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Ontario Court of Appeal upheld an administrative dismissal for delay, finding no palpable error in the motion judge’s refusal to set it aside under Rule 48.14(1).
The contract was a cost-plus agreement obliging payment of direct costs plus $10,000 profit and required the contractor to keep and produce proper records; the Defendant failed to produce adequate records and thus failed to discharge the onus of proving its claimed costs, the Claimant proved he was overcharged, and the appropriate remedy within Small Claims jurisdiction is an award of $25,000 plus modest costs; the Defendant's counterclaim is dismissed for lack of evidence.
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The court dismissed a defendant’s late applications to amend its pleading, file a counterclaim, and adjourn trial in a construction dispute, finding undue delay and prejudice.
The adjudicator found the oral figures were estimates not binding quotes; the defendants passively acquiesced to continued work despite knowing costs could rise; the claimant improved the property by providing a viable well and is therefore entitled to recover the invoiced amount under quantum meruit/contract, with interest and certain costs; alleged electrical faults were disproven by electrician's letter and no deduction was warranted.
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The Court dismissed the claim because the Claimant failed to prove a contractual breach: the contract and homeowner's manual permitted substitutions, the Claimant signed off or failed to inspect and notify the Defendant of any 'major' change, and the Defendant's remedial work and goodwill extras adequately compensated any minor defects; absent a counterclaim the Court cannot order disgorgement of the holdback.
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The adjudicator found the parties remained bound by the hourly contract rate (effectively $80/hour as applied on invoices), the $250 figure was an average estimate not a contract amendment, the defendant reviewed and paid invoices without timely objection, and there was no evidence of causation or loss from any alleged misrepresentation; therefore the claimant was entitled to the unpaid invoices and the defence failed.
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Defendant caused damage; claimant may offset reasonable repair costs paid to a third party against the defendant's outstanding invoice despite lack of privity; after discounting for betterment and assessing reasonableness, the court fixed the defendant's net liability at an amount that offsets the defendant's claimed balance, resulting in no payable judgment and dismissal of both claim and counterclaim.
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On the balance of probabilities the court found the defendant performed partial work, purchased and delivered materials; the defendant is entitled to deduct reasonable labour ($1,450.00) and materials ($3,308.24) from the $6,210.00 deposit, resulting in a net judgment for the claimant of $1,451.76; the claimant failed to produce admissible evidence contradicting defendants' witnesses and receipts.
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The communications, negotiated figures and subsequent payments in February–March 2021 amounted to a binding settlement (accord and satisfaction) that resolved all claims between the parties; the claimant did not establish illegitimate pressure amounting to economic duress, therefore the claim and counterclaim are dismissed.
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The delays in obtaining power and final inspection were caused by Hurricane Fiona and Nova Scotia Power, not by fraud or actionable breach by the Defendant; the Claimants were not entitled to rescind or to damages because they suffered no proven loss and could have sought an extension; therefore the Claimants' claim is dismissed and the Defendant's counterclaim succeeds, entitling the Defendant to retain the deposit and recover assessed losses totalling $14,871.60.
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