



COURT OF APPEAL FOR ONTARIO

CITATION: Balmoral Custom Homes Ltd. v. Biggar, 2016 ONCA 967

DATE: 20161221

DOCKET: C62221

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Balmoral Custom Homes Ltd.

Plaintiff (Respondent)

and

Mary Louise Biggar

Defendant (Appellant)

Marvin J. Huberman, for the appellant

Neal H. Roth, for the respondent

Heard: December 16, 2016

On appeal from the order of Justice Wendy Matheson of the
    Superior Court of Justice, dated May 11, 2016, confirming the Report of Master
    Carol Albert, dated January 14, 2016.

ENDORSEMENT

[1]

The appellant appeals from the motion judges
    confirmation of the masters report allowing the respondents action and
    dismissing the appellants counterclaim.

[2]

The respondent was retained by the appellant
    pursuant to a fixed price contract to carry out renovations and an addition to
    her home. When the scope of the construction project grew, the parties agreed
    on fixed prices for each of the extra items of work to be performed. Their
    relationship broke down and the respondent brought an action, claiming that the
    amount of $108,554.34 was owing under their contract. Following a hearing for
    directions and a trial by way of a reference, the master found that the
    respondent was entitled to payment of the reduced amount of $94,031.36, plus
    interest, for its services and materials rendered to the appellant, dismissed
    the appellants counterclaim in the amount of $69,580.69 for alleged misrepresentations,
    overpayments, deficiencies and completion costs, and awarded costs to the
    respondent in the amount of $69,561.45.

[3]

The appellant submits that the motion judge
    erred in confirming the masters report. As argued, she advances two arguments
    on appeal.

[4]

First, she submits that the motion judge erred
    by finding that the master provided cogent reasons for her decision. In
    particular, the appellant says, the master failed in her reasons to deal with
    the appellants allegations that the respondent had made post-contractual
    misrepresentations about its billing for the extra work agreed upon by the
    parties; and that the respondent had breached its duty of honesty in carrying
    out its contract with the respondent by lying to the appellant about extra
    charges and dishonestly inflating its billings for the extra work performed.

[5]

Second, she submits that the motion judge erred
    in finding that the entire agreement clause in the parties contract disposed
    of any claim regarding the respondents alleged post-contractual misrepresentations
    and breach of its overriding duty of honesty. The appellant concedes that this
    clause excludes her allegations of prior misrepresentations, as the motion
    judge found.

[6]

We do not accept these submissions.

[7]

The appellant does not take issue with any of
    the masters factual findings.  As the motion judge noted, in the masters very
    careful and thorough reasons, she disposed of all the parties allegations of
    contractual breaches, including the deficiencies, overpayments and completion
    costs claimed by the appellant in her statement of defence and counterclaim. Specifically,
    for the reasons explained in her report, the master preferred the respondents
    evidence over the appellants evidence, and found that the appellant had agreed
    to the charges for the extra work to be completed when the construction project
    grew, as well as the $5,100.00 for electrical work, which she now impugns as
    dishonest charges. The appellants post-contractual misrepresentation claim and
    allegations of breaches of the respondents contractual duty of honesty
    dissolve in the face of the masters explicit findings on the contested items
    said to be relevant to those claims.

[8]

With respect to the contractual interpretation
    issues, we agree with the appellants submissions that the particular wording
    of the entire agreement clause of this contract does not exclude a claim based
    on any post-contractual misrepresentations. Nor does it exclude the parties
    duty of honesty not to lie or otherwise knowingly mislead each other about
    matters directly linked to the performance of the contract; this duty operates
    as a general doctrine of contract law, like unconscionability, that applies to
    the parties contract and that the parties are not free to exclude:
Bhasin
    v. Hrynew
, 2014 SCC 71, at paras. 73-75.

[9]

While the master did not explicitly address these
    issues in her reasons, this case was presented in terms of the alleged
    deficiencies, overpayments and completion costs, to which the appellants allegations
    of post-contractual misrepresentations and breach of the respondents duty of
    honesty were tied.  The master dealt with these claims as they were advanced at
    trial. As a result, the masters comprehensive findings on these issues,
    specifically, that the parties had agreed to these charges, disposes of the
    factual underpinnings of the appellants claim for set-off and counterclaim. As
    the master found, having agreed to the charges in question, the appellant
    complains after the fact that the respondent overcharged for the extra work
    performed and that she had the right to choose the price for each extra. There
    was no evidence that the parties agreed to any specific mark-up on the extra
    work or that the respondent had lied; the contract did not entitle the
    appellant to know the respondents pricing structure. The master did not agree
    with the appellants position. We see no basis to interfere.

[10]

For these reasons, the appeal is dismissed.

[11]

The parties have agreed that the respondent is
    entitled to its partial indemnity costs of the appeal, in the amount of $8,000.00,
    inclusive of disbursements and all applicable taxes, and we so order.

E.A.
    Cronk J.A.

R.G.
    Juriansz J.A.

L.B.
    Roberts J.A.


