Ontario Superior Court of Justice (Small Claims Court) BARBARA DOWDS. - and - SCHEDULE A PLAINTIFF S CLAIM

Transcription

1 Court File No /12 B E T W E E N : Ontario Superior Court of Justice (Small Claims Court) BARBARA DOWDS - and - Plaintiff DESIGNER SUNROOMS AND ADDITIONS o/b ONTARIO LTD. Defendant SCHEDULE A PLAINTIFF S CLAIM Claim 1. The Plaintiff claims against the Defendant as follows: (a) Damages for breach of contract, negligence, and misrepresentation, in the amount of twenty five thousand ($25,000.00) dollars, or such further and other amounts as may become known, and shall be disclosed, prior to trial; (b) Pre-judgment interest and post judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; (c) Costs of the action on a full indemnity scale including all applicable taxes; and (d) Such further and other relief that this Honourable Court deems just.

2 - 2 - Parties 2. The Plaintiff, Barbara Dowds (the Plaintiff or Ms. Dowds ), is a human person, a Canadian citizen, and at all material times the owner of the residential dwelling and real property located at the address municipally known as 28 Burningham Crescent, Ajax, Ontario (the Property ). 3. The Defendant, Designer Sunrooms and Additions as operated by Ontario Ltd. (the Defendant or Designer Sunrooms ), is a legal person, a corporation duly incorporated pursuant to the laws of the Province of Ontario, and whereas Ontario Ltd. was at all material times doing business as Designer Sunrooms and Additions and who was at all material times carried on business as a contractor installing sunrooms and additions among other things. Background 4. On or about November , the Defendant was contracted by the Plaintiff to provide or obtain designs, plans, specifications, and permits, as well as to perform, manage, or supervise, the construction or installation or erection of a two storey sunroom addition including exterior decking with stairway and railings (the Project ). 5. On May , a building permit for the Project was issued by the Town of Ajax. 6. In or about May 2012, the Defendant commenced work upon the Project. 7. In or about July 2012, the Plaintiff began reporting defective and deficient work with requests for correction or remediation to the Defendant.

3 Subsequently, the Defendant investigated the defective and deficient work and failed to correct or remediate such defective and deficient work. 9. In or about October 2012, the Plaintiff commenced remedial work by hiring consultants and contractors as necessary to correct and remediate the Project or otherwise ensure the making good of the defective and deficient workmanship of the Defendant. 10. On or about October , the Plaintiff received a Hazardous Investigation Defect Notice from the Electrical Safety Authority identifying defects in respect of electrical workmanship performed by the Defendant and instructing that remedial work be performed. 11. On or about October , the Plaintiff received an expert roofer s commentary report identifying defects in respect of improper installation of roofing materials and eaves troughs, installation of roofing materials below the grade of materials as specified within building code regulations, 12. On or about November , the Plaintiff received an investigative consultant s moisture mapping and thermal imaging report identifying defects in respect of improper installation of roofing materials, structure slope, and flashings that require correction to ensure that run-off water may properly drain away from structures. Additionally, building code violations including omission of various structural supports and improper design practices were noted. Remediation work was recommended. 13. Subsequently, the Plaintiff continues to hire, consultants and contractors charged with the task of performing work as necessary for the correction and remediation of the defective and deficient work of the Defendant.

4 - 4 - Negligence 14. The Plaintiff pleads that the damages were caused by the negligence, want of care, breach of contract, breach of duty, and breach of statute, by the Defendant, and/or its contractors, subcontractors, agents, employees or servants, for whom in law the Defendant is responsible, the particulars of which are as follows: (a) The Defendant failed to take reasonable care when in conducting its explicit and implied duties under the contract with the Plaintiff; (b) The Defendant failed to take reasonable care in performing to proper standards of workmanship; (c) The Defendant failed to follow the designs, plans, specifications, and procedures required to properly complete the Project; (d) The Defendant hired incompetent contractors, subcontractors, employees, servants, and agents, whom were without the proper knowledge and skills required to properly complete the Project; (e) The Defendant failed to adequately, if at all, ensure that the contractors, subcontractors, employees, servants, and agents, were capable of properly performing their respective functions including ability to meet the reasonable standards of proper workmanship; (f) The Defendant failed to adequately, if at all, train the contractors, subcontractors, employees, servants, and agents, as to how to properly perform

5 - 5 - their respective functions including ability to meet the reasonable standards of proper workmanship; (g) The Defendant failed to ensure the contractors, subcontractors, employees, servants, and agents, were physically fit and capable of proper performance of their respective functions including ability to meet the reasonable standards of proper workmanship; (h) The Defendant failed to use, provide, or ensure availability, of the proper machinery and tools required to carry out the workmanship as necessary to the Project; (i) The Defendant failed to consider, or consider at all, the injury, losses, or dangers, posed to the Plaintiff, the Plaintiff s family members, the Plaintiff s animals as pets, the Plaintiff s friends, and visitors whether as invitees or trespassers to the Property, when conducting workmanship; (j) The Defendant knew or ought to have known or with the exercise of reasonable diligence should have known of the knowledge and skills required and necessary to perform the work required to properly complete the Project; (k) The Defendant employed or contracted with incompetent contractors, subcontractors, employees, servants, and agents, without proper knowledge and training; (l) The Defendant failed to properly instruct, control, and supervise the work conducted by contractors, subcontractors, employees, servants, and agents;

6 - 6 - (m) The Defendant used, allowed, or failed to prevent the use, of machinery or tools or equipment, in an unsafe, unreasonable, incompetent, hazardous, and careless manner, without due care, attention, and concern, for the Plaintiff and other persons who may use or otherwise be present upon the Property; (n) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed steps and railings and whereas such improperly installed steps and railings pose risk and/or safety hazards requiring correction at substantial expense to the Plaintiff; (o) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed walls, floors, and ceilings and whereas such improperly installed walls, floors, and ceilings pose risk and/or safety hazards requiring correction at substantial expense to the Plaintiff; (p) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed electrical wiring and whereas such improperly installed electrical wiring poses risk and/or safety hazards requiring correction at significant expense to the Plaintiff; (q) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed roofing materials and whereas such improperly installed roofing materials pose risk and/or safety hazards requiring correction at significant expense to the Plaintiff;

7 - 7 - (r) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed windows and doors and whereas such improperly installed windows and doors pose risk and/or safety hazards requiring correction at significant expense to the Plaintiff; (s) The Defendant allowed or failed to prevent defective and deficient workmanship that resulted in improperly installed eaves, troughs, and fascia and whereas such improperly installed eaves, troughs, and fascia pose risk and/or safety hazards requiring correction at significant expense to the Plaintiff; (t) The Defendant failed to act in a prudent and cautious manner and in accordance with the accepted standards of workmanship governing their trade; (u) The Defendant failed to act in a prudent and cautious manner and in accordance design, plans, and specifications of the Project; (v) The Defendant undertook to complete or perform the Project despite lacking the requisite licensing, experience, equipment, expertise, knowledge, skills, and qualifications; (w) The Defendant failed to re-attend at the Property to make reasonable and proper corrections to those parts of the Project that were defective and deficient; (x) The Defendant was incompetent and ought to have refrained from undertaking to complete the Project;

8 - 8 - (y) The Defendant created dangerous conditions that posed risk and/or safety hazards that were, or will be, corrected at significant expense to the Plaintiff; and (z) The Defendant created cosmetically unappealing work that devalued the Property and were, or will be, corrected at significant expense to the Plaintiff. Breach of Contract and Misrepresentation 15. Further and in the alternative, the Plaintiff pleads that the Plaintiff and the Defendant entered into a legally binding contract with respect to the Project. 16. The contract contained implied and express terms requiring the Defendant to properly conduct and perform its duties and workmanship in completing the Project including refraining from causing loss or damage to the Property as a result of the work and refraining from creating or causing risk and/or safety hazards as a result of the work. In breach of the said contract, the Defendant failed to ensure that the work was conducted properly. 17. The Plaintiff further pleads that the contract with the Defendant contained the following express or implied terms whereas the agreement was such that: (a) The Defendant, contractors, subcontractors, employees, servants, and agents, were properly qualified and well experienced with the necessary experience, skill, expertise, training, and knowledge to undertake the work required to properly complete the Project;

9 - 9 - (b) The Defendant would fully and completely correct, repair, or replace, all faulty materials and workmanship flaws including all damages caused to the Property or hazards created upon the Property as arising out of or related to the Defendant s operations; (c) The Defendant would perform all work in a good, safe, and workmanlike manner; (d) The Defendant would complete and deliver the Project free from defective and deficient workmanship; and (e) The Defendant would employ and assign work only to persons experienced, qualified, skilled, competent, and physically fit, to perform the work required. 18. Further and in the alternative, the Plaintiff pleads that the negligence of the Defendant as aforesaid also constituted a breach of the contract. 19. The Plaintiff states that the work performed with respect to the Project was at all material times under the sole care, possession, and control of the Defendant. 20. The Plaintiff therefore pleads and relies upon the legal principle res ipsa loquitor and states that it is plain and obvious that the defective and deficient workmanship arose as a result of the conduct of the Defendant. 21. In entering into the contract with the Defendant, the Plaintiff relied upon the following representations made by the Defendant: (a) That the Defendant was properly qualified and well experienced in the work necessary to complete the Project;

10 (b) That the Defendant had the necessary experience, skill, expertise, training, and knowledge, to undertake the Project; and (c) That the Defendant was qualified, competent and properly trained, and where necessary also properly licensed by the Province of Ontario. 22. The Plaintiff relied on the misrepresentation statements and suffered detrimentally as a result. Damages 23. The Plaintiff pleads that as a result of the Defendant s negligence, lack of care, breach of duty, breach of contract, and negligent misrepresentation, as set out herein, the Plaintiff has suffered damages, including property damages, out-of-pocket expenses, loss of enjoyment of property, diminution of value of property, and such further and other damages for which the particulars shall be provided to the Defendant prior to the trial of this action. 24. It was a foreseeable consequence that as a result of the Defendant s conduct, the Project would be unsatisfactorily completed, many risk and safety hazards would be created, the Plaintiff would be put to expense in correcting the Defendant s work, and the Property would be damaged or devalued. 25. The Plaintiff pleads and relies upon the provisions of: (a) The Negligence Act, R.S.O. 1990, c. N.1; (b) The Building Code Act, 1992, S.O. 1992, c. 23;

11 (c) The Ontario Electrical Safety Code; (d) The municipal bylaws of the Town of Ajax or Regional Municipality of Durham; (e) The amendments and regulations to the statutes listed above; and (f) The further and other statutes and regulations the particulars of which shall be provided to the Defendant prior to trial. Jurisdiction 26. The Plaintiff resides in the Town of Ajax within the Regional Municipality of Durham. 27. The Defendant conducts business within the Regional Municipality of Durham. 28. The wrongdoings as alleged occurred within the Regional Municipality of Durham. 29. The Plaintiff proposes that the trial of this action take place within the Regional Municipality of Durham at the Superior Court of Ontario Small Claims Court located in the City of Oshawa. Dated: December F.P. LEGAL SERVICES PROFESSIONAL CORPORATION 36 Park Road South Oshawa, Ontario L1J 3G8 Lori Flock LSUC# P06943 T: Paralegal for the Plaintiff