Looks like some suffered perhaps from this litigation. It seems too long ago, though.
I feel the Shermans should be upset about the air conditioning issues,
[1] Defendant Fernandes filed an assignment in bankruptcy on February 23, 2001 and consequently the claims against him by the plaintiffs and 21 Degrees were not pursued in the action before me. The defendants Philip James Ewing and Ewing Construction Ltd. have been noted in default. The plaintiffs have agreed not to recover from 21 Degrees or Kenyon any damages interests or costs which would otherwise be allocated to Winston.
[2] Given the facts outlined in footnote 1, the only part of the cross- claim that must be resolved by me is that of 21 Degrees against Kenyon.
[3] I prefer the evidence of Mr. Fernandes that the price of the contract was $3,200 to that of Mr. Catena and Mr. Winston that it was $3,000 as Mr. Fernandes was corroborated on this point by the cheque he received for $256 which reflected his commission of 8%.
[4] Mr. Sherman testified that the ducts were too small, although the basis for his assertion was far from clear. He was contradicted in this regard by his own witness, Mr. Hudec, who testified that the ducts could be big enough and that the problem was a lack of cooling capacity. As neither Mr. Sherman nor Mr. Hudec was qualified as an expert witness competent to give such opinion evidence, I have disregarded their testimony on this point.
[5] If an amendment to the statement of claim should have been sought in this regard, I would have granted it as it would not prejudice the defendants in the least.
[6] Mr. Merber, the plaintiff’s expert, testified that at the very most the Kenyon design was short 3 1/2 tonnes of cooling capacity.
[7] For example, Mr. Sherman’s evidence that there were problems with the roof construction that resulted in the insulation around the ducts getting wet, coupled with the evidence of Mr. Merber about the adverse impact that would have on cooling, establishes one other contributing factor to the cooling problem that is unrelated to any errors in the design. Similarly, Mr. Winston testified that Plan Mechanical had identified several other problems that contributed to the cooling problem. As well, the various balancing reports suggest that the HVAC system was not working properly in terms of air distribution.
[8] G.H.L. Fridman, The Law of Agency, 7th ed. (Toronto: Butterworths, 1996) at p.216; F. Reynolds, ed., Bowstead & Reynolds on Agency (London: Sweet & Maxwell, 2001) at p. 303. In this regard it is important to note that 21 Degrees does not contest that it entered into the contract with Winston nor does it suggest that either Winston or Fernandes acted beyond the scope of their authority.
[9] Fridman, supra, note 8 at p. 253; Reynolds, supra, note 8 at p. 341-343.
[10] Mr. Kenyon’s liability to 21 Degrees is discussed in section V, infra.
[11] While Mr. Kenyon’s daughter did the actual design, 21 Degrees did not know this fact and, in any event, Mr. Kenyon approved his daughter’s design.
[12] G.H.L. Fridman, The Law of Torts in Canada, (Toronto: Carswell, 2002) at p. 310.
[13] In this regard, I adopt my reasoning in Treaty Group Inc. (c.o.b. Leather Treaty) v. Drake International Inc., 2005 CanLII 45406 (ON SC), [2005] O.J. No. 5232 at paras. 56 to 71 with respect to the concept of contributory fault in contract law.
[14] The plaintiff’s written submissions with respect to damages differed somewhat from the amounts claimed in their damages brief. I will use Schedule “B” of the plaintiff’s factum as the basis for the claim for special damages.
[15] Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 41 O.R. (3d) 161 (C.A.) In Martin v. Goldfarb, Finlayson J.A., adopted the reasoning in Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.) that the degree of proof required can vary in cases where it is impossible to calculate damages with precision due to the nature of the damages and the conduct giving rise to such losses. Of course, this consideration does not apply to the proof of special damages which, by definition, are capable of more precise calculation.
[16] While Mr. Sherman testified that various invoices had all been paid, given that Mr. Winston was directing the project and the invoices were sent to Ewing Construction, I am not satisfied that Mr. Sherman had actual knowledge that the payments had been paid or that the payments had been made by the plaintiffs. This limitation of his actual knowledge was most apparent when Mr. Sherman said of the Ayr Mechanical invoices that he “believed” that Ewing Construction had paid the invoices although he could not say so with absolute certainty.
