Indexed as: Ontario Ltd. (c.o.b. Ontario Aluminum and Glass) v. Tavares

Transcription

1 Page 1 Indexed as: Ontario Ltd. (c.o.b. Ontario Aluminum and Glass) v. Tavares Between Ontario Limited. carrying on business as Ontario Aluminum and Glass, plaintiff, and Carlos Tavares Ontario Ltd. carrying on business as Carpet Terminal and Maria Tavares, defendants [1995] O.J. No Court File No. 93-CQ Ontario Court of Justice (General Division) Conant J. Heard: May 25 & 26, Judgment: June 16, (8 pp.) Contracts -- Contract for work, materials and services -- Building contract -- Remuneration. The plaintiff claimed $5,500 for labour and materials it supplied in the installation of aluminum windows on property of the defendants. The work was to be done in phases at a total cost of $19,500, The plaintiff did some work for which it was paid $9,400. The defendant requested the plaintiff to do some work on phase two for which there was no written agreement as to what should be paid when that phase was completed. An officer of the plaintiff said that he told one defendant that he would require an additional $5,500 which the defendant denied. There was discussion of a cheque given by the defendant for $16,900 as settlement for work done on all three phases. The plaintiff refused to accept the money. There were alleged repairs for deficiencies in the sum of $400. The plaintiff placed a lien on the property. HELD: Judgment was given to the plaintiff for the amount claimed less $400. The Court believed the plaintiff's evidence with respect to the amount due for the second phase. There was merely an attempt to settle the overall account by the tendering of the cheque. The lien was discharged as it

2 Page 2 was not perfected within the time allowed. Statutes, Regulations and Rules Cited: Construction Lien Act, s. 36(2). Counsel: Theodore P. Charney, for the plaintiffs. D.A.G. D'Oliveira, for the defendants. 1 CONANT J.:-- Although other matters arose from the business dealings between the parties, this claim is primarily for the collection of $5, for labour and materials supplied by the plaintiff in the installation of aluminum windows on property of the defendants at 1305 Dundas Street West, Toronto. 2 It is generally conceded that in the fall of 1991 the plaintiffs by written contract of September 20th, 1991 installed commercial doors and store fronts on the building for which the plaintiffs were paid. The defendants have a 3-floor commercial building at that site and later in 1991 the parties agreed that, without specifics of details of work to be done, time frame for work to be completed or plan for payment, the plaintiffs would install glass windows and doors on the first, second and third floors. Obviously, the arrangement was very loose and the parties worked together in that work and the first phase was completed on the first floor in a timely manner. Over a period of the first year business relationship a total of $9, in cash and kind in the form of carpets were given to the plaintiffs. The overall amount agreed upon verbally for all three phases was $19, In April of 1993 the defendants had an imminent rental of the second floor and requested the plaintiffs to complete the glass work on that floor. This was regarded by all as phase two. There was no documented agreement as to what should be paid when phase two was completed. However, Mr. Antonio Silva, an officer of the plaintiff company, testified that he stated to Mr. Tavares, one of the defendants, that at completion of this urgent phase two installation he would require $5,500 in addition to the monies received thus far. Mr. Tavares denied that this amount was agreed upon. I accept the evidence of Mr. Silva over that of Mr. Tavares in this vital business arrangement as, in my view, his evidence was much more clear and unequivocal. The evidence of Mr. Tavares was more ambiguous it being easy to understand he may not nave a clear recollection of an arrangement over two years ago, taking into account that he is a businessman of many ongoing financial dealings in several fields. It is astounding to me that neither party initialled, made memo of or recorded in their own business documents the amount to be paid when these emergency sets of glass were installed. In my view, on the balance of probabilities, this amount of $5,500 was a fair and

3 Page 3 agreed-upon amount, having in mind that there would still be almost $5,000 to be paid upon the third phase of the three-phase program. There was much discussion of a cheque given by Mr. Tavares for $16,900.00, about the time of the completion of phase two, as a settlement in full for all three phases. This originally was initialled by Mr. Silva, but upon consideration by his business associates, the offer was returned. In my view, this cheque was merely an attempt to settle the overall account by means of a postdated cheque and at a discount of $2, Although a portion of the project was uncompleted and no time limit was set on for that completion, this was, in fact, merely an attempt and the original agreement of $19, remained the overall price. I am therefore satisfied on the balance of probabilities that, at the end of phase two, the plaintiffs should receive $5, There was evidence by the parties that there was some minor deficiency for the completion of the water-tight windows to be installed with caulking. The defendants produced, after the witness who was alleged to have prepared the invoice had appeared in Court, an invoice of $1, for work done. I totally disregard this document as a later-than-last attempt to document the deficiencies. I am satisfied that there were small deficiencies and I note that in the Statement of Defence, "Tavares states and the fact is that repairs in excess of $ are necessary to be made to the work done by the plaintiff." I do therefore allow $ as a deduction from the $5,500 because of the deficiency. 5 I therefore give judgment to the plaintiffs in the amount of $5, This shall be judgment as against Carlos Tavares, the plaintiff, at the outset of trial, having abandoned against the remaining defendants listed in the style of cause. 6 Sometime after the discussions for payment and completion of work the plaintiffs placed a Construction Lien against the premises. The affidavit in support of the Lien by Mr. Silva indicated that work was done from April 25th to 27th, Mr. Silva had absolutely no documentation to support his contention of the completion of the work on Tuesday, April 27, His affidavit was faulty in that work was stated to have been done on the 25th, being a Sunday, and in evidence he agreed that he did not work on the premises on a Sunday. The defendant had Mr. Avelina Silva as witness, he being the General Contractor to put the second floor in habitable state for the new tenants. Mr. Avelina Silva testified on behalf of the defence that the glasswork was done the week before, about April 21st or 22nd. He also had no records whatsoever as to the timings of work done, either his job or the Subcontractor's. I am also skeptical of his evidence because of lack of clarity but also that he has continued and, to the present day, is employed extensively by the defendants on their construction work. 7 Thus, time of the last work by the plaintiff has to be assessed by other-than direct evidence of those employed on the site. I note evidence of Mr. Danny Silva, brother of Antonio Silva of the plaintiff company, who was on the job:

4 Page 4 "Q:... when is the glass delivered to Ontario Aluminum? A: Usually within a day or so. Q: Before or after the invoice? A: Before the invoice. Q: Does the document indicate when the glass was delivered? A: The invoice is April 20th, so I would assume it had to be delivered on the 19th. Q: Triple seal physically delivers the glass to the work site? A: Always. Q: And someone from Ontario Aluminum signs the packing slip? A: Exactly. Q: And then you get an invoice? A: Yes." 8 I note that the packing slip of the glass company is dated April 20th and states "re 1305 Dundas St. W.". From evidence of Mr. Antonio Silva, his workmen receive the glass upon delivery, apply aluminum edging and frames and install the completed windows in the building. On the balance of probabilities, I am satisfied that the glass was delivered to the premises on or about the 19th or 20th of April and that the windows were installed very shortly thereafter and the installation and works of the plaintiff were completed no later than April 22nd, This being the case, the time listed in the affidavit for the Construction Lien is inaccurate. 9 The Lien was registered on June 8, 1993, the last work having been done on April 22nd. Section 36(2) of the Construction Lien Act describes that a lien expires unless it is perfected prior to the end of the 45-day period next following the last day (of work). The Lien herein, I am satisfied,

5 Page 5 was not perfected within the time allowed. 10 I therefore find that the Construction Lien was placed improperly against the premises, and direct that the Lien be forthwith discharged because of such timing. 11 The defendants-by-counterclaim claim for slander of Title by reason of the improper Lien placed. The time of any evidence of the placing and effect of the Lien was minimal in the trial and no evidence was presented of maliciousness or recklessness on the parts of the plaintiff and those placing such lien. There was also, by admission of Mr. Tavares, no damage done from the placing of the lien. I note there were several substantial mortgages on the premises, another Construction Lien and several Certificates of Execution. Therefore, I find there is no slander of Title and counterclaim for such is dismissed. 12 I may be spoken to on any matters arising from herein. CONANT J. qp/s/das/drs/drs