



COURT OF APPEAL FOR ONTARIO

CITATION:

Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

DATE: 20220126

DOCKET: C69392, C68726 & C68728

Huscroft, Trotter
    and Coroza JJ.A.

DOCKET: C69392

BETWEEN

Homes of Distinction (2002) Inc.

Plaintiff (Respondent)

and

Elisa
    Angela Adili
and the Toronto-Dominion Bank

Defendants (
Appellant
)

AND BETWEEN

Elisa Angela Adili

Plaintiff by Counterclaim

(Appellant)

and

Homes of
    Distinction (2002) Inc.

Defendant to the
    Counterclaim

(Respondent)

DOCKET: C68726

BETWEEN

Anthony Adili and Elisa Angela
    Adili

Plaintiffs (Appellants)

and

Homes
    of Distinction (2002) Inc.
,
Roberto Venier
and
    City of Hamilton

Defendants (
Respondents
)

AND BETWEEN

Homes of Distinction (2002)
    Inc., and Roberto Venier

Plaintiffs by Counterclaim

(Respondents)

and

Anthony Adili and Elisa Angela
    Adili

Defendants to the
    Counterclaim

(Appellants)

DOCKET: C68728

BETWEEN

Anthony Adili and Elisa Angela
    Adili

Plaintiffs (Appellants)

and

Homes
    of Distinction Inc.
,
Roberto Venier
and City
    of Hamilton

Defendants (
Respondents
)

AND BETWEEN

Homes of
    Distinction Inc., and Roberto Venier

Plaintiffs by Counterclaim

(Respondents)

and

Anthony
    Adili and Elisa Angela Adili

Defendants to the Counterclaim

(Appellants)

Daniel Fridmar, for the appellants

David Thompson and Michael
    Grant, for the respondents

Heard: January 12, 2022 by
    video conference

On appeal from the judgment of
    Justice Richard A. Lococo of the Superior Court of Justice, dated September 16,
    2020, with reasons reported at 2020 ONSC 5344.

REASONS FOR DECISION

[1]

In 2007, the appellants decided to renovate
    their home. They contracted with the respondent, a builder who carried on
    business as Homes of Distinction (2002) Inc. (HoD 2002). The builders
    principal is the respondent Roberto Venier.
[1]

[2]

The parties reached an oral agreement for the
    project in the spring of 2008. Regrettably, the relationship between the
    parties fell apart during the project and by 2010, HoD 2002 withdrew its
    services and registered a construction lien on the property to secure
    outstanding payments for work completed. For their part, the appellants advised
    HoD 2002 that the contract was terminated and alleged that its work was
    deficient and non-compliant with the Ontario
Building Code
, O. Reg. 332/12.
    The appellants hired other contractors to complete the renovation and to
    rectify some of the alleged deficiencies.

[3]

Litigation ensued. The respondents commenced a
    construction lien action and sought to recover from the appellants the balance
    claimed as owing. The appellants denied they owed anything and brought their
    own action, alleging incomplete and deficient work and seeking over $1,450,000
    from the respondents for amounts they incurred or would need to incur to
    complete the project and rectify the respondents work. The appellants also
    claimed that the City of Hamilton was negligent because its building department
    personnel were involved in issuing a building permit and inspecting the
    project.
[2]

[4]

The actions were heard over 43 days at trial.
    Ultimately, the trial judge found the appellants liable to the respondents for
    most of the amount claimed. The trial judge dismissed the Adilis claims
    against the respondents and the City.

[5]

First, the trial judge found that there was an
    oral contract between HoD 2002 and the appellants. Second, the trial judge
    found the parties had not agreed to an enhanced standard of construction that
    went beyond the requirement to perform work in a good and workmanlike manner
    and meet the mandatory requirements in the
Building Code
. Third, he
    found that there was no meeting of the minds with respect to the specific
    level of the allowances but that the parties agreement contemplated some
    reasonable limit for expenditures, and that excesses of these amounts would be
    the appellants responsibility as an extra. Fourth, he found that the
    appellants breached the building contract by not paying. Finally, he found that
    the respondents had not breached the contract and, after reviewing the evidence,
    held that the respondents were not liable for alleged deficiencies.
[3]

[6]

On appeal, the appellants advance several arguments.

[7]

First, the trial judge made a palpable and
    overriding error in disregarding uncontroverted expert evidence that HoD 2002 breached
    the Ontario
Building Code
when finding that HoD 2002 complied with the
    standard of construction required by the building contract. We disagree.

[8]

At trial, the appellants proffered the expert
    evidence of Giancarlo Lancia whom they retained to provide opinion evidence
    with respect to engineering and
Building Code
matters. Mr. Lancias
    evidence was the lynchpin of the appellants argument regarding structural
    deficiencies and
Building Code
non-compliance. The respondents
    challenged this evidence and proffered their own engineering expert. In the
    end, the trial judge found that Mr. Lancia had assumed an advocacy role for the
    appellants which he found was inconsistent with his role as an independent
    expert witness. In contrast, he found that the respondents expert was
    independent and preferred the evidence of the respondents expert.

[9]

We see no palpable and overriding error in the
    trial judges treatment of the expert evidence. The trial judge provided cogent
    reasons for why he discounted the evidence of Mr. Lancia. As we see it, the
    trial judge placed little to no weight on Mr. Lancias evidence about
Building
    Code
violations. That was his call to make and his credibility findings
    attract deference. In the end, the trial judge assessed Mr. Lancias
    credibility and reliability in the context of the evidence as a whole and
    concluded that he was less reliable than the respondents expert. We cannot
    intervene simply because the appellants ask us to weigh the evidence
    differently and arrive at alternative factual findings:
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[10]

Mr. Lancias opinion evidence was a significant
    aspect of the appellants case. The trial judges conclusion that the
    appellants had not proven the
Building Code
breaches as asserted
    flowed naturally from the adverse finding he made against their expert.

[11]

We find no merit to this first ground of appeal.

[12]

Second, the appellants argue that the trial
    judge erred in relying on a previous contract that the parties had entered into
    in 1995 when interpreting the scope of allowances in the present building
    contract. We are not persuaded by these submissions.

[13]

We see no error in the trial judges reliance on
    the evidence of the 1995 contract. The trial judge held that there was no
    meeting of the minds as to the specific level of allowances for the
    construction components set out in the contract. However, he found that given
    the parties previous experience in 1995, he was satisfied that the parties
    contemplated some reasonable limit on the extent to which allowances on various
    construction components were included in the contract price. In our view, the
    trial judge was entitled to consider the fact that the parties had used allowances
    in the 1995 agreement in understanding their common knowledge and intentions
    alongside the other evidence he considered.

[14]

Finally, the appellants contend that the trial
    judge made a palpable and overriding error in calculating the respondents
    damages. They argue that the trial judge awarded the respondents double
    recovery in the final calculation of damages by excluding the appellants
    payments for work not covered by the contract (the excluded invoices), but at
    the same time allowing the costs of those items back into the damages award by
    way of the respondents spreadsheet calculations.

[15]

We do not accept this submission.
The trial judge heard and rejected the appellants argument that these
    invoices should be included in the amount calculated as already paid to the
    respondents. He clearly accepted Mr. Veniers evidence on damages, including
    the spreadsheet the appellant challenges. The trial judge was entitled to accept
    the respondents calculations as reasonable based on all the evidence before
    him. We are not persuaded that we should intervene in the trial judges
    assessment of damages.

[16]

In conclusion, we reject the arguments advanced
    by the appellants. The appellants submissions are a request for this court to
    redo the careful work and analysis of a trial judge who presided over a highly
    contentious trial that took 43 days. That is not our function. There is
    simply no basis to interfere with the trial judges conclusions which were all
    firmly anchored in the evidence.

[17]

Although there were other grounds of appeal
    advanced in their amended notices of appeal, they were not pursued in the
    appellants factum nor pressed in oral argument. We see no merit in any of
    these other grounds.

[18]

For these reasons, the appeal is dismissed. We
    fix costs in favour of the respondents in the agreed upon amount of $30,000 all
    inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.





[1]
In these reasons,
the three respondents are referred to
    collectively; however, for clarity, the building contract was formed between
    the Adilis and HoD 2002 specifically. Homes of Distinction Inc. is a related dormant
    company.



[2]
This claim was dismissed at trial.
The appellants appeal
    against the City of Hamilton has been abandoned.



[3]
The trial judge did, however, grant a credit to the Adilis based on
    what HoD 2002 had already offered them  $27,238 for incomplete items and
    $20,000 as an allowance for deficiencies. The trial judge subtracted this from
    the total amount owing to HoD 2002.


