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 defendantsplans 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  
priceand 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 defendantsevidence.  
[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 renovationsis 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  
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  
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  
0.00  
0.00  
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  
0.00  
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  
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  
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  
0.00  
17  
18  
19  
20  
1,074.56  
802.58  
1,622.00  
620.00  
0.00  
0.00  
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  
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  
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  
0.00  
939.96  
689.55  
817.20  
689.55  
0.00  
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  
0.00  
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  
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  
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  
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  
0.00  
913.46  
6,800.00  
3,200.00  
959.90  
0.00  
43  
44  
3
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  


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