The appellants hired the respondent B Inc. to perform construction work on their
home. B Inc. registered a construction lien against the residence and sued for what
it claimed was the balance owing under the contract. The appellants denied that
there was any further amount owing and claimed that there were deficiencies and
damages caused by the work. They counterclaimed in the construction lien action
and started an action against the other respondents (the wife of B Inc.’s principal
and her company). After the evidence was concluded at trial, the trail judge granted
the appellants’ motion to reopen the case to hear the evidence of two witnesses on
the basis that that evidence could bear on material issues at trial, including the issue
of the respondents’ credibility. Ultimately, the trial judge found the respondents to be
credible without referring to the evidence of those witnesses. He awarded B Inc
damages, recognized a lien on the property, and dismissed the action against the
other respondents. The appellants appealed.
Held, the appeal should be allowed.
The trial judge’s reasons for judgment were deficient. It was incumbent on the
trial judge, having pre-determined the materiality of the witnesses’ evidence, to at
least advert to that evidence and resolve the discrepancies between that evidence and
the evidence of the respondents. In the absence of any mention of the witnesses, it
was impossible to know whether and why the trial judge accepted or rejected the
evidence or if it impacted his credibility findings. The trial judge’s failure to
address evidence relevant to the parties’ credibility also precluded effective review
of the issue of whether B Inc.’s lien was perfected in time.
Cases referred to
Dovbush v. Mouzitchka (2016), 131 O.R. (3d) 474,  O.J. No. 2627, 2016 ONCA
381, 399 D.L.R. (4th) 69, 349 O.A.C. 383, 266 A.C.W.S. (3d) 367; R. v. H. (J.M.)
(2011), 113 O.R. (3d) 80,  3 S.C.R. 197,  S.C.J. No. 45, 2011 SCC 45,
421 N.R. 76, 283 O.A.C. 379, EYB 2011-196549, 2011EXP-3033, J.E. 2011-1701,
87 C.R. (6th) 213, 276 C.C.C. (3d) 197, 342 D.L.R. (4th) 347, 96 W.C.B. (2d) 356
Statutes referred to
Construction Lien Act, R.S.O. 1990, c. C.30
APPEAL from the judgment of M.L. Edwards J.,  O.J. No.
4350, 2013 ONSC 5703 (S.C.J.).
Peter-Paul E. Du Vernet, for appellants.
Kevin Sherkin and Jeremy Sacks, for respondents.
 BY THE COURT: — This appeal arises out of litigation concerning a home renovation. The appellants retained the respondent the Birkshire Group Inc. (“Birkshire”) to perform work on
their home. Renovations began in December 2006 and continued
into the spring of 2007. As of April 2007, the appellants had paid
the sum of $60,000. At that point, the relationship between the
parties had deteriorated. Birkshire registered a construction lien
against the residence and sued for the balance of what it claimed
under the parties’ contract. The appellants denied that any further
amount was owing, and they claimed there were deficiencies
and damages caused by the work. They counterclaimed in the