A complex series of project pricing issues, lien filings and Ontario’s Tarion home warranty registration resulted in a rebuke from the presiding justice when a plaintiff builder dismissed several legal advisers and chose to represent his own interests in court.
A group of four friends together purchased four lots in the Annex area of metropolitan Toronto. Modern, flat-roofed homes were designed and approved, and building permits issued.
The group approached Noorullah Kamil, principal of Save On Contracting, to build the new homes. Included in their interim agreement was the matter of obtaining Tarion registration, described under two pricing options, depending on who provided financial guarantees. Tarion ultimately issued a registration certificate to Save On and enrolment certificates for the four units, naming Save On as the builder.
A series of email exchanges took place over the next several months, largely concerning Kamil’s claim that he had underpriced the project and that Save On was in financial distress. Kamil finally removed Save On from the worksite and registered three liens totalling $225,704.
The defendants brought in new trades to complete the work and correct alleged deficiencies on the four new homes, work they claim cost them just under $600,000. They also delivered a statement of defence and counterclaim.
Kamil commenced his legal actions with professional legal counsel. However, after a series of nine rescheduled trial management conferences and several counsel changes, Kamil asked permission to represent Save On himself. He believed only he could address the issues properly.
Aside from the legal matters discussed at trial before Associate Justice Wiebe of Ontario’s Superior Court of Justice, the conduct of Kamil took the spotlight. The justice showed little mercy in his assessment of the plaintiff.
“Mr. Kamil was not a careful witness. He consistently made uncorroborated statements that he expected the court to accept,” Justice Wiebe wrote.
Also cited was, “Mr. Kamil’s arrogance and lack of attention to evidentiary detail,” and “a penchant for focusing on marginal issues usually about credibility.
“In cross-examination Mr. Kamil introduced new evidence that was not in his affidavits,” Justice Weibe continued. “This showed again Mr. Kamil’s lack of attention to evidentiary detail and procedural fairness. It all detracted from his credibility.”
Kamil’s lack of credibility in the eyes of the Court impacted the credence of his sole expert witness, quantity surveyor Sanjay Verma of Alpha Costs Consultants Inc.
“The biggest problem with Mr. Verma’s evidence was the fact that key evidence on which he relied, such as the Save On work-in-place, extras and credits, all came from Mr. Kamil,” wrote Justice Wiebe. “Given my misgivings about Mr. Kamil’s credibility, this seriously undermined the credibility of Mr. Verma’s evidence.”
In contrast, the Court looked favourably on the defendants, particularly their primary witness and co-owner of the project, Bashir.
“He came across as a seasoned businessman experienced in the area of construction management. His affidavit was detailed, carefully prepared in chronological order, corroborated and easy to follow.”
Expert witnesses called by the defendants, including the project designer, a contractor and a registered home inspector, were also viewed as credible.
“In the end, for these reasons, I decided to give these defendant witnesses – the registered owners and the experts – more weight whenever their evidence conflicted with the evidence of Mr. Kamil and Mr. Verma.”
In his ruling, and consideration of the evidence presented, Justice Wiebe concluded that Save On had been “grossly overpaid by the defendants” based on work that had been completed. Taking all matters into account, Save On’s claim was dismissed and its liens discharged.
The Court awarded the defendants a total of $517,454.66 in damages and ordered the return of their $80,000 project security in court plus all accrued interest.
The Court also noted that counsel for the defendants would likely seek, “an order under CA section 86(1)(b) as against Mr. Kamil personally of substantial indemnity costs as well as an order of substantial indemnity costs as against Save On.”
The Court suggested Kamil retain counsel for any future hearings.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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