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</script>) | `Poorly built house' case ends after lengthy fight
BOB AARON
Aug. 20, 2005
Both sides are claiming victory in a bitterly contested case involving defects in a new luxury home in Ottawa's Central Park subdivision, which was purchased for $443,500 in August 2000.For the next four years, the parties were engaged in what a judge later called "an intense and drawn-out saga" over problems with the house at 69 Whitestone Dr.The purchasers were Karen Somerville and Alan Greenberg, a married couple who bought the luxury house from Ashcroft Homes. After they moved in, Greenberg and Somerville compiled a list of 130 problems with the house, ranging from dirty windows to undersized ducting and furnace capacity. A lengthy fight developed, and ultimately the buyers commenced litigation in 2001 against virtually everyone involved in the home construction and purchase, including the Ontario New Home Warranty Program (now Tarion). After several conciliation attempts, ONHWP finally determined that the duct work was defective and ought to have been warranted. Starting in December 2002, Somerville began to experience poor health, and was eventually diagnosed by her doctor with sick building syndrome due to a hypersensitivity to mould. By October 2003, the couple had vacated the house and abandoned the contents on the doctor's recommendation. They never returned. As the trial judge later said, "In hindsight, the combination of a problematic house, a mass production builder, and the expectations of these plaintiffs rendered the possibility of the repair of the home an impossibility." Last summer, Ashcroft purchased the home back for its then-market value of $550,000.In February and March of this year, the case proceeded to a month-long trial on the issue of compensation for other damages suffered by Somerville — for sick building syndrome, out-of-pocket expenses, appliances and fixtures left in the house, mental stress, expert fees, legal fees, and money spent on repairs. The total amount claimed exceeded $1.5 million.In early August, Justice Robert L. Maranger released his decision, awarding the plaintiff buyers $15,000 in general damages for stress and emotional upset, and a further $6,675 for testing and repairs, for a total award of $21,675. He turned down the claim for $1 million in punitive damages. "On the fundamental question of whether the defendant builder breached its contract with the plaintiffs," Justice Maranger wrote, "the evidence in this case supports a finding of a breach of contract. The reconciliation reports from ONHWP, the outstanding work orders from the City of Ottawa, the building code violations, the evidence of engineers who prepared reports on behalf of the builder, all support the proposition that this was a poorly built house. The Agreement of Purchase and Sale provides that the `Real Property will be constructed in a good and workmanlike manner.' This house, in my view, was not."Both sides of the case issued statements after the 32-page decision was released on August 5. David Choo, president of Ashcroft Homes, welcomed the decision of Justice Maranger. He was "satisfied" that the court's decision "effectively addresses the key issues in this unfortunate court case.""From the outset of this long and difficult situation we have made every effort to address each of Ms. Somerville and Mr. Greenberg's concerns up to and including repurchasing of their home from them."He added that his company took the judge's comments seriously and would strive to improve customer service. Somerville and Greenberg issued a statement noting that they were pleased that Justice Maranger agreed with their experts in relation to the poorly built home resulting in a breach of contract, but "we are obviously disappointed that (he) did not accept our experts' opinions that this poorly built home caused Karen Somerville's illnesses, e.g., asthma and sick building syndrome, and that we should vacate that home for health reasons." The judge will decide later whether or not to award costs to one party or the other, and the amount of any award. In this case, the trial lasted four weeks and involved the testimony of numerous experts and thousands of pages of documents. Generally, a court case and trial of this length can cost each side several hundred thousand dollars in fees before a final decision is reached. I would not be surprised if the combined legal costs exceed the market value of the house.Judges usually order the losing party to pay part of the winner's legal fees. Here, one thing is certain: There will be no winners in this case, no matter which side is ordered to pay costs.It's an unfortunate truth that litigation is only for those who have deep pockets or are willing to lose a substantial chunk of their assets in the process of making their point in court.
The decision of Justice Maranger is available without cost on the website of the Canadian Legal Information Institute at http://www.canlii.org/index_en.html Neither side has yet announced any plans to appeal.
Bob Aaron is a Toronto real estate lawyer. He can be reached by email at
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, phone 416-364-9366 or fax 416-364-3818. Visit the column archives at http://www.aaron.ca. |
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