United Glass Services Inc. v. 2138825 Ontario Inc., et al.

CITATION: United Glass Services Inc. v. 2138825 Ontario Inc., et al., 2022 ONSC 3631

COURT FILE NO.: 18-65526

DATE: 20220621

ONTARIO

SUPERIOR COURT OF JUSTICE

)

BETWEEN:

United Glass Services Inc.

Raymond Di Gregorio, for the Plaintiff

No one appearing

Plaintiff

– and –

2138825 Ontario Inc. and

1826458 Ontario Inc.

) Mitchell B. Rosenblatt, for the Defendant,

) 1826458 Ontario Inc.

Defendants

)

) HEARD: May 9, 10, 11, 12 and 13, 2022

AMENDED REASONS FOR JUDGMENT

JUSTICE L. SHEARD

Overview

[1]

The plaintiff, United Glass Services Inc. (“United”), sues 2138825 Ontario Inc. and

1826458 Ontario Inc. (“182”) for payment of $354,125.85 representing amounts due and owing

under invoices submitted by United for labour and materials supplied to convert 90 Beach Rd.,

Hamilton, Ontario (“Beach Rd’), a large industrial space, into a licenced cannabis-growing facility

to be operated by Radicle Medical Marijuana Inc. (“Radicle”). United has brought a separate

action¹against Radicle, and the officers and directors of Radicle and 182: Rami Reda (“Rami”),

¹Court File No. 20-72481, commenced at Hamilton, Ontario.

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Ziad Reda (“Ziad”),²and Upadhyaya Rakeshkumar. The defendants in that other action have

agreed to be bound by the finding in this action as to the amount, if any, to which United is entitled,

pursuant to the invoices submitted to 182.

[2]

In its statement of defence, among other things, 182 asserts that: 1) United failed to do the

work it had agreed to do; 2) much of United’s work was deficient; and 3) United did not complete

its work in a timely manner.

[3]

182 alleges that it spent close to $280,000 to correct deficiencies in United’s work and that

any amount found owing to United should be reduced by “charge-backs” - the amounts spent by

182 to correct United’s work. On consent, 182’s counterclaim for losses it claims to have suffered

by United’s delays in completing the work and the delays caused by having to correct United’s

work, was dismissed at the outset of trial, with costs to be determined.

[4]

United’s claim against 2138825 Ontario Inc. and a related construction lien action, Court

File No. CV-18-00065729, were resolved prior to trial.

Issues for Trial

[5]

At the opening of the trial, the court was advised that the parties’ positions were as follows:

A. United

United’s position at trial was that 182 agreed to make payment to United for work

[6]

performed by United or its subtrades, on a labour and materials basis. United performed the work

as agreed and, apart from small issues usual to a job of this magnitude, which were, according to

United, fully addressed by United or its subtrades while United was on site, 182 voiced no

complaints about the work performed by United or the subtrades working under United.

B.

182

[7]

182’s position was that there were deficiencies in the work performed by United or its

subtrades, and that 182 spent $280,000 to re-do work performed by United or United’s subtrades.

[8]

In opening submissions, counsel for 182 stated that that the central issue in this action was

whether United was entitled to be paid for the work invoiced and/or whether 182 was entitled to a

“charge-back” equal to what 182 paid to correct deficiencies in the work for which United

submitted invoices.

[9]

At trial, evidence was also given on behalf of 182 that, in respect of work to be performed

by United and its subtrades from and after December 12, 2017, United agreed to change its

agreement with 182 from a labour and materials supplied basis to a fixed quote basis. On the basis

of the fixed quote agreement it claimed to have with United, 182 asserted that total payments made

²As these persons share the same last name, for convenience, and not out of any disrespect, they are referred to in

these reasons by their first names.

Page: 3

to United exceeded the fixed quote, and, consequently, 182 owes nothing further to United. 182’s

assertion that it had a fixed quote agreement with United for work performed on and after

December 12, 2017, was not pleaded and was first raised at trial. At trial, United’s representatives

disputed 182’s assertion and maintained that United was always to be paid on the basis of labour

and materials supplied.

Disposition

[10] To succeed in this claim, the onus was first on United to establish that it is entitled to

payment of the invoices submitted; that they were in accordance with the agreement with 182 and

that the labour and materials reflected in the invoices were, in fact, supplied.

[11] Based on the evidence that I accept, I conclude that United met its onus that it is entitled to

payment of the amounts outstanding on the invoices submitted to 182. The invoices were filed as

exhibits at trial and, before adding in a “late fee”, total $347,020.40³.

[12] Next, the defences raised by 182 were considered to determine whether the defences could

succeed so as to reduce the amount claimed under the invoices.

[13] With respect to 182’s defence that a credit or “charge-back” should be allowed to reduce

the amount otherwise due to United, no cogent evidence was presented at trial. As discussed more

fully later in these reasons, despite the oral testimony given by Rami and Ziad concerning alleged

deficiencies, 182 offered no documentary, independent, or expert evidence at trial to support 182’s

defence that it incurred damages, or the amount of the damages, to repair or correct any alleged

deficiencies. In the absence of that evidence, 182 cannot succeed in its defence that the amounts

claimed by United should be reduced by any alleged “charge-backs” or at all.

[14] At trial, 182 also asserted an alternate defence, not previously pleaded, that by email of

December 12, 2017, sent by Richard Robitaille (“Robitaille”), United’s principal, United agreed

to a “fixed quote” fee of $350,000 to complete the balance of work it had committed to complete.

[15] As will be fully explained below, this new defence was not supported by the evidence and

182 failed to establish that United had intended to, or did, convert the existing labour and materials

fee agreement, to a fixed quote. As a result, 182 cannot succeed in this defence.

[16] Accordingly, for the reasons that follow, I find that United is entitled to judgment against

182 on the invoices submitted by United, which I calculate to total $347,020.40⁴. I decline to award

the 3% “late fee”, added by United to some of the overdue invoices, as the evidence was lacking

that 182 had agreed to pay a monthly “late fee” on overdue accounts. However, United is entitled

to prejudgment interest on the amounts owing on the invoices, which I do award: interest on the

balance owing under each invoice is payable and is to be calculated from the 30^thday following

³If there is an arithmetical error in the calculations, the parties may so advise the court through the Trial Co-

ordinator, and, if required, may seek a brief hearing before me to address the error.

⁴See 3., above.

Page: 4

the date of each account, using the prejudgment interest rate set out in the Courts of Justice Act,

R.S.O. 1990, c. C.43, s.128(1).

Background

[17] At the time of the events relevant to this action, United was a sole proprietorship owned by

Robitaille and his wife, Sherry English (“English”). Its principal business was the fabrication

and/or installation of steel and steel-framed windows and doors.

[18] Beach Rd. was commercial/industrial space leased by Radicle, with the intention that it be

renovated to house a medical marijuana growing operation, licensed by Health Canada.

[19] Rami and Ziad and their father, Mohammed Reda, are engaged in Reda family businesses.

Prior to embarking on the project that gives rise to this litigation, United had done work on Reda-

owned commercial properties. For example, in 2016 United did a significant piece of work on a

property located on a strip mall located on Concession St. in Hamilton, Ontario. The work included

the installation of new steel and glass doors and steel and glass storefront windows.

[20] Prior to the events that led to this litigation, Robitaille had enjoyed a warm business

relationship with members of the Reda family, who considered each other as friends. In keeping

with their warm relationship, when the Reda family was given an award for the Concession St.

renovations, performed, in part, by United, they invited Robitaille and English to join them at the

award ceremony.

[21] In 2017, United was a relatively small, unincorporated, sole proprietorship. It had

approximately six employees, including English, who was responsible for such things as

marketing, accounting, and human resources. Robitaille handled the construction and supervised

his work crew. On the Beach Rd. project, Robitaille agreed to arrange for and supervise a number

of sub-trades whose services were needed to complete the renovation, which were required to meet

Health Canada standards for a medical marijuana growing operation.

The Parties

United

[22] Robitaille is 58 years old. He has a grade 12 education with some additional training

through Mohawk College in blueprint reading and construction. Throughout his career, Robitaille

has been in the construction business, working with heavy structural steel. Robitaille trained in the

glass industry and in the installation of glass, using structural steel in frames for windows and

doors. When employed by other construction companies, Robitaille rose to the level of

superintendent, and, as such, Robitaille took part in determining the manpower and equipment that

would be needed to complete a specified job.

[23] At the age of 47 years, Robitaille was a certified glazier and began to operate United, his

own business. United did work on residential installations and later moved to commercial work,

installing steel and glass doors in industrial buildings and strip malls, etc. United fabricates

Page: 5

aluminum doorway systems and, at the time of trial, had seven employees. Robitaille acts as

foreman or superintendent on all projects.

[24] United’s front office — invoicing, payroll, marketing, etc. — was handled by English.

[25] Robitaille and English both testified at trial.

182

[26] 182 is a construction company. Its principal is Rami. 182 was to complete the renovations

to Beach Rd. for its intended tenant, Radicle. Rami has a Bachelor of Commerce. At the time of

these events, he had little hands-on experience in construction. Rami had hoped to take on other

and bigger construction projects and Robitaille, with decades of experience, would join with him

as a partner on future projects.

[27] Rami was also a principal of Radicle, but it was always intended that Ziad, also a principal

of Radicle, would operate the cannabis growing operation. Ziad had no experience in the

construction industry or in cannabis growing. However, he worked to learn about and to develop

an expertise in the operation of a licensed cannabis growing facility.

[28] 182 hired a project manager, Dean Fulton (“Fulton”), to oversee the Beach Rd. renovations.

Fulton was on site daily. 182 hired its own HVAC, electrical, and plumbing contractors as well as

other specialized contractors, including security experts, to provide some of the work required to

meet Health Canada licensing guidelines. Pursuant to an oral agreement with 182, United was to

perform steel, glass, and other work, some of which United was to subcontract out, such as the

laying of epoxy floors throughout. At trial, Robitaille agreed that, in addition to supervising his

own crew and subcontractors hired by United, he was also to assist 182 as directed by 182, Rami,

Ziad, and Fulton; Robitaille denied that he was acting as general contractor on the Beach Rd.

project.

[29] In his evidence-in-chief, Rami asserted that Robitaille acted as the general contractor on

the project. However, in cross-examination, Rami agreed that 182 was the contractor, and Fulton,

the project manager. Rami also acknowledged that Fulton was always on site and that Rami and

Ziad also spent a great deal of time on site.

[30] Based on the evidence more fully discussed below, I conclude that neither Robitaille, nor

United, was acting as general contractor of the Beach Rd. project, and that, while Robitaille offered

input on the project, he did not make decisions: these were made by Rami and Ziad with the advice

and guidance of Fulton.

The Beach Rd. Project

[31] Rami spoke to Robitaille about his hope to become involved in the medical cannabis

business. Robitaille expressed interest and two months later was shown drawings of the layout of

the Beach Rd. floor space and the proposed materials to be used for walls and floors. Robitaille

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understood that Beach Rd. was to be used for a legal cannabis growing operation permitted and

licensed by Health Canada.

[32] United submitted a quote to construct the steel siding and doors on the outside of Beach

Rd. This quote was accepted and United completed that work.

[33] On May 1, 2017, United also submitted a quote to complete specified work on the interior

of Beach Rd. at a quoted cost of $681,250. The quote included work to be performed by United’s

crew and by subtrades hired by United and was based on an estimated floor area of approximately

24,500 sq. ft. When 182 changed some of the materials to be used, United withdrew this quote.

[34] However, United and 182 did reach an oral agreement whereby United would do interior

work on Beach Rd., for which United would be paid on the basis of labour and materials supplied.

United was to arrange for subtrades, as needed, and would be entitled to charge 182 a premium of

between 15% and 20% of the amount billed by United’s subtrade. This 20% charge was intended

to compensate United for securing and supervising the subtrades, assuming responsibility for

payment of the subtrades, and for the other related administrative work and costs undertaken by

United. Pursuant to this oral agreement, 182 and United agreed on the hourly rates to be charged

by Robitaille and his work crew, as well as the premium to be charged by United on equipment

and materials supplied and paid for through United.

EVIDENCE OF UNITED

[35] United called two witnesses: Robitaille and English.

ROBITAILLE’S EVIDENCE

After work commenced at Beach Rd.

[36] Robitaille testified that the work to be done and the timing of the work to be carried out

was directed by 182 and Fulton. Fulton was on site every day and provided instructions and

direction by email, on site, and in daily meetings.

[37] In addition to Fulton, throughout the renovations, both Rami and Ziad also spent time on

site to monitor the progress of the work and to ensure that Beach Rd. could and did meet Health

Canada’s licensing specifications. In the months prior to the completion of the renovation, Ziad

and employees of Radicle also performed some manual labour on the site.

[38] Work on the inside of the site began in August or September 2017. Robitaille testified that

he and his crew worked seven days a week, 16 hours per day. He testified that he tracked the time

logged by him and his workers, and the materials used on site, and reported it to English. Using

those records, and the invoices United had received from subtrades and suppliers, English would

prepare and submit invoices to 182. United invoiced 182 regularly, sending the invoices to Rami

or, as he directed, to one or more of Rami, Ziad and Fulton. By and large, until February 2018,

United’s invoices were paid promptly.

Page: 7

[39] Robitaille testified that he and United’s crew provided services as directed by Rami, Fulton

and Ziad, which, at times, included using United’s crew to help other trades.

[40] Robitaille stated that in the 2017-2018 winter, he was routinely the first to arrive at the site.

He would first check the heaters, then see what materials were on site for his crew, followed by a

discussion with Rami and Ziad about what needed to be done. Robitaille billed and was paid for

his time. In Robitaille’s view, the work was progressing well.

[41] Robitaille testified that the only complaints United received about its work related to small

issues, usual to any job. Such complaints were typically communicated in a phone call from Rami

or Ziad, and, Robitaille testified, were remedied. Robitaille testified that he checked the progress

on the job against the plans and took photographs as the work progressed. Those photographs were

entered as exhibits at trial.

Problems with Epoxy Floors

[42] In its statement of defence, 182 claimed that a major deficiency was related to the epoxy

floors installed by United’s subtrade.

[43] Robitaille explained that it was at the direction of 182 that the epoxy floors were poured

prior to completion of other construction work. After the floors were poured, heavy and dirty

equipment was brought onto the floors, which caused damage. Robitaille acknowledged that

portions of the epoxy floors had to be re-done as a result, and that United charged 182 for its

charged labour and materials for these repairs.

[44] Robitaille stated that it was 182 and Fulton who directed when work was to be performed,

even though doing so posed a risk that certain work, including the epoxy floors, would be damaged

when another contractor came in to do work.

[45] Robitaille testified that he recommended that epoxied floors be covered, which was

sometimes done, upon the direction of Rami or Ziad. Robitaille stated that Fulton was fully

informed that the floors had to be protected. Robitaille stated that it was up to Fulton and 182 to

decide what steps were to be taken to protect the floors. Robitaille assumed that 182 decided not

to always protect the floors because it was less expensive to re-coat any damage to the floors than

to cover the floors.

[46] Robitaille testified that he also recommended to Rami that he wait to epoxy the floors until

all other work was completed, but Rami did not accept Robitaille’s recommendation, which might

have delayed the completion of the work, while the epoxy floors cured.

[47]

Robitaille testified that United was not in charge of the construction and took direction

from 182 and Fulton as to what and when work was to be done; 182 knew that United had to do

steel work after the epoxy floors were installed and that the floors were also exposed to damage

by other trades brought in by 182, such as the HVAC and refrigeration trades.

Events on and after March 16, 2018

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[48] In a list dated March 16, 2018, posted by Fulton inside the facility, Fulton identified the

work remaining to be done. Fulton identified work to be completed by Untied as: doors and

hardware “per posted list”; silicone touch-up to be done on completed “FRP” (referring to the wall

panels); floor patching where the epoxy has been chipped; silicone where needed on the wall coves

and column bases; and installation of ceiling decking and rods for the HVAC. Robitaille testified

that United did not end up doing that last piece of work. Robitaille also testified that the list

included work to be completed by other trades.

[49] Robitaille testified that apart from a request to patch the chips in the floor and to fill in the

base of the columns, United received no complaints about how the floors had been done.

[50] Robitaille’s photographs documented the progress on the project in 2018. For example, a

photograph showed areas where the floors had been epoxied and where construction work was still

ongoing; for example, Rami is photographed on a ladder while the HVAC equipment is being

installed over epoxied floors. Robitaille testified that he spoke to Rami the day he took this picture,

and that Rami expressed no concerns. The last of the photographs was taken on March 19, 2018,

and appears to show the renovations to be largely completed.

[51] Robitaille was asked about emails sent by Fulton dated between March 26 and April 4,

2018, identifying certain deficiencies in United’s work such as gaps in caulking, uneven seams in

the panels, and missing door sweeps and stoppers. Robitaille testified that these were small items,

which were addressed by United.

[52] Robitaille noted that on April 1, 2018, Rami emailed all contractors on the project,

including United, setting out the schedule for that week. Rami confirmed that everyone and all

equipment would have to be off the site by Wednesday, April 3, 2018, so that the facility could be

sanitized. Robitaille understood from this email that the cannabis plants were about to arrive.

[53] Robitaille stated that he remained on the site until after Easter. This evidence was

confirmed by Robitaille’s email to Fulton of April 4, 2018, stating that Robitaille would be at the

site on April 4 to go over the concerns listed by Fulton.

[54] Robitaille testified that United walked off the project one and a half to two weeks after

Rami’s email of April 1, 2018, because United’s last invoice had not been paid, leaving United

unable to pay its subtrades, and with the lien deadline of 40 days of non-payment approaching.

Prior to that period of non-payment, United had always been paid on time. Citing non-payment of

outstanding invoices, United left the job site on April 12, 2018, and registered a construction lien.

[55] Robitaille testified that 182 did not complain about or dispute any of United’s invoices.

Also, while United was on-site, 182 made no written or recorded complaints about United or its

subtrades.

[56]

Robitaille was asked about an email dated April 13, 2018 – sent after United walked off

the site – that identified that United had erected paneling that covered over a vent in a drying room.

Robitaille acknowledged that United did cover a vent and some electrical outlets, but that United

corrected those errors by cutting holes in the paneling.

Page: 9

[57] Robitaille was also asked about problems with the epoxy floor and with screws missing in

window frames installed by United. Robitaille stated that he had was not aware of complaints that

may have been alleged after United had left the job site, but that any problems brought to his

attention while United was still on the site were dealt with.

[58] In his evidence, echoed by English in her testimony, Robitaille stated that he believed 182

stopped payments because Rami was upset and angry with Robitaille and English for deciding not

to join Rami in a partnership. More will be said about that later in these reasons.

Email of December 12, 2017

[59] Robitaille was cross-examined about his email to Rami of December 12, 2017. Robitaille

testified that this email was in response to Rami asking him what he thought the costs would be

“without add-ins”. It was not intended to be a fixed quote.

[60] The email is entitled: “Budgett to Complete Beach” (sic). It begins: “Aprox 6 wks

weekends Included”. Robitaille testified that the email identified work that Robitaille believed was

left to be done by all the trades and that his list included work that was not the responsibility of

United, namely: sea containers, regular deliveries, and safety sprinklers.

[61] Following the list, the email identified materials he had ordered and the expected delivery

date and then reads:

$350 thousand,

Unaccounted for changes not seen the information

No info on or unforeseeable – heavy deliveries, digging to road of existing concrete in tr

trench line

- Unloading of heavy equipment

- discovery in perimeter block walls to carry roof platforms material depends on

engineering

[62] Robitaille acknowledged that his estimate of $350,000 was significantly less than the

amount invoiced by United.

[63] Significantly, despite the new defence raised by 182 at trial that the December 12, 2017

email from Robitaille constituted a “fixed quote contract”, and as discussed more fully below, 182

produced no email or other evidence confirming 182’s belief that the agreement between the

parties had changed. Also, in apparent contradiction of Rami’s evidence that the email of

December 12, 2017, evidenced United’s agreement to complete all work required of it from that

date forward for $350,000, 182 thereafter paid United a total of over $552,000.

ENGLISH’S EVIDENCE

Page: 10

[64] English testified for United that she and Robitaille are spouses and co-own United. English

is United’s bookkeeper and business manager and prepared the invoices that are the subject of

United’s claim. English testified that, according to her accounting records, as of April 12, 2018,

United had $354,125.85, including “late fees”, in unpaid invoices submitted to 182.

[65] English testified that she sent the invoices as directed by Rami and that they were always

accompanied by an account summary. English prepared the invoices using timesheets and time

logs provided to her from United’s employees and as confirmed by Robitaille’s own records.

English retained records of all time recorded by United’s employees, including Robitaille, as well

as copies of all supplier’s and subtrade invoices. English relied on those records when preparing

United’s invoices to 182.

[66] English testified that she typically submitted invoices every 30 days. She identified Rami

as the owner of Radicle and as the “customer”.

[67] English calculated the amounts still owing on invoices submitted by United to 182. Her

calculations included a credit of $1,448.40 applied toward invoice #2011, the first of United’s

invoices with respect to which, 182 did not make payment in full.

[68] At trial, United marked as an exhibit a spreadsheet prepared by English, purporting to list

outstanding invoices. This evidence was difficult to follow as, in creating this spreadsheet, English

included amounts shown in “updated” invoices, which included a 3% “late fee”. Adding to the

confusion about amounts invoiced was the fact that English used the same invoice number for her

updated invoice, which now included a 3% late fee.

[69] To address this confusion, English printed off copies of the original invoices that did not

include any late fees. These exhibits were marked at trial as Exhibits 20A to 20F and include copies

of the following invoices⁵:

(1)

(2)

(3)

Invoice #2011 dated January 23, 2018

Invoice #2032 dated February 22, 2018

$20,146.19

$21,249.63

$ 67,222.57*

Invoice #2033 dated February 22, 2018

*This invoice was revised and re-submitted to 182

to show the correct hours, fee was unchanged.

(4)

(5)

Invoice #2034 dated February 22, 2018

Invoice #2035 dated February 22, 2018

$ 18,923.31

$ 13,444.74

⁵Although referenced in the spreadsheet prepared by English (Trial Exhibit 17, Tab 23 of the Exhibit Brief of the

Plaintiff), a copy of Invoice #2012 was not included among the invoices in the copy of Exhibits 20A to 20F

provided to the court, and, for that reason only, it is not included in the above totals.

Page: 11

(6)

(7)

(8)

(9)

Invoice #2036 dated February 22, 2018

Invoice #2037 dated February 22, 2018

Invoice #2038 dated February 22, 2018

Invoice #2039 dated February 22, 2018

$ 13,890.06

$ 22,396.79

$ 30,045.12

$ 7,378.63

$ 44,945.75

$ 4,407.00

$ 2,818.66

$ 23,052.00

$ 4,407.00

$ 2,938.00

(10) Invoice #2043 dated March 20, 2018

(11) Invoice #2044 dated March 20, 2018

(12) Invoice #2045 dated March 20, 2018

(13) Invoice #2046 dated March 20, 2018

(14) Invoice #2047 dated March 27, 2018

(15) Invoice #2048 dated March 27, 2018

(16) Invoice #2049 dated March 20, 2018

(17) Invoice #2052 dated April 6, 2018

(18) Invoice #2053 dated April 6, 2018

(19) Invoice #2059 dated April 12, 2018

Total Outstanding:

$

473.58

$ 28,373.74

$ 7,100.99

$ 15,254.91

$348,468.67

($ 1,448.27)

$347,020.40

Less: credited from payment of February 18, 2018

BALANCE OWING:

[70] English testified that 182 never raised any questions about amounts invoiced. Had it done

so, English would have been willing and able to produce United’s timesheets and all supplier and

subtrade invoices.

[71] English testified that she contacted Rami to ask why United’s February 2018 invoices were

not paid. No reason was given. Only after United registered a lien did 182 assert that non-payment

was because of deficiencies. English testified that at a meeting with him on April 3, 2018, Rami

mentioned nothing about any deficiencies, but said that 182 intended to hold back 10% on all

invoices rendered on the project. English stated that, in her experience, holdbacks are not usually

taken on invoices based on labour and materials.

[72] English testified that she noticed a change in Rami’s behaviour toward United after she

and Robitaille told Rami that they had decided not to go into partnership with Rami: she found

Rami harder to reach, less cordial, and less polite.

Page: 12

[73] In cross-examination, English confirmed that Ziad had asked her for copies of invoices. In

his email, Ziad advised that his copies had been misplaced “due to a change in bookkeeper”.

English also testified that she sent the invoices as directed by Rami: sometimes to Fulton,

sometimes to Ziad.

[74] In cross-examination, English was asked about Robitaille’s email of December 12, 2017,

and whether she understood this to be a “fixed fee” quote. She responded that she knew that

Robitaille and Rami had discussed “something”, but it was a “ballpark number”; Robitaille’s email

was not entered as a fixed fee quote in United’s logbook.

[75] English was not aware of any complaints made by 182 about United’s work, aside from

some outstanding deficiencies; nothing of any severity or that was uncommon for a job of that

size.

EVIDENCE OF 182

[76] 182 called two witnesses: Rami and Ziad.

RAMI’S EVIDENCE

[77] Rami testified that although he had been around construction sites for approximately 15

years as a business owner, he had no experience directing construction work or expertise

supervising a construction site.

[78] Rami also testified that when he first discussed his plan to build a cannabis growing facility

with Robitaille, Rami understood that Robitaille wanted to take on more responsibility on the

project than Rami had initially envisioned. In chief, Rami testified that Robitaille was to be more

like the “general contractor” to handle the project, while 182 was to ensure the work was completed

on time and on budget. Fulton was to coordinate with the subcontractors and was brought in to

help Robitaille and to help as project manager.

[79] In cross-examination, Rami’s evidence changed somewhat. He agreed that Beach Rd. was

a project that he and Ziad were putting together; that Rami was then acting on behalf of Radicle,

who was to be the tenant, and also on behalf of 182, who was the contractor.

[80] Rami also agreed that Fulton was hired to help him manage the construction; that it was

more Fulton, as opposed to Rami or Ziad, who directed the project. Rami acknowledged that he

was one of the people supervising.

Page: 13

[81] Rami agreed that Radicle had retained 182 to build the cannabis facility and that he was

the president of Radicle when United was hired. Although it was always intended that Ziad would

run the cannabis operation, Rami entered into the lease of Beach Rd. for Radicle.⁶

[82] Rami also confirmed that:

(a)

until receiving the Robitaille email of December 12, 2017, 182’s agreement with

United was as described by Robitaille and English: time and material, with a

premium of 15-20% to be charged by United on its subtrades and suppliers;

(b)

(c)

in keeping with evidence given by English, Rami directed invoices to be sent to

him and later, to him, Fulton and Ziad; and

it was primarily Fulton who reviewed the invoices and confirmed whether work

had been performed correctly because Fulton was always on site.

Email of December 12, 2017

[83] In his evidence in chief, Rami disputed Robitaille’s evidence that the work outlined in

Robitaille’s email to him of December 12, 2017, included items that were not the responsibility of

United. Rami stated that all the work listed was for United to complete. He asserted that the email

changed the nature of 182’s contractual relationship with United to a fixed quote agreement.

[84] However, Rami did not offer any email or other tangible evidence to show that 182 treated

Robitaille’s email as a fixed quote agreement, nor that 182 had accepted that the original agreement

had been changed, nor that 182 now relied on the alleged fixed quote agreement.

[85] Rami testified that he was relying on the December 12, 2017, email for his budget to

complete the Beach Rd. work, but English acted as if the email did not exist.

[86] In apparent contradiction to his testimony, Rami also testified that, notwithstanding the

December 2017 “fixed quote” of $350,000, 182 paid a total of $552,278.51 to United, more than

$200,000 above the alleged fixed quote.

[87] Other than for Rami’s trial testimony, 182 provided no evidence that it communicated to

United that 182 was treating the December 2017 email as a binding fixed quote. In addition to the

evidence as to the amount paid to United, which was well in excess of the alleged fixed quote, the

informal nature of the email also undermines Rami’s evidence on this point.

[88] In chief, Rami was asked to identify complaints about United’s work that existed prior to

February 2018. Rami listed: (i) timeliness to finish; (ii) Robitaille being absent from the site,

6

As mentioned at the start of these reasons, in this action, my findings concern the amounts that may be owed to

United by 182. I make no finding as to the liability of any other person or entity to United. Those questions remain to

be determined in Court File No. 20-72481.

Page: 14

especially near the end of the job (an issue, Rami asserted, that both Fulton and Ziad had raised

with Robitaille); and (iii) quality of work. However, despite his oral evidence at trial, in which

Rami was able to articulate a list of deficiencies, he failed to produce any note, email, text, or any

record that might corroborate his testimony.

[89] Similarly, while Rami was able to describe problems with the epoxy floor, which, he

testified, had to be ground off and re-laid, he did not name the contractor who did the work, nor

did he produce an invoice showing what work was done, or at what cost. In cross-examination,

Rami acknowledged that he understood the obligation to present cogent evidence to support his

allegations. Rami claimed to have made notes of the charge-backs, but did not produce them at

trial.

[90] Rami’s testimony and the utter absence of evidence – which he knew to be important – is

perplexing. As noted, even if the anecdotal evidence given by Rami and Ziad about deficiencies

in the work done could be accepted at face value – which would be unlikely given the

contradictions in the evidence – 182 offered no tangible evidence whatsoever from which to

calculate any charge-back or reduction.

[91] The same observation applies to Rami’s evidence that 182 hired contractors at $25–$65

per hour for a total of almost 2,000 hours and/or it did the work itself to repair other deficiencies -

problems with door sweeps; drain covers covered with epoxy; lots of cleanup work; costs incurred

to tarp off areas, so as not to contaminate the rooms when the floors were being re-done. Rami

failed to produce any invoices, photographs, or any corroborative evidence to support his trial

testimony.

[92] In cross-examination, Rami acknowledged that in the “Easter” email of April 1, 2018, sent

to all contractors (Trial Exhibit 9) listing items to be done, nothing is mentioned about the floors.

Rami asserted that the problems were only discovered when the equipment was “fired up”. Again,

there is no cogent evidence to support Rami’s assertion.

[93] Rami claimed that when he received English’s running summary of accounts showing

amounts owing (Trial Exhibit 17, Tab 23), he questioned her, but acknowledged at trial that none

of these alleged emails were put into evidence at trial.

ZIAD’S EVIDENCE

[94] In his trial testimony, Ziad confirmed that he was regularly on site and that when any

concerns with United’s work was identified, United would come back to try to rectify any

problems. Ziad confirmed that 182 brought in trades for HVAC, lighting and electrical, plumbing

and a security team; he also confirmed Robitaille’s evidence that the epoxy floors were damaged

by equipment and machinery used after floors were laid.

[95] Ziad stated that there were minor issues relating to the HVAC that were easily fixed. He

also testified that United did come back to reglue FRP in the quarantine room and that the issues

which remained could be fixed by Ziad’s team; problems he described as “just sloppy stuff”,

nothing that required trades to repair.

Page: 15

[96] Ziad echoed Rami’s evidence about problems with the floors. He testified that the floors

had to be ground off and re-epoxied, and that after the floors were laid, much time was spent on

hanging plastic in other rooms so that dust did not enter and contaminate other rooms. Ziad testified

that the work took weeks because it had to be done in stages so that Radicle could continue to

operate in other areas while the work was going on.

[97] Again, Ziad was not able to provide any contract, invoice, or even identify who was hired

to do the work.

[98] Ziad was asked about any complaints with the invoices submitted by United. His evidence

was that he spoke to Fulton and Rami about why United was charging to fix work that had not

been done properly, but he never spoke to United. Similarly, Ziad stated that Radicle paid $352,000

to 182 but did not understand why more payments were being requested and wanted to know the

scope of work to be done, and questioned Fulton and Rami. Ziad also testified that he reviewed

the invoices for which Radicle paid $352,278.51 and, later, a further $200,000, and without saying

that Radicle agreed with the amounts paid, it did not want to create a feud that would worry its

investors.

[99] Again, these is no paper trail to corroborate Ziad’s evidence. Significantly, Zaid did not

assert that he understood that United had submitted a fixed quote.

EVIDENCE RE: PARTNERSHIP

[100] Rami testified that he had hoped to go into the construction business and to form a

partnership with United: Robitaille had decades of experience in the construction industry whereas

Rami did not, and Rami had plans to embark on a number of construction projects and thought that

this new partnership would be a perfect fit. As discussed below, that partnership did not get off the

ground.

[101] As previously noted, Robitaille testified that, in his view, the only reason 182 stopped

paying United’s invoices was that Robitaille and English had decided not to proceed with a

partnership with Rami and 182.

[102] At trial, 182 objected to Robitaille giving evidence about the proposed partnership among

Robitaille, English and Rami, or their respective corporations. 182 submitted that evidence about

a possible partnership was irrelevant to the issues to be determined at this trial. Robitaille

responded that the evidence was relevant in that it supported Robitaille’s evidence that 182 had no

complaint about the work performed by United, and that the real reason that United’s invoices

were not paid was that Rami was unhappy that Robitaille and English had declined to go into a

partnership with him.

[103] 182’s objection was not accepted, and Robitaille and English were permitted to give

evidence about the proposed partnership. They were also cross-examined at some length about the

partnership and about Rami’s claim to have helped United by: (i) identifying that United needed a

more suitable work space and helping search for a new location; (ii) providing a letter to the bank

to assist United in obtaining mortgage financing to buy the new building; and (iii) assisting United

Page: 16

in updating it business model by incorporating itself and arranging employee benefits, usual in the

industry.

[104] In his evidence, Rami also testified at some length about the time and money he had

invested to help United in the expectation that Robitaille would assist Rami’s ambition to

undertake future construction projects, for which Rami needed Robitaille’s construction expertise

and from which Robitaille and English would benefit financially.

Findings of Fact

[105] Despite the considerable amount of trial time spent on it, nothing turns on the reasons for

the failure of the proposed partnership.

[106] As noted above, 182 provided no tangible evidence to support the bald allegations made

by Rami and Ziad about alleged deficiencies in United’s work. Based on the lack of evidence put

forth by 182 at trial, particularly with respect to its entitlement to “charge-backs”, I find that 182

has failed to establish any valid defence to United’s claim for payment of its invoices in full.

[107] I find that it is plain and obvious from its form and content that the December Email could

never have been intended by United as a binding quote upon which either party could legally rely

nor, realistically, could 182 have treated it as such. Whereas the fixed quote submitted to Rami on

May 1, 2017, and later withdrawn, was prepared on United’s letterhead, contains a quote number,

an expiry date, a detailed breakdown of the work, etc. the December Email, sent late in the evening,

is replete with typographical errors, lacks a quote number or expiry date and contains a very brief

list of tasks to be completed, some of which, Robitaille testified, were not even assigned to United.

[108] Based on the evidence I accept, I conclude that with respect to the invoices that are the

subject of this action, 182 had agreed to pay United on a labour and materials basis.

Orders Granted:

A. This Action

[109] Based on the evidence as a whole, I am satisfied that the plaintiff has established that

amounts invoiced by United, and for which it seeks payment, are properly payable by 182 pursuant

to the oral agreement it had with United. Judgment is, therefore, granted as per paragraph 17 16

above.

B. Costs of this Action

[110] As the successful party on this motion, it is reasonable for United to expect to be awarded

its costs.

[111] I would urge the parties to attempt to reach an agreement on costs. However, if they are

unable to do so, then costs submissions shall be made as follows:

Page: 17

1.

2.

Within 21 days of the date of the release of this decision, United shall serve

182 with its written costs submissions, not to exceed three pages, double-

spaced, together with a draft bill of costs, and copies of any relevant offers

to settle. These are to be submitted to me by filing them, via email, through

the Trial Co-ordinator.

Within 14 days of the service upon it of United’s costs submissions, 182

shall serve and file its responding submissions, of no more than three pages,

double-spaced, together with its draft bill of costs, and copies of any

relevant offers to settle.

3.

4.

If United seeks to deliver reply submissions, it may do so within 7 days of

service upon it of 182’s costs submissions. Reply submissions shall not

exceed one page in length.

If no submissions are received within 35 days of the date of the release of

these reasons, the parties shall be deemed to have resolved the issue of the

costs and costs will not be determined by the court.

C. Related Litigation

[112] By Order of Justice Parayeski made, on consent, on June 28, 2021, the trial of this action

and Action No. 20-72481 were to have been heard together or one following the other. On the first

day of this trial, counsel advised that Action No. 20-72481 was not ready for trial: pleadings were

not completed, discoveries had not taken place, and the action had not been set down for trial.

[113] United is also the plaintiff in Action No. 20-72481 and represented by Mr. Di Gregorio.

The defendants/plaintiffs by counterclaim in Action No. 20-72481 are Radicle, Rami, Ziad and

Upadhyaya Rakeshkumar. They are represented by Mr. Rosenblatt. As noted, Rami and Ziad are

shareholders and/or officers and directors of Radicle. Rami is the sole owner of 182 and both he

and Ziad were involved in the Project.

[114] At the outset of this trial, the parties filed a consent pursuant to which they agreed as

follows:

(20) that the court’s determination in this action of United’s damages shall be binding

on all parties in this action and in Action No. 20-72481;

(21) that the counterclaim brought by 182 in this action shall be dismissed, with costs to

be determined;

(22) that any judgment awarded in this action will not be enforced until judgment has

been rendered in Action No. 20-72481 or as may be agreed among the parties; and

(23) that Action No. 20-72481 will address the defendants’ counterclaim as well as the

liability to United, if any, of the defendants/plaintiffs by counterclaim.

Page: 18

[115] The parties also agreed on a timetable to be followed in Action No. 20-72481. The

timetable is the subject of a separate order and contemplates that Action No. 20-72481 will be set

down for trial by November 2022.

[116] By virtue of the order of Parayeski J., requiring that these matters be heard together, I am

seized of Action No. 20-72481.

Justice L. Sheard

Released: June 21, 2022

CITATION: United Glass. v. 2138825 Ontario et al., 2022 ONSC 3631

COURT FILE NO. 18-65526

DATE:20220621