Hobson v. Turner | Jul 11, 2022

CITATION: Hobson v. Turner, 2022 ONSC4062

COURT FILE NO.: CV-17-580793

DATE: July 11, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Act, R.S.O. 1990, c.C.30

B E T W E E N :

)

MICHAEL HOBSON

) Neal Roth for the plaintiff,

Plaintiff ) Tel.: 416-351-7706,

) Fax: 416-351-7684,

) Email: [email protected],

-and-

)

DAVID WILLIAM TURNER and

YIN DAWN KAN

) Michael Katzman and Jessica Hewlett for the

) defendants;

) Tel.: 416-593-7604,

Defendants ) Fax:: 416-628-2224,

) Email: [email protected].

)

) HEARD: December 7, 8, 9, 14, 15, 16 and

) 22, 2021.

Associate Justice C. Wiebe

REASONS FOR JUDGMENT

I.

INTRODUCTION

This reference concerns this one action wherein the plaintiff, Michael Hobson, claims a lien

[1]

on the subject land in the amount of $50,720.33 and a personal judgment for breach of contract

damages in the amount of $57,686.11 being the amount of the claim for lien plus additional

damages. The defendants, the homeowners, deny this claim and claim by set-off and counterclaim

$325,777.37.

[2]

The land is a residential lot at 1133 Gerard Street, Toronto (“the Property”) on the south

side of the street. The Property contains a two story, semi-detached house with a party wall on the

west side. The house is aged as it was constructed in 1924.

II.

[3]

[4]

BACKGROUND

I begin with a summary of the facts of this case that are undisputed.

Mr. Hobson is a certified general carpenter and had experience prior to this project doing

aspects of residential renovations. It was not clear whether he had ever worked as a general

contractor. His construction work in this case was part-time, as he was also a firefighter.

[5]

In June, 2015, an electrician referred Mr. Hobson to the defendants to do repair work after a

planned electrical installation. The defendants’ plans quickly expanded to a more general renovation

of the house that included a two story addition with a basement at the back. They consulted Mr.

Hobson in this regard.

[6]

Mr. Hobson referred them to Marina Fensham, a designer, to do the design and get the

permits. In the fall of 2015 the defendants retained Ms. Fensham and moved forward with the

project.

[7]

In January, 2016, before permits were obtained, Ms. Fensham suggested that Mr. Hobson do

certain demolition work. Mr. Hobson prepared a contract in his standard form for the work. It was

signed. The contract was fixed price at $12,400 with a provision for extras (“Contract 1”). The work

was done between January 27 and February 24, 2016 and was paid for.

[8]

In mid-February, 2016 Ms. Fensham suggested that Mr. Hobson do other work before the

permits were obtained. On February 16, 2016 Mr. Hobson and the defendants signed a second

contract in the same form (“Contract 2”) whereby Mr. Hobson would do specified demolition,

fireproofing, sound proofing, subfloor and insulation work for a fixed price of $17,304.08. The work

was done between February 16 and March 9, 2016 and was paid for.

[9]

On February 16, 2016 Ms. Fensham produced drawings for the overall project. The

defendants wanted Mr. Hobson to do this work other than the electrical work. In a February 18,

2016 text, Mr. Hobson said that $296,000 was a reasonable price “for a finished product.” He

prepared a quotation on March 13, 2016 with a fixed price of $287,131.80. The defendants then had

Mr. Hobson remove the HVAC, plumbing and other items from the scope, and he reduced the

quoted price to $225,416.92 plus HST, namely $254,721.12.

[10]

Mr. Hobson then prepared a third contract document using his standard form (“Contract

3”). This contract was different from the first two. It defined the work to be in accordance with

“plans and permits attached.” Whether plans were attached is unclear. It identified six general areas

of work, each with a fixed price. There were then three areas of work (skylights, windows and

siding) with prices defined as “estimates,” which meant that the final prices were yet to be

determined. There was then a final category called “allowances” which contained 27 finishing items.

The allowances were estimates with final prices to be determined when final finishing selections

were made.

2

[11]

The contract price was stated to be $232,287.32 (HST inclusive). It is undisputed that this

was erroneous as it did not include the proper price for allowances. Mr. Hobson asserts that the

contract price with the proper price for the allowances was $260,085.32 (HST incl.). The defendants

assert that the contract price was $258,205.44 (HST incl.).

[12]

The contract price was specified as to be paid in four installments with the final installment

to be 10% of the contract price. The final installment was described as holdback and was to be paid

30 days after completion. Contract 3 stated that Mr. Hobson could without authorization make

immaterial “minor changes” that did not affect price or schedule. It also specified that Mr. Hobson

could make a claim for extra costs and time that resulted from decisions made by others that

changed the scope or increased worktime. Contract 3 had a substantial completion date of July 30,

2016, namely a schedule of 4.5 months. It was signed on March 17, 2016.

[13]

As stated, Mr. Hobson worked parttime. He used an apprentice, James Matthews, who was

present at all times. Later they were joined by two labourers, Aaron Wicks and Doug Wicks.

[14] On March 31, 2016 Mr. Hobson rendered his first bill for $69,686.20. It was paid within a

month. On May 30, 2016 Mr. Hobson rendered his second bill for $39,550. It was paid within a

month. Mr. Hobson was injured in July, 2016 and did not return to full work until September, 2016.

[15]

Because of the addition, a zoning variance was required by the city. This delayed the permits.

The city allowed the permit application to be split between the interior and the addition. The interior

permit was issued on April 10, 2016. The demolition and party wall permits were issued by April 20,

2016. Mr. Hobson did only some work on the interior.

[16]

The variance was issued on July 13, 2016. The permit drawings and addition building permit

were issued on September 21, 2016. The permit drawings contained changes from the February 16,

2016 drawings. The work commenced in earnest. Mr. Hobson says he was delayed six months.

[17]

On September 30, 2016 Mr. Hobson rendered his third bill for $35,000. It was paid in full

and on time. On October 31, 2016 Mr. Hobson rendered his fourth bill for $43,644.50. It was paid

in full and on time.

[18]

The city building inspector, Guiseppe (Joe) Forte, attended on several occasions. He was not

called as a witness at the trial as both sides could not find him. He required changes to the roof and

a loading bearing structure to support the three new skylights; he required a sump pump; he required

engineer approval in writing for the bench footing in the addition; he required metal brackets to

connect the addition to the house; he required spray foam insulation instead of bat insulation.

[19]

In October and November, 2016 the issue with the engineer approval of the bench footing

caused tension between Ms. Fensham and Mr. Hobson. Mr. Hobson alleged that Ms. Fensham tried

to avoid getting the approval, while she alleged that it was Mr. Hobson to tried to avoid it. In the

end, Mr. Hobson obtained the approval of an engineer, Norman Ettinger. Mr. Ettinger did not give

evidence, as Mr. Roth advised that he has dementia. There was a doctor’s note corroborating this.

[20]

Mr. Hobson alleges that there were many extras on the project, which he said caused

significant delay. In the Scott Schedule he claims a total of 44 extras with a total value of $62,526.95.

He changed this total during the reference. He claims he got timely verbal approval from the

3

defendants for this work. The defendants deny this. He never billed for these alleged extras while he

was working on the project.

[21]

The work continued. On March 1, 2017 Mr. Hobson rendered his fifth bill for $39,550. It

was paid in full and on time. There were other payments. In the end, Mr. Hobson says he was paid

$244,383.54 in total. The defendants say he was paid $259,840.28.

[22]

On April 17, 2017 Mr. Hobson went on a long-planned, three-week vacation in Nepal.

During this time a contractor named Charles McCrie did the tile installation. Tile installation and

door hanging were in Mr. Hobson’s scope, but the defendants paid $10,000 for this work. On May

7, 2017 Mr. Hobson returned. Neither he nor the defendants were satisfied with Mr. McCrie’s work.

Mr. Hobson intended to get Mr. McCrie to return the money; but before Mr. Hobson could show

the problems to Mr. McCrie and without informing Mr. Hobson, the defendants had Mr. Matthews

remove the tile.

[23]

On May 17, 2017 Mr. Hobson met with the defendants on site. The defendants allege he

abandoned the project when he would not give them a completion date. Mr. Hobson alleges that the

defendants terminated the contract. Mr. Hobson ceased working on May 18, 2017.

[24]

On May 22, 2017 the defendants retained BAC Contracting Ltd. (“BAC”) to complete

demolition and disposal work for $15,142. BAC’s principal is Riccardo Bumbaca. On June 12, 2017

the defendants contracted with BAC to have it do deficiency and completion work for $124,300.

[25]

On June 29, 2017 Mr. Hobson registered a claim for lien in the amount of $50,720.33. On

August 15, 2017 he purported to perfect the lien by commencing this action and registering a

certificate of action. The defendants delivered a statement of defence and counterclaim on

November 7, 2017.

[26]

BAC worked for several months. The defendants ended up paying BAC $219,941.27. The

defendants paid other costs as well. They claim damages of $325,777.37. They moved back into the

house in October, 2017.

[27]

Mr. Hobson obtained a judgment of reference from Justice Diamond on February 6, 2018.

Master Albert issued an order for trial on April 11, 2018. I became seized of the reference at the first

trial management conference on October 15, 2018. I made various interlocutory orders. I held a

second trial management conference on June 7, 2019, a third on January 20, 2020, a fourth on June

5, 2020, a fifth on September 21, 2020 and a sixth on November 9, 2020. On July 31, 2020 I ruled

on an in-writing motion by Mr. Hobson concerning the defendants’ refusals.

[28]

At the seventh trial management conference on December 17, 2020 I scheduled the trial

hearing to take place in May and June, 2021. However, after Mr. Hobson served his affidavit for

evidence in chief in March, 2021, he brought a motion to amend his statement of claim amongst

other things. This motion was contested. At the ninth trial management conference on April 7,

2021, I scheduled this motion to be argued on May 27, 2021.

[29]

On June 18, 2021 I granted the motion. At the tenth trial management conference on July 2,

2021 I made interlocutory orders and rescheduled the trial. At the eleventh trial management

conference on November 2, 2021, I made a Rule 30.10 order requiring that the City of Toronto,

which was in attendance, disclose the contents of an email.

4

[30]

The trial hearing took place on December 7, 8, 9, 14, 15, 16 and 22, 2022. Mr. Hobson’s

witnesses were himself and the expert, Andrew Bennett. The defendants’ witnesses were Ms. Kan,

Mr. Turner, Ms. Fensham, Mr. Bumbaca, Joseph Seymour, expert Owen McElhinny, James

Matthews and Charles McCrie. The last two witnesses gave their evidence viva voce.

III.

ISSUES

[31]

Based on the evidence and submissions, I find that the following are the issues to be

determined:

a) What kind of contract existed between the parties?

b) Was there a contract repudiation, and, if so, by whom?

c) What are the resulting damages?

IV.

WITNESSES

[32]

Before I analyze the issues, I will comment on the credibility of the witnesses. There were

huge credibility issues with most of the witnesses I saw in this trial. It was a struggle coming to a

decision as a result, as most of the issues turned on credibility.

[33]

First, there was Mr. Hobson. He submitted two exceedingly lengthy and detailed affidavits

for his evidence in chief, one in chief and one in reply. What impressed me was the detail of these

affidavits. However, many details relied upon Mr. Hobson’s recollection and were without

corroboration. The veracity of Mr. Hobson’s memory was attacked in cross-examination, and with

some success. He admitted several times that his memory was inaccurate.

[34]

His memory was indeed faulty. A glaring example was Mr. Hobson’s admission in cross-

examination that he had “tripped” into the holdback draw with his payment applications. This

surprised him. That Mr. Hobson lost track of his own payment applications to the point of violating

the provision of the contract, indeed of the Construction Act, that required retention of the holdback

until completion, was astounding. It shows lack of care and poor recollection.

[35]

There was also the very problematic evidence about Mr. Hobson’s extras. At discovery he

was asked to particularize each extra as to the work done, the approvals given and the cost

arrangements. In his initial response, Mr. Hobson consistently described the extras as being “fixed

price” and agreed upon on specified dates. After delivering his trial affidavit for evidence in chief,

Mr. Hobson brought a motion in part to amend these answers. The “fixed price” was changed to

either pre-estimated figures to be finalized at the end of the work or no pre-estimates at all. Many

dates were changed. Mr. Hobson said in his motion affidavit that this was nothing but an error in

“terminology.” He did not explain the date changes.

[36]

The concept of “fixed price” is well known in the construction industry and Mr. Hobson’s

explanation puzzled me. This evidence showed me that Mr. Hobson did not have a clear memory of

his discussions with the defendants about extras, and that all he could do was try and cobble

together that history from the documentation.

5

[37]

Mr. Hobson also showed a troubling capacity to mislead. For instance, on October 26, 2016

Mr. Hobson texted Ms. Kan stating, “yay we passed first inspection!” Mr. Hobson admitted in

cross-examination that this inspection concerned the footings and foundation, and that in fact he

had not passed inspection. He said he found a way forward past the impasse with the city inspector,

Giuseppe Forte, on this issue; but there was no such information in the text to Ms. Kan. He said he

gave her the truth verbally, but she denied that. On January 25, 2017 Mr. Hobson again texted Ms.

Kan advising that he had passed the framing inspection. Again, he admitted in cross-examination

that he had in fact not passed that inspection as Mr. Forte wanted an engineer letter confirming the

adequacy of the supports for the skylights. Again, Mr. Hobson asserted that he informed Ms. Kan of

the truth verbally, but she denied that. Misleading the owner about inspections is a serious matter.

[38]

Mr. Hobson admitted in cross-examination to being “overly optimistic.” That came out

during the discussion about the contract schedule. The contract schedule in the contract document

Mr. Hobson prepared specified 19.5 weeks until substantial completion. He admitted that the

schedule should have been 6 months, or another 6 weeks. This detracted from his credibility.

[39]

In my view, Mr. Hobson also took an unreasonable position on an important extra. This was

his position on the tile work by Charles McCrie. Mr. Hobson admitted that this work was in the

contract scope. There was project delay. To mitigate further delay, the defendants required that a

third party do the tile work while Mr. Hobson was away on his lengthy Nepal trip in April, 2017.

This third party eventually was Mr. McCrie, who Mr. Hobson picked and whom the defendants

paid. Mr. Hobson originally accepted the McCrie cost as a credit. He changed his position during the

reference claiming that the defendants agreed to pay this as an extra. There was no evidence

corroborating that position. In short, Mr. Hobson asserts that the defendants agreed to pay extra for

scope work to mitigate the further project delay caused by Mr. Hobson’s personal trip, all without

corroboration – an unreasonable position in my view. This adversely affected his credibility.

[40]

But the defendants went further and made a concerted effort to portray Mr. Hobson as

dishonest and fraudulent. This effort reached its height starting in October, 2021. Mr. Hobson had

included in his productions an email dated November 9, 2016 from Mr. Hobson to Mr. Forte that

seemed to be cut off. The last line in the email was, “begin forwarded message:” In October, 2021

the defendants suddenly demanded production of the entire document. Mr. Hobson looked and

confirmed that this was all that he had. He explained that he believed the attachment was an email

from Ms. Kan to him attaching a drawing of the footing stamped by Mr. Seymour, and that he

deleted the Kan attachment and inadvertently with it the drawing when he sent the email. He

explained that he forwarded the drawing to Mr. Forte by separate email.

[41]

This did not satisfy the defendants. They demanded a forensic analysis of Mr. Hobson’s

emails and accused Mr. Hobson of spoliation. At the November 2, 2021 trial management

conference the defendants had the City attend and got an order requiring production of Mr. Forte’s

emails concerning this issue. I gave that order. Shortly thereafter, the City produced the Forte

emails. They showed that what Mr. Hobson had in his productions is what Mr. Forte received. Mr.

Hobson was vindicated.

[42]

There were other accusations of fraud from the defendants’ witnesses, which I will discuss

later. Suffice it to say here that these allegations were not corroborated. I did not find Mr. Hobson

to be dishonest or fraudulent. I did find that he was credible given the detail in his affidavits, but

6

also nervous in his oral evidence, disorganized in his construction work (as it appeared to be beyond

his level of experience), faulty in his memory, and capable of dissembling.

[43]

Mr. Hobson’s only other witness was the expert Andrew Bennett. Mr. Bennett was

accepted as an expert in assessing construction costs and extras. His report was a valuation of Mr.

Hobson’s claim for extras. Mr. Bennett was straight forward in his evidence. He limited his opinion

to the four corners of his instructions. He openly admitted that he relied on Mr. Hobson to advise

him what the extra work was. There was some controversy about the costing sources that Mr.

Bennett used and the fact that he did not list all of the documents he was given. But I did not find

that these issues undermined Mr. Bennett’s credibility given the limited scope of his opinion.

[44]

The defendants had several witnesses, most of whom were very problematic. First, and

foremost, there was Ms. Kan. I found that she was not transparent with the court. Indeed, she

misled the court. Most importantly, her affidavit made no reference to the full history of her

relationship with Mr. Bumbaca. She stated in her affidavit that she contacted Mr. Bumbaca after the

May 17, 2017 meeting, which is patently false. It came out during the cross-examination of Mr.

Bumbaca that the defendants had approached Mr. Bumbaca over three weeks before May 17, 2017.

Mr. Bumbaca advised that he did considerable work in the weeks leading up to the defendants’

meeting with Mr. Hobson. He in fact gave Ms. Kan a quotation for demolition on May 14, 2017,

three days before that meeting. This evidence was critical to the issue of contract repudiation. The

only inference to be drawn is that Ms. Kan, who had counsel when she prepared her affidavit,

deliberately misled the court.

[45]

At discovery, Ms. Kan was asked several times about whether the defendants had made full

disclosure of their correspondence with BAC. She undertook to investigate. She advised through

counsel that she was having trouble retrieving the BAC texts as she had an old phone. She

undertook to have an IT company retrieve the texts. That was never done. The defendants never

produced those BAC texts and other correspondence. More obfuscation.

[46]

Ms. Kan was questioned about the BAC history in cross-examination. She said she “could

not recall” the history with BAC going back to late April, 2017. She said that, because she did not

disclose the pre-May 17, 2017 BAC correspondence, she did not have it. In responding to a question

about a text she sent to James Matthews on May 16, 2017 stating about Mr. Hobson, “we’ll deal

with him tomorrow,” Ms. Kan denied planning to terminate Mr. Hobson’s contract. This evidence

was evasive and self-serving, and was later contradicted by Mr. Bumbaca.

[47]

On another issue, Mr. Roth pointed out in argument that Ms. Kan never gave full particulars

of the defendants’ damages claims outlined in the deficiencies Scott Schedule. At discovery Ms. Kan

took numerous questions in this regard under advisement, and in the end never took a position. In

cross-examination at trial Mr. Bumbaca proudly asserted how detailed his records were. This

evidence was clearly relevant and Ms. Kan’s refusal to disclose full particulars of the defendants’

damage claim shows more obfuscation.

[48]

About the Hobson extras, Ms. Kan was grilled about her position that the fixed price

contract encompassed the claimed extras. She insisted that a pre-contract text from Mr. Hobson

stating that $295,000 was a reasonable price “for a finished product” bound Mr. Hobson to his

eventual fixed price in the contract with no changes. The contract was signed a month later. There

was significant scope and price reduction in the meantime. The contract itself contemplated

7

changes. That Ms. Kan and her husband took this position was unreasonable and showed a grasping

nature.

[49]

Mr. Turner was the next witness. His evidence was limited. His affidavit reiterated the points

raised by Ms. Kan and, therefore, had the same problems. He dwelt at greater length on the

spoliation issue I have already discussed. His affidavit was sworn before the City revelations on that

issue. However, in cross-examination Mr. Turner never retracted the spoliation allegation, which just

showed me how entrenched he and his wife are in their animus against Mr. Hobson. I had difficulty

giving Mr. Turner and Ms. Kan any credence.

[50]

The next witness was Ms. Fensham. She showed a bias in favour of the defendants. Her

affidavit glossed over the episode about the engineer’s approval of the footings and foundations in

October and November, 2016. Ms. Fensham picked up the issue in late November, 2016 when Mr.

Seymour required a site visit from her to give the approval, not photographs. The prior email history

made it clear that it was Ms. Fensham who wanted to avoid the site visit by using photographs. Yet,

she blamed Mr. Hobson for trying to avoid the site visit when her approach failed. I agree that Mr.

Hobson should have been more cooperative in disclosing the Ettinger inspection and by giving Mr.

Fensham the inspector’s coordinates when she asked for them. But her affidavit on this issue was, in

my view, slanted to favour the defendants. Furthermore, her opinion about Mr. Hobson completing

the interior while the addition permit was outstanding seems unreasonable. How could the owners

live in a house that is largely a construction area with the back exposed? This all detracted from Ms.

Fensham’s credibility.

[51]

The next witness was Mr. Bumbaca. Like Ms. Kan’s affidavit, his affidavit gave none of his

pre-May 17, 2017 history concerning this project. It too was slanted to favour the defendants. This

history came out only in cross-examination. What came out was that Mr. Bumbaca was introduced

to the defendants through Mr. Turner’s father as Mr. Bumbaca had worked for his father. Mr.

Bumbaca admitted he had been asked by Mr. Turner’s father to do this project but had turned it

down because he was too busy. Mr. Bumbaca disclosed during his cross-examination his

correspondence with Ms. Kan, the correspondence that Ms. Kan had not disclosed. This

correspondence showed that Ms. Kan had retained BAC as early as April 24, 2017 to finish the

work, which contradicted her affidavit. Mr. Bumbaca advised Mr. Forte by email on May 9, 2017

that he “was taking over the work.” Ms. Kan sent an email to Mr. Bumbaca on May 16, 2017

confirming that the defendants were terminating the Hobson contract the next day. All of this

cross-examination evidence contradicted the defendants’ evidence.

[52]

Given his connection to Mr. Turner’s family and his contract to complete the work, Mr.

Bumbaca had an interest in showing up Mr. Hobson. This came through vividly in his evidence.

Most glaring was his discussion about Mr. Forte. Mr. Bumbaca ascribed extreme statements to Mr.

Forte. He said Mr. Forte was frustrated because Mr. Hobson obtained no inspections. Shockingly,

he asserted that Mr. Forte told him that Mr. Hobson had submitted a “fake” engineer’s letter

concerning the footings. When asked why Mr. Forte had not issued a stop work order, Mr. Bumbaca

asserted that Mr. Forte said he was about to do so. Mr. Bumbaca asserted that Mr. Forte said he

could not find Mr. Hobson’s engineer on the internet. None of this was mentioned in the Forte

inspection reports.

[53]

These were all hearsay statements, as they were produced to prove their contents and as Mr.

Forte was never produced. The statements that appeared in Mr. Bumbaca’s affidavit were objected

8

to and I reserved my decision on their admissibility. I have decided not to give these hearsay

statements (oral and written) weight as to their substance. Mr. Bumbaca is not a reliable source. The

Forte inspection reports in fact to some extent corroborate Mr. Hobson’s evidence that Mr. Forte

required engineer letters to complete inspections of the footings and framing, and that Mr. Hobson

provided those letters. The reports indicate that Mr. Forte required the engineer letter about the

footings, and that on January 5, 2017 he received the Ettinger letter. They also indicate that on

January 30, 2017 Mr. Forte required an engineer letter about the framing and that as of February 23,

2017 it had not been received. The reports do show that Mr. Hobson’s work did not pass

inspection on six occasions. At best, the reports are unclear on this issue and require clarification by

Mr. Forte. I can say though that the reports do not corroborate the Bumbaca hearsay statements

attributed to Mr. Forte. As a result, there is no way of confirming the reliability of Mr. Bumbaca’s

statements. However, the fact that Mr. Bumbaca insisted on making them in oral evidence, knowing

Mr. Forte would not be produced, affected his credibility. They suggested to me a desperation and

spitefulness that caused me to doubt his overall evidence.

[54]

Mr. Bumbaca was also not a careful witness. He freely attacked Mr. Hobson’s work, but

admitted never looking at the Hobson contract. He admitted receiving and reviewing the Fensham

drawings and the permit drawings, but stated he did not examine them for design deficiencies. He

seemed intent only on one thing - attacking Mr. Hobson. I had trouble accepting Mr. Bumbaca’s

evidence in the end.

[55]

The defendants called an expert witness, Owen McElhinny. This witness too had significant

credibility issues. After a voir dire, I accepted Mr. McElhinny as an expert witness to give an opinion

on the state of Mr. Hobson’s work, namely as to whether it was deficient or incomplete. However, it

became clear quickly that his report was an extraordinarily limited picture of what really happened

with Mr. McElhinny. In his report dated January 29, 2021, he said he was retained by Mr. Katzman

to provide his opinion on deficiencies and completeness. His “opinion” in the report turned out

primarily to be nothing but very brief statements of conclusions attached to the Scott Schedule on

deficiencies, such as that the items were just “incomplete” or “deficient.” Only in a few cases did

Mr. McElhinny give more than a few words and more than a conclusion. Mr. Roth objected to this

report during the voir dire on the basis that the report was a violation of Rule 53 as there was no

description of Mr. McElhinny’s reasoning. I allowed the report, but I found this feature quite

troubling as it obscured the nature of Mr. McElhinny’s opinion.

[56]

In cross-examination another whole dimension to Mr. McElhinny’s involvement in this case

came out. It turned out that he had actually been retained by the defendants’ initial lawyer, Dante

Capannelli, in August, 2017 to examine the work to determine the costs to complete. This scope

included determining deficiencies and the state of completion. He attended at the site on August 19,

2017 after the BAC work was underway, and again on October 4, 2017. He admitted meeting on

both days with the defendants, Mr. Bumbaca and Mr. Turner’s father, who seemed to be quite

involved at this time. Mr. Capannelli was there on August 19, 2017. Mr. McElhinny admitted that he

assisted the defendants in preparing their entries in the Scott Schedule on deficiencies at that time.

He said that their entries came from his notes. He never produced these notes. He said that he was

retained again by Mr. Katzman in December, 2018 to write his report for trial. He admitted relying

heavily of the defendants’ photographs, the defendants’ explanations and Mr. Bumbaca. His report

did not disclose any of this.

9

[57]

In short, after this cross-examination it was clear that Mr McElhinny’s report was nothing

more than Mr. McElhinny’s brief reassessment of what were primarily his initial views as reflected in

the Scott Schedule in light of Mr. Hobson’s responses. It is not surprising, therefore, that Mr.

McElhinny did not agree with Mr. Hobson responses in the vast majority of the cases. This dynamic

was hidden in Mr. McElhinny’s report, which formed his evidence in chief. I agree with Mr. Roth

that the report did not comply with Rule 53.03(2.1) as he did not disclose all of Mr. McElhinny’s

instructions and the entire nature of his opinion. Generally, there was a lack of transparency here

that undermined my confidence in Mr. McElhinny as an opinion expert. He came across as nothing

but a “hired gun.”

[58]

The defendants produced two witnesses who were credible. There was the engineer, Joe

Seymour. He had no stake in the outcome and gave his evidence, both in his affidavit and orally, in a

clear and straight forward manner. There was James Matthews. He resisted cooperating with the

defendants, did not swear an affidavit, and was forced to appear and give his evidence entirely viva

voce. He had no stake in the outcome and no attachment to Mr. Hobson. In cross-examination, he

admitted against his interest that his work and that of Mr. Hobson was not something he would now

be proud of.

[59]

The final defendants’ witness was Charles McCrie, the installer of the tile. He also gave his

evidence orally. He was clearly uncomfortable as his work was under attack. He denied agreeing to

reattend to correct his work. He said he saw problems with Mr. Hobson’s other work, but did not

raise these problems with Mr. Hobson. I took Mr. McCrie’s evidence, limited as it was, with a “grain

of salt.”

[60]

Therefore, in the end, I found that the defendants witnesses, with the exception of two

minor witnesses, had huge credibility issues. Indeed, it seemed as if the defendants had embarked on

a vendetta against Mr. Hobson, as they consistently slanted their evidence against him. Mr. Hobson,

on the other hand, was at least honest. Therefore, despite all of Mr Hobson’s credibility problems, I

decided to give him credence over the witnesses of the defendants when the two conflicted. I also

found Mr. Bennett more credible than Mr. McElhinny.

V.

ANALYSIS

a)

What kind of contract existed between the parties?

[61]

There were issues concerning the interpretation of Contract 3, the contract between the

parties that is in issue.

[62]

As I stated in in paragraphs 47 and 48 of my decision in Gibowic v. Sholzberg-Tsilker, 2022

ONSC1716, the law of contract interpretation seems to have changed to some degree. It used to be

the case that the court would look into evidence of surrounding circumstances and the intentions of

the parties only if the face of the contract was ambiguous; see Shewchuk v. Blackmont Capital Inc.,

2016 ONCA 912 (Ont. C.A.) at paragraph 39. In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC

53, [2014] 2 S.C.R. 633 at paragraph 47 the Supreme Court of Canada held that the guiding principle

should be determining “the intent of the parties and the scope of their understanding.” In the same

paragraph the Court stated the following: “To do so, a decision-maker must read the contract as a

whole, giving the words used their ordinary and grammatical meaning, consistent with the

surrounding circumstances known to the parties at the time of formation of the contract.”

10

[63]

The extent to which this is a change is an open question. In Sattva in paragraph 57 the

Supreme Court stated that surrounding circumstances “must never be allowed to overwhelm the

words of [the] agreement.” As to what surrounding circumstances can be considered, the Court was

specific in paragraph 58 in limiting those to “objective evidence of background facts at the time of

the execution of the contract . . . , that is, knowledge that is or reasonably ought to have been within

the knowledge of both parties at or before the date of contracting.” I will apply these principles to

this issue.

[64]

There is no dispute that the parties signed a contract document on March 17, 2017 that

formed Contract 3. This was Mr. Hobson’s form of contract and was in the same base form as for

Contracts 1 and 2 but with alterations.

[65]

In reading Contract 3, it is clear that the parties agreed that Mr. Hobson would do the

specified 10 items of work at a mixture of fixed prices for 6 items and estimated prices for 4 items

with the final cost for those 4 items to be determined on the basis of final cost. 3 of the 4 estimated

items were the second floor siding, the new windows and the skylights. The fourth item, called

“allowances,” was itself a list of 27 finishing items. It was undisputed that the allowances contained

estimates of material cost for each item with the labour included elsewhere and set. The contract

document states that the listed work would be done in accordance with the “plans and permits

attached.” While it was not clear whether plans and permits were immediately attached to Contract

3, it is obvious that this referred to the drawings Ms. Fensham released on February 16, 2016. There

were no other drawings of the project at the time, and there were no permits at all.

[66]

As stated earlier, the defendants take the position that the contract contemplated no extras.

They base this position on the text message Mr. Hobson sent to Ms. Kan on February 18, 2016

wherein he stated that “the 296K is, I think a reasonable price for a finished project . . .” The

defendants argue that by tying the contract price to the phrase, “finished project,” in this text, Mr.

Hobson committed to doing all of his work for the eventual contract price without extras, and that

it was this commitment that formed the basis of Contract 3. At discovery Ms. Kan stated that Mr.

Hobson’s use of the word, “renovations,” to describe the work in Contract 3 created an ambiguity

as to scope that should be interpreted against his interest under the doctrine of contra proferentum

essentially to incorporate their view of the phrase, “finished project,” into the contract.

[67]

As stated earlier, I do not accept this position for the following reasons. First, Mr. Hobson’s

February 18, 2016 text was a part of several texts between Mr. Hobson and Ms. Kan that concerned

finishes. Mr. Hobson’s text was a side observation that cannot reasonably be viewed as a

commitment. It was not carried forward into any further pre-contract correspondence. Second, it

would be the height of folly for any contractor to commit to doing a major renovation of a 100 year

old house like this one without extras. There are obviously many unknowns at the beginning of any

such work. Third, the word “renovations” is not ambiguous. Fourth, and this is the most important

factor, the words of Contract 3 clearly contemplate extras. Under the title, “changes in the work,”

there is a clause that concerns minor changes to the work. The next clause, entitled “contractor

claims,” specifies that an act by the owners or government that causes the contractor extra cost or

time or that changes the scope entitles the contractor to claim the consequential extra cost. The

clause entitled “payment plan,” makes explicit reference to invoices for extras.

11

[68]

I make a further comment about Contract 3 and extras. The contract document does not

require owner approval in advance for extra work. However, it was undisputed that such an

obligation should be implied in this case.

b)

Was there a contract repudiation, and, if so, by whom?

[69]

The evidence, particularly the disclosures by Mr. Bumbaca, shows conclusively in my view

that the defendants planned to terminate Contract 3 for weeks prior to the May 17, 2017 meeting

and then terminated that contract in the meeting in the morning of May 17, 2017. The defendants

contacted Mr. Bumbaca as early as April 24, 2017. This was when Mr. Hobson was on his Nepal

trip. On May 9, 2017 Mr. Bumbaca emailed Mr. Forte advising that he, Mr. Bumbaca, was taking

over the project. On May 14, 2017 Mr. Bumbaca sent a quotation to Ms. Kan. Most importantly,

Ms. Kan emailed Mr. Bumbaca on May 16, 2017, the day before the meeting with Mr. Hobson,

advising that the defendants were terminating Contract 3 the next day. On May 16, 2017 Ms. Kan

emailed Mr. Matthews stating that the defendants would “deal with him [Mr. Hobson] tomorrow.”

Mr. Hobson stated that at the meeting on the morning of May 17, 2017 he was told by the

defendants that his contract had been terminated. I believe him.

[70]

The defendants’ argued that Mr. Hobson abandoned the project. There was no credible

evidence in support of this position. The defendants allege that they asked Mr. Hobson to commit

to a firm date of completion and that he refused to do so. They argued that this was

“abandonment.” Mr. Hobson did not deny that scheduling was discussed and that he refused to give

a completion date. He said he did this because this was the first time this subject was raised, and he

needed time to give a thoughtful answer. Indeed, the evidence shows that there had been no prior

discussion about scheduling or an updated completion date. As a result, this was not, in my view,

evidence of abandonment. This was evidence of a discussion about scheduling. The original contract

schedule had long ago been abandoned for a variety of reasons. Mr. Hobson’s explanation for his

conduct makes sense, given the suddenness with which this topic was raised by the defendants.

[71]

Ms. Kan stated in her evidence that Mr. Hobson made unreasonable payment demands at

the termination meeting. This assertion no doubt was for the purpose of showing that Mr. Hobson

repudiated Contract 3. Unreasonable contractor payment demands can amount to contract

repudiation; see D&M Steel Ltd. v. 51 Construction Ltd., 2018 ONSC 2171 at paragraph 54. However,

I find that that did not happen here. In the afternoon of May 17, 2017, namely after the termination

had happened that morning, Mr. Hobson consulted a lawyer and at 5:31 p.m. sent Ms. Kan an email

stating what he required to be paid as a part of any settlement. The amount was $167,455. This is

well in excess of his present claim. But this email was a settlement position on a disputed

termination that had already happened. There was also no link created in the email to ongoing

supply. Indeed, in the email, Mr. Hobson indicated that he would continue working to facilitate the

“hand over in good faith.” This evidence was not of a threatened cessation of work based on an

unreasonable payment demand, as alleged by the defendants.

[72]

There was no credible evidence that Mr. Hobson abandoned the project. Mr. Hobson had

indeed gone on his Nepal trip a month earlier, but this was known to and accepted by both parties

for months. The two Wicks had indeed ceased working. There was also evidence that Mr. Hobson

was under financial stress on this job. But Mr. Matthews was still on site daily, and by May 8, 2017

Mr. Hobson was back from his trip and working. He was in the middle of dealing with the tile issue

created by Mr. McCrie and the defendants when his contract was terminated on May 17, 2017.

12

[73]

The critical evidence in my view was what happened after the May 17, 2017 meeting. The

text messages in evidence clearly show that Mr. Hobson offered, and the defendants agreed, to have

Mr. Hobson finish the work he was doing to facilitate the transition of his work to a new contractor.

The text messages also show that Mr. Hobson was willing to stay as late as May 19, 2017 to finish

up. But the defendants decided that he had to leave as of May 18, 2017 no doubt to facilitate the

transition to Mr. Bumbaca that was already well underway. This was not the conduct of someone

who had abandoned the project.

[74]

I also note that Ms. Kan gave evidence on this issue that was downright duplicitous. First,

she asserted in her affidavit that during the termination meeting on May 17, 2017 the defendants

offered to pay Mr. Hobson more than the contract price to get a completion date from him. Second,

in reply to an email from Mr. Hobson on May 25, 2017 offering to discuss settlement, Ms. Kan

emailed stating that the defendants were “assessing the house.” At discovery, Ms. Kan said this reply

“probably” meant that they were asking contractors to give estimates on completion work. Both

pieces of evidence were untrue, as the defendants had by May 16, 2017 decided to retain BAC to

complete the work. This false evidence was designed to make the defendants appear the innocent

victims of what was really a fictitious abandonment.

[75]

The real question is, therefore, whether the defendants’ contract termination was justified.

There was nothing in Contract 3 that allowed for such contract termination. Therefore, we revert to

the common law of contract repudiation. An owner is justified in terminating the contract this way

where the contractor has so fundamentally breached the contract as to show that the contractor is

incapable of being or unwilling to be bound by its terms; see Heyday Homes Ltd. v. Gunraj, 2004

34324 (ONSC) at paragraphs 342 and 343. If there is such a fundamental contract breach,

the owner’s termination amounts to an acceptance of that breach and the ending of the contract that

it represents. The owner has the onus of proving the justification.

[76]

In evidence the defendants did not disclose their real intention in terminating Contract 3.

Therefore, I am left to draw inferences from the evidence. If project delay was the real reason for

the termination, as was suggested by the fact that the defendants raised scheduling during the

termination meeting, I am not prepared to find that it justified the termination. The original contract

schedule called for substantial completion at the end of July, 2016. But that schedule quickly became

irrelevant when the permits were split by the City due to the zoning variance caused by the addition.

As stated earlier, I do not find credible Ms. Fensham’s criticism of Mr. Hobson for failing to

proceed with the interior renovations while the addition permit was pending. Mr. Hobson added

other explanations for the delay, namely the unexpected advent of winter conditions due to the new

schedule, the difficulty in getting the trades to return, the delays of other trades hired by the

defendants and the extra work. These are reasonable explanations and were, with the exception of

the extras, not disputed. There was no expert or other evidence from the defendants to show that

the delay was Mr. Hobson’s fault. There was no complaint about delay from the defendants before

the termination meeting of May 17, 2017. Indeed, the evidence indicates that the parties amended

Contract 3 by conduct to have a new schedule based on what was reasonable in the circumstances.

[77]

In argument, the defendants raised another ground that does require careful examination.

They argued that the deficiencies in Mr. Hobson’s work that were allegedly discovered by Messrs.

Bumbaca and McElhinny after the contract termination justified the termination. Ms. Kan admitted

that the defendants had not raised deficiencies as an issue prior to or at the termination meeting of

May 17, 2017.

13

[78]

In Komorowski v. Van Weel, 1991 CarswellOnt 856 (Gen. Div.) Justice Sutherland dealt with a

case where a contractor ceased working demanding payment concessions. There was evidence of

significant deficiencies. The defendant owners accepted these deficiencies and worked with the

contractor on making changes and corrections. These actions the court found to be unreasonable

and justified the work cessation. However, subsequent to the work cessation, the owner found

serious other deficiencies, namely breaches of the Ontario Building Code. His Honour found that

these subsequently discovered deficiencies justified a finding of contract repudiation by the

contractor. At paragraph 42, His Honour stated that, “in my opinion the after-discovered material or

important deficiencies (being the deficiencies turned up, or the significance of which became

apparent, after the withdrawal of the plaintiffs’ forces) may be taken into consideration in

determining the rights of parties with respect to the contract.”

[79]

However, justification for contract termination on account of deficiencies has a high

threshold. As applied to construction contracts, Justice Perell aptly summarized the law of contract

repudiation in the case of D&M Steel Ltd., op. cit. at paragraphs 51 to 55. I summarize His Honour’s

remarks. Concerning deficiencies, if a contractor performs the contract so defectively as to amount,

in substance, to a failure or refusal to carry out the contract work, the owner is entitled to terminate

the contract, claim damages for the breach, and be discharged from his or her obligations to pay,

including any obligation to pay on a quantum meruit basis or for work already performed. Mere bad or

defective work or insignificant non-compliance will not entitle the owner, in general, to terminate

the contract. The defect must be significant; see also Heyday Homes, op. cit., at paragraph 343 and

Angus v. Pinalski (1991), 41 C.L.R. 284 (BCSC) at paragraphs 61 and 62. The owner of course has the

onus of proving this justification.

[80]

The defendants’ evidence concerning Mr. Hobson’s alleged deficiencies centered on the

Scott Schedule concerning deficiencies and the evidence of Mr. McElhinny. As directed by me, the

defendants prepared this Scott Schedule prior to trial. As became clear from Mr. McElhinny’s oral

evidence, they did so with Mr. McElhinny’s help. This schedule contains 138 items of alleged

deficiencies.

[81]

Mr. Hobson identified several items as being work that was incomplete, not deficient. Mr.

McElhinny indeed identified 63 items of the 138 items in the Scott Schedule concerning deficiencies

as being “incomplete.” Incomplete work is, in my view, not relevant to the issue of deficiencies,

much less to the issue of whether the deficiencies were so severe as to justify contract termination.

Therefore, I will not consider these items any further.

[82]

In the Scott Schedule and in his reply affidavit Mr. Hobson identified 25 additional items,

namely items not identified as incomplete, as being outside his contract scope. Mr. McElhinny was

mindful of the issue of scope as he in his report identified 5 items in the Scott Schedule as not being

in the contract scope and as not meriting comment by him. But concerning the above-noted 25

items identified by Mr. Hobson as being outside the contract scope, Mr. McElhinny in his report

disagreed without fulsome particularity. In the vast majority of these items Mr. McElhinny simply

identified the items as being “deficient.”

[83]

There was discussion of some of these 25 items during Mr. McElhinny’s cross-examination.

This discussion showed that Mr. McElhinny did not have a firm grasp of the evidence concerning

scope. For instance, item 48 of the Scott Schedule concerned the removal and reinstallation of the

exterior air conditioning. Mr. McElhinny said that he examined Contract 3 and the original Fensham

14

drawings and that this item was within the contract scope. But the evidence of the pre-contract

negotiations between the parties showed that the HVAC work was removed from the scope to

reduce the price. Another example was item 70 which concerned underpinning. Mr. Hobson was

clear that he was not qualified to do underpinning, that it was not therefore in his scope, and that

Ms. Fensham confirmed this in emails. Ms. Fensham did not contradict that evidence. Yet, Mr.

McElhinny in cross-examination stated that underpinning was within the Hobson contract scope. In

addition, as stated earlier, I have generally decided to prefer the evidence of Mr. Hobson over that of

the defendants’ witnesses where the two conflict. Here there is such a conflict, and as a result I

prefer the evidence of Mr. Hobson. I will not consider these 25 items as a result.

[84]

Reducing the 138 items by the 63 items identified as being incomplete and by the 25

additional items identified by Mr. Hobson as being outside the Contract 3 scope and by the 5 items

conceded by Mr. McElhinny as being extra and by the 5 items showing no cost, produces a total of

40 items. Of these Mr. McElhinny described 26 items in his report simply as follows without any

particularity: “work is deficient.” These were items 40, 46, 50, 55, 56, 59, 60, 62, 78, 79, 80, 81, 82,

83, 84, 88, 92, 97, 102, 103, 105, 123, 124, 125, 126, and 127. In cross-examination, he gave no

further evidence as to the degree of deficiency in each case other than to say that the deficiency “had

to be obvious.”

[85]

I assessed the importance of the items by the defendants’ alleged corrections costs. In the

Scott Schedule the defendants assigned costs of correction to each item. There were only 4 items out

of the above noted 26 that exceeded $1,000 in alleged costs of correction. The largest is item 62 for

drywall taping, plastering and repair. The assigned cost is $4,800. Mr. McElhinny in his report gave

no indication of the degree of this alleged deficiency. The defendants stated that all the drywall had

to be redone. In his report and in cross-examination, Mr. McElhinny did not make it clear as to

whether he shared this opinion. He also conceded that he relied on photographs taken by the

defendants, which makes sense as he first got to see the work only in August, 2017, namely after

BAC had been working for 2.5 months. From photographs it would be hard to determine whether

all of the drywall had to be replaced.

[86]

The next allegedly costliest item was item 81 for $2,800, which is described as reworking of

plumbing in kitchen sinks and the master ensuite. In the Scott Schedule the defendants said that the

plumbing had to be redone in these areas to accommodate wall-mounted vanities when the

plumbing was installed for floor-mounted vanities. In his report, Mr. McElhinny did not indicate

whether he agreed with that view and, if he did, why. Item 80 concerned replacement of nosing,

which was assigned a cost of $1,800. The defendants simply described this work as “poorly

installed.” Mr. McElhinny did not clarify how the nosing was poorly installed. Finally, item 83

concerns alleged use of wrong material in the shower and tub. The assigned cost is $2,200. Again,

Mr. McElhinny did not indicate in his report whether he agreed with that view and, if so, why.

[87]

Of the 40 items there were 14 items for which Mr. McElhinny in his report gave more

particularity. These were items 1, 4, 5, 6, 7, 8, 10, 11, 13, 15, 18, 22, 53 and 74. These 14 items had

assigned costs of correction totaling only $19,130, namely less than 8% of the contract price. They

concerned the following alleged deficiencies: an uneven bulkhead; uneven kitchen cabinets and

countertop; reframing of rear windows; leveling closet ceiling; reframing interior doors; relocating

peninsula in the kitchen; relocating the toilet supply line; and relocating floor registers. Two items

involved the opinion of Mr. Seymour. Mr. McElhinny conceded in cross-examination that none of

the issues he raised in his report concerned the structural integrity of the house or engaged the

15

Ontario Building Code. He conceded that he did not refer to any text recognized in the industry for

standards of construction. Concerning the kitchen cabinets and countertop, Mr. Hobson stated that

the defendants agreed to his approach. As stated earlier, I prefer the evidence of Mr. Hobson to that

of the defendants.

[88]

After this analysis, I concluded that I did not find the evidence of Mr. McElhinny sufficient

to meet the defendants’ heavy onus of showing justification after the fact for the contract

termination due to deficiencies. Most of the identified issues were either unfinished work or outside

the contract scope. For the items identified by Mr. McElhinny as deficient, the evidence in most

cases was unclear. The items he identified as being deficient with more particularity were not of the

size or significance to justify the contract termination.

[89]

The defendants also relied upon the evidence of Mr. Bumbaca concerning deficiencies. As

stated earlier, I did not find Mr. Bumbaca a credible witness, certainly when compared to Mr

Hobson. Given these issues, I looked carefully for third party corroboration of Mr. Bumbaca’s

severe comments about Mr. Hobson’s work, which he described as negligent and beyond defective.

[90]

There was no such corroboration. The contract document Mr. Bumbaca drew up and had

BAC enter into with the defendants on June 12, 2017 was one he created. It incidentally

encompassed both alleged defective and unfinished work and drew no distinction between the two.

All of the emails and documents he attached to his affidavit were ones he created. Interestingly, in

none of these attached emails did Mr. Bumbaca describe Mr. Hobson’s work in the extreme terms

he used in his affidavit and orally. An interesting exchange concerned the roof. On June 26, 2017

Mr. Bumbaca sent Ms. Kan an email stating that his roofer had discovered that Mr. Hobson had

installed layers of styrofoam insulation on the roof which he said the roofer found “very odd.”

Nothing more was said in the email. In his affidavit Mr. Bumbaca added that this was “a very

unusual approach” he, Mr. Bumbaca, had never previously seen, that it was causing a leak and that

the insulation had to be removed. The roofer was never called, and these statements were

uncorroborated.

[91]

Mr. Hobson responded in his reply affidavit to Mr. Bumbaca’s attack. He explained that the

styrofoam was an equally effective substitute product that was required and approved by Ms.

Fensham and the defendants because of supply issues with the specified product. This evidence was

not contradicted. He explained that many of the framing issues identified by Mr. Bumbaca

concerning the windows were the result of exterior work that would have been extra to Contract 3.

He pointed out other work Mr. Bumbaca did that was outside the contract scope (such as custom

nosing, spray foam in the bedroom and kitchen walls, and exterior excavation to do foundation

work) or that was an allowance item that would have triggered extra costs (such as additional doors).

He pointed out that the BAC invoices attached to Mr. Bumbaca’s affidavit provided no backup

showing what BAC actually supplied and whether and to what extent it related to deficiencies,

unfinished work or extras. As stated earlier, I generally preferred the evidence of Mr. Hobson. In

this case, I find that it was an effective rejoinder to Mr. Bumbaca’s attack.

[92]

As a result, as with the evidence of Mr. McElkinny, I did not find Mr. Bumbaca’s evidence

sufficient to meet the defendants’ onus of proving justification after the fact for the contract

termination due to deficiencies.

16

[93]

The defendants also relied upon the evidence of Mr. Seymour about alleged deficiencies

concerning the footings. I found Mr. Seymour to be a credible witness. Mr. Seymour stated that he

attended at the site on August 19, 2017 and noted that the footings for the addition did not comply

with the footings he had designed. He also criticized the risers in the footing as being out of

dimension. He criticized the bench footing for not being returned at the outside to seal off the soil.

[94]

In his reply affidavit Mr. Hobson addressed these issues. He pointed out that the defendants

had changed the depth of the footing from 40 inches to 26 inches, which Mr. Seymour

acknowledged in cross-examination he had not been told. Mr. Hobson pointed out that he had

obtained the necessary engineer’s letter signed by Mr. Ettinger confirming the adequacy of the

constructed footings. When he was shown the Ettinger letter in cross-examination, Mr. Seymour

confirmed that it was sufficient engineering confirmation. As for the footing return issue, Mr.

Hobson showed that this was the product of the underpinning work around the foundation that was

done after he ceased working and that was outside of the Contract 3 scope. As for the risers, Mr.

Hobson stated that he knew there was a problem and that he intended to score and adjust the stairs

before his contract was terminated. This, in my view, addressed the issues raised by Mr. Seymour. As

a result, I did not find Mr. Seymour’s evidence as justifying contract termination after the fact due to

deficiencies.

[95]

I make one final point about Mr. Seymour. He repeated the position given by Ms. Fensham

about Mr. Hobson being the one who wanted Mr. Seymour to provide an engineer’s letter

approving the footing based only on photographs. He said he was advised of this alleged fact by Ms.

Fensham. As stated earlier, the photographs were Ms. Fensham’s idea. As a result, while I found Mr.

Seymour credible, his affidavit had again been slanted by the defendants against Mr. Hobson.

[96]

The defendants also rely on the Forte inspection reports. These reports were attached to the

Bumbaca affidavit. The defendants argue that these reports show that Mr. Hobson tried to avoid

inspections and tried to cover up that fact. Mr. Forte was not called, and therefore these reports

were hearsay evidence which I allowed to be admitted given their importance, Mr. Forte’s apparently

unavoidable absence and the fact that they appeared to be prepared by Mr. Forte in the course of his

inspection work.

[97]

There were two inspections of particular concern – the footings and the framing. It was Mr.

Hobson’s evidence that he was allowed by Mr. Forte to complete this work subject to the

requirement to have an engineer confirm the adequacy of these installations in writing. Mr. Hobson

gave clear evidence that he provided these engineer letters to Mr. Forte – Mr. Ettinger’s letter in the

case of the footings and the letter of Kevin Williams of KH David Engineering in the case of the

framing. The Forte inspection reports indicate that Mr. Forte indeed required these engineer letters.

They show that Mr. Forte received the Ettinger letter on January 3, 2017. Mr. Hobson indicated that

he provided the Williams letter to the City in early February, 2017. The Forte reports show that the

Williams letter for some reason had not been received as of February 23, 2017. They also show that

Mr. Hobson’s work consistently did not pass inspection.

[98]

I have trouble drawing any conclusions from these inspection reports. They produce more

questions than answers. Was Mr. Forte indeed prepared to accept engineer approval letters to pass

the required inspections? Did Mr. Forte actually receive and refuse to accept the Ettinger and

Williams letters? If so, why, particularly since Mr. Seymour found the Ettinger letter acceptable? If

Mr. Forte received and refused to accept the letters and if he was concerned about the work, why

17

did he not issue a stop work order? In the end, I decided that these reports are too unclear as to

provide any assistance to the defendants on this issue.

[99]

There was also the viva voce evidence of Messrs. Matthews and McCrie. Mr. Matthews was a

credible witness. He admitted that he was not proud of the work he and Mr. Hobson did. I have

difficulty giving weight to this evidence on this issue. Mr. Matthews did not go into detail about

specific deficiencies, and admitted he was only an apprentice and a “lead hand” with limited

experience. Whether he had the qualifications and knowledge to pass judgment on the Hobson work

justifying contract termination is an open question. As for Mr. McCrie, he was not a credible witness

as his work was under attack and he was looking to deflect blame onto Mr. Hobson.

[100]

As a result, I conclude that the defendants have failed to meet their onus on this

issue. I find that the defendants terminated Contract 3 without justification. They wrongfully

repudiated the contract.

[101]

Mr. Hobson had no choice but to accept this repudiation when he was evicted from

the site on May 17 and 18, 2017. He confirmed this acceptance by assisting with the work cessation

and by registering his claim for lien.

c)

What are the resulting damages?

Because the defendants wrongfully repudiated Contract 3, they are not entitled to

[102]

damages. On the other hand, Mr. Hobson is entitled to the damages for breach of contract that he

can prove. In D&M Steel Ltd., op. cit., at paragraph 49, Justice Perell stated the following:

“Owner breach: if the owner without justification ceases to make required payments under the

contract, cancels it, or through some act without cause makes it impossible for the contractor to

complete its work, then the owner has breached the contract and it has no claim for damages, and

the contractor is justified in abandoning the work and the contractor is entitled to enforce its claim

for lien to the extent of the actual value of the work performed and materials supplied up until that

time, and the court may award the innocent contractor damages for breach of contract or damages

on a quantum meruit basis in lieu of or in addition to damages for breach of contract.”

[103]

[104]

That description I find applies to this case.

Mr. Hobson’s claim for damages is for the alleged unpaid work he did. The claim is

as follows: [$230,164.00 (contract price) + $62,526.60 (extras) - $26,257.28 (5 credits)] x 1.13 (HST)

- $243,383.54 (payments) = $57,686.11. His lien claim is for $50,720.33 of this amount, and his

additional damage claim is for the remainder. The defendants dispute the contract price, the extras

and the payments. I am not sure of their position on the credits.

c.1)

Contract price

Mr. Hobson asserts that the contract price was $230,164.00 without HST and

[105]

$260,085 with HST. The defendants assert that the contract price was $258,205.44 with HST.

Having examined the issue and the evidence I have concluded that the defendants’ calculation did

not account for the HST on the missed portion of the allowances when the contract price was tallied

in Contract 3. I find that Mr. Hobson made the correct determination of the contract price.

18

c.2)

Extras

[106]

To prove his extras, Mr. Hobson had the onus of proving that the claims fell wholly

outside the scope contemplated by Contract 3; see King Road Paving and Landscaping Inc. v. Plati, 2017

CarswellOnt 1712, at paragraph 97.

[107]

Mr. Hobson at trial claimed 44 extras totaling $62,526.60 plus HST. The parties

prepared a Scott Schedule on extras, which I will refer to. Prior to trial Mr. Hobson withdrew the

claims for extras 11 and 19.

[108]

Other than extras 43 and 44, which I will deal with separately, the claimed extras fell

into three groups:

a) extra necessary work allegedly not shown on the contract drawings: extras 6, 7, 8, 10, 12, 17

and 18;

b) extra work allegedly required by the defendants: extras 2, 13, 14, 15, 20, 21, 22, 24, 25, 26,

27, 28, 29, 30, 32, 34, 35, 39, 40 and 41; and

c) extra work allegedly required by Mr. Forte, the City inspector: extras 1, 3, 4, 5, 9, 16, 23, 31,

33, 36, 37, 38 and 42.

[109]

The defendants have accepted only one extra, namely extra 39 for the backflow

prevention valve installation. But they only accept $1,500 of that extra, namely half the claimed cost

of $3,013.71.

[110]

The defendants deny the other extras. They claim that they were all included in the

scope of Contract 3. As stated earlier, they rely heavily on a February 18, 2016 text from Mr.

Hobson written about a month before Contract 3 was signed wherein he stated in passing that

$295,000 was a reasonable price “for a finished product.” They allege that this bound Mr. Hobson

to his eventual fixed price in the contract with no changes. They argued that Mr. Hobson’s use of

the word, “renovate,” to describe his work in Contract 3 created an ambiguity that should entitle the

court under the doctrine of contra proferentem to interpret the scope against Mr. Hobson’s interest and

with this comprehensive view.

[111]

As I stated earlier, this is an unreasonable position and I do not accept it. I will

reiterate my reasons and add another one. First, the text itself was just a passing comment by Mr.

Hobson, not a firm representation about contract scope. Second, much negotiation and price

reduction happened between the time of the text and the date of the contract. How could the text

be in any way relevant to the eventual contract interpretation? Third, the use of the word,

“renovate,” does not create an ambiguity. Fourth, and most importantly, Contract 3 expressly

contemplated extras. It expressly stated that Mr. Hobson could claim for extra costs and time that

resulted from decisions made by others, including the owners, that changed the scope or increased

worktime. The defendants signed this document. Fifth, as Mr. Roth pointed out, the February 18,

2016 text was not pled by the defendants. This position seems to have been arrived at by them close

to trial, which undermines its credibility entirely. Sixth, it is commercially grossly unreasonable for a

contractor to agree to a fixed price and no extras concerning renovation work on a 100 year-old

house. There are so many unknown risks in such a project.

19

[112]

The defendants also deny that they agreed to any of these extras in advance of the

work. Contract 3 did not expressly require the owner’s approval in advance for chargeable extra

work, but it was undisputed that such a requirement should be implied. In any event, the law

concerning extras requires such approval by the owner; see King Road Paving, op. cit., paragraph 97.

[113]

This issue was a troubling one given Mr. Hobson’s exceedingly poor record keeping

and unclear recollection on this issue. I have already commented on Mr. Hobson’s changing position

during this reference as to the dates on which the extras were allegedly agreed to by the owners. He

clearly does not have a good memory of when these approvals took place.

[114]

But, having considered the evidence, I have decided to accept Mr. Hobson’s

assertion that the defendants’ approved his claimed extras in advance. In addition to preferring Mr.

Hobson’s evidence generally over that of the defendants as previously discussed, I note the evidence

corroborating this approval in the following specific cases:

 Concerning extra 1, spray foam, Ms. Kan sent Mr. Hobson an email on February 24, 2017

asking, “how much was the spray foam again?” She then paid for the spray foam.

 Concerning extra 5, engineering costs, Ms. Kan texted on February 3, 2017 asking how

much the engineer wanted. At discovery, she admitted paying the engineer.

 Concerning extra 15, the bedroom niche, Ms. Kan admitted at discovery that either she or

her mother asked for this item, and saw it constructed.

 Concerning extra 20, pocket doors for the master bathroom, Ms. Kan texted on October 17,

2016 that “Dave wants pocket for the ensuite.”

 Concerning extra 30, the prayer nook, on March 9, 2017 Mr. Hobson texted a picture of the

prayer nook under construction advising that we can “do something special here.” This

clearly concerns extra work.

 Concerning extra 35, the bench footing, on January 27, 2017 Ms. Kan texted Mr. Hobson

the following: “What’s the process for reducing the bench footing? Can your engineer write

another letter stating that it can be smaller?”

 Concerning extra 41, prime drywall, on August 31, 2016 Ms. Kan texted Mr. Hobson the

following: “Will you be able to get me a quote to have the place painted? I vaguely

remember you saying your commercial painter can do it around $4/sqft.”

[115]

These are seven instances when Ms. Kan either expressly or impliedly approved of

extra work Mr. Hobson is now claiming the costs for. They show that Mr. Hobson worked on these

extras pursuant to approvals. I note as well that at discovery Ms. Kan gave equivocal answers when

asked as to whether the following were extras: roof joist repair; the powder room change due to new

appliances; the prayer nook; the sump pump; and back flow valve (which the defendants now

accept). Given this evidence, I have decided to accept Mr. Hobson’s assertion that the defendants

expressly or impliedly approved the claimed extra work in advance.

20

[116]

The fact that Mr. Hobson did not bill for the extras during his time on the project

was an issue. On its face, this fact might make one wonder whether there was in fact approved extra

work. But the evidence as a whole has convinced me otherwise. First, Contract 3 does not expressly

address the timing of billing for extra work other than to say that such work is to be invoiced “as

necessary.” Second, it had been the practice of the parties in Contracts 1 and 2 to wait until the

completion of the work to have the extras finally discussed, billed and paid for. Mr. Hobson stated

that he just continued that practice into Contract 3. That may have been naïve of him given the

vastly larger scale of Contract 3; but it is an understandable explanation for his conduct.

[117]

There is one exception to this analysis. That is extras 43 and 44. This was discussed

earlier. These two items total $10,000 and concern tile installation and the hanging of the interior

doors. There is no dispute that these items formed a part of the original scope of Contract 3.

Indeed, Mr. Hobson did not claim these items as extras for the better part of this reference. In the

end, he did, alleging that the defendants wanted the work done while Mr. Hobson was away on his

Nepal trip to mitigate further project delay and that the defendants agreed to pay the third party as

an extra. The third party was Mr. McCrie. It is undisputed that the defendants paid an extra $10,000

for this work.

[118]

Because this was work within the contract scope, there was, in my view, a very high

onus on Mr. Hobson to show corroboration for his evidence that the defendants agreed to pay these

items as extras. He did not provide such corroboration. It makes no sense that the defendants would

have agreed to pay for this scope work as an extra to mitigate project delay caused by Mr. Hobson’s

lengthy trip abroad. I not only do not view these items as extras, I find that the $10,000 payment was

a payment to Mr. Hobson on account of the contract price.

[119]

As for the other extras claims, the question of whether they fell outside the Contract

3 scope was not otherwise challenged. The scope was defined by the words of Contract 3 and the

Fensham drawings A1 to A12 that existed as of the date of the contract, March 17, 2016. In his

initial affidavit Mr. Hobson described in great detail how each extra fell outside the scope of

Contract 3 and particularly the Fensham drawings. This detail impressed me.

[120]

The defendants’ evidence, on the other hand, did not challenge the extras claim on

this technical level. Ms. Fensham gave no evidence concerning the Hobson extras. Mr. Bumbaca did

not even read Contract 3. Mr. McElhinny gave evidence about what was in the scope of Contract 3

but only as it related to the alleged deficiencies, not the Hobson extras claims.

[121]

Concerning the quantum of the extras claims, Mr. Hobson in the end based the

claims on the costs he said he incurred in each case. As stated earlier, he initially filled out the Scott

Schedule concerning extras indicating that they were all “fixed price.” He later changed the “fixed

price” to either pre-estimated figures to be finalized at the end of the work or no pre-estimates at all.

As I stated earlier, I find Mr. Hobson’s confusion about the phrase, “fixed price,” puzzling as that

concept is generally well known in the construction industry.

[122]

But in the end the evidence was clear that Mr. Hobson based his claim on costs. As

he indicated in his affidavits, Mr. Hobson tallied the extras and calculated their cost on an ongoing

basis on a spreadsheet, which he then used to prepare his lien claim. In his first affidavit, Mr.

Hobson advised that he either used RS Means, a recognized industry source for construction costs,

or his own calculations or a combination of the two in doing his cost calculations.

21

[123]

Basing the claims on cost was consistent with Contract 3. I note that at the bottom

of the fourth page of Contract 3 in describing changes, there is the phrase, “the Contractor shall

have a right to assert a claim for such [extra] costs and time.” In short, Contract 3 specified that the

extras were to be claimed based on cost. That is what happened.

[124]

Mr. Hobson proffered the expert Mr. Bennett to support the reasonableness of his

calculation of his extras claims. Mr. Bennett was a credible witness. He was accepted as one capable

of providing an opinion on costs of construction. In his report, Mr. Bennett said his instructions

were to provide a cost estimate for the Hobson extras claim. He said he attended the site on

October 22, 2019 and that he then applied the 2008 version of RS Means, the 2008 version of a

source called, “Hanscomb Yardstick for Costing,” Mr. Hobson’s documents and Mr. Bennett’s

experience to construct his estimate.

[125]

There was an issue that Mr. Bennett did not list in his report all the documents he

received and reviewed, particularly the contract and permit drawings. There was an issue that he

used costing sources dated 2008, namely eight years before the relevant period. But these issues did

not detract from the weight I gave his evidence. In cross-examination it became clear that he was

given and reviewed the contract and permit drawings prior to rendering his opinion. He also

explained that construction pricing has remained remarkably stable for some time thereby justifying

his use of his cost sources.

[126]

Mr. Bennett estimated each one of the Hobson extra claims. Attached as Schedule A

to these Reasons is the chart that was presented by Mr. Roth showing the Hobson extras claims

compared to Mr. Bennetts’s estimate and to the defendants’ position. The chart shows how close

the Bennett estimate is to the Hobson claim. His total for extras 1 – 42 is $56,913.10. Mr. Hobson’s

claim for the same extras totals $52,526.21.

[127]

As a result, I have concluded that the quantum claimed by Mr. Hobson, $52,526.21,

is reasonable, and I accept it.

c.3)

Payments

Not surprisingly, the parties could not even agree on how much was paid to Mr.

[128]

Hobson on Contract 3. The defendants’ evidence was unclear. Ms. Kan proclaimed in her affidavit

that the defendants had paid Mr. Hobson a total of $259,840.28 and stated that this did not include

the $10,000 payment on account of the tile and door installation. She attached an exhibit she alleged

proved the payments. I could not make sense out of it.

[129]

Mr. Hobson’s position as agued by Mr. Roth was that he was paid a total of

$243,383.54. In his reply affidavit, however, Mr. Hobson added $1,000 to the payments and stated

that the total was $244,383.54. I will, therefore, use that figure.

[130]

Mr. Hobson’s evidence as to payment was much clearer. He showed that his total

related to the invoices that were marked “paid.” He showed that this figure included the $10,000

paid for the tiles and doors.

[131]

Mr. Hobson had the clearest explanation for the discrepancy between the parties on

this issue. He referred to and reviewed the handwritten entries made by Ms. Kan on the back of her

22

copy of Contract 3. These handwritten entries appear to concern costs allegedly made to Mr.

Hobson. These costs fell into three categories:

 Three payments on account of the contract price on March 9 and 23, 2017 totaling

$45,502.84. These costs were accounted for in Mr. Hobson’s total.

 Five payments made to Mr. Hobson on account of plumbing ($7,700), electrical work

($5,000) and HVAC ($8,000) totaling $20,700. These are not in Mr. Hobson’s total. I agree

with Mr. Hobson that they should not be included as these items do not relate to Mr.

Hobson’s scope.

 Three payments on account of engineering costs ($970), storage ($30) and the backflow

valve extra ($1,700) totaling $2,700. These were not included in Mr. Hobson’s total. I fail to

understand why they were excluded as they pertain to Mr. Hobson’s scope. I have included

them in my analysis.

[132]

Therefore, I have concluded that Mr. Hobson was paid a total of $247,083.54 on

account of Contract 3, namely $244,383.54 + $2,700 = $247,083.54.

c.4)

Credits

[133]

Mr. Hobson deducted certain credits to determine his claim. He identified five

credits totaling $26,257.58. They are the following:

 Windows, - $111.05: In Contract 3 the windows were an estimated item, namely $12,430. Mr.

Hobson showed that the windows were purchased at a price of $9,152.55. He estimated the

labour at $3,166.40 using the rates and methods he had used to derive the contract price.

This generated a total of $12,318.95, creating a $111.05 credit to the defendants. I find this

assessment reasonable.

 Skylights, +$1,063.71: The skylights were another estimated item in the contract at $1,695.

Mr. Hobson showed that the material cost was $2,092.11. He calculated the labour cost

using his method at $666.60. This generated an overage of $1,063.71 which, because this

was an estimated item, the defendants are liable to pay. I accept that assessment.

 Front porch, -$ 847.50: Mr. Hobson wanted to credit the defendants for work he did not

complete. One such item was the front porch. The contract item for “New rear Patio” and

“repairs and modifications to front porch in bin area” was a combined $5,650. This was not

an estimated item. Mr. Hobson focused only on the front porch which, he said, had a

contract price of $4,650. He did calculations and asserted that the uncompleted work on the

front porch was $847.50. I did not understand his calculations. I also did not understand

why the rear porch portion was also not credited as that work was not done. I have decided

to increase this credit to $2,000.

 Siding, -$6,535: The siding for the addition and the second floor was an estimated item in

Contract 3 at $22,600. Mr. Hobson did not finish this work. He estimated that unfinished

work by applying the rate of $5 per square to the areas that were unfinished. This was the

rate he used to create the contract price. He came to a total of $6,535 as the value for the

23

unfinished siding work. I note that the defendants state in the Scott Schedule on

deficiencies at item 106 that they paid or will pay $19,300 to complete the siding. There was

no corroboration for this amount from the defendants or Mr Bumbaca. I, therefore, accept

the Hobson analysis here.

 Allowances, -$19,827.44: Mr. Hobson then did a calculation of what remained uncompleted

from the allowances in Contract 3. Contract 3 had 27 allowance items totaling $37,397. Mr.

Hobson created a chart that showed that he had worked on 6 items for amounts in excess

of the allowance items, that he had worked on 14 items for amounts less that the allowance

items and that he had done no work on 7 items. He came to a total of $19,535 as what he

said was the value of the uncompleted work concerning the allowances. The Scott Schedule

on deficiencies showed amounts for these items that the defendants claim they have paid or

will pay to complete. The defendants did not, however, address this issue directly and in

detail in their evidence. Therefore, I accept Mr. Hobson’s analysis.

[134]

This analysis produces the following total credits: $1,063.71 (skylights) – $111.05

(windows) - $2,000 (porches) - $6,535 (siding) - $19,535 (allowances) = -$27,117.34.

[135]

But I do not find these credits a sufficient reflection of what Hobson work remained

outstanding as of May 18, 2017. Mr. Hobson showed a pattern of overestimating and overbilling

completed work and underestimating outstanding work. Mr. Hobson conceded in his initial affidavit

that the second and third payments of the contract price were to correlate with the “value of the

Project.” Yet, they did not. By the time of the addition permit in September, 2016 when Mr.

Hobson stated that the core of the project began, Mr. Hobson had billed and been paid half the

contract price. Also, shockingly, in cross-examination Mr. Hobson was surprised to learn that by

May, 2017 he had billed and been paid as much as a part of the holdback, when that should not have

been billed until completion. As a result, I reviewed Mr. Hobson’s assessment of the state of

completion as of May 17, 2017 critically.

[136]

I found that assessment wanting. In the Scott Schedule on deficiencies I noted that

with 17 items that Mr. Hobson did not identify as allowances and that did not concern windows,

skylights, porches, siding or allowances, his response was that the work was unfinished, and he

assigned values to the costs to complete. Common unfinished work was drywall, stairs, tiling,

cabinetry and hardwood flooring. These were items 17, 23, 24, 25, 26, 27, 29, 34, 37, 52, 73, 108,

111, 115, 122, 127 and 133. The original of Mr. Hobson’s valuations for these items totaled

$14,377.28.

[137]

There are also 11 additional such items that contain a response from Mr. Hobson

confirming that the work in issue was unfinished. He did not assign completion cost values to these

items. They are items 11, 18, 57, 62, 80, 83, 84, 88, 97, 130, 131. The figures inserted by the

defendants as their costs to complete these items, which totaled $15,805, were again not addressed

clearly and directly in the defendants’ evidence. I will, however, give some recognition to these

additional unfinished items.

[138]

As a result, I have decided to increase the credits to be given to the defendants by a

figure of $20,000. That brings the total credits to -$27,117.34 + -$20,000 = -$47,117.34.

24

VI.

CONCLUSION

In conclusion I find that Mr. Hobson has a lien in the following amount:

[139]

[$230,164.00 (contract price) + $52,526.21 (extras) - $47,117.34 (credits)] x 1.13 (HST) - $247,083.54

(payments) = $19,113.80. The defendants are also personally liable to pay the plaintiff this amount.

Mr. Hobson has no additional damage claim.

[140]

[141]

I dismiss the defendants set-off and counterclaim in its entirety.

I directed that the parties file costs outlines concerning this reference. The plaintiff

filed a costs outline that showed a total of $145,934.62 in partial indemnity costs and $216,884.97 in

substantial indemnity costs. The defendants filed a costs outline that showed $131,915.70 in partial

indemnity costs and $188,074.67 in substantial indemnity costs.

[142]

If the parties cannot agree on a costs award, all those seeking costs must serve and

file written submissions on costs of no more than three pages on or before July 24, 2022. All those

responding to these costs submissions must deliver responding written submissions on costs of no

more than three pages each on or before August 8, 2022. Any reply written submissions of no more

than two pages must be served on or before August 15, 2022.

[143]

Please note that these written submissions must address the prejudgment and post-

judgment interest to be calculated and paid on the judgment amounts.

Released: July 11, 2022

_____________________________

ASSOCIATE JUSTICE C. WIEBE

25

Schedule A

Item

Description

Hobson

Bennett

Owners

Prepare peaked roof in

front bedroom, second

floor, for spray foam

1

2

3,095.37

413.15

3,080.69

386.06

0.00

Prepare joist pockets

on second floor for

spray foam

Load bearing wall on

second floor to

support as required by

City Inspector

3

3,565.14

481.01

3,666.95

944.74

0.00

Plumbing changes to

accommodate new load

bearing structure in

Item 3

4

5

Engineering and design

consultation for Items

3 and 42

Level Ceiling on the

second floor

Repair damaged joist to

flat roof

Repairs to 2nd floor

bathroom

1,974.85

1,987.30

1,576.83

531.88

1,974.09

1,998.80

1,746.14

564.74

0.00

6

7

8

Metal Bracket to tie

second floor addition

to existing house on

second floor level

Repair to 2nd floor

middle bedroom

window frame

Addition of fire

separation to peaked

roof area

9

1,449.96

292.96

1,163.60

200.09

847.32

0.00

10

11

1

2

Creation of fire

12

13

separation between

party wall at flat roof

Sound proofing to 2nd

floor firewall

422.80

982.39

0.00

separation

2,055.70

4,387.50

26

Soundproofing to 2nd

floor front bedroom

front wall

Addition of small

closet: niche in front

bedroom

14

15

16

965.71

198.41

1,435.30

59.46

0.00

Rough in Scuttle hole

for attic in 2nd floor

front bedroom

Repair to front window

Create Temporary Stair

Case 2nd floor

Main floor stair case

Pocket doors – Master

bathroom

252.98

306.11

380.00

310.96

0.00

17

18

19

20

1,074.56

802.58

1,622.00

620.00

0.00

Plumbing changes to

accommodate pocket

doors

Box and finishing to

hide plumbing vent

lines

21

22

279.63

220.42

319.60

355.00

0.00

Extension to HVAC

bulkhead for HVAC

changes required by

City Inspector

Prepare joist pockets

on first floor for spray

foam required by City

Inspector and spray

foam sub-contractor

Buy and collect

23

24

2,179.00

413.14

1,436.16

419.82

0.00

25

26

27

additional tile for rear

landing

Changes to powder

room layout

Changes to powder

room framing layout

and plumbing

771.53

863.25

771.53

887.60

0.00

939.96

689.55

817.20

689.55

0.00

Hardwood flooring

underlay

28

29

Changes to oven

location and framing

Prayer Nook

1,229.03

328.68

1,329.32

1,237.02

359.56

1,675.74

0.00

30

31

Basement staircase

27

Replace Moldy

Insulation and 2x4

walls to exterior walls

of basement

32

33

34

5,050.47

1,225.55

5,068.71

976.40

0.00

Changes to Framing to

suit new HVAC

Prepare joist pockets in

basement for spray

foam required by City

Inspector

Design and Structural

Changes to bench

footing

469.69

458.80

0.00

35

36

1,225.55

1,528.76

Additional drain for

HVAC system floor

drains for the basement

923.15

826.15

0.00

Support for Basement

staircase and main

floor addition

Sump pump

Back flow prevention

valve

37

923.15

4,897.98

798.18

4,680.33

0.00

38

39

3,013.71

3,065.04

1,500.00

Permits to cross

sidewalk x 3

Prime all drywall

Create load bearing

wall in basement

Tile installation

40

41

42

528.96

2,663.72

535.66

2,675.57

0.00

913.46

6,800.00

3,200.00

959.90

0.00

43

44

3

Hanging interior doors

Total

1

62,526.20 56,913.11

1,500.00

0.00

Notes

Extra No. 11 is removed from Contract No. 3 as the work was done under Contract No. 2

and paid.

The amount claimed for Extra No. 13 was $4,284.54. Bennett valued the work at $4,387.50.

Hobson was paid $2,228.84 under Contract No. 2. If that is credited, then the new numbers

for Hobson and Bennett would be $2,055.70 and $2,158.66, respectively.

2

3

Extra Nos. 43 and 44 are claimed but were not presented to Bennett for review.

28

CITATION: Hobson v. Turner, 2022 ONSC4062

COURT FILE NO.: CV-17-580793

ONTARIO

SUPERIOR COURT OF JUSTICE

In the matter of the Construction Act, R.S.O. 1990, c. C.30

B E T W E E N :

Michael Hobson

.

Plaintiff

- and -

David William Turner

and Yin Dawn Kan

Defendants

REASONS FOR JUDGMENT

Associate Justice C. Wiebe

Released:

July 11, 2022

29