



COURT OF APPEAL FOR ONTARIO

CITATION: Tokarz v. Selwyn (Township), 2022
    ONCA 246

DATE: 20220325

DOCKET: C68519

Pepall,
    Thorburn and Coroza JJ.A.

BETWEEN

Edward
    Tokarz and Jacqueline Tokarz

Plaintiffs (Respondents)

and

Cleave Energy Inc. and

The Corporation of the Township of Selwyn

Defendants (
Appellant
)

Lesley
    Albert and Michael Connolly, for the appellant The Corporation of the Township
    of Selwyn

David A. Morin and Peter Reinitzer, for
    the respondents Edward and Jacqueline Tokarz

Heard: February 4, 2022 by
    video conference

On appeal from the order of Justice Hugh
    K. OConnell of the Superior Court of Justice, dated February 17, 2021, with
    reasons reported at 2020 ONSC 4115.

Thorburn J.A.:

I.

OVERVIEW

[1]

The appellant, The Corporation of the Township
    of Selwyn (the Township) issued a building permit that allowed Cleave Energy
Inc. (Cleave)
to install a metal roof and
    solar panels on the respondents, Edward and Jacqueline Tokarzs, barn.

[2]

The Township admitted that its actions fell
    below the requisite standard of care because: (a) it did not require an
    engineer to review the solar panel installation before closing the building
    permit as required under the provisions of the Ontario
Building Code
,
    O.Reg. 350/06 (the Building Code) and (b) failed to note that the method of
    connecting the solar panel rails to the roof did not match the design. The
    trial judge held that the Township was liable for 45% of the respondents total
    damages of $
918,084.30
. This
    amounted to $413,137.93.

[3]

The Township challenges both the apportionment
    of damages as between the Township and Cleave, and the damage award.

[4]

The Township claims it was held to an unreasonably
    high standard of care as though it were an insurer of the barn. The Township
    claims its only duty was to inspect the respondents barn to
prevent risks to the occupants health and safety
and
    that, because the defects in the barn installation posed little or no risk to
    health and safety, the Township should only have been held responsible for 15%
    of the losses. The Township claims
this
apportionment is consistent with the apportionment of liability
    against municipalities in other similar cases.

[5]

The Township also challenges the total quantum
    of damages awarded to the respondents. It claims that the trial judge provided
    no reasons to support the quantum of damages and simply accepted the damage
    award put forward by the respondents expert, Mr. Koerth. The Township claims
    the evidence the trial judge relied on was not evidence proffered by Mr. Koerth,
    but the evidence of another of the respondents experts, Mr. Pitre. Unlike the
    Townships estimate, Mr. Pitres estimate was unsubstantiated and unsupported
    by other evidence.

[6]

For the reasons that follow, I would dismiss the
    appeal with respect to the apportionment of liability to the Township, but
    allow the appeal with respect to the quantum of damages. I would remit the case
    to the Superior Court for an assessment of quantum of damages.

II.

BACKGROUND

[7]

The respondents, Edward and Jacqueline Tokarz,
    commenced an action in negligence against their contractor, Cleave, and the
    Township.

[8]

They claimed that Cleave provided defective
    workmanship on their commercial-size barn roof and solar panel system.

The Barn Design and Installation

[9]

The respondents barn design called for a large
    solar array to be mounted on the metal roof of a wooden barn structure. The panels
    for the solar array were to be placed at an angle that would best capture the
    photovoltaic energy of the sun.
The barn was to be
    built to support approximately 1155 solar panels along with the required
    racking, inverters, panels, disconnects and wiring.

[10]

The solar system was meant to be part of the
    Ontario governments Feed In Tariff program
, regulated
    by the Independent Electricity System Operator (IESO), formerly the Ontario
    Power Authority.
The respondents planned to generate
    income from the power they produced from their solar system.

[11]

Cleave installed the solar system on the
    respondents farm in July 2011. The installation passed final building
    inspection by the Townships municipal inspector on July 28, 2011, and the
    permit to construct was granted on that date.

Deficiencies in the Barn Construction

[12]

The parties agree that, in the words of the trial
    judge, Cleave botched the solar panel installation in the following ways: (i)
    the solar panel rail-to-roof connections installed by Cleave did not match the
    design Cleave filed with the municipal permit application; and (ii) the improper
    installation of the rail-to-roof connections resulted in many problems,
    including excess holes in the roof, damage to the wood structure underlying the
    roof, bolts hanging exposed in the air on the underside of the wood panels,
    brackets perforating the steel roof, and leakage due to inadequate sealing of
    the perforations.

Selwyns Position at Trial in Respect of the
    Negligence Claim

[13]

Cleave entered into a
Pierringer
Agreement with the respondents such that the respondents claim against Cleave was
    settled before the trial began. The claim against the Township therefore proceeded
    but
Cleave did
    not participate in the trial.

[14]

At trial, the Township admitted that the actions
    of its building department personnel were negligent. The Township did not have an
    engineer review the solar panel installation prior to closing the building
    permit, as it was required to do by
s. 5.6.2.1 of
    Division B, Part 5, of
the
Building Code
.
Consequently, the Township failed to note on
    final inspection that the method of connecting the solar panel rails to the
    roof did not match the design. It also failed to note obvious deficiencies in
    the work done by Cleave.

[15]

The Township did not call its engineer to
    testify at trial. Instead it provided a $428,834.45 total repair estimate prepared
    by its expert Mr. Peter Ewald, who was a solar panel system installer. He provided
    expert costing opinion evidence based on the respondents engineers scope of
    repair.

III.

THE TRIAL JUDGES REASONS

[16]

As noted by the trial judge, the Township
    admitted its negligence:

The Township of Selwyn had a duty to inspect
    the barn and the solar array. Yet the installation proceeded without
    appropriate municipal oversight. There were, as the plaintiff argues, obvious
    deficiencies in the work of Cleave Contracting, that the Township failed to
    have inspected as required by an engineer. Those deficiencies were not
    addressed, and the consequent issues with the roof of the barn and the solar
    array were not rectified.

As indicated the Township does not suggest
    that it acted as it should have pursuant to the
Building Code
and
    concedes its negligence subject to apportionment of liability...

[17]

The trial judge therefore focused on the
    apportionment of liability and the quantum of damages.

[18]

He concluded that, in respect of the
    apportionment of liability:

[A]s the party tasked with building the solar
    array and the componentry of that array that [Cleave] should bear 55% of the
    liability for damages. I made this determination on the basis that
but for
    their originating construction flaws, the damage would not have occurred
.
    But that is not the end of the inquiry.

The Township was negligent. That is admitted.
A
    proper inspection would have staunched the issue of the poor construction
.
    The Township abrogated its role under the
Ontario Building Code
. It
    failed to do the most significant factor it was called upon to do, have this
    inspected by an engineer. The Township did not do so.
The Township even
    closed the permit, knowing that the inspection was not done by an engineer
.

As a consequence,
Cleave was never faced
    with Orders to Comply or to render the installation safe
. Cleave would have
    been under the clear impression that it was proceeding appropriately and with
    Township approval.

I have considered the caselaw as provided by
    the parties.
Apportionment of liability I found should be visited 45%
    against [the Township
]. I made this determination largely based on the
    argument of the plaintiffs in their Closing Statement at paragraphs 180-195
    with the caveat that I disagreed with the plaintiffs that Cleave should be
    fixed with liability in the amount of 10%.

To have done so would have excused Cleave from
    its contributory share of liability as the contractor. But that does not negate
    the larger apportionment of liability upon [the Township] based on its
    violation of the
Building Code
provisions.

A municipality must abide the building code
    provisions. The reason is the very essence of the
Code
requirements
    placed upon the municipality.
My attribution of 45% liability recognizes, I
    hope, the nature of the negligence of the municipality in this case in the
    context of the facts of this case
. The municipalitys conduct, or better
    put,
its omission and failure to staunch the negligence of Cleave, mandates
    attribution of liability in conjunction with my assessment of the case law in
    this amount
. [Emphasis added]

[19]

In his assessment of the quantum of damages, the
    trial judge accepted the evidence of the respondents expert and held that,

I have carefully considered the parties
    submissions and the evidence. I state unequivocally that the plaintiffs expert
    Mr. Koerth defines what a Rule 53 expert is. His evidence was challenged in
    depth by the defendant. He provided objective and fair evidence. His knowledge
    of the case was thorough. Mr. Koerth was not in the arena as a combatant, as
    sometimes happens when expert opinions are challenged.

Inevitably I had to ask myself what is
    required to put the plaintiffs in the position that they would have been in but
    for the negligence of others.



I agree with the plaintiffs that the
damages
    as estimated by [their expert] Mr. Koerth are appropriate
,  on the
    assumption that the work to remediate can be done in the Fall. The Fall work
    allows for less loss of income given that the saturation of the solar energy
    that can convert to electricity is less in the Fall months.

His damage estimates accord with the best
    route to take the Tokarzs whole again and put them in a position which they
    should have been in
: having a large pole barn and a
    very large solar array to generate income for many years to come without the
    very significant compromises due to construction defects and Municipal
    negligence in not discharging its role under the
Ontario Building Code
.

In this respect I do not agree with the
    position of the Township that the Township's breach of the applicable standard
    of care does not extend to the cost of roof replacement. The Township was aware
    that the roof not only provided the usual reasons for a roof, namely shelter in
    a dry and safe environment, but was also a support system for the solar panel
    racking and the not insignificant weight of those panels. This was a very large
    solar array with the potential to generate substantial income for the plaintiffs.



Simply put, Mr. Koerths evidence and his
    numbers

accord with what I find are required repairs to put the Tokarz
    in the position that they would have been in but for the negligence as admitted
    and proven. The Court has not simply ignored the evidence of the defendants but
    has juxtaposed it with that of the evidence of the Tokarz expert
. Mr. Koerth in coming to the conclusion that it has. Anything less,
    I find would fix upon the plaintiffs costs that they simply should not bear
    now or in future with respect to this issue. [Emphasis added]

[20]

The trial judge held that the total damages were
    $918,084.30 and ordered the Township to pay 45%, or $413,137.93.

IV.

THE ISSUES RAISED BY THE APPELLANT

[21]

The issues raised by the appellant Township are:

i.

Did the trial judge apply an incorrect scope of
    duty and standard of care to the Township for failure to comply with the
    inspection provision in the
Building Code

which caused him to
    err in his apportionment analysis?

ii.

Did the trial judge err in his apportionment of
    liability? and

iii.

Did he err in assessing the quantum of damages?

V.

ANALYSIS

The First Issue: Scope of Duty and The
    Standard of Care

[22]

The trial judge found that the Township breached
    its duty of care by failing to inspect the work done, signed off on the work,
    and abrogated its role under the
Building Code
. The Township submits
    that its duty is narrow when inspecting a building: it has a duty to ensure
    that there are no deviations from the
Building Code
that could affect public
    health and safety.

[23]

The
Township
relies on
Ingles v. Tutkaluk Construction
    Ltd.
, 2000 SCC 12, [2000] 1 S.C.R. 298, at para.
    23, wherein Bastarache J. for the court discussed the purpose of the
Building
    Code
:

The legislative scheme is designed to ensure
    that uniform standards of construction safety are imposed and enforced by the
    municipalities.
The purpose of the building inspection scheme is clear from
    these provisions: to protect the health and safety of the public by enforcing
    safety standards for all construction projects
. The province has made the
    policy decision that the municipalities appoint inspectors who will inspect
    construction projects and enforce the provisions of the Act. Therefore,
    municipalities owe a duty of care to all who it is reasonable to conclude might
    be injured by the negligent exercise of their inspection powers. [Emphasis
    added]

[24]

In
White v. The Corporation of the Town of
    Bracebridge
, 2020 ONSC 3060, 4 M.P.L.R. (6th) 271, at para. 48, DiTomaso
    J. explained that,

The
Ontario Building Code

provides
    minimum standards for construction so that owners of houses will be safe from
    poor construction
. The standard of care is, at a minimum, the
Ontario
    Building Code
s requirements.

At trial, Mr. Koerth testified that the minimum standards in Part IX
    of the
OBC
could not be ignored without risking the safety of the
    buildings occupants. [Emphasis added]

[25]

Contrary to the Townships assertion, the trial
    judge did not suggest that the mere existence of defects was sufficient to hold
    the Township liable. Rather, the Township was held liable for failing to
    perform the inspection it was required to conduct under the
Building Code
,
    resulting in the failure to identify and order the deficiencies to be remedied.

[26]

In any event, the trial judge was clearly alive
    to the purpose of the
Building Code
, and held that, Water and panels
    that are not installed properly are anathema to safety in this paradigm. He found
    as a fact that, This barn is not a safe haven with these defects. In
    addition, the respondents expert, Mr. Koerth, testified that he had concerns
    about the risk of fire.

[27]

For these reasons, I do not agree that the trial
    judge misapprehended the  scope of the appellants duty of care.

The Second Issue: Apportionment of
    Liability

[28]

The Township claims that the trial judge offered
    no authority to support his apportionment of liability.

[29]

The Township therefore claims that the trial
    judges decision to apportion 45%
of
the damages to the Township constitutes a palpable and overriding
    error given the minimal likelihood of harm to health or safety that arose from
    its negligence. The Township further claims that 45% is outside the range of
    liability usually imposed on municipalities.

[30]

Sections 1 and 3 of the
Negligence Act
, R.S.O. 1990, c. N.1, provide
    that:

1
Where damages
    have been caused or contributed to by the fault or neglect of two or more
    persons, the court shall determine the degree in which each of such persons is
    at fault or negligent, and, where two or more persons are found at fault or
    negligent, they are jointly and severally liable to the person suffering loss
    or damage for such fault or negligence, but as between themselves, in the
    absence of any contract express or implied, each is liable to make contribution
    and indemnify each other in the degree in which they are respectively found to
    be at fault or negligent.

3.
the court
    shall apportion the damages in proportion to the degree of fault or negligence
    found against the parties respectively.

[31]

Apportionment of liability is an inquiry into
    which party failed most markedly to live up to their expected standard of care:
Parent v. Janandee Management Inc.
, 2017 ONCA 922, at para. 15. The
    court in
Ingles
at para. 57 held that,

The apportionment of liability is primarily
    a matter within the province of the trial judge
.
    Appellate courts should not interfere with the trial judges apportionment
    unless there is demonstrable error in the trial judges appreciation of the
    facts or applicable legal principles. [Emphasis added]

[32]

Likewise, this
court in
Banihashem-Bakhtiari v. Axes Investments Inc.
(2004), 69 O.R. (3d) 671 (C.A.), leave to appeal refused, [2004]
    S.C.C.A. No. 145, at para. 8, held that, 
A
    re-apportionment of liability sought on appeal will only be granted in strong
    and exceptional cases.

[33]

In
Ingles,
the court

held that
    when

conducting a building inspection pursuant to the
Building
    Code
, the city was not required to discover every latent defect in
    construction; it is, however, required to conduct a reasonable inspection in
    light of all of the circumstances and it will be liable for those defects
    that it could reasonably be expected to have detected and to have ordered
    remedied:
Ingles
at paras. 20 and 40.

[34]

In this case, the trial judge held that a
    proper inspection would have staunched the issue of the poor construction; in
    other words, had the Township performed an inspection to the standard required
    of it, it would have detected the construction defects that gave rise to the
    respondents damages.
Instead,

the Township
failed to properly inspect the
    property and Cleave was never faced with Orders to Comply or to render the
    installation safe.

[35]

A township falls well below the required
    standard of care when it fails to properly review an application for a
    building permit, thereby completely failing to discharge its duty to enforce
    the
Building Code
for the health and safety of the public:
Breen
    v. The Corporation of the Township of Lake of Bays
, 2021, 153 O.R. (3d)
    514, at paras. 92-93 and 115. The failure to properly review building plans in
    circumstances like these is a marked departure from the standard of care:
Mortimer
    v. Cameron
(1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.); revd in part
    (1994) 17 O.R. (3d) 1 (C.A.); leave to appeal refused, [1994] S.C.C.A. No. 150.

[36]

In such cases, trial judges are afforded wide
    discretion in apportioning damages.

[37]

In this case, the trial judge held the Township
    responsible for 45% of the damages to the barn.

[38]

Moreover, the Townships claim that it is not
    clear it would have issued an order to comply against Cleave even if it had
    discovered the defects in the installation, is belied by the testimony of the
    Townships Chief Building Official that I would have involved the contractor
    and perhaps the owner as well.

[39]

Whether the order was sent to the owner or the
    contractor, it is clear that Cleave, as the contractor, would have been made
    aware of the existence of the need to comply, had such an order been given, to ensure
    the building was safe.

[40]

In this case, the Township failed to
properly review the application for a building permit and discharge
    its duty to enforce the
Building Code
for the health and safety of
    the public
by conducting a reasonable inspection as
    required by the
Building Code
. The Township allowed the permit to be issued without performing an
    inspection that would, on the findings of the trial judge, have staunched the
    poor construction which led to the respondents damages.

[41]

The trial judge considered the case law provided
    to him. Contrary to the
Township
s submission, in some circumstances, liability has been imposed on
    municipalities of between 50 and 100
%: See
Wood v. Hungerford (Township)
(2004)
,
3 M.P.L.R. (4th) 38 (Ont. S.C.),
    revd on other grounds (2006) 24 M.P.L.R. (4th) 45 (Ont. C.A.)
;
Riverside Developments Bobcaygeon Ltd.
    v. Bobcaygeon (Village)
(2004)
,
45 M.P.L.R. (3d) 107 (Ont. S.C.),
    affd (2005) 30 M.P.L.R. (4th) 29 (Ont. C.A.);

Chapeskie v. Lake of Bays
(1999), 3
    M.P.L.R. (3d) 233 (Ont. S.C.) and
Breen
.

[42]

The trial judges apportionment of liability was
    not based on a palpable and overriding error of fact or incorrect
    interpretation of the law. Nor was there a flawed assessment of the Townships
    conduct. As such, and keeping in mind the substantial deference owed to trial
    judges in the apportionment of liability absent an error of law or
    misapprehension of fact, I find no palpable and overriding error and would
    reject this ground of appeal.


The Third Issue: Quantification of Damages

[43]

A damages award is meant to be compensatory, to
    put the plaintiffs in the same position they would have been in but for the
    negligence of the other party:
Athey v. Leonati
, [1996] 3 SCR 458, at
    para. 32.

[44]

A trial judges quantification of damages
    attracts significant deference
:
de Montigny v.
    Brossard (Succession)
, 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27.

[45]

The trial judge is presumed to have considered
    the evidence in its entirety, absent proof that an omission in his reasons was
    due to his misapprehension or neglect of the evidence:
Housen v.
    Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72.

[46]

An omission is a material error if it gives
    rise to the reasoned belief that the trial judge must have forgotten, ignored
    or misconceived the evidence in a way that affected his conclusion:
Van de
    Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para.
15;
Modern Cleaning Concept Inc. v. Comité
    paritaire de lentretien dédifices publics de la région de Québec
, 2019 SCC 28
, [2019] 2 SCR 406, at para. 70.

[47]

The Township argues that in this case, no
    deference is owed to the trial judges assessment of the quantum of damages. For
    the reasons that follow, I agree.

(i)

The trial judge mistakenly concluded that the damage
    estimate was Mr. Koerths

[48]

At trial, the Township admitted that the
    remediation of the steel roof and removing and installing the solar system was
    warranted. The respondents relied on one expert, Mr. Ron Koerth, to testify on
    what repairs were required. They relied on another expert, Mr. Jean-Marc Pitre,
    to provide costing opinion evidence.

[49]

Mr. Koerth is an engineer who was qualified by
    the trial judge as an expert in the area of building analysis. Structure
    failure analysis. Costing analysis, and all matters related to the construction
    of buildings and the compliance with the Ontario
Building Code
. Mr.
    Pitre was an installer of solar panels in Sudbury.

[50]

The trial judge found Mr. Koerth to be an
    exemplary witness. This is evidenced by the trial judges reference to Mr.
    Koerths evidence as follows:

... I had to ask myself what is required to
    put the plaintiffs in the position that they would have been in but for the
    negligence of others.
The answer was what Mr. Koerth said it should be
.

...

Simply put
Mr. Koerth's evidence and his
    numbers accord with what I find are required repairs to put the Tokarz in the
    position that they would have been in but for the negligence as admitted and
    proven
.

The Court has not simply ignored the evidence
    of the defendants but has juxtaposed it with that of the evidence of the Tokarz
    expert[,] Mr. Koerth in coming to the conclusion that it has. Anything else, I
    find would fix upon the plaintiffs costs that they simply should not bear now
    or in future with respect to this issue.

[51]

However, the trial judge seems to have mistakenly
    believed that the estimate of damages he adopted  found at page 60 of the
    plaintiffs [respondents] submissions at paragraph 245  was Mr. Koerths
    estimate. Those damages were actually the sum of several different estimates,
    including: an estimate for performing structural repairs to the barn prepared
    by a company called Bel-Con, and an estimate for replacing the solar array and
    performing structural repairs to the barn prepared by Mr. Pitre. Mr. Koerth did
    not make any of the estimates found at paragraph 245 of the plaintiffs
    submissions, and in fact, Mr. Pitres estimate included $254,000 for a truss
    repair that Mr. Koerth had estimated should cost much less.

[52]

Mr. Koerth did, however, testify that Mr.
    Pitres total estimate of $674,000 before tax was a lot more reasonable than
    Mr. Ewalds estimate of $375,000 before tax.
[1]

(ii)

Flaws in Mr. Pitres Estimate

[53]

There are also concerns with Mr. Pitres estimate.

[54]

First, Mr. Pitres estimate was not itemized. He
    simply provided one global figure for removal of all 1,155 solar panels;
    disposal or rails and hardware then re-installation of exist[ing] panels on new
    Enviro Energy supplied racking. The quote was a budgetary estimate for
    discussion purposes only.

[55]

Second, Mr
. Pitre was
    unable to provide an explanation of the breakdown of his estimate. He said he
    created a
pro forma
database, entered the information, and used a formula to arrive at his
    estimate. However, he was unable to provide the information he put into the
    database or the formula upon which the calculation was based, and he never went
    to inspect the barn itself.

[56]

Third, there was no specific allocation for
    truss repairs. We only know that Mr. Pitre allocated $254,000 for the trusses
    and structural repairs because $254,000 was the difference between estimates he
    made in 2013 and 2017 for the same scope of work, and on cross-examination, he
    testified that the difference came down to the cost of the truss repair.

[57]

Fourth, it is not clear how or why Mr. Pitres
    estimate so greatly exceeded that of Mr. Ewald and even that of
Mr. Koerth, whose testimony the trial judge preferred.
Mr. Pitre justified his $254,000 estimate for the trusses on the
    basis that the integrity of the roof on the inside is one of the highest costs
    of that difference and where that $250,000 is. He explained that the
    difference between the estimates was meant to cover the labour and material
    cost of doing the structural repairs to the roof. By contrast,
Mr. Koerth estimated the cost of the truss repair to be $25,000 plus
    $7,000 in engineering costs and taxes; and Mr. Ewald estimated the cost of the
    repair to be about $12,705 plus engineering fees and taxes.

[58]

Fifth, Mr
. Pitre incorrectly
    believed that all materials used for the solar panel system had to be sourced
    from Ontario, which would raise their cost. In fact, only 50% of the materials
    had to be sourced from Ontario.

(iii)

Flaws in the Trial Judges Assessment of Damages

[59]

Moreover, the trial judges assessment of the damage
    award was flawed as
:

i.

The trial judge failed to break down the cost of
    the remedial work in support of the estimate that he accepted (by simply
    adopting Pitres lump sum estimate);

ii.

He failed to weigh and assess the evidence of Mr.
    Pitres expert opinion for the respondents and Mr. Ewalds for the Township,
    and instead, simply adopted the damages claim provided by Mr. Pitre (mistakenly
    referred to as that of Mr. Koerth) with little discussion of its many shortcomings;
    and

iii.

The trial judge seems to have committed a
    palpable and overriding error by accounting for the cost of replacing the roof
    trusses twice: once when he accepted the Bel-Con damages assessment for the barn
    (which included a $10,000 remediation for the trusses in its $136,470.10
    total), and once when he accepted Mr. Pitres estimate for the solar panels,
    which also included a cost of $254,000 for the trusses.

(iv)

Analysis of the Quantum of Damages

[60]

I have concerns about the trial judges adoption
    of a damages award that did not include a detailed breakdown; contained what
    seems to have been an inflated figure for truss repair; and was not adjusted in
    any way for the experts errors on the correct proportions for domestic
    content.

[61]

The trial judge could not have meant to include
    the cost of the truss repair twice. The fact that he did so affected his
    conclusion on the total quantum of damages; it increased the quantum by up to
    $254,000.

[62]

I am also troubled by Mr. Pitres inability to
    explain the formula which formed the basis of his costing estimate. He claimed
    that the reason he was unable to explain the formula for arriving at his
    estimate was that it was based on a formula he devised that would take up to 45
    hours to reproduce.

[63]

The trial judge failed to give Mr. Pitres
    opinion the lesser weight it deserved given that it rested on unproven material
    facts:
Marchand v. The Public General Hospital Society of Chatham
(2000),
    51 O.R. (3d) 97 (C.A.).

[64]

The respondents also candidly concede that there
    was extremely limited discussion of the quantum of damages on the part of the
    trial judge.

[65]

The trial judges very limited discussion and
    assessment of the quantum of damages, and his failure to address the concerns
    about Mr. Pitres evidence as set out above, lead me to conclude that the
    presumption that the trial judge considered the evidence respecting the quantum
    of damages in its entirety is rebutted.

[66]

The solution, however, cannot be to replace the
    respondents assessment of damages with that of the Townships expert, Mr.
    Ewald.

[67]

The Townships expert, Mr. Ewald, did provide a
    line by line breakdown of the cost of material, labour and expenses as well as
    contingencies for remediation including the truss remediation.

[68]

However, Mr. Ewalds estimate is also
    problematic as, for example,

i.

Unlike Mr. Pitre, Mr. Ewald was not prepared to
    carry out the repairs for the amount of his estimate because he is not a
    contractor; this fact caused Mr. Koerth, whose testimony was accepted by
    the trial judge and is not in question, to refer to his estimate as less
    reasonable than Mr. Pitres;

ii.

Although the trial judge seems to have
    double-counted the estimates for truss repair (using both the $254,000 from the
    Pitre estimate and $10,000 from the Bel-Con amount used by Mr. Ewald), it is
    not clear what the amount for truss repair should be and why;

iii.

Mr. Ewald also erred in assessing the amount of Ontario
    product required. He assumed that a certain percentage of product would be
    sourced from Ontario, but he believed obtaining the materials from Ontario would
    be difficult, if not impossible. He said he would seek an IESO waiver of the
    domestic content requirement. Mr. Ewald was not qualified to testify on whether
    the Independent Electricity System Operator (IESO) would approve the waiver.
    He said it was fair to say that his estimate was conditional on obtaining the
    IESO waiver. It is not clear exactly how that would affect his estimate, and
    the trial judge made no findings to assist this court in understanding this
    evidence.

[69]

Based on the above, there are serious concerns with
    both the Townships and the respondents assessment of damages and this court
    is not in possession of all information to enable it to quantify the damages.

[70]

For these reasons, further analysis and further
    evidence is required to assess the quantification of damages and address these
    concerns:
TMS Lighting Ltd. v. KJS Transport Inc.
, 2014 ONCA 1, at
    paras. 83, 85. The evidence is not before this court such that this court can
    substitute its award for that of the trial judge.

VI.

CONCLUSION

[71]

For the above reasons, I would allow the appeal
    in part, set aside the award of damages and remit the action to another judge
    of the Superior Court for an assessment of damages.

[72]

The parties agreed that the successful party on
    appeal be awarded $30,000 in costs. Given the respondents success on the first
    two issues and the divided success on the third, I would award the respondents
    $20,000 in costs.

Released: March 25, 2022 S.E.P.

J.A.
    Thorburn J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. Coroza J.A.





[1]

Mr.
    Koerth referred to Mr. Brunskills estimate. Peter Brunskill is an engineer
    who did not testify, but who instructed Ewald. Brunskill provided options for
    repairs and Ewald costed the options.


