that conclusion, however, because I have no evidence about it.  
[266] I accept that addressing Prasher’s deficiencies caused Pre-Eng to incur additional  
administrative fees beyond what they would have reasonably incurred if the contracts were not  
breached. But without actual evidence of what those costs are, nor evidence that allows me to  
assess whether a 10% mark-up is a reasonable reflection of those costs, nor evidence of an industry  
standard, I am left to speculate. Speculation is not a proper basis for fact-finding and, in the result,  
I am unable to award Pre-Eng anything for its purported administrative costs in relation to this or  
any other charge-back.  
[267] In the result, I value this charge-back at $3,745.50, plus HST.  
(iii) CB-11203 - $4,250.12  
[268] This charge-back, dated June 26, 2012, reflects a number of different items, including:  
$1,567.50 for Pre-Eng’s own labour forces “pouring a slab late” and installing a new  
column in the garage room;  
$255.62 to Brafasco for anchor bolts and a hammer drill bit;  
$880.00 to North York Welding to install 4 bollards;  
$140.00 for a stair tower rental; and,  
Page: 38  
$1,400.00 in fees to ABM for two site visits and sketches. The first was in relation  
to what ABM described as “repair work sketches”. The second related to an  
inspection of “the joist shoe repair at gym”.  
[269] Pre-Eng has accounted for this charge-back in the structural steel file, but it appears to me  
that it relates largely to miscellaneous metals work.  
[270] Mr. Prasher testified that his work had nothing to do with pouring concrete slabs or  
installing columns in the garage. A “new” column would in any event, he said, be an addition to  
the contract. He said he knew nothing about the anchors purchased from Brafasco. He further  
knew nothing about the drill bit, but thought he should not be paying to purchase other party’s  
tools. He initially accepted that the bollards were part of his work, but were removed by Pre-Eng.  
He was prepared to accept $880 of this charge-back, but later resiled from that acceptance on the  
basis that he discovered the bollards were in fact extras. He denied that the scaffold renting was  
his responsibility. Finally, he testified that the ABM invoices had to do with extras on the contract.  
[271] Mr. Gregoris testified that it was Prasher’s responsibility to fabricate and install all of the  
stairs in the structure. By the end of May 2012, they had not completed the installation of any of  
the stairs. In the result, a stair tower had to be rented so that trades could access the different floors  
in the structure. The stairs Prasher was meant to be installing were what he described as “pan  
stairs”. They were fabricated out of steel but each stair was essentially a pan in which concrete  
was poured to create the stair. Prasher did not have the stairs ready to be poured when the concrete  
supplier was on site, so Pre-Eng had to do the labour later to pour concrete into the pans. They  
back-charged their time to Prasher.  
[272] The bollards were, he said, part of Prasher’s responsibility. The ABM invoices involved  
matters identified as variations in Butler reports. And the hammer drill bit ($35.62) was something  
they needed in order to do work Prasher should have been doing.  
[273] This is a difficult charge-back to assess because of the incomplete state of the evidentiary  
record. I will do the best that the record allows me to do, addressing each aspect of the charge-  
back in turn.  
[274] Pouring concrete into stair pans was not Prasher’s work. I appreciate the argument that  
their delays with respect to getting the stairs finished resulted in additional work having to be done  
by Pre-Eng’s labour forces to pour concrete in the stairs. And, as I will get into in more detail  
below, I accept that Prasher was not as attentive as it should have been to its work under the  
miscellaneous metals contract. Moreover, Mr. Prasher was not readily accessible to Pre-Eng’s  
project manager or site supervisor. He failed to return communications on a regular basis.  
[275] Having said that, though there was a master schedule for the project, the miscellaneous  
metals work was not included in it. Under cross-examination, Mr. Gregoris agreed that by mid-  
June 2012 he was trying to establish a schedule for the miscellaneous metals work. He intended  
to pass a schedule along to Prasher, but cannot say whether that was ever done.  
Page: 39  
[276] In the absence of evidence that Prasher had missed a fixed deadline to get the stairs done,  
it would be unfair to burden it with the cost of pouring concrete into the pans or, for that matter,  
with the cost of the rental of a stair tower.  
[277] I do not know what the “new column” in the gym refers to and am unable to conclude that  
it is an item that Prasher is responsible for.  
[278] Similarly, I do not know what the items purchased from Brafasco were used for. It is  
insufficient to say, generally, as Mr. Gregoris did, that they related to Prasher’s work. That is not  
helpful to the court.  
[279] I accept that the bollards were part of Prasher’s work. Bollards are expressly included in  
the miscellaneous metals contract. Prasher’s counsel submitted that there was some evidence,  
included in Exhibit 40 (the architect’s change notices) that supported a finding that these particular  
bollards were extras. She referenced tab 18 of Exhibit 40, but I find no support for her position  
there.  
[280] In my view, the bollards were properly charged-back against Prasher.  
[281] The ABM sketches do appear to relate to Prasher’s work. Again, Prasher’s counsel  
suggested they were part of an extra, being CN89. I do not agree with her. The ABM invoices  
identified in this charge-back (invoices no. 1255 and 1265) have nothing to do with CN89. They  
relate to field repairs of work that appears to have been done by Prasher’s forces.  
[282] Mr. Mashhadi testified that when he was asked by Pre-Eng to attend the site in May 2012  
he contacted Prasher about it. He said Prasher gave him express permission to attend the site and  
prepare his drawing which is stamped May 17, 2012. It relates specifically to Butler Report #10  
and variation items 1, 2, 3 and 4. He invoiced for it on May 22, 2012 (invoice no. 1255). This is  
not an extra.  
[283] The second ABM invoice on this charge-back, no. 1265, dated Jun 19, 2012, specifically  
references an attendance at the site with an inspector from Butler. I infer from Butler’s presence  
that this attendance was again in relation to a deficiency of some sort.  
[284] In my view, Prasher is liable for the cost of the ABM invoices.  
[285] Counsel to Pre-Eng submitted that Prasher had attempted to pass along this entire charge-  
back to Bains in the Bains’ action. Indeed, charge-backs 11202 to 11209 were part of Prasher’s  
Affidavit of Documents in that action. The fact that those charge-backs were referenced on an  
Affidavit of Documents does not, however, support an inference that Prasher considered them to  
be entirely valid and entirely the fault of Bains. It means only that the document has some relevance  
to the Bains’ action.  
[286] In the result, I find that $2,280.00 of CB-11203 is validly charged back against Prasher.  
Page: 40  
(iv) CB-11204 - $12,217.50  
[287] This charge-back relates to structural steel work purportedly performed by North York  
Welding and Industrial Welding in June and July 2012. Prasher is prepared to accept that $1,413.80  
of this charge-back is valid, but I confess I am not clear on how that figure is arrived at.  
[288] The amount claimed in this charge-back represents three invoices. First, a North York  
Welding invoice, no. 2217, dated June 28, 2012 in the amount of $1,330.00 plus HST. Second, an  
Industrial Welding invoice dated July 3, 2012, no. 36, in the amount of $1,527.00. Third, Industrial  
Welding invoice no. 355, which has not, to my knowledge, been produced in evidence. It is  
apparently in the face amount of $9,360.00. I will consider these invoices in turn.  
Invoice 2217  
[289] Recall that Sergio Mariani is the principal of North York Welding. He testified that he was  
asked in June 2018 to supply some structural steel brackets, which he did. He invoiced $1,330.00  
plus HST. I find that this material was structural steel and fell within Prasher’s scope of work. It  
is not clear to me why it was not supplied by Prasher. Mr. Prasher did not address these brackets  
in his evidence. According to Mr. Raviele, it is material that Prasher should have supplied but did  
not. I find that it is a proper charge-back.  
Invoice 360  
[290] Bruno Mariani testified about Industrial’s invoice 360, dated July 3, 2012, but he said only  
that he did the work reflected in the invoice in accordance with instructions he received from the  
site supervisor, Isaac Sela.  
[291] Invoice 360 is actually in the amount of $3,147.50, but it reflects both structural steel and  
miscellaneous metals work. Pre-Eng has back-charged Prasher $1,527.50 against the structural  
steel contract and $1,620 against the miscellaneous metals contract. For now, I am concerned only  
about the amount charged back to the structural steel contract.  
[292] The items attributed by Pre-Eng to the structural steel contract consist of the installation of  
shelf angles and work on stair #2. It appears to me that this work is more likely related to the  
miscellaneous metals contract, but for simplicity’s sake I will address it here.  
[293] Prasher questions whether the work is really an extra.  
[294] Under cross-examination, Bruno Mariani acknowledged that part of the work on this  
invoice related to CN53. That change notice related to a guardrail at stair #2, more particularly to  
“revise wall-mounted handrail to handrail with picket”.  
[295] The work on stair #2 reflected in Industrial’s invoice dated July 3, 2012 is described as:  
Page: 41  
Start on stair #2 Fabricate return and cover plate and install. Repair  
stringer where necessary and prime paint so railing could be installed.  
[296] I am at a loss to understand how any of this work is covered by CN53, even though Mr.  
Mariani agreed that, to some extent, it was. I find that he was mistaken when he said that the work  
on stair #2 reflected in this invoice was part of an extra. In my view, the amount of $1,527.50 is  
properly charged-back against Prasher.  
Invoice 355  
[297] To my knowledge, Pre-Eng has not produced a copy of Industrial’s invoice no. 355. It  
purportely comprised $9,360.00 of the amount invoiced on CB-11204. Prasher’s counsel cross-  
examined Bruno Mariani about how much of that invoice related to extra work under CN91  
(additional lintels for the clerestory windows in the gym). She submitted in closing argument that  
invoice 355 shows 85 hours related to CN91 work. I have no idea where she got that number, or  
whether perhaps she has a copy of invoice 355, which I could otherwise not find in the evidentiary  
record. It was not indexed in the multiple volumes of documents filed by the defendant, nor is it  
attached to CB-11204 in the defendant’s Charge-Back and Payments Brief.  
[298] Under cross-examination, Bruno Mariani said that he did the work on CO91 on May 30,  
June 5, 6, 7, 8, 12, 19, 21 and 25, 2012. That is a substantial amount of work. Industrial’s invoice  
360 is dated July 3, 2012 and does not include work on any of those dates. I think it likely that  
invoice 355 does include work on the extra reflected on CO91. As Prasher’s counsel submitted, it  
is not proper to charge-back to Prasher an amount that reflects an extra to the contract. I agree. In  
the absence of a copy of invoice 355, I am unable to determine how much, if any, of the work  
reflected in that invoice relates to work within Prasher’s scope.  
[299] In the result, I find that $2,857.50 ($1,330.00 + $1,527.50) has been established as valid  
with respect to this charge-back.  
(v) CB-11206 - $1,400.00  
[300] This charge-back relates to two invoices from ABM for site attendances and sketches.  
[301] The first ABM invoice included is dated May 22, 2012 and numbered 1255. This is the  
same invoice that I approved as part of CB-11203 and is a duplicate.  
[302] The second invoice, number 1277, dated July 17, 2012 relates to an attendance by Mr.  
Mashhadi on site on July 9, 2012 and a sketch he prepared (SK-12). The visit and sketch relate to  
the completion of stair #3.  
[303] Mr. Mashhadi testified, under cross-examination, that he had emailed Prasher on June 20,  
2012 to advise that there were some deficiencies with respect to stairs 2 and 3 and he sent some  
sketches for remediation work. I find that the attendance on July 9, 2012 and SK-12 were both  
related to this remediation work. I conclude that this is a proper charge-back in the amount of  
$700.00 plus HST, though it appears likely that it ought to have been a charge-back to the  
miscellaneous metals contract.  
Page: 42  
(vi) CB-11207 - $973.53  
[304] This charge-back relates to the rental of a skyjack scissor lift ($698.53) and five hours of  
labour supplied by Pre-Eng forces to help install a bent plate in the garbage room.  
[305] Mr. Prasher testified that he did not know what the rental fee was for. He accepted that  
installation of the bent plate was his responsibility and said that Pre-Eng had brought in other  
forces to get the work done faster.  
[306] Mr. Raviele testified that, like Mr. Prasher, he did not know what the scissor lift was for.  
[307] In light of my earlier observations about Prasher’s inattentiveness to the project, I am  
satisfied that it was reasonable for Pre-Eng to have its own forces assist with the installation of the  
bent plate. It was part of Prasher’s scope of work and it was done by others. I allow $275.00 (5  
hours x $55/hr.) as a valid charge-back. I do not allow anything for the equipment rental since  
there is no evidence about what it related to.  
(vii) CB-11208 - $2,334.00  
[308] This charge-back is accepted by Prasher and I allow it at $2,334.00.  
(viii) CB-11209 - $4,328.35  
[309] Both charge-back 11208 and 11209 relate to invoices from a company called Kanadian  
Fireproofers. Both relate to remediation work of a similar nature. It is not clear to me why Prasher  
accepts responsibility for CB-11208 but not CB-11209.  
[310] The underlying facts are these. Prasher fabricated all of the structural steel in its own  
facility. All of the materials they fabricated received a coat of primer paint. When steel is primed,  
however, fireproofing material does not adhere to it. Some of the steel installed in the school was  
to be fireproofed. But, according to Mr. Prasher, Pre-Eng did not tell them which pieces were not  
to be primed so that they could be fireproofed. Ergo, they primed it all.  
[311] To remedy the fireproofing issue, steel that was to be fireproofed but had been primed had  
to have mesh added to it. The Kanadian Fireproofers invoices relate to the addition of mesh to the  
steel that needed to be fireproofed.  
[312] Under cross-examination, Mr. Prasher admitted that the project plans showed that  
fireproofing was required on some of the steel. He agreed that there were notes on the tender  
drawings as to beams that were to be spray fireproofed. He said, however, that they sent their  
drawings (which showed all steel was to be primed) to the structural engineer for approval in order  
to ensure they were right. Their primed steel was approved in this case.  
Page: 43  
[313] Jennifer Watson is an associate at RJC, the consulting engineers on the project. She  
testified that the architectural drawings address fireproofing.  
[314] Adrian Phillips (the architect) identified on tender drawing A801, the various locations of  
beams with spray fireproofing. He noted that the specifications for the project required that if steel  
was to be fireproofed, it was not to be primed.  
[315] In my view, it was incumbent upon Prasher not to prime steel that was to be fireproofed.  
They were aware of that requirement but were not careful enough to determine which beams were  
to be left unprimed. It is no answer, in terms of their liability, that the structural engineer did not  
correct their drawings.  
[316] This charge-back also includes an ABM invoice, no. 1284, dated August 16, 2012, for  
$700.00. Mr. Mashhadi testified that this invoice related to an attendance on site with the inspector  
from Butler. The visit and a number of sketches that were prepared following the visit, relate to  
deficiencies in the structural steel work identified by Butler. This is an appropriate charge-back  
to Prasher.  
[317] I find that the full amount of this charge-back is valid, at $4,328.35.  
(ix) CB-112011 - $2,157.30  
[318] This last charge-back against the structural steel contract has two elements. The first is an  
invoice from a company called M.C. Steel Erector Ltd. for the installation of an elevator beam and  
welding rods. The second is Mr. Bisceglia’s invoice for legal fees associated with the ex parte  
motion to bond off the plaintiff’s lien.  
[319] Prasher once again takes the position that this steel work was an extra. I have no idea if it  
was or was not. The only evidence I have about it came from Steve Raviele. He said only that it  
involved the installation of an elevator beam, which of course is self-evident. I am not persuaded  
that it is a proper charge-back.  
[320] Mr. Bisceglia’s fees are also not a proper charge-back.  
Summary  
[321] In summary, I find that the following amounts are valid charge-backs against the structural  
steel contract:  
(i) CB-11201:  
(ii) CB-11202:  
(iii) CB-11203:  
(iv) CB-11204:  
nil  
$3,745.50  
2,280.00  
2,857.50  
Page: 44  
(v) CB-11206:  
(vi) CB-11207:  
(vii) CB-11208:  
(viii) CB-11209:  
(ix) CB-11211:  
700.00  
275.00  
2,334.00  
4,328.35  
nil  
Total:  
$16,520.35  
[322] In the result, the accounting on the structural steel contract is as follows  
(i)  
Base Contract Price  
Extras  
$220,000.00  
43,543.30  
(ii)  
(iii) Charge-Backs  
(iv) Paid to Prasher  
Owed to Prasher:  
(16,520.35)  
(195,731.49)  
$51,291.46  
6,6678.89  
HST (13%):  
Total Owing:  
$57,959.35  
[323] I will move on to an analysis of the miscellaneous metals contract.  
I. What is the value of the miscellaneous metals work performed by Prasher?  
[324] The gross amount of the miscellaneous metals contract was $133,000.00.  
[325] Prasher completed only a portion of the work required by the contract. No evidence was  
adduced, such as a quantity survey, about the value of the work actually performed by Prasher.  
[326] There is no doubt that Pre-Eng ultimately paid third party contractors to complete the work  
Prasher was contracted to do. And there is no doubt that Pre-Eng had to pay a premium to get the  
work done by third parties.  
[327] I intend to approach the accounting between the parties with respect to the miscellaneous  
metals contract as follows. All of the miscellaneous metals work contemplated by the contract was,  
to the best of my knowledge, completed. I will begin with the premise that, had Prasher  
satisfactorily completed the work, it would have been entitled to payment from Pre-Eng in the  
amount of $133,000.  
Page: 45  
[328] I will then deduct from the gross contract amount, any amounts that I conclude Pre-Eng  
validly paid to third parties to correct work deficiently performed by Prasher under this contract  
or to complete work not completed by Prasher. Pre-Eng has back-charged Prasher for any such  
work. The total charged-back against the miscellaneous metals contract, according to the Scott  
Schedule, is $120,214.26. If Pre-Eng’s charge-backs are all valid, the net result will be an amount  
owing to Prasher of just under $13,000.00 (subject to amounts that have already been paid).  
[329] I will do my best, of course, to account for any work done by third parties that was extra to  
the miscellaneous metals contract between Pre-Eng and Prasher. Obviously Prasher should not be  
back-charged for work that was over and above that which it contracted to do.  
[330] To be clear, I find that Prasher breached its obligations under the miscellaneous metals  
contract. Specifically, it breached its obligation to complete the work required in a good and  
workmanlike fashion and to prosecute the work in such a way as to not impede the progress of the  
project. Such a finding is readily available on the evidentiary record before me and I have no  
hesitation making it.  
[331] I have already alluded to the fact that Prasher’s business was in a state of crisis from and  
after April 2012. I find that Prasher had neither the time nor the resources to complete the  
miscellaneous metals work as contemplated by the contract within a reasonable time frame.  
Moreover, Mr. Prasher was generally inaccessible and not reasonably responsive to  
communications from Pre-Eng.  
[332] In his written closing submissions, counsel to Pre-Eng provided a chart of some fifty  
communications Pre-Eng sent to Prasher between February 22, 2012 and October 5, 2012. I have  
reviewed each of these correspondences. Forty of them are appropriately described as instances  
where Pre-Eng implored Prasher to complete its works in a timely way or otherwise reproached  
Prasher for not doing so. The following is a modest sampling:  
February 27, 2012:  
We have made several attempts to contact you at your office over the last four  
days with no response. We are insisting that you respond to the site’s request  
and Site Instruction 43, for the supply of steel lintels. If we have not heard  
back from you by tomorrow at noon we will proceed to have others provide  
these angles with the costs to your account.  
April 23, 2012:  
Manoj,  
The following items in the above mentioned job are either not done or not  
completed:  
[List 1-9]  
Please, complete your work ASAP, since you delay our subcontractor work.  
Page: 46  
May 10, 2012:  
Manoj, as discussed you will start installing the roof anchor support in the gym  
tomorrow as well as the hanging lintels at the overhangs on the north side.  
Unfortunately the schedule does not allow us to wait any longer for you here  
as well as additional items where you have not finished your work. If the work  
has not started tomorrow on either of these items I will be making arrangements  
to have others come in and complete the work on your behalf immediately.  
May 15, 2012:  
Manoj,  
When I spoke to you Thursday last week you assured me that you would start  
the roof anchor reinforcement the next day. Your email…then indicated that it  
would start Monday. If your forces are not on site today doing the work we  
will be taking over this portion of your contract effective immediately. Costs  
will be to your account.  
May 24, 2012:  
We have made several attempts throughout this project to communicate with  
you regarding scheduling, missing items, deficiency repairs etc. and throughout  
the project, we have received few return phone calls or any response  
whatsoever from Prasher Steel. We finally got you to agree to see us in our  
office on May 18th whereby we discussed our concerns and provided you notice  
that we would not continue in this manner. Contrary to your repeated  
assurances to us that you would have materials available and men working full  
time to complete this project, your forces left at 10 am this morning without  
providing a reason. We do not have one set of stairs installed to date and costs  
to rent a scaffold stair continue to mount as does our inability to co-ordinate  
pouring stair pans and landings with other concrete pours.  
We will be engaging others to complete your work. Costs to do so will be to  
your account.  
June 11, 2012  
Manoj, there is still a lot of work that you need to complete but you have no  
men on site today.  
June 13, 2012  
The structural steel for the two canopies on the north elevation are not complete  
and you have not started the canopy on the west elevation. Kindly have all  
Page: 47  
canopies complete ready for inspection by the end of this week after which time  
we will complete the work on your behalf. Costs will be to your account.  
June 21, 2012:  
Manoj, there is no reason why stair 2 and 3 should not be finished by now  
including the attached details. We will have someone else to start finishing the  
stairs for you shortly. Also be advised that if the angle for the stage deck  
support is not on site today this too will be done by others.  
June 22, 2012:  
Contrary to your assurances, you have not had anyone on site to continue with  
steel erection as required this week and delivered only part of the material  
necessary. Unfortunately we must continue to have others complete your work  
as we deem fit for the project.  
July 3, 2012:  
Manoj, given the re-occurring late installations as well as the numerous  
deficiencies we have observed for your interior miscellaneous metals work, we  
will be having others proceed on all exterior railings as we can no longer afford  
any delays…  
July 16, 2012:  
Manoj, last you were here on July 10th, we discussed and agreed what items  
you would try and complete for us on this project which was limited to the  
remainder of interior stair and wall railings, stairs 4, 5 & 6, the chair dollies  
and exterior gates. It was also agreed that you would have all railing completed  
by the end of last week. Unfortunately you haven’t had anyone on site  
installing steel since early last week and this continues to be a major concern  
for us given the limited time we have remaining before we turn over the school.  
The fact that you will not return phone calls also does not provide us with any  
level of comfort that you are willing to complete your work.  
Unless there is some serious effort in getting materials and manpower to the  
site by this Wednesday we see no other recourse than to terminate the  
remainder of your contract and have it performed through other forces.  
July 18, 2012:  
Manoj, we are doing the work as we deem fit. You have not delivered material  
as you have promised and we are unable to discuss any of the above with you  
as you do not return phone calls messages and/or answer your office phone  
whatsoever. As far as we are concerned it appears you have abandoned the  
project.  
Page: 48  
[333] I find that Prasher breached its obligation to complete all of its works in a good and  
workmanlike fashion and failed to correct deficiencies in its work in a timely way. Moreover, I  
find that Prasher breached its obligation to maintain a workforce sufficient to avoid disruption of  
the progress of the work.  
[334] I further find that Pre-Eng gave repeated, written notices to Prasher to comply with its  
obligations under the contract as well as notices that work within their scope was going to be  
removed and given to others. In all the circumstances, I find that Pre-Eng was justified in bringing  
in third parties to correct and complete Prasher’s work.  
[335] When this trial began, I understood that Prasher was prepared to credit Pre-Eng with a  
deduction from the miscellaneous metals contract price for the value of the work taken out of  
Prasher’s scope. As the trial proceeded, however, Mr. Prasher made it clear to the court that he  
was no longer prepared to agree to such a deduction because he had forces available to complete  
the work and Pre-Eng wrongly delegated it to others.  
[336] In my view, Prasher did not have sufficient forces available to complete the work in a  
timely way. Recall that in the spring of 2012, Prasher was falling behind on its payments to Bains  
Welding. Moreover, Pre-Eng had to make payments directly to a steel supplier and a rental  
equipment supplier on Prasher’s behalf.  
[337] Prasher was given every reasonable opportunity to complete the work with its own forces  
and patently failed to do so.  
J. What is the value of any extra work performed by Prasher in relation to the  
miscellaneous metals contract?  
[338] I find that Prasher did not complete any extras in the nature of miscellaneous metals works.  
K. How much has Prasher been paid for work performed under the miscellaneous  
metals contract, including extras?  
[339] I find that Prasher has been paid $27,052.20 on account of its work under the miscellaneous  
metals contract. That amount was paid May 31, 2012. Prasher was paid by a cheque on that date  
in the amount of $40,295.74, which includes the $27,052.20 paid on the miscellaneous metals  
contract and $13,413.54 paid on the structural steel contract.  
L. What amounts is Pre-Eng entitled to back-charge against Prasher for expenses it  
incurred in correcting or completing work that fell within the scope of the  
miscellaneous metals contract?  
[340] I will consider Pre-Eng’s charge-backs one-by-one, as I did with the structural steel  
contract. Unfortunately, Pre-Eng used the same numbering system for charge-backs under the  
miscellaneous metals contract that it used for charge-backs under the structural steel contract. In  
the result, the charge-back numbers are duplicated.  
(i) CB-11202 - $571.54  
Page: 49  
[341] This charge-back involves a number of small invoices. Two are for anchor bolts bought  
from Brafasco to close out a deficiency in the structural steel work. I agree that the sum of $60.54  
is a valid back-charge.  
[342] The biggest portion of this charge-back is $385.00 for the time spent by Pre-Eng labourers  
pouring concrete into stair pads. That is not part of Prasher’s scope of work. Pre-Eng seeks to  
recover the value of this time against Prasher because, they say, Prasher’s delay in getting the stairs  
built and ready for concrete in the stair pans resulted in an inability to co-ordinate the stair pour  
with other concrete work when the concrete supplier was on site. As I noted earlier, in the absence  
of a specific schedule for Prasher’s work, I am not prepared to validate this part of the charge-  
back. The same can be said for the sum of $75.00 for the rental of a stair scaffold. This cost is,  
again, sought to be passed on to Prasher on the basis that Prasher was too slow getting the stairs  
completed. I agree that Prasher was slow, but it had not been given any specific deadline for the  
stairs, so I am not prepared to validate this part of the charge-back either.  
[343] Finally, there is an invoice in the amount of $51.00 from a company called Wade Tech. I  
do not know what this invoice was for and am unable to say whether it is a valid charge-back.  
[344] In the result, I find that $60.54 of this charge-back is valid.  
(ii) CB-11203 - $3,305.00  
[345] This is another charge-back that is comprised of multiple elements. In particular:  
A portion ($1,410.00) of a North York Welding invoice dated June 28, 2012 (no.  
2218) in the amount of $15,933.00, relating to the supply of overhead door jams;  
The balance of Industrial Welding’s invoice dated July 3, 2012 (no. 360) in the  
amount of $1,620.00 relating to the installation of the door jams and the supply of  
masonry lateral support clips; and,  
$275.00 in labour costs of Pre-Eng’s own forces, who assisted in installing the  
overhead door jams.  
[346] I am satisfied that this is a valid charge-back. The supply and installation of the overhead  
door jams was part of Prasher’s scope of work under the miscellaneous metals contract.  
[347] Prasher’s lawyer submitted that the amount of this charge-back relating to the invoice of  
Industrial Welding was a duplication of structural steel charge-back CB-11204. I disagree. Recall  
that only $1,527.50 of invoice 360 was back-charged under structural steel charge-back CB-11204.  
The balance of the invoice is charged-back here.  
[348] I find that this is a valid charge-back in the amount of $3,305.00  
(iii) CB-11204 - $9,000.00  
Page: 50  
[349] This charge-back relates to another portion of North York Welding’s invoice 2218 dated  
June 18, 2012. Specifically, the supply and installation of stair #7. The amount is consistent with  
North York Welding’s quote of $9,000.00. I find that this work clearly fell within Prasher’s scope  
and is a valid charge-back at $9,000.00.  
(iv) CB-11205 - $10,500.00  
[350] Things get a little confusing with CB-11205. There are two charge-backs labelled CB-