Defective Workmanship

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1141
Page Categories:	[Construction & Renovation]
Citation:	Defective Workmanship, CLNP 1141, <4S>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2021/10/26

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Wheeler v Belmar Roofing Inc., 2015 CanLII 34095 (ON SCSM)

10. I also find it clear that Belmar’s workmanship could have caused the water intrusion. That workmanship was defective in a variety of ways as canvassed in the evidence of Mr. Diplock and Mr. Coffin, and as corroborated by the extensive photographic evidence. But there is no direct evidence whatever to support any specific theory of the mechanics of the water intrusion discovered in January 2014, nor whether it was different than that which caused the prior problem.

11. A court is entitled to make findings of fact based on inferences from the evidence. The key distinction is between reasonable inferences based on the evidence, and mere speculation or guesswork: As Watt J.A. said in R. v. S.(T.) (2012), 2012 ONCA 289 (CanLII), 290 O.A.C. 1 (C.A.), at para. 62:

62. A trier of fact may draw inferences of fact from evidence adduced at trial. An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts established in the proceedings. Absent an objective evidentiary basis from which to infer the facts a party seeks to establish, no inference is available, only impermissible speculation and conjecture: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.

12. In this case, I find there is reliable evidence to suggest that the water intrusion could have been caused by pre-existing problems and could have been caused by defective workmanship for which Belmar would be responsible. I find there is no evidence to establish any specific theory of the mechanics of the intrusion or even where the water entered. If all things were otherwise equal, it might be open for the court to draw an inference that, on a balance of probabilities, defective workmanship caused the intrusion even if the court were uncertain which of several possible forms of defective workmanship was responsible. That might well be a close call but it might nevertheless be a logical and reasonable inference that was objectively supported by the evidence.

World Stone & Tile Inc. v. Ezekiel, 2012 ONSC 5673 (CanLII)

[1] This is a construction lien claim for a new home tile installation and a counterclaim for damages for defective workmanship in that installation.

[10] Despite the claimed expectation on the part of Mr. And Mrs. Ezekiel that their tile work would be done to a “Bellagio” standard, the document that governs their relationship with Mr. Guarascio is the contract that was entered into on September 3, 2007. I repeat that it only required his work to be done “...in a workmanlike manner according to standard practices”. Two experts were permitted to testify on this issue.

[11] The defendants allege three separate areas of defective workmanship in this tile installation:

- the kitchen floor tile was not only misaligned, it lacks structural integrity;

- there is “lippage”, that is, unevenness in the mudroom and hallway tile installation; and

- there is misalignment in the tile installation in the master ensuite bathroom.

[12] The defendants’ expert, Domenic Zavarella, testified that, in his opinion, the appropriate standard to apply to this installation was that of the Terrazzo, Tile and Marble Association of Canada (“TTMAC”) where he is employed as a technical consultant. It suggests that, given the “high-end” nature of this residence, the standards dictated by TTMAC should be the minimum that should be applied in assessing this counterclaim.

[14] In both of his reports dated May 23, 2008 and December 13, 2010 respectively, Mr. Zavarella noted in each concluding paragraph that TTMAC was “...an independent third party organization committed to the highest levels of materials and installation methods and as such takes a best practices approach to all inspection and installation recommendations.” (my emphasis added). In my view, this benchmark far exceeds the term used in the contract governing the relationship between these parties, that is, “standard practices”. Accordingly, I am prepared to accept the suggestion of Mr. Roccatagliata that the Tarion tolerances fairly approximate that phrase.