Tiwana v. Shergill ,


2007 BCSC 458

Date: 20070330
Docket: S78073
Registry: New Westminster


Raj Tiwana and Goodwill Holdings Ltd.



Satnam Shergill and Jaginder Kaur Shergill


Before: The Honourable Mr. Justice Crawford

Reasons for Judgment

Raj Tiwana:

Appearing on her own behalf, with
assistance of T. Nijjer

Counsel for the Defendants:

R.J. Morton and S. Charles

Date and Place of Hearing:

February 13 – 17, 20 – 24, 27 and 28, 2006 – March 1 – 3 and 6, 2006


New Westminster, B.C.

[1]                The plaintiff builder sued the defendant home owner for damages for breach of a residential house building contract.  The homeowner defendant alleged the builder failed to complete the house and sued for damages under a number of different headings. 

[2]                Appendix A to this judgment sets out the evidence that was given over the four weeks of trial.

[3]                Appendix B to this judgment is the interim findings and conclusions issued December 11, 2006. 

[4]                The findings result in judgment for the builder whose contract was terminated without notice by the owner.  However, the builder had great difficulty in establishing it’s damages.  On further reflection I find it likely some profit was lost, and I set that claim for lost profit at $10,000.

[5]                The owner proved there were deficiencies in the house, notably the foundation and the plumbing and heating systems.  I allowed $26,000 in damages for the cost of completion, $10,000 interest on monies borrowed for completion, and $100,000 in lost market value.

[6]                Two lien claims were established, one for A Class Doors, at $8,650, and one for New Century Tile in the amount $3,500.

[7]                The claims made by the defendant against the plaintiff for conversion of lumber or monies were not made out.

[8]                As to costs, I allowed the plaintiff’s costs at scale 4, which were to be offset by the defendant’s costs at scale 3 for 4 days.

“R. Crawford, J.”
The Honourable Mr. Justice R. Crawford


Docket: S78073
Registry: New Westminster


Raj Tiwana and Goodwill Holdings Ltd.



Satnam Shergill and Jaginder Kaur Shergill


Before: The Honourable Mr. Justice Crawford

Appendix A – Evidence





Introduction                                                                             Page 3


The Plaintiffs’ Case                                                                 Page 4


The Defences’ Case                                                               Page 103


Admissions                                                                             Page 208


Expert Witnesses                                                                   Page 209


[1]                The parties’ claims arise from the construction of a house in Surrey between April and October, 2002.  The plaintiff builders seek unpaid construction costs of $62,000.  The defendant homeowners allege many deficiencies, seek the cost to repair same, and seek damages for loss in market value because even when finished, the house as constructed with alleged substantial deficiencies will not sell for the same price as houses of the same ostensible quality in the same neighbourhood.

[2]                In February, 2002 the plaintiffs bought a lot at 6133 127th Street, Surrey. A written building contract was entered into between the parties on April 1, 2002.  The price inclusive of taxes was $250,000. The Plaintiff’s allege that they performed the contract and certain extras which raised the price to $275,000 and that as of September 29, 2002, $62,000 were still due and owing.

[3]                The defendants say various breaches of the contract by the builder entitled them to repudiate the contract on October 6, 2002.  They gave formal notice of termination on October 11, 2002.

[4]                The trial took four weeks.  It was apparent that the plaintiff’s original documentation in support of the building costs was a mess.  While Mr. Tiwana holds himself out as an experienced builder, he appeared to have none of the ordinary administrative tools to manage or supervise the construction site.  He kept no records or time table to show how the trades sequenced, let alone contracts or payments.  Mrs. Tiwana is the business manager and bookkeeper.  At trial it became apparent that post facto she had assembled the paper relating to the various transactions with the sub-trades to try and establish what the actual building costs were.

[5]                The plaintiffs were fortunate an energetic employee of a building supply company stepped in (Ms. Nijjer) and assisted them in their case presentation, which brought a semblance of order to the plaintiffs’ case.

[6]                The use of abbreviations is necessary, thus; 6133 is the site of the Shergill’s house; 6222 is the site of the Tiwana’s house; documents are referred to by binder and tab, e.g. A25 is binder A, tab 25. The witness’s evidence, particularly of Mrs. Tiwana and Mrs. Shergill, was frequently interrupted to accommodate other witnesses, but I have collated their evidence in these reasons.

The Plaintiffs’ Case

Mrs. Raj Tiwana

[7]                Mrs. Tiwana is the sole director and principal of the plaintiff company.  She and Mr. Tiwana have a construction business and built five houses in 2001 and 2002.

[8]                Mrs. Tiwana was instrumental in steering the Shergills to Surrey Metro Savings Credit Union who provided the monies for the land purchase which completed February 28, 2002.  The purchase price for the land was $152,500 and the first mortgage in favour of Surrey Metro Savings Credit Union was $303,000.  The first draw on the mortgage was $101,000.  The second draw at lock-up was $75,000 on the 31st May.

[9]                After having discussed terms for some time, a written building contract was signed on the 1st of April, 2002.  The price was $250,000 including GST.  The contract listed the basic items, and it was understood that better quality items would cost more, e.g. granite would cost more than tile.  Mrs. Tiwana said the contract reference to radiant heating in the basement floor was a mistake.

[10]            Plans were drafted and submitted to the City of Surrey and a building permit obtained. Mrs. Tiwana said she and Mrs. Shergill planned the rooms and met with the draftsman during the preparation of the building plan.  The City of Surrey revised the plan saying the house was too big. The plans were re-submitted and approved.  Excavation then took place and the forms were put in by the framer and foundations poured.  Framing began in May, 2002.

[11]            The Shergills made payments in March - $8, 125; April - $1,500; May - $9,000 and June $75,000, the $75,000 being the first bank draw: A3. The contract called for the first bank draw at lock-up.  Mrs. Shergill called the bank which sent an inspector who approved the status of the building and the draw was paid out.

[12]            No payments were made in July.  In August the second draw was made of $73,000, made in two payments of $34,000 and $39,000.

[13]            The contract provided for the third and final draw at completion with keys to be delivered with final occupancy.  Mrs. Tiwana said the written contract did not include the basement, balcony, and extras.

[14]            Mrs. Tiwana figured the Shergills had funding of $200,000 from the bank and were personally contributing $60,000 so that they would have in hand at least $260,000 and money left for extras.


[15]            Mrs. Tiwana calculated and prepared A2, a list of 20 extras which summarized work done and estimated value:







Framing labour


Railing work


Railing labour




Finishing labour


Kitchen stain


Bathroom windows




[16]            She said most of the changes had been made by June, 2002 and she made reference to a note of Mr. Shergill’s (A2, page 3) which listed 7 items, namely:

1.   Master bedroom window – out

2.   Bedroom washroom window to go outside

3.   Computer room window to go outside

4.   Two bedroom doors

5.   Downstairs family room windows to go outside

6.   Move laundry room

7.   Front window top door have to come down

[17]            On the June 5, 2002 Mr. Tiwana obtained plan changes to the side garage door, bathroom windows, and box windows in the family room kitchen room and ensuite.  Mrs. Tiwana said the framer was still on site and those changes were accommodated with a delay of some two weeks.

[18]            Mrs. Tiwana listed  the extras:A2, p. 15 as follows:

1.   rebuilding and expansion of staircase and landing

2.   moved powder room on main floor

3.   2 piece bathroom became 3 piece

4.   relocated entry closet to powder room

5.   niches at upper floor hallway, entry way, family room, and hallway near computer room

9.   arch added to the family room

10. extended upper floor hallway and added closet

11. relocated laundry room

12. added picture frames

13. box windows added to 2 upper floor bedrooms

14. rough in plumbing for sink in garage and fix drywall

15. granite floor in kitchen instead of tile

16. granite replaced tile in kitchen and hallway entry 

18. fireplace and hearths were finished with granite instead of tile.

19. (and 20) both related to bathroom tile where more expensive tile was installed.

[19]            Mrs. Tiwana said the Shergills were on site and helped clean out the home throughout construction.

[20]            The Tiwanas expected it would take some five months to build the house through the summer but the Shergill’s home was delayed 15 days because of changes. She said the Shergills never complained nor questioned the time being taken to build.

[21]            Mrs. Tiwana said they started building their own home at 622 – 126A Avenue in mid-November, 2001 and moved in the last week of February 2002.

[22]            She denied the allegation they used materials from the Shergill’s home in May.  She said they used Hollyburn Lumber to supply the lumber for their house whereas Dick’s Lumber was used for building the Shergill’s house.

[23]            Mrs. Tiwana said relations were good with the Shergills. The Shergills moved into the Tiwana’s house in the last week of June and stayed in the basement until 3rd October when they moved out, the same date as a letter was received by the Tiwana’s from the Shergill’s solicitors.

[24]            Mrs. Tiwana said Mr. Shergill had prepared another list of outstanding items;A2, p.6:

1.   Fascia board – front of house

2.   Wall at computer room (front)

3.   Box on top of phone desk

4.   Fireplace – foam paint

5.   Valance – the windows

6.   Niche box

7.   Amrita dark paint and windows

8.   Arch foam paint

9.   Mid-floor outside sundeck floor

[25]            She said the list was made so the trades could complete the Shergill house.  She said at the time Mr. Shergill was still living in her house and she considered the house 97% complete.  She referred to the progress report from the bank showing 88% completion as of the 5th September.

[26]            When asked how the contract was terminated, she said on the morning of 3rd October she saw the Shergills moving their goods from the Tiwana basement to the Shergill basement. She asked what was happening and was told to look in her mailbox.

[27]            In there she found a letter from the Shergill’s solicitor dated October 3, 2002 which said that a contract had been entered into of March of 2002, construction began March 9, 2002, a contract in writing was entered into April, 2002 but seven months had passed since commencement of construction and the house was still not complete and there were many deficiencies.

[28]            The letter stated the Tiwanas had received draws totalling $208,000 and were still owed $42,000.  The Shergills said it would cost at least $50,000 to complete and that various sub-trades were complaining they had not been paid and they would be withholding $25,000, being 10% of the construction price, until 45 days after substantial completion.

[29]            With respect to living in the Tiwanas basement, the letter said the stay was to be “only temporary” for two weeks at the beginning of August based on a promise their residence would be completed mid-August.

[30]            The letter demanded the Shergills be provided with a set of keys.

[31]            Last, the letter provided notice that construction was to be completed in a good and workmanlike manner according to the building plans, and finished as to quality agreed upon within 14 days of date of the letter.  If not, the Shergills intended to terminate the contract and hire another contractor to complete construction.

[32]            Mrs. Tiwana said she was surprised, that they had had dinner together on the 29th September when the deficiency list had been provided, and now they were being given 14 days to finish construction.

[33]            Mrs. Tiwana said she went to the Shergill’s house at 4:00 p.m. and said painters were working outside on the stucco and would not talk to her.

[34]            The next day she was advised that the locks had been changed on the building and that the Tiwana’s workers were not to go on site.

[35]            Matters degenerated. Tiwanas made a complaint to the police who said the matter was not in their domain.  It would appear threats were made on both sides and the parties were told to see their lawyers.

[36]            The Tiwanas did.  They filed a lien on the 10th of October. On October 11th the Tiwanas’ solicitors replied to the Shergills letter of 3 October, 2002. They stated the delay in construction was due entirely to the actions of the Shergills; that there had been a failure to pay $20,000 by the Shergills on the drywall installation in the last week of August, 2002; that the Shergills had sought an accounting and provided a list of deficiencies October 1, 2002; that the parties had agreed the Shergills had paid $208,000 to the Tiwanas; that 3 cheques totalling $6,177 might not be honoured; that in spite of the 14 days allowance to complete construction the Shergills had hired another painting company to start painting, that the locks had been changed and that the Tiwana’s trades and  sub-contractors for concrete cabinets, landscaping and carpets could not obtain access.  Sensible proposals were made (A9).

[37]            The Shergills responded with a further letter from their solicitors on 11th October, 2002.  “We have been advised by our client you have not completed the residence and have no intention of doing so and accordingly this letter will serve notice to you our client has terminated your contract and shall be hiring a third party to complete the construction”( A10).

[38]            Mrs. Tiwana referred to a letter from Residential Warranty Insurance Services Ltd. of December 16, 2002 (A16) where a 10-year structural only warranty was provided on the basis of an inspection of the home.  However, the warranty was on the basis of written confirmation of completion and occupancy together with the copy of the final inspection from the City of Surrey.

[39]            Mrs. Tiwana said she was aware the plumbing was still an issue but she asserted that plumbing had proceeded with inspection approvals.  A24 showed Red Rose Plumbing had an inspection completed and permit granted as of April 2nd, 2002, April 23, 2002 and a re-inspection fee paid June 11th.  A26 is a copy of a plumbing inspection notice indicating approval of the radiant heating for main and upper floors, May 23, 2002 but noting a final plumbing inspection required on work completion.  A similar notice was issued April 26, 2002 (A27).  On June 17, 2002, water-pipes were tested to 200 p.s.i. and approved “to cover”, again subject to final plumbing inspection approval (A29).

[40]            A30 is a letter of the Shergills to the City of Surrey, plumbing department, dated October 24, 2002 which reads: “Re: Plumbing 6133 -127 Street.  This is to inform you that we have fired the plumber Red Rose Plumbing Ltd.  We have fired the builder and the plumber never showed up.  Very sloppy job had been done at 6133 – 127 Street”.

[41]            The Shergills hired a Mr. Mocha (dba Dave M. the Plumber) whose bill of July 8, 2003 ( A31) showed a partial completion of plumbing and heating, repairs to boiler tanks, completion of hook-ups costing  $11,502.50.

[42]            Mrs. Tiwana said that as of early October, 2002 the cost of the remaining work on the Shergill house, namely the exterior lawns, outside railing, garage mouldings, carpeting, kitchen cabinets and counter-tops was some $11,000. Mrs. Tiwana then referred to a bill from G.N. Finishing Carpentry dated January 18, 2003 to Goodwill Holding Ltd. regarding interior and exterior finishing and acknowledging a $2,000 payment on a $3,400 account.

[43]            A33 is G.N. Cabinets and Woodworking invoice dated December 18, 2002 for delivery of cabinets and installation in the amount of $5,000.

[44]            A34 is a proposal for kitchen cabinets, washroom doors and the like from Euro-Tech Kitchens and Millwork Ltd. in the sum of $15,500 and taxes dated November 30, 2002 which Mrs. Tiwana alleged reflected the Shergills replacing the cabinets.

[45]            A35 is an undated painting invoice to Goodwill Holding Ltd. for $5,000, for painting labour.

[46]            A38 is an invoice from KGS Finishing Carpentry to the Shergills dated February 23, 2003 for work on doors, closets, baseboards, mouldings, window casings and sills, washroom accessories, columns, fireplace mantel, and dining-room hutch in the total amount of $6,500.25.

[47]            A39 is a delivery slip from Euro Ceramic Tile dated August 22, 2002 to Goodwill Holdings in the amount of $9,092 and A40 is a further tile bill with shipping date November 14, 2002 to the Shergills in the amount of $230.30.

[48]            The lien filed by the plaintiffs was for $62,000.  It was calculated on the basis that the contract was for $250,000 and extras were $27,244.50.

[49]            As against that Mrs. Tiwana said the defendants had paid to the plaintiffs $202,825 and therefore the lien was $62,000:  A3.  Mrs. Tiwana said the lien did not include a management fee or any profit (though it is a fixed price contract).

[50]            A20 are documents sealed by A.S. Banwait, professional engineer and a member of Mainland Engineering Corporation.  Mr. Banwait gave his signature to structural design for the foundations, beams and their supports, temporary geotechnical and permanent geotechnical, i.e. soil bearing capacity on February 28, 2002.

[51]            A33 is the cabinet maker’s bill for $5,000 to Goodwill dated December 18, 2002.

[52]            A bill of 16th September, 2002 from Red Rose Appliances & Plumbing Ltd. to Goodwill in the amount of $20,330 is for rough in piping, waterlines, tub installation, gaslines, ventilation and finishing for plumbing and fixtures: A25

[53]            A40 are a number of tile invoices which include repairs to the tile made and paid by Mrs. Shergill November, 2004.

[54]            A44 is a law firm’s statement of receipt and dispersal of draw funds for Goodwill re 6222-126B Street, Surrey.

[55]            A46 is a deposit on the house sold by Mrs. Tiwana on March 25, 2002 with completion and possession May 1, 2002.

[56]            A47 shows another property sold by Mrs. Tiwana dated July 17, 2002.

[57]            A49 is a contract dated March 20, 2002 between Goodwill and Mr. Hayre the framer regarding responsibility for injury on the Shergill job site.

[58]            A50 shows payments to New Century Tiles in the amount of $2000.00 on June 5, 2002, and $1400.00 October 30, 2002 for 6222 126B Street, and an invoice from New Century Tile for $3400.00 dated June 15, 2004.

[59]            Mrs. Tiwana prepared and filed a binder (B, later Ex. 90) containing a list of the monies expended and the bills incurred by Mrs. Tiwana and Goodwill Holdings on the Shergill residence.

[60]            The binder comprised 93 documents evidencing expense of $213,102 and including the house plan survey, miscellaneous expenses, framing work, cement work, landscaping and tree removal, survey work, framing, framing lumber, rough-in electric and alarm work, roof tile, fireplace, electrical work, general labour, drywall, damp-proofing, windows, gutters, kitchen cabinets, side stone, insulation, granite flooring and insulation, other flooring, carpet deposit, roofing costs, stucco costs, driveway, interior painting, wood interior finishing and finishing carpentry and plumbing.

Cross Examination

[61]            The contract provided for radiant water heating installation in the basement. Mrs. Tiwana conceded it was a mistake.

[62]            Mrs. Tiwana said she began assisting the Shergills in late 2001, initially preparing the Agreement for Sale for the lot purchase, and in January 2002 preparing the Agreement for Sale to sell their old house.  When it was suggested to Mrs. Tiwana they had not moved in April 2002 but in June 2002, because their landscaping, appliance purchase and draperies were not purchased until that time, she could not remember.  She agreed most of her discussions were with Mrs. Shergill.  She agreed the contract plus the various discussions in the plans comprised the contract.   She agreed the colours and the price for individual items were not in writing.  She agreed that not everything could be put into the contract.  She agreed no price allowance was provided in the contract, as the price was set for the “average house”.  She agreed there was no discussion what was considered “high-end” as compared to “regular” fixtures.

[63]            Mrs. Tiwana did not remember looking at another house to get the proposed colour for the Shergill house exterior.

[64]            Shown C2A, a photo of a house on 109 Avenue, Mrs. Tiwana said Mrs. Shergill showed her the house to exemplify the exterior paint for the stucco. C2C shows a photo of the Shergill house as at September 26, 2002 showing the colour, which was contrasted to Ex. C2A.

[65]            The contract included a laundry chute but did not include rough-in, drainage or taps in the garage.  It did include a granite entryway and kitchen countertops, hardwood floors in the living-room but not in the family-room.  Nor did she remember a drop ceiling in the family-room for the chandelier

[66]            Mrs. Tiwana denied niches were to be put into the walls, either in writing or verbally.

[67]            Mrs. Tiwana said Mrs. Shergill asked her to change the stone façade in August.

[68]            She agreed the contract called for one main kitchen on the main floor.  She disagreed plan changes were made without the Shergills approval.  She agreed the construction would not be complete until they had a final occupancy permit and the keys were given to the Shergills.

[69]            She agreed her husband was the supervisor to ensure the trades did their work properly and that the work was done according to the plans, and that it was the builders’ responsibility to meet building standards.

[70]            She agreed the contract provided no completion date but she denied telling the Shergills the house would be completed by the end of July at the latest.  She was then shown the home owner protection registration application dated March 1, 2002 which estimated completion by July 29, 2002.  She denied writing the document.  She did agree she provided the estimated completion date July 25, 2002 and estimated possession date July 29, 2002.

[71]            When asked if she had promised the Shergills that completion date, she said no, that was just her estimate.

[72]            She agreed she knew the Shergills had sold their house as of April 1, 2002.

[73]            Mrs. Tiwana disagreed that she would build two rental suites in the basement. She did agree secondary suites typically have baths and kitchens. She was referred to the second page of the contract which provided “basements and back balcony will be completed after the final occupancy”, to which she responded it was not legal to build, that it was up to the Shergills but the builder could install the plumbing and other utilities.

[74]            She was then directed to Item No. 5 on the first page of the contract which provided “melanman (sic) cabinets in the two rental kitchens” and she said that she had agreed to build two rental kitchens downstairs, not two rental suites.

[75]            Mrs. Tiwana agreed it was a fixed price contract and that they had hoped to make a profit of some $25,000.  She agreed the contract price would be paid by the Shergills and bank mortgage draws.

[76]            She agreed she would use that money on their house.  She agreed the contract terms were not clear as to the payments.

[77]            She did agree the contract provided for three draws from the bank at lock-up, at drywall, and after completion.  Mrs. Tiwana expected the Shergills to pay $20,000 at the outset and two other payments of $20,000 plus three bank draws.

[78]            She received $75,000 from the bank on May 1, 2002.  She agreed drywall completion was in late August 2002 but she disagreed that as of the end of August she had been paid according to the agreement.  She received $34,000 on the 2nd August prior to completion of the drywall.  Put that the second draw would not be until completion of the drywall, she said that the contract provided “at drywall”.  She acknowledged she received $34,000 on August 2 and $39,000 on August 24, 2002.

[79]            She disagreed that she would not be entitled to the third draw or balance of the contract price until after final occupancy.

[80]            She disagreed she was getting paid “early”. She agreed the house was not complete, and that as at August 24 she had received $166,000.

[81]            C4 (later Ex. 7) Interrogatories of the defendants, set out the following payments:



May 7, 2002, including $9,000 by cheque to Manraj Singh May 2, 2002



Payment to Goodwill Holding Ltd. by cheque on or about May 31, 2002



Payment to Goodwill Holding Ltd. by cheque August 2, 2002



Payment to Goodwill Holding Ltd. by cheque August 24, 2002



Payment to Goodwill Holding Ltd. by cheque September 6, 2002



Payment to Goodwill Holding Ltd. by cheque September 29, 2002

[82]            She agreed she had been paid $203,200.  She denied there was an additional cash payment of $4,800.

[83]            Questioning then turned to Mrs. Tiwana’s document book marked Ex. “B” Statement of Expenses.  She agreed she swore that was all the money expended on the Shergill house.  Mrs. Tiwana wrote the 8-page Statement of Expenses.

[84]            Reference was made to page 7, Item 71, payment to Castle Building of $4000 cash on August 30, 2002.  She denied receiving $400 from Mrs. Shergill in cash on August 19, 2002; she denied receiving further $400 cash on August 28, 2002; she denied receiving $1,700 cash in early August.  She recalled cashing a cheque dated August 14, 2002 for $300 and said those were monies she had expended at Costco and she had been reimbursed by Mrs. Shergill; she did not recall receiving a further cash payment of $400 from Mrs. Shergill on August 30; and she further denied receiving $1,000 from Mrs. Shergill on August 30.

[85]            Mrs. Tiwana agreed the building plan changed to permit construction of a sun-deck instead of a fourth bedroom.  She agreed there was construction delay but no increased cost of construction as the house had already been built and it was only a couple of hours labour.  She did not recall who the tradesmen were.

[86]            Mrs. Tiwana did not agree the Shergills moved into her basement at 6122 on August 2nd.  She said, no, it was the last week of July, the house was not ready, and the Shergills had just returned from a trip overseas.

[87]            Mrs. Tiwana denied the Shergills were asking why the house was not ready as the Shergills knew that from being on site.

[88]            She said she told the Shergills of the conversion of the bedroom to a deck, that the Shergills knew that before they went away to Australia, and that they knew of the stop work order in June of 2002.  She said she told the Shergills of the City Planner’s (McKenzie) position about the stop work order.

[89]            The stop-work order C10 was dated June 18, 2002 and was lifted June 27, 2002.  The stop-work order indicated the foundation was 0.260 metres wider than shown on survey, and a new survey would be required before work restarted.

[90]            C11 is an application to the City of Surrey planning department dated June 21, 2002 showing an agreement to convert a bedroom to a sun-deck, the application being made by Mr. Tiwana.  Mrs. Tiwana denied the change in plans was made without consultation with the Shergills.

[91]            Mrs. Tiwana denied that by August, 2002 Mrs. Shergill was asking Mrs. Tiwana where the building money was going and continued that questioning until October, 2002.

[92]            C8 is a document indicating a receipt for $208,000 on September 29, 2002.  Mrs. Tiwana agreed that confirmed payments made to her to that date but she denied she had promised a $5,000 credit for granite and insulation.

[93]            She did agree she would pay Mrs. Shergill a $5,000 referral fee for other business and then made it a credit of $5,000 on the house payments.  Mrs. Tiwana agreed Mrs. Shergill asked her to sign the receipt document and that Mrs. Shergill gave her a cheque for $10,200.  She denied the $5,000 credit raised the monies received to $213,000, but it raised the figure to $208,000.

[94]            She denied the meeting on September 29, 2002 was about the Shergills being concerned about the monies spent and the failure to complete.

[95]            She denied the payment for $10,200 was accompanied by a deficiency list and items to be fixed.  She said she received the cheque for $10,200 before she signed the receipt.

[96]            C18 is a 3-page deficiency list of 24 items.  Mrs. Tiwana denied she received the list at the September 29 meeting. She said the list was not produced at that meeting but a deficiency list had been made two days beforehand when the parties went to the Shergill’s house.

[97]            Mrs. Tiwana denied Mr. Tiwana said he wouldn’t do any more work on the Shergill house after the September 29 meeting.  She denied she was angry and told the Shergills they were interfering with completion of the house.  She denied obstructing their inspections and said the Shergills were at the house every day.  She denied changing the locks on the Shergills house at that time.  She denied telling the trades not to go to the Shergills house after that date.  She was not sure if any work had been done on the house after that.

[98]            With respect to the $10,200 cheque given to her on September 29th, she denied using $9,000 for her own purposes.  C56 is a bank account for Goodwill Holdings, which at page 21 on October 1, 2002 shows a deposit of $10,200 and a transfer of $9,000.

[99]            C57 is a bank account of M. Singh, her son, showing a credit for $9,000 on October 1, 2002 creating a balance of $34,099.59.  On October 7, 2002 a bank draft in the amount of $34,006.75 was made.  She agreed that had nothing to do with the Shergills house.

[100]        Mrs. Tiwana did note she had made payments to trades on October 1, 2002 in the amount of $16,111, which she said could be found in Ex. “B”, the Statement of Shergill House Expense.

[101]        On October 3 she received the letter from the Shergill’s lawyer:  C20. She agreed the Shergills had moved out of the basement by October 8 and began moving out on October 5.

[102]        Mrs. Tiwana denied they had no intention to complete the work.  She disagreed.  She wanted to finish the house. She disagreed that she failed to send any further trades on site.

[103]        She said that when she and her husband went to the Shergills house on October 4, the Shergills had already hired a painter to paint the exterior and they asked why the Shergills were hiring painters when they had 14 days to complete.  She was unable to say why no work had been done on the house between September 29 and October 3.

[104]        When asked if they sent any trades to the site on October 4, she said no, that they had asked the Shergills to stop using their trades.

[105]        On October 6 she and Mr. Tiwana went to the Shergills house.  She said she left when Mrs. Shergill started swearing at her husband.  She denied hearing her husband swear at Mrs. Shergill or that Mr. Tiwana had asked for the hardwood floor back.  She said she went to the painters at the back of the house and asked them not to work.

[106]        It was put to her the October 5 meeting was a loud discussion at the front of the garage and that Mr. Tiwana told the Shergills he would burn the house down.  She denied that.  She said she was there and the painters were there at the back of the house.

[107]        She could not remember if the Shergills’ daughter or any other people were there nor the length of the conversation.  She said the conversation simply was to stop the painters that they would bring their own painters.

[108]        Examination continued on the events of early October.  Mrs. Tiwana denied she decided there would be no more work on the house after September 29.

[109]        With respect to the meeting on October 5, it was put to her she went to the back of the house and Mrs. Tiwana had discussions with Mr. Shergill.  She disagreed saying initially they met at the garage and then they went to the back of the house.  She said that both Shergills and Tiwanas were present and that Mr. Tiwana asked Mr. Shergill to stop the painting, but she denied that Mr. Tiwana swore at Mr. Shergill in Punjabi, that they were not fighting.  She agreed two painters were present and they were re-painting the exterior stucco.

[110]        She disagreed she pulled Mr. Tiwana away because he was so loud.  She said Shergills said to leave, that the police will be coming and that she then said, “let’s leave”.

[111]        She denied telling the painters the Shergills owed them money and were not good people.  She denied Mrs. Shergill said to go away, but rather she was told not to go on the property and that she had a cellphone and would call.

[112]        With respect to 6 October, she said there was another meeting outside the garage.  Mrs. Tiwana said they wanted to try and talk as they still had some days to finish the contract.  She said they met in front of the garage. When it was put to her she did not partake in the conversation, she said Mrs. Shergill wouldn’t agree to anything and telephoned the police and that’s why she got in her car.

[113]        C22 (Ex. 19.) is  the letter from the Shergill’s solicitors October 11, 2002 which reads:

We have been advised by our client that you have not completed the residence as required and have no intention of doing so.  Accordingly, this letter will serve notice to you that our client has terminated your contract and shall be hiring a third party to complete the construction of the residence and repair and/or rectify any of the deficiencies with respect to same.

We advised that in the event our client is required to pay more than $42,000 for completion of the residence and repair and/or rectify any of deficiencies, our client shall be seeking those costs from you, and if necessary shall commence legal proceedings against you seeking those costs…

[114]        Mrs. Tiwana was asked whether she had decided to stop work on the Shergill house before receiving the letter and she said no, the Shergills had stopped them.  She agreed Goodwill had liened the property for $62,000 before October 11, 2002 (C21, Ex. 20 lien filed October 10, 2002).

[115]        As to the written contract signed April 1, 2002,  Mrs. Tiwana could not recall there being two earlier drafts of the contract nor that the signed copy was a third draft at a third meeting.

[116]        She agreed the $250,000 included lights and fixtures for the house.  She did not recall it including smoke detectors.  Light fixtures included one ceiling light for every room in the house, ceiling lights in the hallways and basement and a ceiling light for the shed in the backyard.  She agreed the shed was to be included in the price.  She agreed the plan included a back balcony and she did not remember the contract including a back balcony ceiling light or a ceiling light over the nook on the main floor.

[117]        She agreed the price included all plumbing fixtures but she denied specifically mentioning all faucets.  She disagreed there were two faucets in each bathroom.  They gave a $20,000 contract to the plumber.  Should the Shergills want expensive faucets, Mrs. Shergill could buy her own, so that if the plumber was putting in a $50 tap and Mrs. Shergill wanted more, then she would pay the extra.

[118]        Mrs. Tiwana agreed the plans provided for seven bathrooms with six tubs.  A separate sink was provided later in the laundry-room when Mrs. Shergill requested it.  There was a sink for each of the four kitchens and a shower-door was included for each tub, save one.  There was a mirror in each bathroom, standard closet racks and organizers were provided, as were closet doors.  Two mirror doors were provided for the entry closet and for the master bedroom.

[119]        With respect to flooring, tile was for five bathrooms and linoleum for the two rental suites, tile on the main floor and china kitchen backsplashes.

[120]        A concrete sidewalk was included on the south side of the home.

[121]        Questioning then turned to the accounting provided by Mrs. Tiwana.  It was put to her that as of October, 2002 Mrs. Tiwana had taken $38,000 for things not related to the house building contract which she denied.  She denied she had taken so much money she could not complete the building in September or was unable to pay Red Rose Plumbing or the painter for the cabinet installation.  Mrs. Tiwana denied that $28,000 Shergill money was used on her own house.

[122]        Mrs. Tiwana agreed her affidavit (Ex. 2A) list of expenses was $1,000 more than the list in Ex. B.  The July 16, 2003 affidavit swore the total expense for the Shergill house was $212,100.60, while Ex. B totalled $213,102.

[123]        She said she had paid the bills from monies received from the Shergills or if she had already paid the bill, then monies from the Shergills would go into her own account.

[124]        The Dick’s Lumber accounts (2A) totalled $35,269.25 while Ex. 18 (C61) totalled $34,416.31, a difference of some $600.  It was put to her some of the lumber on the statement was in fact picked up at Dick’s but put into the Tiwana house.  Mrs. Tiwana denied that, saying she bought her lumber at Hollyburn Lumber.

[125]        It was put to Mrs. Tiwana that of the Dick’s Lumber charge of $35,269, the Shergills were entitled to a credit of $10,000 for materials delivered to the Tiwana’s house or moved to Shergills and taken.  This was denied.

[126]        Reference was made to C62 (Ex.18) the Dick’s Lumber supply charge summary totalling $34,416.31 for charges to the Shergill house.  Mrs. Tiwana referred to the 2A statement of expenses totalling $35,269.25.  Ex. B contains 5 cheques made out to Dick’s Lumber at tabs 25, 33, 54, 86, and 91 from May15 to December 11, 2002 totalling $35,269.  She denied the last two payments were for deliveries to the Tiwana house.

[127]        She was then referred to her affidavit (Ex. 2A) at page 5 of the statement of expenses where GN Cabinets show payments of $3,000 and $2,000.  She agreed that was for the cabinet work at the Shergills and referred to document C50, the GN cabinet invoice.

[128]        She denied that payments at B86 and B91 were for lumber deliveries to another house.

[129]        Returning to the GN Cabinet invoice, Mrs. Tiwana said cheques were given by Mr. Tiwana who in turn gave the cheques to Mr. Dial.  She denied that Dial cashed the cheques and gave $1,000 back to Mr. Tiwana. 

[130]        The next issue was tiles.  Ex. 2A page 6 shows three payments, the first to Jason Sandhu and New Century Tile for $1,500 and $1,000 and $500.

[131]        Mrs. Tiwana said the Sandhu’s asked her to write the cheque.  Mr. Sandhu operated as New Century Tiles and installed the tiles in the Shergill’s house.  C46 (Ex. 22) is a handwritten invoice entitled New Century Tile and dated March 28, 2003.  Mrs. Tiwana denied asking Mr. Sandhu for an invoice that day.  She denied that only $1,000 was paid of the $3,000 invoice.  Mrs. Tiwana acknowledged that tiles were installed in three other houses and that New Century put tile in the Tiwana house.  C49 is an invoice from New Century Tiles dated June 15, 2004 showing installation of floor tiles at 6222, 126B Street, Surrey in the amount of $3,400.  C47 is a cheque made out to Jason Sandhu, August 26, 2002 in the amount of $1,500.  Mrs. Tiwana claimed it was payment for installation in the Shergill’s house.  The address is patently changed from 6222 (Tiwana) to 6133 (Shergill).  Mrs. Tiwana acknowledged changing the address after the cheque had cleared the bank, but denied the change was made to fit the 16 June 2003 affidavit of expense (2A).  She said the wrong address had been put on the cheque.  She denied changing the date on the cheque.

[132]        C48 is cheque No. 165 in the amount of $1,000 dated September 2, 2002 made out to New Century Tile.  It was put the cheque was not negotiated until April 2003, which was denied and then admitted.  It was pointed out that date was just a few days after the handwritten invoice of March 28, 2003.  With reference to the handwritten receipt and the notation $500 “cash”, when asked if those monies had been paid, Mrs. Tiwana said “They gave me a receipt”.  She said they had paid New Century Tile $500 cash but she could not remember when.

[133]        When referred to C49, the invoice dated June 15, 2004 of New Century Tile re 6222 126B St., Mrs. Tiwana denied that they asked Mr. Sandhu to give evidence in Tiwana’s favour.

[134]        Mrs. Tiwana couldn’t remember when the drywall was done on her own house.  Mrs. Tiwana was directed to page 6 of Ex. 2A regarding the weigh-scale tickets for $61 and $10 in May of 2002 and four more at the top of page 7, all in May 2002.  It was put that it was a total of $180.  Mrs. Tiwana said it was $214.  When asked if that was for the Shergills’ house, she said, yes.  Mrs. Tiwana was referred to B19, eight City of Vancouver weigh-scale tickets and it was put that the receipts reflected fees incurred by the Shergills for dumping rubbish from the Tiwana’s house in May 2002.  Mrs. Tiwana denied that, saying there was only one dump of waste material from her house.  When asked if she agreed the Shergills took garbage from the front of the Tiwana’s house, she acknowledged “some” and that drywall might possibly have been included.  However, she denied there was a big pile of waste material in the front of her house in May 2002.  She acknowledged the Shergills did help.

[135]        It was put the pile of garbage and drywall in front of the Shergill’s house was not moved until August 2002.  She did not remember.  She denied the Shergills lot was then graded.

[136]        She did not remember if the concrete driveway at the Tiwana house was done in July.

[137]        The questions then turned to the framing contractor, Mr. Hayre.  At 2A, page 7, Mr. Hayre shows with four payments totalling $30,500.  Mrs. Tiwana said an extra bill for $6,300 was not included and referred to C38, a typewritten bill dated July 18, 2002 entitled “an invoice for extra work” totalling $6,366.50.  Mrs. Tiwana agreed she requested the bill.  She denied it was a false bill that she never paid. 

[138]        Mrs. Tiwana denied asking Mr. Hayre to give the invoice to inflate the bills to the plaintiff, and referred to a handwritten bill, A49, page 2, a page of various figures and descriptions regarding framing which she asserted was in Mr. Hayre’s handwriting.  She said Mr. Hayre gave her the document which showed billings for $28,750 made up of: frame, $18,000; foundation $3,500 and extras of $6,900, totalling $28,400 plus $350 for a total of $28,750.  The $350 refers to driveway and sidewalk.  C39 (Ex. 27)is another typed bill  and dated July 18, 2002 being an invoice for $23,005 showing framing $18,000, foundation $3,500 and GST of $1,500 and marked “paid” and signed by Mr. Hayre.  Mrs. Tiwana denied asking Mr. Hayre to sign the two bills.  She denied not paying the $23,005.  She strongly asserted it was a true document.  It was suggested to Mrs. Tiwana that the most she paid Mr. Hayre and his partner was $11,500.  She denied that.  It was put that Mr. Tiwana had hired Mr. Hayre to frame and do the foundation for $14,500 for the Shergills.  Reference was then made to C40 and C41.  C40 is a cheque of Raj Kamari Singh of 6222 - 126b Street, Surrey made out to Inderjeet Hayre for $4,695.  The two documents appeared to be the same, but on C39 the date is badly obliterated.  However, C41 shows the date as September 30, 2002.

[139]        Mrs. Tiwana acknowledged she changed the date.  She denied saying the cheque cashed in October 2002, that she gave him the cheque in September 2002 but when he went to cash it later it was NSF.  On examination for discovery she said that the cheque was cashed October 2.  She agreed the cheque was cashed March 31, 2003 as it showed on the bank’s statement.

[140]        Mrs. Tiwana took Hayre to the bank and helped him cash the cheque.  She agreed that Hayre didn’t have an account to cash the cheque and she said she went with him three or four times.  She denied that Hayre cashed the cheque and gave her the money, and she further denied that she did so to make it look like he had billed and been paid $4,695.

[141]        A Notice to Admit dated July 9, 2004, requesting the admission that (1) cheque No. 183 payable to Inderjeet Hayre in the amount of $4,695 on the account of Raj Kamari Singh was negotiated and honoured on or about March 31, 2003; and (2) cheque No. 185 payable to Inderjeet Hayre in the amount of $3,700 drawn on the account of Raj Kamari Singh was negotiated and honoured on or about March 27, 2003 was then filed:  Ex.30.

[142]        C42, (Ex.31) a cheque to Inderjit Hayre No. 185 drawn on Raj Kamari Singh’s account and dated May 10, 2002 in the amount of $3,700 was put to Mrs. Tiwana.  It was put to her that the bank stamp had the date scratched out.  She denied that.  Another copy of the cheque from the bank was produced to her and marked Ex. 32.  It was noted this cheque was the second one in the Notice to Admit (Ex.30) and was negotiated March 7, 2003.  Mrs. Tiwana did not remember.  It was put to her the cheque was cashed by Mr. Hayre and he gave Mrs. Tiwana the money.  She denied that.

[143]        C43 (Ex. 33) is two pages comprising photocopies of receipts from Inderjit Hayre covering the period May 27, 2002 to August 17, 2002.  There are six receipts.  Mrs. Tiwana agreed she asked Hayre for the receipts.  She denied the receipts were all false and that no cash was paid.

[144]        C37 is a typewritten invoice for extra work to Goodwill Holdings for a shed, driveway and sidewalk totalling $1,123.50 and dated July 18, 2002 and marked “paid” by Mr. Hayre.  Mrs. Tiwana denied asking for an invoice for the extra work and said the extras were $6,300.

[145]        Mrs. Tiwana said she paid Mr. Hayre and that was included in the four expenses set out in Ex. 2A at page 7.  She denied it was a false invoice and it was in fact paid.  C42 was marked Ex.34.

[146]        Ex. 2A, page 4 lists two invoices from North West Insulation in the amounts of $2,900 and $1,300.  Mrs. Tiwana denied the $1,300 invoice was not for Shergill.

[147]        The payment of $1,300 was by cheque 240 (C45) dated October 19, 2002 but cashed April 8, 2003.  It was put it was cashed late so as to inflate the house price.  Mrs. Tiwana denied the $1,300 was for payment for the insulation for the Tiwana house.

[148]        Ex. 2A, page 6 lists Gill Mini Excavation in the amount of $214.  Mrs. Tiwana said the correct amount was for $430 and referred to B39, a handwritten invoice of June 7, 2000 showing in one column $214 but a notation of “paid in full” for $412.  As well it appeared the address was changed from 6222 to 6133.  It was put to Mrs. Tiwana the bill related to the grading the Tiwana lot in early June 2002.  She said, “no”, that the Shergills were there when the grading was being done.

[149]        She said she separated the bills once the fighting started.

[150]        It was put to her that three other houses that the plaintiffs built were paid from one account at the Toronto-Dominion Bank.  She agreed there were three houses on the one account.

[151]        At page 5 of the Statement of Expense was an account for National Gutters of $1,490, but Mrs. Tiwana conceded a $200 deduction should be made: see B59.

[152]        Ex. 2A, page 6 shows Saggu Woodwork paid $3,529 on November 5, 2002 and $1,500 on November 9, 2002.  Mrs. Tiwana denied these accounts were for the Tiwana’s railings.  It was put that Saggu Woodworking were paid for Tiwana’s bills first and Shergills paid in March 2003.  Reference was made to B88 which has an invoice for 6133 dated 2 March 2003 in the amount of $5,029, and cheque No. 163 dated November 25, 2002, in the amount of $1,500, but the reverse side shows “paid March 5, 2003”.  As well, there is a receipt for $3,529 and reference cheque No. 239 “cash”.

[153]        Mrs. Tiwana said she had paid a cheque to Saggu for work he had done on her house.  It was put to her that by October 2, 2002 Saggu had not been paid and the $1,500 cheque on the Shergill expense list 2A was in fact for rails in the Tiwana house.  That was denied.  Mrs. Tiwana denied asking Mr. Saggu to bill her in March 2003.

[154]        It was put to Mrs. Tiwana that in June 2002 the Tiwana house lot was being graded and the concrete driveway poured.  Mrs. Tiwana said she didn’t remember when the driveway concrete was poured but she then referred to a receipt from Gills showing the front of the house was graded on February 2002: Ex. 35.

[155]        Mrs. Tiwana agreed in late 2002 she was constructing a house on Panorama Ridge.  In the summer of 2002 a house was built at 6248, 124A Street.  B38 is a cheque No. 196 to A-Class ReBar Ltd. in the amount of $1,283.47 dated June 7, 2002, while A47 is an invoice dated March 1, 2003 from Belmont Rebar for rebar in the amount of $1,450.  Mrs. Tiwana said she could not tell which cheque was for the foundation and which was for driveway.

[156]        Mrs. Tiwana said the $1,450 was a cash payment.  It was put she never did pay the cash which she denied. 

[157]        Ex. 2A, p. 6 claims groceries in the amount of $127. B93 is a cheque paid June 20, 2002 to Mrs. Shergill.  She said Mrs. Shergill never borrowed money from her but they would go to Costco together and Mrs. Tiwana would pay and Mrs. Shergill would repay her share.  She denied the cheque B93 was dump fees for garbage hauled from McKay Street in Burnaby and she disagreed saying she paid Mr. Shergill $30 in January 2002.

[158]        Concrete charges were then reviewed, namely Rempel Bros. Concrete, B18 invoices April 5, 2002 for $6,526 ; May 3, 2002 for $3,479; Ex. 2A, page 7.  B9 shows Challenge Pumping for April 5 for the foundation pour and B17 Sidhu Concrete May 3 for pumping floors.  B36 is an invoice for concrete pump from Sidhu without a date and Greystone Ready Mix which Mrs. Tiwana thought was for the driveway.  Mrs. Tiwana disagreed that the $451 was payment for her driveway.  With respect to cheques to Mr. Sidhu of $550 and $300 (C52), Mrs. Tiwana said that was for Mr. Sidhu’s labour fixing stairs to the basement and general labour in July.

[159]        Mrs. Tiwana denied the fascia boards in the invoice for Hollyburn Lumber (B22) dated 13 May 2002 and charged to the Shergill house were delivered to the Tiwana house.

[160]        2A statement of expense, p.7 states payments were made to Rempel Concrete by way of Visa and also to Sanderson Concrete, and on page 6 a payment to Delco Fireplace.

[161]        On May 31, 2002 the first bank draw of $75,000 was paid to Tiwana. It was put that Mrs. Tiwana paid $25,000 into her personal CIBC Gold Visa account (Ex. 37 p. 19) for Raj Kumari Singh.  Page 12 records a receipt of $25,000 on 31 May, 2002 and on July 6 $15,235 paid to Rempel Bros.  Mrs. Tiwana could not say if that included charges other than the Shergills.  At page 11 there are four charges totalling $8,500 to Future Shop and $100 to Shan Draperies dated July 7, 2002. Mrs. Tiwana agreed those charges were for her house appliances and draperies.  She agreed $600 was paid to City Tile for tile for the Tiwana house.

[162]        She agreed a May 23 payment to Euro Ceramic Tile in the amount of $2,441 was for the Tiwana house as was a July 8 payment to Jordan Rugs for $1,355 for the hardware floor in the Tiwana house.  She could not remember if the August 2nd payment of $5,000 was from the Shergills progress draw August 2, 2002 of $34,000 (C56).  Mrs. Tiwana agreed purchases at Future Shop on August 5, 2002 for $2,673 were for Tiwana basement appliances. 

[163]        Mrs. Tiwana wasn’t sure and said she would check with the supplier about the May 29 Greystone Ready Mix as being concrete for her driveway.  She agreed the July 17 Jordan’s bill for $143.81 was a purchase for a rug for the Tiwana house. 

[164]        The Visa statements were made Ex. 37.

[165]        It was put that of the $30,000 Shergill funds paid on Tiwana’s Visa only $12,500 was expended for the Shergills and therefore $18,000 went to Mrs. Tiwana’s personal use.  Mrs. Tiwana said, “no”, that she paid other bills with cash and could “put it all together”.  As well she said she paid Visa $40,000 from her own money and never realized she had to keep separate accounts.

[166]        Questions then turned to the termination of contract.  Mrs. Tiwana denied that she took the Shergills’ tiles from the Shergill’s garage.  It was suggested boxes of tiles were in her garage.  She said she didn’t remember.  She denied taking a box of faucets from the Shergills’ garage and then said the tiles had been moved.  As to medallions, she denied she said to Mrs. Shergill said they were no good, and they were not charged as an expense on the expense sheet.  She said paint got on the medallions before the end of the job and that Mrs. Shergill brought them over to the Tiwana’s house.

[167]        Mrs. Tiwana was not sure she said in her direct evidence the Tiwana house began November 2001, but asserted the construction finished in May 2002.  She said she moved in then.  She agreed the final occupancy permit was not given until November 2002.  It was put to her she received mortgage draws during that time and furthermore she sold two properties over the summer.  She acknowledged she had a mortgage for $250,000 and she sold two houses.  It was put to her she relied on the mortgage draws to pay construction costs, but a lien from Guldeep in May 2002 prevented any further mortgage draws being obtained, which led to an unintelligible answer.

[168]        She agreed $7,600 was paid A-Class Doors for doors to the Tiwana house, four days after she had banked the Shergills draw of $34,000.

[169]        Put to her the plaintiffs installed $9,000 granite tile in the Shergill house, she said that included tiles and bathroom borders.  She agreed she would credit $5,000 against the $9,000.

[170]        Questioning then turned to the “extras” claims.  She suggested she kept a good record and there were more improvements than extras, which she said depended on the customer.

[171]        Mrs. Tiwana disagreed that on April 1, 2002 she agreed with the Shergills to invoice any extra materials, but they did say they would sit down and calculate each evening.

[172]        Mrs. Tiwana was then confronted with examination for discovery where she said that the only invoices for extras were those from Mr. Hayre marked Ex. 34 and 26 (C37 and C38).

[173]        It was put to Mrs. Tiwana that there was no invoice for granite because Mrs. Shergill bought it.

[174]        Mrs. Tiwana referred to C52, a handwritten note entitled “extra work”.  Mrs. Tiwana said it was in her writing and totalled $26,244.  Mrs. Tiwana said she separated these items out, for instance, the first item “tiles and granite $5,978”.  She made the list after being questioned at the examination for discovery.  The figures were based on the invoices.  She said the total should be $27,244 as the labour should $6,366.  She agreed the $6,366 came from Mr. Hayre’s invoice C38 (Ex. 26).  It was put to her the rest except for the $2,000 for moulding, was made up by Mrs. Tiwana, and she had no record.  She said she calculated it from other paper.  Counsel conceded the crown moulding was an extra.

[175]        She denied the claim for extras was $25,000 when first made and was the profit she expected to make on the contract.  She said that the $25,000 was what she would get in management fees, and if it was not in the contract, that she could save it.

[176]        She disagreed Mrs. Shergill did not approve the changes.

[177]        When asked the basis for tiles and granite at $5,978, she said it was a calculation and based on installation at $3.50 to $4.00.

[178]        The note “extra work” was then marked Ex. 38.

[179]        Counsel then returned to Mrs. Tiwana’s affidavit (Ex. 2A).  Mentioned in paragraph 2 of the affidavit are the extras claimed as requested by the Shergills.  In sequence they are:

1.         Staircase from main floor to upper floor and landing expanded and rebuilt.

[180]        Mrs. Tiwana said the Shergills said the landing was too small and after discussion Mrs. Shergill asked for it to be enlarged.  She denied there was no such conversation.  Mrs. Tiwana agreed Mr. Tiwana told Mr. Hayre to change the landing and stairs because Mr. Tiwana thought it was a problem and that Mr. Hayre did the work.  It was put Mr. Hayre didn’t charge for the expansion.  Mrs. Tiwana said the charges of $6,366 were charged on a separate invoice.

[181]        Queried if Mrs. Shergill had complained about the stairs being too small, Mrs. Tiwana said they had looked at her stairs.  When asked if it was Mrs. Shergill or both Shergills, Mrs. Tiwana said they all talked about it.  When asked if she had said Mrs. Shergill complained the landing was too small, she said she didn’t remember.  When it was put the staircase was rebuilt more than once, she said it was only once.

2.         Powder room on main floor relocated.

[182]        Mrs. Tiwana said it was requested by Mrs. Shergill but she couldn’t remember when it occurred.

3.         Powder room enlarged from two-piece to three-piece bathroom. 

[183]        She said it was requested by the Shergills in June.

17.       Granite flooring installed in main floor hallway in front of stairs. 

[184]        Mrs. Tiwana said the powder room moved and therefore the hallway was larger.

20.       More expensive tiles than specified in contract when installed in bathrooms.

[185]        Mrs. Tiwana said ceramic tiles were more expensive.

16.       Kitchen granite flooring.

[186]        The contract said tile.  It was put Mrs. Shergill said she wouldn’t pay for granite because there was leftover granite from the hallway.  Mrs. Tiwana disagreed and said it was 600 sq. ft. and that was extra.

11.       Relocation of laundry room. 

[187]        Mrs. Tiwana said it was actually made smaller and not moved, that it meant cutting a wall and making another wall because of the change to the powder room.  When asked the cost of recutting, Mrs. Tiwana said $13,000 but that was for the whole house and she could not break down each item in the 20 extras listed in Ex. 2A.

14.       Rough-in plumbing in garage.

[188]        She said it was $200 for the plumber and the drywall work.

10.       Extension of upper floor hallway and addition of closet.

[189]        She agreed those items were brought in and calculated after the argument started.

[190]        Counsel then filed a Notice to Admit dated February 17, 2006  from the plaintiffs where it was conceded nine items in the Scott’s schedule (of items to be completed) were admitted and totalled $12,004: Ex. 39.

[191]        As to the work remaining, Ms. Tiwana agreed she last saw the house approximately October 3, 2002.  Carpet had been ordered, linoleum was in, hardware was in the garage waiting installation, and some plumbing and electrical work was to be done.

[192]        She could not recall if the track-lights needed to be put in over the fireplace but the cabinets had been installed.

[193]        She agreed they had not obtained final inspection of the heating system, and that should be done by the plumber.  The hardwood flooring installation was still to be done and had been delivered to the house and could either be glued or nailed although Mrs. Shergill said she didn’t like glue.

[194]        Reference was then made to paragraph 8 of Ex. 2A which stated “the total amount owing by the defendants (Shergills) for the materials supplied or services provided by the various sub-contractors engaged by the plaintiff is $53,388.  The defendants also owe the plaintiffs $25,000 in fees for general contracting services provided by the plaintiffs”.

[195]        The document entitled “Amounts owing to trades” totalling $43,235 was then considered.  Mrs. Tiwana said the amount now was $45,239.  It was pointed out the numbers were different from the $53,388 claimed and Mrs. Tiwana said that was because she had paid $10,000 from her own pocket.

[196]        Mrs. Tiwana agreed that the $11,747 owing to Red Rose Plumbing was for the complete job. The painter was owed $3,000 for the finished interior.  Asked if Best Carpet should be zero, Mrs. Tiwana said no, that he had been paid $2,000 and the contract price was $4,420 and the carpet was still in the warehouse.

[197]        Mrs. Tiwana agreed that only A-Class doors and Century Tile had sued for their liens.  The document lists A-Class door at $9,900 and Century Tile at $3,500.  The document was marked Ex. 40.

[198]        Mrs. Tiwana denied she could have paid A-Class doors and Century Tiles if she hadn’t taken the Shergills monies to her own use.

[199]        Ex. 41 is a cheque dated October 1, 2002, written on the Shergills account, payable to CanPro Painting in the amount of $4,700 and noted to be “payment in full painting 6133, 127 Street”.  Mrs. Tiwana said she wrote the name and the rest was written by the Shergills, and the Shergills gave the cheque to CanPro.  It was put that Mrs. Shergill gave the cheque to Mrs. Tiwana and Mrs. Tiwana gave the cheque to CanPro knowing there were not sufficient funds, but to get CanPro to finish the painting.  Mrs. Tiwana said that the Shergills gave the cheque to the painter.  Mrs. Tiwana denied asking the Shergills for the cheque to get the painters to finish the job.

[200]        Attention then turned to Ex. 15, the affidavit of Jessie Grewal sworn January 21, 2006.  Mrs. Tiwana agreed she typed it.  Put that she knew the statement regarding the Shergills interference on the worksite was false, Mrs. Tiwana replied that she wasn’t a lawyer, that she told Grewal to read it, and to change anything he didn’t agree with.  She agreed she put in the word “interfering”.

[201]        Mrs. Tiwana was directed to a handwritten document beginning “After October 1, 2002…”.  She agreed that she wrote the document.  When asked if it was a recent document, she said no, the question was about $10,200 was raised during the law suit and she calculated and wrote the statement.

[202]        The document in the first paragraph reads: “After 1 October, 2002 when she give me $10,200.  These checks gone whether I transfer that money into any account they have nothing to do with that”.

[203]        It lists:

CanPro Painting 19 October, 2002


October 2, 2002 framer


Dhaliwal October 3, 2002


GN Finishing November 27, 2002


GN Finishing 7 December, 2002


Red Rose Plumbing 7 February, 03


Northwest Installation October 19, ’02


Buck’s Garage


Red Rose Plumbing


Dick’s Lumber 11 December, 02


October 16, Dick’s Lumber 




[204]        Asked of the list accounted for $9,000 of the $10,200 paid to Mrs. Tiwana September 29, 2004, she said this was her response to counsel’s question regarding what was done with that money.

[205]        When asked if the payments were all after the end of the contract, she said no, all the work was finished before and paid after.

[206]        When “Red Rose $1,000, 7 February 2003”, was pointed to, she said it was a cheque that was paid to Mr. Singh because he was wanted as a witness.

[207]        The reference to Dhaliwal of October 3, 2002 for $2067 was contrasted with page 5 of Ex. 2A where there was a 30 March, 2002 expense of $1,257.25 and on the 5 May, 2002 Buck’s Garage Doors $850.  Mrs. Tiwana said the dates could be the date of the invoice.  The payment of the framer for $4695 was suggested as paid by cheque 31 March, 2003.  Mrs. Tiwana said no, October, 2002, but cashed in March of 2003.  The document was marked Ex. 42.


[208]        On the fifth day of the trial, Mrs. Tiwana produced building receipts for her house which she said was completed in the last week of February, 2002, referring to railing work done by Saggu Woodworking and payment.  She said the Tiwana house lumber was provided by Hollyburn Lumber while the Shergills was provided by Dick’s.

[209]        She said the Tiwana house was 4,246 sq. ft. while the Shergills was 5,300 sq. ft.

[210]        She denied she ever used Mrs. Shergill’s money to pay for any other house or her own house.

[211]        C57 page 5 is a transfer on October 1, 2002 of $9,000 from Goodwill Holdings to the M. Singh account.  She agreed the monies came from the Shergill mortgage funding.  When asked why, she said on September 23rd she transferred $8,000 from her account to Goodwill Holdings and therefore Goodwill was to pay her back.  The account shows cheque #225 of $8,100 on 23rd September which she said was for the GM stucco bill of 18th September.  She said she paid the stucco bill before she received funds from Shergill.

[212]        When asked why she used the M. Singh account she said she lost the company cheques in April so she was writing trades cheques on her own account for three weeks. A letter from Canada Trust dated June 10, 2004 indicates delivery problems that were fixed with a new cheque order of June 11, 2002.

[213]        She said she wrote cheques to the trades from her own account for $47,000, from Goodwill Holdings $55,000, and cash of her own totalling $99,000.

[214]        Mrs. Tiwana then referred to document A3, page 4 showing monthly payables and receivables.  The expenses total $276,018.49.  The funds received by Tiwana from Shergill total $202,825.  Mrs. Tiwana said she had paid out $213,102 and therefore was $10,277 in deficit.

[215]        Turning to her own house, she said her last mortgage draw was in April, 2002 and a lien was placed on her house in the amount of $37,000 in May.  She said it was due to a misunderstanding with the excavator and the lien was settled.

[216]        She denied she ever gave a cheque to a tradesman and received cash back.

[217]        Mrs. Tiwana approached the Shergills to finish their house after the 3rd October through her lawyer by letter: A11, but there was no reply.  In February 2003 the court pleadings were filed.  When asked about the failure to get plumbing inspection completed, she said the plumber would not go.

[218]        She denied stopping any of the other trades.  She said they tried to contact the Shergills until the 7th October and then there was the police complaint.

[219]        She denied using any of the Shergills lumber on their own house.

[220]        She denied any extras were done without the Shergills approval and telling them what the extras would cost.

[221]        A document from Southridge Building Supplies was marked Ex. 45 showing building lumber shipped to the Tiwanas house July 15, to 1 August, 2002.

[222]        Mrs. Tiwana agreed New Century Tile did the tile at the Tiwana’s house and they were paid separately:A50., an invoice dated 15 June, 2004 for $3400

[223]        Asked if the Shergills had ever complained about workmanship of the trades, she said not until October 3, 2002.

Jessie Grewal

[224]        Mr. Grewal did the electrical and alarm installation for the Shergills house.  The rough-in was done before the drywall installation.  He said the electrical installation is usually done at the end of the framing.  He said he was hired by Goodwill Holdings to do the wiring for the alarm, vacuum system, cable, TV and intercom.  His account is dated June 23, 2002: B37.

[225]        He said he was recalled to the site after the drywall had been done to relocate the telephone outlets from the telephone desk to an outside wall above the counter.  As well, there was work upstairs in the master bedroom.  The work took two hours.  He said he was paid in full.

[226]        In cross-examination his affidavit sworn January 21, 2006 was filed as Ex. 15. He said it was prepared by Mrs. Tiwana. Paragraph 4 reads:

During my period of work at the above location, Mr. and Mrs. Shergill made it a point to visit the site and correct my work by pointing out changes in location of rough-in and interfering with the work.  This took place on a number of occasions and was a factor which caused a delay in completion of my work.  In some cases I had to re-do the work up to three times because the Shergills did not make up there (sic) mind on the locations, this also was very frustrating.

[227]        He said the statement was untrue.  He agreed the change orders came from Mr. Tiwana.  He conceded he had read the affidavit and was not under pressure when he signed it.

Baljit Sivia

[228]        Mr. Sivia is a painter who gave his evidence through an interpreter.  He said he was hired by Mr. Tiwana to paint the house inside and out.  He said Mr. Shergill asked for a colour book, chose the colours, and then he bought the paint.  He said he started painting in early August and that it took some 300 hours.

[229]        He said the Shergills came to visit, usually at lunch-time. He finished his work at the end of September.  Touch-up paint was left in the garage.

[230]        He said he was not paid in full, that $300 or $400 was still owing and a cheque had bounced.

[231]        He said he was called back to change colours in two rooms and the fireplace.  He was shown A2 page 6, a handwritten note with nine items on it.  He said he did not do the fascia board (# 1) but he did do # 7 (Amrita dark paint in the windows).  He said # 8 (arch foam paint) had been done.

[232]        B87 is an undated invoice to Goodwill Holdings at 6222 126B St, Surrey for $5,000.  He said he gave it to the Shergills for the painting at 6133, 127 Street.   The minus $2,000 on the invoice reflected Mr. Tiwana giving him $2,000 to buy paint. The R. Singh account showed a payment for $2000 dated 21 October, 2002.

[233]        Mr. Sivia said he received a cheque for $4,700 dated October 1 in full payment from the Shergills after he finished the touch up work but it did not clear the bank. He recalled at the time he received the cheque from the Shergills, he was told it would take a few days for the cheque to go through.

[234]        He said he received another $2,000 two or three months later from Mr. Tiwana.

[235]        In cross-examination, he said the Shergills chose the colours and he recalled the meeting being in the Tiwana’s basement. With respect to paint changes he said they were requested by Mrs. Shergill after he had finished the job.  He thought that probably occurred in September and he changed the colours at her request.

[236]        With respect to the $4,700 cheque dated October 1, he said the Shergills gave him the cheque at the Tiwana’s house. He said the $5,000 was to complete the interior and the exterior was extra. He said the only work remained to be done was the outside fascia which he estimated at $300.  He said Mr. Tiwana did tell him to file a lien to get his money, that Mr. Tiwana himself was having trouble as they were not getting paid. He said he left the paint at the site as it was no further use to him.

[237]        He said Mrs. Shergill was at the house many times and was only a few houses away at the Tiwanas.  He said he would see her one or two times every day and they were inspecting, cleaning and looking around.

[238]        He said he finished the job in one month.  He denied that he had told Mrs. Shergill he wouldn’t do any more work as Mrs. Tiwana wouldn’t pay him.

Robert Sargeant – Dick’s Lumber

[239]        Mr. Sargeant is the sales manager at Dick’s Lumber on 88 Avenue, Surrey and has been with them for 20 years.

[240]        He said he has known the Tiwanas since the late 1980s and they have an account with a 30-day credit with Dick’s Lumber.  Mr. Sargeant had done a quantity survey for the lumber used on the house. The quantity survey was based on the plans and he did that before the house started.

[241]        C61 (Ex.18) is Dick’s Lumber bill for the Shergill’s house and totals $34,416.31.

[242]        With reference to the dates, April 12 would reflect framing with plan revisions taking place.  By June 2 the house would be framed with the roof on, windows in and alterations occurring.

[243]        Changes were the upper hallway, the powder-room on the first floor being moved beside the laundry-room, the addition of the box windows, and a side-door to garage.  As to the extra lumber, he would have thought the new box windows would require more wood and might cause some time delay.

[244]        C62 (Ex. 17) is a quotation given for the Shergills June 1, 2005. It is “a rough estimate” based on the blueprint to which cartage and miscellaneous charges might be added and totals $25,508.16. It did not include back framing which might add 10% or 15%.  As well, an additional $500 should be allowed for shipping.

[245]        He said if a driver delivered goods to a place other than the stipulated address that would result in dismissal of the truck driver.

[246]        He denied suggesting Dick’s had been billed for wood not delivered to the Shergills’ site, but he did acknowledge there were a lot of invoices.  He did agree there were an unusually high number of pick-ups at Dicks and that anyone could do the pick-ups.

Mr. Saggu

[247]        Mr. Saggu spoke through an interpreter. He owns a manufacturing shop and makes and installs stairs and railings.  He has operated through his company Saggu Woodworking Ltd. for some 7 or 8 years.

[248]        He said he was hired by Mrs. Tiwana to do the work at 6133 – 127 Street, Surrey in 2002.  He recalled giving a quotation to do the work in August 2002.

[249]        He said Mrs. Tiwana and Mrs. Shergill came to his shop and took samples of the proposed railings.  He did not remember who made the choices.  He made spindles and bought metal rods to insert in the railings, the top rail being of wood and the spindles being metal.  He started installation in September, and was approximately a day of work.  He did not recall people being on site, other than Mrs. Shergill at one stage.  He thought there was some work left but he did not go back to finish because the parties had difficulties between themselves.

[250]        He said he did go back to the house to try and finish the job and spoke to Mrs. Shergill.  He recalled that Mr. Tiwana had been fired.  He said his invoice for $5,209 dated March 2, 2003 (B88) was given to the Tiwanas for the work at 6133 – 127 Street.  He said he had received $1,500 from Mrs. Tiwana on November 25, 2002 and $3,529 by another cheque, and was paid in full.


[251]        He estimated there was one to two hours of work to be done.  He estimated the work done took some 10 to 11 hours for preparing and installing the spindles. He gave a verbal quotation and that quotation was reflected in the invoice.

[252]        He agreed he provided rails and spindles for the Tiwana’ house and knew the address was a few blocks away from the Shergills house.  He did not remember the quote or the work for the Tiwanas.  He recalled the Tiwana’s installation was completed but he could not recall how much.  He was paid for it.  It was put to him the $1,500 and $3,529 was paid for work on the Tiwana’s house.  He didn’t understand the question.  He agreed in October of 2002 he had not been paid for the Shergills house.  He did not remember if the Tiwana’s owed him for work on their house.

[253]        He agreed Mrs. Tiwana asked him for the invoice but all the handwriting on the invoice was his.  He could not explain why there was a delay until March 2003 to invoice.  When asked why he would say “paid in full” if the job was not finished, his answer was “trust”.

[254]        The remaining work was the railing in the basement.  He recalled doing the main and upper floors but not completing the basement and possibly one side of the railing on the main floor landing to the main floor.

[255]        It was put to him in October 2002 he told Mrs. Shergill he had not been paid for his work on her house or for Mrs. Tiwana’s house, to which he said he did not remember but if he did,  perhaps he wasn’t paid.  He said it was possible that he told Mrs. Shergill he couldn’t build one side of the railing as the steps were not built properly.

[256]        In re-examination he recalled working on the Tiwana’s house before working on the Shergill’s house.  He confirmed payments were received for the work on the Shergills house.  He did not recall if he mentioned the problem in installing the spindles was due to problems on the steps.  He said he left his materials on the Shergill’s site when he departed.

Mr. Sangha

[257]        Mr. Sangha has been in the carpet business since 1999 under the trade name “Best Carpet”.  Shown B77, a cheque of Goodwill Holding dated September 6, 2002 made out to Best Carpet in the amount of $2,000, he recalled Mrs. Tiwana and Mrs. Shergill coming to his store and choosing a carpet and subsequently linoleum was installed. He acknowledged receipt of $2,000 from Mrs. Tiwana.

[258]        There was no scheduling for the carpet. When the dispute broke out, Mrs. Tiwana said to talk to Mrs. Shergill, and he was told they wanted different carpets. He kept the ordered carpet in his shop and sold it later at half price.

[259]        Later Mrs. Shergill came back in and ordered a different carpet.  It was a high grade carpet.  He said he was not paid for the linoleum and he recalled tile was installed over the top of the linoleum. He said he didn’t return the $2,000.  He said he gave a credit.

[260]        In cross-examination he agreed he received $2,000 for carpet that was not delivered and that he gave the Tiwana’s a $2,000 credit on a carpet sale to another house.

[261]        It was put to him Mrs. Tiwana’s carpet contract was $6,400 and the Shergill’s carpet installed was $6,400.  He agreed the price was the same, which Mrs. Shergill ordered the higher grade and further she argued with him he had received $2,000 and he agreed to give her a deal.

[262]        He said that Mrs. Shergill paid $6,400.  With respect to the undelivered carpet, he said he did not charge the Tiwana’s $4,400 for carpet not delivered.

[263]        In re-examination on the issue of the deposit, he said the linoleum was $1,200 and that resulted in $800 credit to the Tiwanas.

Harban Sihota

[264]        Mrs. Harban Sihota spoke through an interpreter. She is the mother in law of Mrs. Shergill’s eldest daughter and lender of monies to Mrs. Shergill. She was subpoenaed by the plaintiffs.  She operates a fabric store that has been run by her family for 25 years.  She said she gave monies to the Shergills in the amount of $70,000, lending those monies between October 2002 and 2003.  A55 is dated January 31, 2003 and states the Sihotas lent $70,000 to the Shergills between October 2002 and January 2003.  Ms. Sihota was asked if she recognized the document and was asked to read it.  She agreed it was her signature.  When asked why the Shergills were borrowing, she said the house was under lien and they needed help and “we said we would help as much as we could”.  Asked how the monies were paid, she said it was paid in cash and cheques between October 2002 and January 2003.  When asked to provide proof, she said various accounts were used, including Seattle, a Houston motel and monies from her daughter.  She claimed there was an accountant involved. The plaintiffs undertook to pay the costs of Mrs. Sihota obtaining the documents relative to the borrowing.  When asked if she signed the document that day, she said that money was lent to that day and she believed the document was prepared by her husband, and signed January 31, 2003.  A56 is a list of questions from the plaintiff’s lawyer, together with a response from Harban Sihota regarding the monies lent.  The letter is in English but signed by Harban Sihota and dated at Surrey, June 15, 2005.

[265]        In cross-examination Mrs. Sihota said the $70,000 was advanced to the Shergills in various ways. The Shergill’s daughter, Saprit, said her parents were having hard times and she said she would sell Mrs. Sihota’s fabrics to her friends and the monies from the sales could be given to Mrs. Shergill and Mrs. Shergill was to repay the monies. Mrs. Shergill said the case would finish in three months.  When asked whether the monies were cash or cheques, she said cash.  When asked what percentage of the $70,000 was from fabric sales, she said she would have to refer to invoices.  She said she gave them some cash, as did her son and brother-in-law.  She agreed various sources put together the $70,000 including the sale of fabric, her husband, her brother-in-law, her son and from her father.  When asked if she personally gave the Shergills money by cheque or bank draft, she said she gave them cheques and Saprit’s cash sales.  She could not recall what payment she personally gave to the Shergills.

[266]        She said the sentence in the document saying monies were paid by January 2003 was wrong, and that she gave more than $70,000. Mrs. Sihota did not produce any more documentation regarding the alleged $70,000 lending, and as a result I am unable to place much reliance on her testimony.

Armarjit Gill

[267]        Mr. Gill has been in the construction business 17 years, providing gutters, soffits and vinyl sundecks.

[268]        He was hired by the Tiwanas.  Mr. Gill’s invoice of August 2, 2002. (B59) is for two decks at 6133 for which he was paid $1,490 as evidenced by a cheque of Goodwill Holdings dated August 10, 2002. On 12 August 2002 he received a $2000 deposit from Goodwill

[269]        He had a second bill for soffits and drainpipes dated 20 September 2002 for $2,889 (B59, p.3) and he said he took the bill to the Tiwanas and was told the Tiwanas were not paying and to ask the Shergills.  He sought payment mid-October at the Shergill’s house.  He finished his work and he wasn’t paid.  He was told that the builder had to pay and he did lien the property.

G. Singh

[270]        Mr. G. Singh is a plumber of 14 years experience with training at BCIT in 1996 and is registered with the City of Surrey.

[271]        Mr. Singh was hired by Mr. Tiwana. He obtained the plumbing permit April 23rd:  A24.

[272]        The account for Red Rose Appliances and Plumbing Ltd. (B26) is dated September 16, 2002.  The work described is ABS rough-in, waterline, tub installation, gas-line, ventilation, and finishing for plumbing and fixtures.  The price was $19,000 plus GST of $1,330 and noted on the account is “payment received $9,000”.

[273]        Mr. Singh said the fixtures referred to toilets, sinks, and faucets, but not tubs which he credited.  He said Mr. Tiwana paid the $9,000.

[274]        Payments were a cheque dated May 23, 2002 to Red Rose Plumbing in the amount of $6,000:B16; B92 a cheque #303 in the amount of $1,000  cashed 2 November 2002; and  another cheque for $2,000 dated 16 November 2002 and cashed 13 February 2003: B26.

[275]        He said he was not able to finish the job at the Shergills.

[276]        He referred to A26, a plumbing and inspection notice dated May 23, 2002 which reads: “Radiant heat main and upper floors okay”. He referred to A29 dated June 17, 2002 which reads: “water pipe on 200 p.s.i. test okay – okay to cover”.  A27, a plumbing inspection notice of April 26, 2002 which read in part: “B loops okay” meant there was an inspection for the baseboard heat in the basement.

[277]        He said he was unaware of any problems and that the job was done to code.

[278]        He said after the drywall went in they supplied the toilets, sinks, faucets, the boiler and heat tank, and it should all work on first inspection.

[279]        He said some changes were made in the fixtures and that he went back later for installation.  He thought that Mr. Tiwana’s wife and another lady, Mrs. Shergill could have been involved.  He said he installed the new fixtures which he recalled being the master bedroom toilet, the powder room and two kitchens, one he recalled being finished and one being unfinished as it had no counter.

[280]        He recalled doing another job for the Shergills in the garage, where they sought to have another sink installed, which he did after the plumbing had been passed.  It was not in the contract but was at the request of Mr. Tiwana.

[281]        When asked if the owners contacted him, he said Mrs. Tiwana and another lady met with him and discussed the purchase of another toilet.  He did not recall the other lady being the owner but he recalled perhaps three toilets being changed and two or three faucets.

[282]        He said the contract was with Mr. Tiwana and Mr. Tiwana said if the Shergills wanted changes, he was to do them.

[283]        Asked about the final inspection, he said the job had not been finished and they were not let on the premises.  He thought the last work done might possibly have been done in October 2002.

[284]        He did not recall any problems with the boiler.

[285]        He claimed to have worked in hundreds of houses over 15 years and that he had been able to get final inspections on all of them to get paid.

[286]        He said he was aware there was a difference between the owner and the builder at the end of the job, and that the Tiwanas put him off and told him he could not go back on site.

[287]        He said the Shergills telephoned him to finish the job and he demanded payment for it would cost more for someone else to do it, but he was not asked to come back on the site. The Shergills didn’t pay him.  He said he was owed lots, there was little to be done and he was certain he could have obtained completion.

[288]        C31, a City of Surrey Plumbing – Notice of Rejection dated June 4, 2003 was put before Mr. Singh.  He said the last date he had worked at the Shergills residence was in September 2002.  He said he had only seen the Notice of Rejection that day.  He then went through the various items in sequence:

1.         Locate curb-cock: He said that was related to the City connection.

2.         Install AVB on rear hose bib: The front and rear garden hose connections were part of the contract.  He did not remember whether that had been completed but it was “a two-dollar item”.

3.         Seal around all tub spouts: He agreed that had not yet been done.

4.         Install toilet seat and bolt caps: He could not remember whether that had been done.

5.         Basement washroom tub diverter, hot and cold supplies crossed: He said that could be easily remedied.

6.         Locate stop and drains to hose bibs:  inside tap controls to stop pipe freezing.  He did not recall whether that had been done.

7.         Hot-water tank: Overflow to be directly over drain: He agreed they had installed the hot-water tank that was not yet in operation and perhaps the side drain was yet to be done when he was finished on the site.

8.         Provide shut-off to hot-water tank supply: He agreed that might not have been done.

9.         Locate and identify all balancing valves to radiant heating and make accessible: He claimed that was done for the final on June 17 that had passed.

10.       Install safety high limit switch to boiler: That was to be done on final inspection and he agreed that had not been done although he had installed the boiler.

11.       Provide secondary transformer at boiler since you exceed 4 zones: He said he would only look after the final and that would be done by another plumber.

12.       Provide temperature indicator on boiler return piping: He said all these he still had to do and would have done and it would be booked for the final inspection for the plumbing.

13.       Reduce splashing at floor drain from T&P discharge: That relates to item 7 and was yet to be done.

14.       Label all zone valves at boiler: That had not been done.

15.       Provide heating completion letter: He said he would have got that if he had done the final inspection.

[289]        He agreed that items 1 to 15 had not been done by his company.

[290]        C32, City of Surrey Plumbing – Notice of Rejection dated June 18, 2003 listed: (1) Raise curb-cock to finish grade; (2) seal around all tub spouts; (3) install all caps to water closet and basement powder room; (4) provide separate shut off for hot-water tank (downstream of boiler makeup water); (5) locate and identify Zone 7 balancing valves; (6) provide heating completion letter.  He said he was not aware of those deficiencies in September 2002 and he considered them minor.

[291]        C33 a City of Surrey Plumbing – Notice of Rejection dated June 24, 2003 was considered:

1.         No heat in living and dining-room area; He said it was not a problem when he left the site and not on the June 14th list.

2.         All supply and return piping from Radiant Heating to be 3/4 inches in diameter for each zone: He said that the piping had previously passed.

3.         Require shut-off valves on return piping at boiler for each zone.

4.         Amend engineering heating drawings to show 5 zones on radiant heating.

5.         Locate zone balancing valves for zone 4 (living/dining-rooms).

6.         Locate all balancing valves for zone 7.

[292]                  He was asked to comment on a bill of Dave Mocha dated July 8, 2003 regarding plumbing work at the Shergill’s residence.  Mr. Singh said he had provided toilets, taps, tub and shower, kitchen-sink, laundry-ink, bar-sink, automatic washer and dryer with fan connector.  He had not provided a dishwasher or a stove hook-up as it was not in the contract, nor were the two gas fireplaces in the contract.  He questioned why there was a boiler repair.

[293]                  Mr. Singh acknowledged he supplied the piping for the heating system, May 23, 2002 and made reference to his invoice of September 16, 2002 (C30). He agreed that the Plumbing Inspection Notice dated May 23, 2002 passed the supply and return pipe to and from the boiler.

[294]        Asked if he installed ½ inch piping, he said that ½ inch piping would not pass.  When asked what he installed, he said “I did it right”.

[295]        Asked if he had installed ¾ inch Mr. Singh referred back to the Plumbing Inspection Notice Approval and said the card meant the inspector passed the piping.

[296]        He was then asked to estimate his percentage completion to which he replied some work had not been done and he was not allowed to finish the job.  He estimated there was still some four or five hours work to do at the end of September 2002.

[297]        With respect to the placement of the hot water tank in a bedroom closet, he said that he discussed it with the builder.  He said that he could not remember if the builder asked him to put the hot water tank into the bedroom closet.  He did recall the location of the hot water tank as being in the basement.  He agreed if he was asked he may have placed the hot water tank in the closet of the bedroom in the basement.  Asked if the owner requested the placement of the hot water tank, he replied he did not remember.  He agreed that Mr. Tiwana, the builder may have asked him to locate the hot water tank, but he couldn’t recall if he actually installed the hot water tank in the basement or bedroom closet. 

[298]        Mr. Singh denied changing the supply and return piping, saying he did not need to after it passed inspection.

[299]        Questioning then turned to the plumbing fixtures.  He recalled a number of bathrooms, being three upstairs, one on the main floor, and two in the basement. 

[300]        Asked if he installed one or two toilets he said no, he bought all of the toilets and hooked them up, and the Shergill’s changed three.  He said he installed six.  He denied installing one toilet tank and a different seat.  Asked if he only installed two toilets which were purchased by Mrs. Shergill he disagreed and said they may have bought two or three others which he installed.

[301]        Asked if he first meet Mrs. Shergill at 6133 in mid September 2002, he said it was possible.

[302]        Put to him that when he met Mrs. Shergill he told her he wouldn’t buy any plumbing fixtures because he was not getting paid by the builder he said he couldn’t remember.

[303]        He agreed that he did do all the plumbing on the Tiwana house and that it was close by the Shergill’s.  He disagreed that he told the Shergill’s the Tiwana’s were not paying him or that he said “my money is still owing”.

[304]        Asked to agree at that time he had been paid $6,000 by the Tiwana’s for the work on the Shergill’s house, he said there was no meeting about money nor did he ask Shergills for the money.

[305]        He was asked if he recalled a second meeting with Mrs. Shergill a few days later and he said no, he only had one meeting where she asked for an estimate for finishing the work.

[306]        He was asked if he recalled leaving a young apprentice to install the toilet, and he said that he did most of the work himself.  Asked if he had anyone else installed the toilets, he agreed he had a boy help out with him and it was possible he could have installed a toilet, but he did not remember. 

[307]        He was asked to confirm he had said Mrs. Tiwana had paid him $1,000 in February 2003, to which he responded that he received $9,000.  It was put that $1,000 was paid in February 2003, to which he said no, but perhaps he could not deposit.  He was asked if he received cheques for $2,000 and $1,000 in February 2003 and he said that it was possible.

[308]        He agreed it was his signature on the invoice of September 16, 2002 for $20,330.  He agreed the notation said he received $9,000.  He agreed that he received $6,000 at the time of invoice and later got $2,000 and $1,000.

[309]        He could not remember if he received $6,000 in May 2002 and reference was then made to the cheque dated May 23, 2002, B26.  He agreed he received the other payments in February 2003.  He was asked if the $2,000 cheque was #237 dated November 16, 2002, deposited February 13, 2003, and he could not recall.  Asked if the payment was for Shergill or Tiwana’s house, he noted the cheque said 6133.

[310]        He agreed he was paid for his work on Tiwana’s house, but he would need to see his deposit book to figure out when he was paid.  He agreed the work was done before the Shergill’s and that he was paid in 2001 or 2002.

[311]        Then questions turned to discussions with Mrs. Shergill in September and October 2002 with respect to finishing the plumbing.  It was put to him that Mrs. Shergill phoned him and that Mr. Singh said he wanted $12,000 advanced, to which he said he might have, as he was still owed much money.  He said that if the money was put into trust he would finish the job and then get paid.

[312]        He was asked whether he checked the heating system by turning on the thermostats, to which he replied that those would be checked on the final inspection, and before then they would just have the boiler on to dry the house out.  He said that there were thermostats installed, but he could not remember if he had checked them.

[313]        With respect to sink installation, he disagreed he only put in one, and said that he had installed them all and that only one was not done, because there was no counter in the basement.  His recollection was that he had installed six and that he purchased the sinks from a wholesaler and would need to see the documents to confirm that.

[314]        He agreed that with respect to the $1,000 payment he would rely on the address on the cheque to tell if it was for Tiwana or Shergill’s house.  Mr. Singh said he asked for the $2,000 and $1,000 payments and was told he would get paid at the end of the court case.

Avnash Banwait

[315]        Mr. Banwait is a registered professional engineer with 26 years in building design.  He signed A20, a letter of assurance of professional design and commitment for field review for the City of Surrey regarding the Shergill’s residence.  The summary dealt with structural aspects for foundation beams and their supports, and geotechnical regarding excavation and bearing capacity of the soil.  He marked out the foundation, beams and supports.  His job was to design and review.

[316]        He did not go out to the site, but sent an assistant.  B2 is a letter issued for building permit application.  By letter of April 3, 2002 he noted that he had reviewed the foundation before the concrete was poured. He made his design from the house plan.

[317]        Asked about other site visits, he said his assistant visited the site to see the frame and a question arose about a joist, leading to a special inspection but he had no record of that.  A letter of July 15 related to the joist inspection on July 11, 2002. In Schedule C-B dated July 11 Mr. Banwait certified a field review had been done and the “components of the project” had been built according to plan and found to be structurally sound within the scope of the work.

[318]        In cross examination he said the scope of his work was to simply certify that the foundation was sufficient to support the weight of the frame, and he did not say whether it was level.  Further, his work was to do a soil analysis to see if the foundation would support the weight of the house.

[319]        The letter of July 15 was written by his assistant and he provided the certification.

[320]        He was asked if his certification meant the frame was structurally sound.  He said it only stood for saying the frame was constructed so it would not fall down.  Asked if he agreed if the foundation was off, it may affect the frame, he said that if there was a large variation it was possible, however, he did not see that.  If it were visible he would have noted it.  If it was a small variation it was not noted.

[321]        Three documents were then marked Ex. 46, site visit, April 3, 2002; Ex. 47, July 11, 2002, Schedule C-B; and Ex. 48, July 15, 2002, letter regarding joist repair.

[322]        Asked the nature of the July 15, 2002 letter, and what the problem was, he said an inspector saw holes in the beam and called for an inspection.  The holes were near a washroom on the second or main floor.  The repairs were done by nailing on supporting plywood.

Raymond Sandhu

[323]        Mr. Sandhu is a tile installer.  New Century Tile was formed in 2000.  He worked at the Shergills’ house during the summer of 2002.  He had been hired by Mr. Tiwana for a price per square foot installation.  Installation was for the bathroom walls and floors, the laundry room floor, the kitchen nook, and two fireplaces.  Granite was also installed.  He recalled there being two bathrooms in the basement, one on the main floor and three on the top floor.  There were no back splashes in the Chinese kitchen.  The two main floor kitchens had granite on the floor, and the fire places had granite on the face and hearth.  Materials were supplied by the Tiwana’s and New Century Tile just did the installation with their own grout and tools.  He recalled a colour chart being left with Mrs. Tiwana to choose the colors.  He recalled no interruptions during his work and he did not recall there being any changes in the work.

[324]        Granite was provided in the entryway, to the powder room, to the dinning room, to the kitchen and requires different cement which takes more time and expense using a dry mix and level on every piece.  If the floor was not level they could change the level with the mortar mix.

[325]        They finished all of the installation except for the back splash, as they did not have the tile at the time.  There were no complaints.  The work took a little more than two weeks.

[326]        B67 is a hand written invoice dated March 20, 2003.  He was unable to distinguish whether the handwriting was his own or his fathers, and did not recall signing it, and therefore thought it was his fathers.  He understood that Tiwana’s had come to the Sandhu house and asked for an invoice and it was there when he got home.  He said his father had been aware of the work.  The invoice refers to installing tiles and payments by cheque of $1,500, cash of $500 and $1,000, for a total of $3,000, leaving remaining $3,500.

[327]        Mr. Sandhu said a lien was filed for $5,402, and said they only received one cheque for $1,000.

[328]        B67, page 2 is a cheque to Jason Sandhu from Goodwill Holdings, dated August 26, 2002, for $1,500.  It references tiles for 6133 -127th Street, (the “Shergill house”) but the numbers are obviously changed.

[329]        Raymond Sandhu said Jason Sandhu was his brother and worked for the company in the summer.  Raymond said Jason cashed the cheque as he worked on houses for the Tiwana’s.  Raymond said he was not aware of the payment and that he did not work at the address.

[330]        He said the invoice note of $1,500 was wrong, that it was not for the Shergills property.  He agreed payment had been received of $1,000.  He said that the cheque was for the Tiwana’s house at 6222 - 126th Street.

[331]        He was then shown a receipt dated January 15, 2004 re 6222-126th Street, Surrey, and the work description “installing floor and all tiles.  Also all grouting includes GST” and a price of $3,400” (A50).  He said that it was in his writing and it was for work done at the Tiwana’s house.  The next two pages are a cheque dated June 5, 2002, to New Century Tiles in the amount of $2,000 and a further cheque dated October 30, 2002, to New Century Tiles in the amount of $1,400, a total of $3,400. He acknowledged that the account was paid in full.

[332]        He acknowledged the B67 invoice reflected work done for $5,402, and that $1,000 had been received, however, they liened the full amount.  He said after the lien they received two cheques in December 2002, and two cheques in 2003, but one did not clear because the account had been closed.  Then he said that perhaps the payments were for other houses as they had worked on four houses for the Tiwanas; the Shergills, the Tiwana’s house, and houses on 126A or 126, and he offered to look for the other invoices.  He agreed the Tiwana house was finished before the Shergill house.

[333]        B74 is a cheque for $1,000 on Mrs. Tiwana’s personal account, dated September 2, 2002 made out to New Century Tile and the reference is 6133 - 127th Street.

[334]        Raymond Sandhu said the cheque was received the same day as the March 2003 invoice, but the invoice reflected a meeting of Mr. and Mrs. Tiwana and his dad, and there were two post dated cheques.  He said the cheques were deposited right away but only one cheque cleared.  He agreed the cheque was cashed April 1, 2002.

[335]        With respect to his brother Jason, he said Jason only worked on the Tiwana’s house, while Raymond worked on all four houses.

[336]        A40 is an account from Pyramid Tiles dated November 15, 2004 for grout repair of a crack in the master bathroom, and repair of bedroom showers, for a total of $963.  He said when he left there was no repair work remaining.

Cross Examination

[337]        Mr. Sandhu agreed that before March 28, 2003 he had made numerous requests for payment of the Shergill account mainly to Mr. Tiwana on his cell phone, and he said his father also pushed for payment, calling frequently in September and October. 

[338]        He filed his lien in December of 2002. With respect to the meeting on March 28, 2003, he repeated that two cheques for $1,000 had been given that gave rise to the invoice of March 28, 2003.  He said the $500 was cash.  He said the $1,500 was a reference to the payment to Jason, and that Jason worked solely on the Tiwana’s house.

[339]        He agreed the invoice made no sense.  His account was $5,400 in December, and in March 2003 it was $6,500.  Asked if the invoice was prepared to get the $2,000 payments, he said it could be.  Referred to A50, the invoice for the Tiwana’s house dated June 15, 2004, he said he could not recall if Mrs. Tiwana told him the $3,400 figure.

[340]        He did not note the date on the front of the $1,000 cheque dated September 2, 2002, but received March 28, 2003, at the time of cashing: B74. 

[341]        He said he was given the cheque (C37) of Goodwill Holdings made out to Jason Sandhu, dated August 26, 2002, in the amount of $1,500 where the reference address seems plainly change d.

[342]        C48 is the cheque of September 2, 2002 to New Century Tile in the amount of $1,000 regarding 6133 - 127th Street and was the only payment received for 6133.

[343]        He was then referred to the list of extras (C52, Ex. 58), where tile and granite was put at $5,978. He was asked if that was the amount of quotation to the Tiwana’s to do the re-installation/grouting for the Shergills house and he said no.  He did not recall redoing any work at the Shergills house.   

[344]        Asked to look at the cheque (C47) made out to Jason, he could not remember if he wrote Jason’s name nor did he recognize the writing.  He recalled the cheque being received at night time in the presence of Tiwana and Shergill and the cheque was deposited in Jason’s account. 

[345]        With respect to the March 2003 invoice he could not say whether it was his writing or his fathers.  He undertook to check his records.

Mr. Mohan Tiwana

[346]        Mr. Tiwana said he had been a builder and caretaker since 1987, and his wife joined him in the building company in 1992.  He works for the plaintiff company.  The work on the Shergill house began in April 2002, and he described his role “to take care of it”, only in relation to the construction, not the accounting or the paper work, and he was to give advice on the plans. 

[347]        He helped with drafting the plans, and recalled discussions going on over two weeks, as the various alterations were taken into account by the draftsman and the design passed by City Hall.  He took the plans to City Hall which were initially rejected as exceeding code, and after changes it was passed the second time, with the square footage reduced to code. 

[348]        As of the April 1 contract, the parties were close friends.  The contract was written in the Shergill’s house.  The contractor is described as his wife Raj Tiwana.  His name is not on the document, but he was aware at the time the document was signed and he was aware of its content.

[349]        He said the plans were submitted to Surrey in February and were approved at the end of March and excavation began in March.  He was responsible for hiring the trades, he said he knew all of them and he was the job site supervisor on a daily basis.  He was responsible for obtaining city inspections, and would be present at the inspections. 

[350]        A21 is the City Inspection Record dated April 3, 2002 which stated “footing (circled in red) deleted – amend plans. Form okay less above”.

[351]        On April 4, 2002 the inspection noted “form okay”, then framing, rough in plumbing and rough in electrical approvals were obtained.  He said when he left the site all city inspections had been passed.  He said the contract was terminated in September 2002. 

[352]        With respect to problems or complaints from the owner he said there were some and he changed some things two times.  He said he had to because they were best friends.  He said the changes were at the request of the Shergill’s and they would make the changes.  It was a dream house for the Shergill’s who did not care about the time taken.  When changes were requested he would then go to City Hall and get the changes.

[353]        Reference was made a stop work order in June 2002 when evidently an anonymous caller complained of the footing being larger than the plan, which proved true.  He went to City Hall and eventually a compromise was reached. 

[354]        The City Hall notice regarding stop work order is C10, dated June 18, 2002 and notes that the foundation 0.260 meters wider than shown on survey.  Mr. Tiwana claimed not to know what had happened. 

[355]        The compromise was to make an inside pony wall or make a sundeck out of one room upstairs to reduce the square footage.  He said he discussed these choices with the Shergill’s and suggested the sundeck option.

[356]        C11 is an application to the City of Surrey Planning Department dated June 21, 2002 stating “we want to convert the room to cover sundeck”, which was approved and thereby reduced the house square footage. 

[357]        He said all the radiant heating was done.

[358]        He said that he told the Shergill’s about the radiant heating in the sundeck and the Shergill’s said to leave it and decide what to do later.  Asked if he told the Shergills whether they would lose heating, he said it was summer, and they decided to leave it.  He said the Shergill’s did not talk about it before the contract terminated in September.  He was asked if there were any other problems in construction and he said no.

[359]        Asked whether there was discussion about completion time, he said the Shergill’s did not care as it was a dream home and that they would give the Tiwana’s lots of contracts so he thought they did not care about the time.  Asked if he ever said when the house would finish, he said no.  He did not recall any discussions about completion.

[360]        In terms of lumber supply, that was done by Dick’s Lumber and he denied taking any of the building materials and using it other than on the Shergill’s house.  He said that he had a motor vehicle at the time, that he did not rent a pick-up, and  the time he did borrow the pick-up from the Shergill’s was for matters not related to the lumber nor was it related to any construction materials to be used elsewhere. 

[361]        He said the other houses he was building at the time were on 56 Street and 136A Street and his own house around the corner was finished.  He said that he had taken up occupancy by the time the Shergill’s house was framed. 

[362]        He denied ever telling Dick’s delivery man to redeliver timber, or telling any other suppliers to go other than to the Shergill’s house.  He said he bought lumber for various places at Hollyburn Lumber.

[363]        He gave the job site number to Dick’s lumber.  He said there were changes which caused delays in construction other than the framing and included the living room, the hallway, the wall in the laundry room, and changing a bathroom from two pieces to three pieces.  With respect to the stair, the complaint was that it was too narrow and the landing too small. The Shergill’s agreed to pay the extras and the framer then redid the stairs and the landing.  The location of the windows at the front door changed. He said when changes were made they would speak to the Shergill’s about costs.

[364]        Asked if he was given a deficiency list, he said the hallway to the master bedroom was changed, and a closet was moved because of the narrow entry and the hallway was widened.  Other changes included box windows, moving of telephone jacks, and a sink in the garage. 

[365]        There were no problems with the plumbing.

[366]        Mr. Tiwana said all the work listed at A2, page 3, entitled “Work to be Done” was done.  There were seven items relating to windows for the master bedroom, washroom window, computer room window (box windows) bedroom doors, downstairs family room, box windows, removing laundry room, and the front window over the front door to “come down”.  

[367]        A2, page 4 is an application to the Planning Department, dated June 5, 2002, deleting the side garage door, changing windows, and adding box windows in the family room and kitchen.  He said those were changes requested by the Shergill’s, and that the costs were discussed.

[368]        A2, page 6 is another list of nine items which he believed was received at the end of September from the Shergill’s.  The nine items were:

1.   Fascia board front of house;

2.   Wall in computer room;

3.   Box on top of phone deck;

4.   Fireplace – foam paint;

5.   Balance the windows;

6.   Niche box;

7.   Amrita dark paint in window;

8.   Arch foam paint;

9.   outside sundeck floor

[369]        He did not have time to do the first three items.  He recalled doing item four, the paint for the fireplace.

[370]        He said the windows were fixed in the basement and the niche boxes on the main floor were done.  Paint for the box window was done.  The paint for the arch in the family room was not done.  He said there was a little hole in the outside sundeck floor and he did not recall fixing that. 

[371]        He said that the list was given to him on September 29, 2002 by the Shergill’s.

[372]        Asked if he was aware of any problems he said this was the complete list they had discussed, and he had thought they were still happy.  He was not aware of any possible termination. 

[373]        He was then referred to the solicitor’s letter of October 3, 2002, A7.  The letter gave 14 days to finish work, so he telephoned the trades, cabinet, framer, carpet, and hardwood floor. 

[374]        In terms of completion of the work, he said the carpet was in store and not installed, there remained outside facia painting, installation of hardwood flooring, installation of cabinet doors and exterior landscaping, mainly grass and sidewalk.  He said with respect to carpet, it had been ordered, and he tried to have it installed earlier but the Shergill’s said no, they wanted a better underlay. The hardwood flooring was in the house but he said after October 3, 2002, Mrs. Shergill would not let any of his trades on site.

[375]        He said he tried to finish.  That he went to the Shergill’s house and by then they already had another painter outside the house and he asked him to stop work. 

[376]        He said the Shergill’s would not talk with him and he said that he wanted to finish and then they could do what they wished.  He said that conversation was at the back of the Shergill’s house.  He said that he went back the next day to the Shergill’s house and spoke to them on their front driveway, asking if he could finish the job.  Mrs. Shergill asked him to leave or she would call the police and she had a phone in her hand. 

[377]        He said he could have finished the work within 14 days, and he presumed the Shergill’s had been planning the contract termination as they obtained a painter so quickly. 

[378]        The company lien was filed on the Shergill’s house on October 10, 2002. 

[379]        He said he could have had the job finished, that he had carpet and cabinet workers, a plumber who said another half day would get final approvals.

Cross examination

[380]        The first question went to the option of making an open deck.  He said there was one meeting at the Tiwana’s house.

[381]        In his Examination for Discovery (Q 694-700 and 717-720) Mr. Tiwana said at the time of the discussions the Shergill’s were living in his basement.  It was put to him that the meeting would have been after July 2002.  He said he did not remember.  He agreed that the stop work order was June 18, 2002:  C10 and on the June 21, 2002 he applied to convert the room to a sundeck. 

[382]        It was put to him that he never spoke to the Shergill’s about the square footage problem.  He denied that.  It was put to him that the discussion he had with the Shergill’s was when they were living in his basement, and he said he did not remember, that it may or may not have been.

[383]        Reminded his Examination for Discovery evidence was that the Shergill’s were living in his basement at the time of the discussion, he had no explanation.  Put to him that the Shergill’s moved into his basement on August 1, 2002, he said he didn’t know.

[384]        He disagreed that the discussion regarding the square footage took place in August 2002, saying it took place in June 2002. 

[385]        He denied that he told the Shergill’s long after he had the city approval to change the bedroom to a deck, saying it was their house and he asked them what steps were to be taken.  It was put to him that he had discussed the matter after the change was made.  He again denied that, and said that he spoke to them the day after he spoke to the City planner.

[386]        It was put to him that he told the Shergill’s in the basement meeting he had approval to change the fourth bedroom to a deck.  He replied it was the Shergill’s choice and they took it.  He denied telling the Shergill’s he had moved the foundation a foot and he got caught.  He said he did not do it.  It was put to him that he told Mrs. Shergill that it was the first time he got caught after the City had approved the foundation. He denied doing any alterations anytime. He denied “totally” telling the Shergill’s they could convert the deck back to a bedroom after the city approved occupancy. 

[387]        Mr. Tiwana continued under cross examination, looking at the original and revised house plans.  He agreed that a set of plans was proposed and rejected and later approved, and that included the room changing to a sundeck. 

[388]        He agreed the original plans show a maximum floor area ratio, though he said he did not know who wrote that.  He agreed the draft was approved by the city.

[389]        C3 is the plan with the handwritten changes, with date stamps of June 7 and June 27, 2002, and shows changes to box windows.

[390]        Page 3 shows the upper floor plan and shows the change from a bedroom to a covered deck, June 27, 2002.  He agreed it was one of three choices to solve the excessive maximum footage obtained from widening the foundation 10 inches.

[391]        Mr. Tiwana again denied widening the foundation, nor discussing with or directing the framer to widen the foundation.  He denied instructing Mr. Hayre to move the foundation footings about a foot after the city had approved the plans.  Mr. Tiwana said no, then he said “Mr. Sandhu has been bought, he is a lawyer, is he going to place tile?  It’s a fabrication!” 

[392]        He was asked if he told Hayre or Gosal that the city had approved the change to the footing to which he replied he never said anything to them. 

[393]        Asked if the foundation started in March 2002, he said possibly it could have been earlier.

[394]        Mr. Tiwana agreed A21, page 4 City Building Division Permit, stating “form okay” as of April 3, 2002 showed the foundation forms had been done.  He agreed it would take four or five months thereafter to complete the house, if there was no interference.

[395]        He denied Mrs. Tiwana told him a completion date for the Shergill house or that the Shergill house had to be completed by the end of July.  He was asked if he ever did get a completion date from Mrs. Tiwana, to which he replied he could have completed earlier, but the Shergill’s expected so many changes, he said to the wife “how can I finish?”

[396]        When asked about the Shergill’s statements about dream house, he said that they did not care when he got finished.  Asked when that was said, he said whenever the Shergill’s made changes, and they upset him and the trades would get upset.  He was asked if this happened every time the Shergill’s changed plans and he said the Shergill’s said not to worry, that they wanted their dream house and they would give him other building contracts. 

[397]        He was asked if the Shergill’s demanded a number of changes, and he said they just suggested, and that each time the discussion would be that they did not care, that they could go to the city to get the change.  He agreed that the Shergill’s did not go to the city to get the changes, that they would meet at his house or at the Shergill’s house while under construction, and each time he said he was the one that was worrying and the trades got upset.

[398]        He was asked if Mrs. Tiwana asked him to put the radiant heating in the basement, and he said the Shergill’s asked what the Tiwana’s had and they asked that we do the same kind of heating as the Tiwana’s.  Asked if someone asked for baseboard heating, he said the discussion was between him and Mrs. Shergill, that she asked for baseboard heating. 

[399]        Asked it that was instead of radiant heating, he agreed but he did not know when the conversation took place or whether the plumber was there when they were discussing what the Shergill’s wanted.  

[400]        He was asked if there was a discussion between Mrs. Tiwana and Mrs. Shergill about the radiant heating on the contract date of April 1, 2002, and he said no.  It was put to him that Mrs. Shergill never asked him to change the heating in the basement to which he said, “absolutely she did”, that she just asked for what was in the Tiwana’s house. 

[401]        It was put to him that he changed the radiant heating to baseboard because it was cheaper.  He said no, that they were good friend with the Shergill’s. 

[402]        As to box windows it was put him that was discussed before the contract was made.  He disagreed. He said the plans showed what they wanted, and they later asked for changes.

[403]        He disagreed that on April 1, 2002, the contract date, they discussed box windows.  It was put to him that he told Mrs. Shergill to leave the box windows out of the plans, and change the plans later, to which he said, “it’s their house, why would they make extra work?”.

[404]        He said that there were some box windows on the original plan.

[405]        He agreed that he told the Shergill’s that if there were any problems they could speak to him.  He denied telling the Shergill’s it would be easier to get the plans approved if the box windows were left out. 

[406]        He agreed that he hired Mr. Hayre to do the framing but disagreed the price was $14,500 for the framing and foundation, and said the price was $18,000.He denied Mr. Hayre complained that he was not paid, there may have been a delay, but he was paid.  He said that Mr. Hayre never complained.  He had known Mr. Hayre since 1990, he was a good friend and they had gone to India together in late 2003.

[407]        With respect to the tile he did not recall Mr. Raymond Sandhu complaining of not being paid, that he had been paid on the other houses and on the Shergill house he told him that his money was “stuck” and told Mr. Sandhu’s father to wait. 

[408]        Asked what he meant by “stuck”, he said the job was not finished, that there was $15,000 outstanding, and Mr. Shergill was holding back some $65,000 or $75,000.

[409]        He denied the painter complained that he was not paid.  Similarly, he denied that the railing installer Mr. Sago complained of not being paid.

Extras or Changes: 2A

[410]        Item 1 – Staircase and landing on main floor.  Mr. Tiwana said Mrs. Shergill and Mrs. Tiwana were present, and as a result of discussions with her and the framer they moved the washroom to create a bigger space for the staircase and landing.  The landing had to be done a few times.  He was not sure as to the cost of rebuilding the staircase and landing, he thought his wife had the calculation.  He thought Mr. Hayre gave him the quotation but he could not recall what it was. He thought Mrs. Tiwana wrote the cost down.

[411]        Item 2 – With respect to the washroom, that is the powder room on the main floor.  He could not recall what month it was moved.  He said that Mrs. Shergill asked him to move it, and changed it as well from a two piece to a three piece, including installation of a tub. 

[412]        Item 3 – Changes to closet in master bedroom.  The Shergill’s asked for a wider hallway near the master bedroom, and it changed the walk in closet.  He said the change was made before framing was passed.  He could not remember when Mrs. Shergill asked for the change. 

[413]        Put to him that none of the changes were requested by the Shergill’s he replied it was their house, and he made the changes they requested. 

[414]        Put to him that he could not read the plans, he said no, the framer has to read the plans.  He was asked if he relied on the framer, and he said he read the original plan. 

[415]        He denied the powder room was moved because he realized there was not enough room in the hallway between the powder room and the staircase. 

[416]        It was put to him that all the changes occurred because they did not become evident until the framing, and he said no, that the plans had been passed by the city, and he had been building since 1989.

[417]        Referring to the plans and the boiler and hot water tank issue, it was put to him that Mr. Singh the plumber had given evidence that Mr. Tiwana had told him to put the hot water tank in the walk in closet.  He agreed that it was discussed that there was not enough room and therefore they decided to move it.  Put to him that there was no drain for the hot water in the closet, he said a pipe led there.

[418]        Items 5 and 6 - Niches on the main floor.  He agreed that he arranged for two niches for sculptures to be put on the main floor and it was done by Mr. Hayre.

[419]        He said the Shergill hand written list entitled “Work to be Done” list had been given to him before the plan had been approved by the city, and that he had done all of the work.  He said that when he got the list they discussed the items with the Shergill’s, that they wanted the changes, and they said they would pay for it. 

[420]        Item F “move laundry room” meant it had to be narrowed for the bathroom.  He recalled discussion about moving the laundry room and that it meant it stayed in the same place, but was narrowed, i.e. the wall was moved. 

[421]        It was put to him that Mrs. Tiwana gave him the list, and he did not ask what it meant, to which he said no, that it was the Shergill’s list. He said the Shergill’s gave him the list and said something to the effect that “these changes will make our house more beautiful”.

[422]        A2, page 6, is said to be the Shergill’s deficiency list and Mr. Tiwana said Mr. Shergill prepared it, and gave it to Mrs. Tiwana.  He thought he got it September 29, 2006 rather than mid August.

[423]        Item 5 – “Balance the windows”.  He agreed two or three windows did not close properly but he was not able to effect the repairs.

[424]        Item 2 – “wall at computer room”.  His evidence was the wall was crooked but he had no time to fix it.

[425]        It was put to him that by mid-September, 2002 there was no construction activity at all on site and he disagreed.  It was put to him that he had a fight with his wife in mid-September and he disagreed with that too.

[426]        C18 is a “list of deficiencies in the house to be re-done by Raj Tiwana”.  It is three pages with 24 items and dated September 22, 2002.  He said he recognized the handwriting was Shergill’s but said he never received it.  He denied the Shergills presented the three-page list on 29th September.

[427]        With respect to the meeting of 29th September, he agreed his wife was there and they were given a deficiency list and a cheque was given to Mrs. Tiwana by Mrs. Shergill.

[428]        He said his wife signed for receipt of $208,000 from the Shergills and there was a discussion about how much had been paid, calculations were made and the Shergills were credited with $7,000 for referring another house-building contract to them.

[429]        He thought the calculations he thought were right but then they were fired on the 3rd October and that was when Mr. Tiwana had wanted to finish the job and found another painter working outside the house.

[430]        He denied telling Mrs. Shergill he wouldn’t do any more work .He pleaded to finish the job.  It was put to him Mrs. Shergill showed him the deficiency list and he got angry and he told Mrs. Shergill her wouldn’t do any more work, and he denied that, saying he was owed money and he needed to finish to get the completion monies.

[431]        It was put to him that Mrs. Shergill was outside her garage, and he said he stood outside a few minutes and then they were told to go away.  It was put to him his wife was not with him at the time and he said, no, that she was beside him.

[432]        As to the discussion with Mrs. Shergill, he said he asked that he not be fired and they have time to finish and the Shergills said they had a lawyer, and if he didn’t finish the job.

[433]        It was put to him at the garage meeting Mr. Tiwana told Mrs. Shergill he wouldn’t do any more work.  He again said no, he was pleading to finish.

[434]        He disagreed the meeting outside the garage was 7 to 10 days after he received the deficiency list, and was more like the third or fourth and that he asked the Shergills not complete the job and he would finish it.

[435]        It was put to him that the meeting where the painters were outside was the 5th October and he said, possibly, and that the garage meeting was the next day.  He thought the same day or later, it was at noon, and the other meeting was in the evening.  It was put to him the evening meeting was outside the garage and he agreed.

[436]        It was put to him from the time Mrs. Shergill gave a cheque to Mrs. Tiwana on 29th September to the talk in front of the garage no trades were sent on to site.  Mr. Tiwana disagreed and he said the painter, the cabinet-man, the carpet-man and the plumber were all denied access.

[437]        He did agree the painter was able to foam paint the fireplace and the bedroom, and also the downstairs stairs were done.

[438]        He agreed the foam paint on the fireplace was to be done on Shergill’s possession and he sent the painter to do the foam painting.

[439]        He was again asked if he failed to send trades to the site after 29th September, and he disagreed saying the painter, the plumber, and the framer all went.

[440]        He said he telephoned them on the 29th and he didn’t know when they went, but he said the painter told him he went.  The framer said he screwed the steps for the stairs, that the plumber went and he was waiting for a sink to put in before the granite counter top could be put in.

[441]        Put to him the painter did not go as he would not complete his work until the flooring was done, Mr. Tiwana said the painter said that was only regarding touch-ups, that the rest of the painting could be done and he did the duct painting in the girl’s bedroom.

[442]        It was put to him the painter told him to leave the painting until after the carpet and hardwood were put in and he disagreed.  He said the painter went for two or three days.

[443]        With respect to the framer, he said he went in and fixed the steps one evening.

[444]        It was put to him that the framers and the painters work was all done before 29th September, and he said, no it was done after the receipt of the deficiency list.

[445]        He agreed the framer corrected one of the nine items, i.e. the stairs, but when referred the 22 September list, he agreed there was no reference to the stairs but he did get that item fixed.

[446]        It was put to him he changed the locks on the house on the 29th September.  He agreed a chain-lock was put on when the door was painted, but that he gave the Shergills a spare key.

[447]        It was put to him he changed the locks to keep the Shergills out and he denied that. He said he gave the Shergills a spare key and they were in there morning and night.

[448]        It was put to him the front-door hinges had been damaged.  He said they had been before the 29th September.

[449]        Mrs. Tiwana denied saying at the meeting at the garage he said he would burn the Shergills house down.

[450]        He denied that he took materials from the site during the course of construction of the Shergills house. It was put to him he took 2 x 10’s and studs and transported it to another job site and he denied that.  It was put to him he took plywood and put it into his truck and he said he didn’t have a pick-up truck.

[451]        He did agree he borrowed the Shergills pick-up truck a few times because he built the house for a Chinese gentleman and he had amounts of scrap that he needed to take off site. He denied taking any of the Shergills lumber.

[452]        It was put to him he asked Mr. Hayre to move lumber from the Shergills site to build a staircase and railing in his house, and he denied that.

[453]        He said with respect to the Shergills driveway, it was built before the 29th September, and referred to B72, an August 30th concrete pump rental.


[454]        It was put to him on re-examination that from June to August 2002, he was building his own house stairs and he denied that.  He said that he only used his own lumber for building his own house and he bought it from Hollyburn Lumber.  He said stair lumber would comprise 2 x 12’s stringers and 2 x 6 steps and that would be ordered from Southridge.  He was clear that he had not taken lumber from the Shergills site.

[455]        He believed his own house was completed four or five months before the Shergills.

[456]        The Hollyburn lumber (Ex. 50) was used for stairs, sundeck and the downstairs.  Ex. 50 is dated November 6, 2002.

[457]        He said he can read a building plan and has building experience from 1987 and is always involved with a planner. With respect to the plans he noted the first set of plans approved by the City had box windows in the master bedroom, the computer room and the bedroom.

[458]        With respect to the hot-water tank location change in the basement, he said that with potentially two families Shergills needed a bigger tank and the space provided was not enough and therefore the boiler needed to be moved.

[459]        With respect to using a pick-up to move scrap lumber, he said no it was not scrap lumber but stuff he borrowed from the Chinese gentleman and he used the Shergills pick-up.

Bruce Riddick P Eng MBA

[460]        In Mr. Riddick’s report he assumed the house was built in 2003 and no final occupancy certificate had been obtained from the City of Surrey.  He considered photos taken during a site visit on October 17, 2005, the B.C. Building Code 1998, CMHC Draft Generic Performance Guidelines October 2004.  Mr. Link’s report of May 2, 2005, and Mr. Naumann’s report of February 14, 2005 his opinion was based on responses to the following question:

1.         Is the reported difference in the level of the floors within normal construction tolerances?

[461]        He noted the floor slopes over the house varied some one and half inches.  He referred to the CHMC Draft Generic Performance Guidelines.

“3-6.     Floor or ceiling is out of level.

Performance Guidelines: Floors should be level within 25 mm (1 inch) over 3.6 m (12 ft.).”

[462]        From that he extrapolated that over 30 feet, two and half inches would meet acceptable construction tolerances, and 3.33 inches over 40 feet would be acceptable.

2.         Is the reported difference in level of the floors within normal construction tolerances?

[463]        Again he made reference to the CMHC Draft Generic Performance Guidelines which provide a wall should plumb and straight within 25 millimetres (one inch) over one story in height and along their length, and that bowing should not exceed 25 millimetres (one inch) over one story in height.  Mr. Link had noted out of plumb of a half inch over a six feet level, and .75 inches over nine feet.  He also noted areas where walls were out of plumb by half an inch at the top and four areas where the walls were out of plumb at base, and as he put it “it appears the house meets acceptable new construction standards for plumb”.

3.         Where there any significant deficiencies visible at the time of your site visit?

[464]        He listed 26 items noted by Mr. Link and Mr. Naumann.  His observations reflected the fact that a number of repairs had been made to original complaints and therefore some of his views were based on assumptions, for instance, his comment on the upstairs “deck”.  With respect to the heating design and installation anomalies, he did not provide any analysis.

[465]        He did acknowledge a good number of the criticisms were well founded.  However, with respect to total costs of repairs he put the amount at $4,400, and he was pointedly critical about some of the repair suggestions “it is ludicrous to suggest rebuilding a wall when a vanity is not installed properly” which refers to one of Mr. Naumann’s proposed remediation.  The allowances he did make were:

(a)        Header height in stairwell – drywall repair $1,000;

(b)        Guard rail straightening $200;

(c)        Floor slope, $0;

(d)        Stucco round windows, $600;

(e)        Wall out of plumb;

(f)         Exterior deck not considered;

(g)        Stone work upper level trim not completed;

(h)        First floor ceiling, not significant;

(i)         Stair landing shape – purely aesthetic;

(j)         Bathroom cabinet installation not flush - $0;

(k)        Bathroom mirror out of alignment;

(l)         Upper floor deflection - $0;

(m)      Stair riser - $500;

(n)        Kitchen ceiling - $0;

(o)        Master bedroom closet door is fixed at $500 for gap in wall;

(p)        Cracked tile - $0;

(q)        New tile expansion joint - $1000;

(r)        Tile grout color - $100;

(s)        Heating design and installation – no opinion;

(t)         Plastic heating pipe within six inches of vent - $150 to remediate;

(u)        Tie hot water tank - $100;

(v)        Make up air vent - $200;

(w)       Window wells not square - $50;

(x)        Window under flashing not necessary;

(y)        Upper rear deck flashing not necessary;

(z)        Front stone work venting not necessary;

(aa)      Garden soil to be removed;

(bb)      Column front venting - $100;

(cc)      Wall insert toilets to be cocked – no amount given;

(dd)      Order entry of upper deck – needs assessment and correction

[466]        As can be seen, two principle elements of flaw foundation and heating ventilation were respectively found within a proposed guideline or not considered.

Cross Examination

[467]        It was put to Mr. Riddick that the draft guideline was not an industry standard to which he responded there was no standard in the industry.  It was then put to him that accepted standard is one quarter inch every 10 feet, to which Mr. Riddick replied there were a number of different standards and he was not aware of that particular standard.  When it was put to him that if he accepted that standard as being one inch every 12 feet, then logic would dictate that a 48 foot floor plan could possible have a four inch deflection and be acceptable, he said that was possible.  When it was put that such a variation would never be to industry standard he said he could not judge that.  He accepted that a width of a standard two story house could be 40 or 50 feet, and that a foundation deflection would be far bigger than four inches and 48 feet. 

[468]        When put that if the one inch to 12 feet over the length of single level duplex of 80 feet could possibly be six and half inches, he agreed that that would excessive and would reflect that the building would not be square and would indicate that the building was not level and would not be acceptable.  He agreed that a four inch deflection over 48 feet might not be acceptable either, but a variation of a quarter inch over 48 feet would be acceptable.  He agreed if a foundation was not level it would affect the level of the framing, unless the framing was adjusted during construction.  He would not agree that an out of square frame could not be dealt with in individual doors and windows, saying those could be adjusted at installation.

[469]        He further stated that if the foundation was sufficiently out of level and floors were not level would create a tile lying difficultly.

[470]        He said his inspection time took three hours.  He agreed his costs of deficiency did not include repairs to the heating system.

[471]        He agreed with that the upstairs bedroom was being converted to a deck, and the exterior walls removed, the heating loop should be cut off.  He would however, agree that there would be a potential water entry problem.

[472]        The plaintiff’s case was then closed.

The Defences’ Case

[473]        Mr. Morton then made an opening statement

Mr. Inderjit Hayre

[474]        He said he was a framer with 23 years experience and was hired by Mr. Tiwana to frame the house at 6133 in February or March 2002.

[475]        They agreed on a price of $14,500, which included foundation, framings, roofing windows and exterior doors.  He said he completed all of the work but he was only paid $11,500 in some cash. 

[476]        He had previously worked for Mr. Tiwana on three houses and not had any previous problems. 

[477]        He said he reviewed the plans before he began the work. He said Mr. Tiwana did not understand the plans which led to wall changes occurring later.  He said they would build to plan, and changes would occur, because Mr. Tiwana asked for the changes to be made. 

[478]        Other workers were his partner Gosal and two labourers. 

[479]        He said the house was two stories with a basement.  He recalled framing the bedroom on the second floor and then making changes to turn the bedroom into a sundeck, which entailed framing, dry wall and putting in soffits.  He said they learned there was extra square footage that had to be cut down, and was done by making the bedroom into a sundeck.  He said that he was told that by Mr. Tiwana, and he recalled working on the halls when the house was “red tagged”.

[480]        He said Mr. Tiwana asked him to make changes and told him the square foot problem.  Asked what directions, he said he was asked to move the forms that lead to the bedroom change to a covered deck. 

[481]        He said that Mr. Tiwana asked him to move the forms because the city had approved the change in the foundation adding the square footage changes.  He recalled working on the foundation, the survey having been done, and then the forms were changed before the form inspection.  He said it happened after the survey, but before the formal inspection. 

[482]        He said Mr. Gosal and others were there at the time.

[483]        Asked about other changes, he said he recalled making the stairs wider, boxing out windows, and moving a washroom wall.

[484]        With respect to the stairs, he said the stairs were not big enough to meet code, and so the landing and the stairs widened.  He said Mr. Tiwana asked him to widen the landing from three feet to three foot six inches, and that he built and then rebuilt.  He said the initial three foot landing would have been adequate, but once widened, the stairs needed widening.  He said that a beam became a factor in rebuilding the staircase, and that is why the staircase had to be rebuilt, after the changes to the beam. 

[485]        With respect to box windows, he said he took the headers out and framed.  He said there were six or seven, on more than one floor.

[486]        He said he charged an extra amount, perhaps $500 or $600, but it was not paid.

[487]        As well, the washroom or powder room was moved to the exterior wall, taking out the washroom in the bedroom and rebuilding the washroom. 

[488]        He was referred the original plan (Ex. 4).  On page 2 he noted that the two piece bathroom beside the stairs.  In Ex. 49, the revised plan, the main floor shows changes above the living room, which he said occurred as a result of Mr. Tiwana asking but the request was not made until the framing had been done.

[489]        He said he did charge extra for rebuilding and moving a powder room, approximately $200 and said Mr. Tiwana assured him he would be paid.

[490]        Asked if an amount was ever agreed, he said some $2,000 for these changes, but he was not paid for the extra work. He said called Mrs. Tiwana many times for payments, and was told she was not available.

[491]        He said it was not unusual for Mr. Tiwana to ask him to refine or change things, and if there were extras he would charge them if they were big, but if they were small, he would not charge. 

[492]        Asked about changing the hallway by the master bedroom on the second floor, he said this occurred with the change in the stairs, and the beam had to be moved.  He said there should have been a charge for the change in the work. 

[493]        He was referred to C37 (Ex. 34) dated July 18, 2002.  He acknowledged his signature on the document, which was an invoice for extra work: shed $700 driveway and sidewalk $350.  He said it was prepared by Mrs. Tiwana, but it was not accurate, and he understood it was created to obtain mortgage monies and show monies expended on construction.

[494]        He said Mrs. Tiwana asked him to sign it, that he just wanted to be paid.

[495]        He was shown C38, an invoice listing nine items of extra work dated July 18, 2002 for $6,366.50. He said Mrs. Tiwana prepared it and it was not accurate.

[496]        Shown C39 (Ex.27) an invoice dated July 18, 2002, for framing $18,000 and foundation $3,500, he said was not an accurate record either, though it acknowledged receipt of $23,005.  He said he was expecting to be paid his money and Mrs. Tiwana in fact only paid him $50 as she knew he was on drugs at the time.  He said the three invoices were prepared by Mrs. Tiwana at her home in February or March 2003.  She called him and she knew he was expecting to be paid. 

[497]        C40 and C41 are two copies of cheque number 183 in the amount of $4,695, payable to Inderjit Hayre.  One is dated September 30, 2002.  Asked if he received the cheque, he said Mrs. Tiwana took him to the bank, had him cash it, and she gave him $50, this occurring at the end of February, or early March 2003.  He said Mr. Tiwana came his job site three or four times, and Mr. Tiwana took him from the site to the bank, and did the same thing again the next day.

[498]        He was then referred to C42 (Ex. 31), cheque number 185 on Mrs. Tiwana’s account in the amount of $3,700.  He said Mrs. Tiwana picked him up, took him to the bank, and he cashed the cheque, and she took all of the money. Asked if Mr. or Mrs. Tiwana said why they were doing this, he said no, that Mrs. Tiwana said that she would pay him $2,000 and then she said that she needed the money, and she said that she would pay him next week.

[499]        C43 are six receipts acknowledging payments from Goodwill Holdings, acknowledging payment in total of $11,100, between May 27, 2002 and August 17, 2002.

[500]        He acknowledged his signature, but he said that the receipts were all false, that they were prepared and signed in 2003, about a week after the cheques were cashed.

[501]        Asked what he did with the $50 from the $4,695 cheque, he said he took it for drugs.

[502]        Asked if during his work on site, Mr. Tiwana told him the owners wanted to make changes, he no, both Mr. and Mrs. Tiwana were there most of the time and he did not recall them ever saying the owners wanted changes.

Cross Examination

[503]        Asked how long it would take to frame, he said it would ordinarily take five to six weeks depending on the weather.  He said with respect to the house at 6133, it took some three and half months. He said each time he built something, there would be a change, and that included the foundation, and the height, which he said he built up, and it kept extending the time.

[504]        With respect to the footing, he repeated that Mr. Tiwana asked him to change the footing before the forming inspector saw the site.

[505]        He said he was aware that the city had passed the footing, and Mr. Tiwana said to him that the inspector would deal with the engineer later, that he had the certificate of the surveyor, and then he moved the wall.

[506]        He recalled the engineer’s associate being on site.

[507]        He did not recall the city inspector measuring, but he agreed he knew the foundation wall had moved. 

[508]        Asked if he was aware of the wall changing, he said Mr. Tiwana said he had the city’s approval, and that Hayre in fact did not want to do it, but was told by Mr. Tiwana that it was okay.

[509]        He agreed that it was a major change, and thus it would not be approved by the city.  He said the plan they had was not stamped by the city as approved, it was just the engineers plan, and that the builder kept the city plan until completion, and it was not a true copy.

[510]        He said it was usual for the framer to work with a copy, but not the builder.  He did ask for the original when he started framing as it would have the dimensions for the lumber. He said he was given the approved plan when he started the framing, and he made notes on his copy, and then he gave it back.  He did not see any change in the foundation. 

[511]        He said the builder gave instructions while working on the house, and it was put to him that the changes were generally done because of the owner, to which he responded he had no right to ask the owner, it was the builder that hired him. 

[512]         A21, page 2 is a building revision inspection dated April 3, 2002, approving the forms.  He said it was the second visit by the inspector.

[513]        The inspection notice reflected the inspector being there and telling him to raise the southwest elevation three inches which would have taken some ten minutes.  Item three, “footing (circled in red) deleted – amend plans” was “not much work”.

[514]        He was asked if his obligation was to frame the foundation, and he said yes, and that the builder then calls for inspection.  It was put to him that this was a major change to the framing, and his responsibility was to get it passed, and he agreed but the permit is taken out by the builder and he simply supplied the labour.  He agreed he was paid $11,500 for the foundation framing and that he received cash, some $300 more than the $11,500. He said he was not paid in full, that the agreement was $14,500. He agreed he was paid $11,800.

[515]        He said he quoted $14,500 by calculating on the square footage, at $3.00 a square foot.  Meals were to be provided. 

[516]        He said three others were working with him, his partner and the labourers at $12 and $10.  He said he did not figure out the hours but he did lose on the job.  He paid his labourers out of his pocket $9,000 or $10,000 and he said he personally only got $500.

[517]        When put that $14,500 would only mean $4,500 for he and Mr. Gosal he agreed.  But he said that his quotation was premised on finishing the job within five weeks.

[518]        He was then referred to A49, a handwritten note dated March 20, 2002, in which Mr. Hayre said that he and his coworkers were responsible for any injury on the job site.  He said Mrs. Tiwana prepared it.

[519]        The next page was in Mr. Hayre’s writing and showed costs for framing the house.  He said that Mr. Tiwana had asked him to do the calculations as they wanted to set the price for extra work.  He said the document was prepared in March 2003, after he had cashed the cheques.

[520]        He was referred to the top right of the document which shows framing $18,000, foundation $3,500, and extras $6,900, at total of $28,400.  He said this was calculated so that the cheques would add up.

[521]        As to the framing, he said that Mr. and Mrs. Tiwana figured that out and told him that figure, and the figure for the foundation.  With respect to the extras, he said they got the cheques down, listed the work, and figured matters out.  The charges for box windows and driveway were never paid.  Notches (niches) he said would be 15 minutes work and were not worth $450.

[522]        He agreed that he was told what to write. He agreed that it was his handwriting that calculated the $6,900, and he said he had trusted them. He agreed he calculated the sums at the top of the page.

[523]        When asked if he was paid, he said they called him and asked how he was to be paid.  He said he found matters fishy in 2004 and he never called again.

[524]        He said he had worked for the Tiwana’s before, but not for the Goodwill Company.  He had framed three houses and been paid, the first in 1989, and he was not sure about the others.  He said he trusted the Tiwana’s in June 2003. 

[525]        He was asked if he knew about the Builders Lien Act and he said yes.  Asked about a mortgage, he said he was told they were getting a mortgage, and that they needed to show the bank the building costs.

[526]        He maintained that he did not know who the owner of the property was and that he had never placed a lien.  It was then put to him that when he spoke of Tiwana’s mortgage it had to be for the Shergill house.  He said that’s what they told him, that he did not really know what was going on and he thought it was for the mortgage, at least, that was his theory.  They said two or three times to him they were getting a mortgage and they would ”clear this guy and this guy”. 

[527]        It was put to him that the Tiwana’s were going to get a mortgage on 6133 and he said all he knew was Mr. Tiwana was the builder and not the owner.  

[528]        He was then asked if he knew who the owner was in 2002 at 6133, and he said Tiwana was the builder but he never knew who the owner was. He was not aware of the owner, he never asked Mrs. Tiwana and he did not ask why the documents were prepared.

[529]        With respect to changes to the house he said they were made at the request of the builder and that would be a usual practice.

[530]        He was asked if he used a level in construction and he said yes, the corners of the walls would be level and the house perfectly square.  He said he used a level at 6133 and the house was level.  He used a level for the walls and the floor. 

[531]        C37, an invoice dated July, 2002 for the shed and driveway was in his writing and prepared at Mrs. Tiwana’s request.  He had the same answer for document C38.

[532]        With respect to the handwritten document, A49, he said that they worked on it together and Mrs. Tiwana typed it up.

[533]        He said C38, the list of extras, was not right.

[534]        With respect to document C39, the invoice for framing and foundation, he agreed that it was in his handwriting but that the amount was false.  He agreed that he signed the documents in 2003 and he did not change the date as he was only there to get his cheque.  He reiterated that he did not take C40, cheque number 183 to the bank, that Mr. and Mrs. Tiwana took him to the bank and Mrs. Tiwana took him to the girl there, that he showed his ID, but one of the cheques would not cash as the date over a year old.  He was not sure if that was cheque number 183.  He recalled going three times and cashing cheques, and Mrs. Tiwana took the money from the teller and put it in her purse, he believed in March 2003.

[535]        He said he was paid and he received $11,500 plus $300 cash, or $11,800 in full.  He did not remember what the various cheque amounts that made up the $11,500, but he thought cash was $300.

[536]        He agreed he signed six identical looking receipts dated May, June and August 2002: C43.  It was put to him these were receipts for money he had received and he denied that saying that in 2003 he did not question, he just signed and he was there to get his money.  

[537]        The cross examination then moved to Ex. B (Mrs. Tiwana’s list of expenses for the house).  B8 is a cheque for $1,000 dated April 4th, which he acknowledged cashing and keeping. 

[538]        B13 is a cheque for $500, B23 is a cheque for May 14, 2002 in the amount of $4,500, and B35 is a cheque made to Mr. Gosal dated June 5, 2002 in the amount of $2,000.  Asked if he was aware Mr. Gosal got the $2,000 he said it did not matter, that he trusted him, but he could not say if it was part of the $11,000.

[539]        Document B49, dated July 18th for $500.

[540]        Given that the cheques totalled $8,500, the question was “where is the rest?”, to which Mr. Hayre said Mr. Tiwana bought a compressor and he deducted nails and that takes it down from $14,500, and he only got $11,500.

[541]        Asked how much of the $14,500 he was owed, he said $2,000. Asked if that included the extras he said no, the original contract was $14,500.

[542]        Mr. Hayre said the $1,000 discount was not for tools, that they had made a deal that Mr. Tiwana would supply the nails and he deducted that.

[543]        Asked if he received $11,800 and therefore $3,000 was outstanding as they deducted $1,000 for nails, he answered no, that he asked for $2,500 and he would “walk”.

[544]        He was then shown an account from Dick’s Lumber showing a nailer, (a bar stitch nail gun) for $463, and agreed that was his signature and that was delivered to the site.  Additional items were then put to him including a circular Hitachi saw, and excluding lumber, worth $1,698.93.  It was put to him that it was not $3,000, and he said that that was what he had been charged.

[545]        Asked if the cheques and the equipment comprised the framers bill, he said that he had been overcharged.  It was put to him that the original contract was $14,500 and that he said he got $11,500 and then he said it included the nails and tools, and if the cheques total $8,500 and the bills were $1,700, that was a total of $10,200.  Asked why he would give money back and he said he was told, “there were credits”.

[546]        The 12-page Dick’s Lumber account became Ex. 51. 

[547]        The affidavit of Mr. Hayre sworn April 18, 2005 was then put before him and he acknowledged his signature. 

[548]        Paragraph 3 referred to the money paid to him, namely $2,000 to Mr. Gosal, and $9,750 paid to Mr. Hayre.  It was noted it did not include the $300 he had mentioned earlier, but then reference was made to paragraph 5 which speaks of a payment of an additional $250 (which would give in total $12,000).

[549]        Paragraph 10 referred to Mr. Tiwana redirecting lumber to his own house.  He recalled Dick’s delivering the lumber but he could not say when.

[550]        With respect to overhearing a discussion, he said he did not hear the discussion but he heard Mr. Tiwana tell the driver to go to 6222 and Mr. Tiwana drove off and the truck followed him. He said he did not frame Mr. Tiwana’s house.  Later Mr. Tiwana told him that the Dick’s truck had come to the wrong address from which he concluded that the truck went to Tiwana’s house.

[551]        With respect to paragraph 12 regarding junk lumber, he said the junk lumber was driveway forms which had to be cleaned and washed but he could not say what stage of construction, though likely end of March or early April.  With respect to junk lumber, he said that he borrowed Mr. Gosal’s pick-up truck to move it.

[552]        Asked when he met the Shergill’s, he said after the construction and he had seen them during the course of construction, but first meet them at Mr. Morton’s (solicitor’s) office.

[553]        He said that he went there because his partner, Mr. Gosal, took him, telling him he had to go and see Mr. Morton to say what was going on. 

[554]        Asked the basis for his belief that the Tiwana’s may have used false invoices and billed the Shergill’s for lumber taken to other houses, he said  $38,000 was charged for lumber and he thought the maximum should have been $25,000.

[555]        He said the Shergill’s house was 5300 square feet and for a house of that size $25,000 should be adequate for lumber.

[556]        With respect to paragraph 14, which speaks of Mr. Hayre taking lumber from the Shergill’s house and building a stair case and railing in the basement of the Tiwana’s house, he was then shown a Hollyburn Lumber account for $474. He said he had no idea and he did not use that lumber. He was asked if it was a shed and he said the wood would not be that much, that a shed would be $150 materials and $200 labour.

[557]        Asked if he was paid $350 for the stairs, he said no, it was only five or six steps and he was not paid. 

[558]        Asked about the stair and rail, he said it was from a patio on the southeast corner.  From the sidewalk to the patio, the patio was three feet below grade and it was five or six steps to the basement and a three story house.  He recalled building it sometime between March and July of 2002.

[559]        Asked if the Tiwana’s house was complete, he said there was still some finishing ongoing. Asked if he could do the stairs before Surrey approved it, he said as long as the slab was poured, the work could be done.  He said it was not related to the sun deck of the house.

[560]        He picked up lumber at Dick’s Lumber when Mr. Tiwana sent him and that he brought it back to the Shergill’s house and he used it to build there, and Mr. Gosal assisted.  He did not do any lumber delivery to Tiwana’s house.

[561]        He agreed all the lumber he picked up at Dick’s he took to the Shergill’s house.

[562]        In re-examination, he was asked to clarify the amounts received, namely the $11,500 and $300.  He said the $11,500 included a credit for the nails and the original agreement with Tiwana was that Tiwana paid for the nails, and he changed the agreement.

[563]        He said the money he actually received was $8,500 plus $300, or possibly $250, and a further $50 later.  Mr. Hayre’s affidavit was then entered as Ex. 52.

Mrs. Jaginder Shergill

[564]        Mrs. Shergill said she met Mrs. Tiwana at Costco.  Mrs. Tiwana helped her with the sale of their previous residence in November 2001, and advised with the purchase of the land at 6133.  The building contract price for the new house was $250,000 including GST.

[565]        With respect to the relationship at that time, she trusted Mrs. Tiwana, that they looked at several houses, and Mrs. Tiwana said they were quality builders and they became good friends.

[566]        Mrs. Shergill acknowledged her signature on the contract: C1.  She said Mrs. Tiwana typed it. This was the third draft, one was written, one was typed, and the Ex. was the third draft.  Some things that were agreed upon were not in the contract.  They were told at the end of July they would be able to move in.  She recalled noticing things were not included, for instance, 7 telephone outlets.

[567]        With respect to radiant heating, she did not notice that the basement had baseboard heating rather than radiant heating until in the course of construction.

[568]        She said everybody signed the contract at the same time and they discussed it for some 3 to 3-1/2 hours.  When discussing what would be in the house, Mrs. Tiwana said not all of it could be written down and that they should trust her.

[569]        Before April 1st, the discussions with Mrs. Tiwana related to the price and views of other houses she was building on 126A Street.

[570]        She recalled that the house would be completed, that the “rentals” would be done by the end of July; that there would be 7 bathrooms and 4 bedrooms; that there was discussion in detail regarding tubs, sinks, mirrors, shower doors, a six-jet jacuzzi and shower in it; that there would be one light in every bathroom; discussion of the eating area and kitchen island and China kitchen; three ceiling fans, a light on the balcony in the storeroom and they shared a full back balcony; some work on the plans after the final occupancy, sidewalk on the south side, grass in front; some things she showed her later, such as the granite, the tiles and the spindles.  She asked for a laundry chute; she asked for a rough-in of the garage; she asked for two drop ceilings, four chandeliers in the hallway and the dining-room; she asked for four niches; she asked for a design in the bedroom wall feature they had seen in one house; that the rental suites be done; that there be linoleum in the rental suites kitchen and bathroom; that there be 50-oz. carpet through the rest of the house and the front of the house have stone facing that they had seen on a house in Fraser Heights and similarly the colour be like a house in Fraser Heights.

[571]        She agreed there was a mis-communication regarding moulding and that Mrs. Shergill agreed to pay the difference.

[572]        Other matters were maple kitchen cabinets, melamine cabinets in the rental, garbarator in the China kitchen.  There was change for granite in the entry, the countertops and in the bathroom a six-jet jacuzzi, a big shower was agreed on.  There was to be roughed-in vacuum, security system and intercom.  There had to be two fireplaces, tiles to be on the fireplace, radiant heating on all three floors, the whole front of the house to be stone, track lights on top of the fireplace and other lights were to be provided.  Those matters were not written into the contract because Mrs. Tiwana said she couldn’t write it all in.  She said Mr. Tiwana wrote the first one in Punjabi and then Mrs. Tiwana typed it out.

[573]        With respect to pricing on items, they went higher for granite, for the hardwood in the living-room, the kitchen, for the added laundry chute and that took the price up from $225,000 to $250,000.

[574]        The six-jet jacuzzi was for the master bathroom.  The three ceiling fans were to be placed in the living-room, the family-room and the master bedroom.

[575]        With respect to an intercom, Mrs. Tiwana said the intercom would be wired and worked through the front door, the kitchen and upstairs.

[576]        She reiterated that going to $250,000 included granite in the entry and in the bathroom on the main floor; that all plumbing fixtures would be provided and all faucets, and all these matters were discussed before April 1st.  She made reference to seeing a finished house and that the Shergill house was to be completed in similar fashion.

[577]        Then she said the price went from $225,000 to $235,000 for granite countertops, entry area and bathroom.  The price went to $250,000 for stone at the front, $3,000 for hardwood and $2,000 for the drop kitchen, niches, and shed.

[578]        She then looked at Ex. 4, the first plan approved by Surrey.

[579]        She said the first time she saw a draft plan, she had difficulty reading and found it confusing.

[580]        She then looked at the front elevation on page 1 and said the front showed the stone steps and roof.

[581]        With respect to hardwood, she said that would go in the living-room and dining-room and that she recalled it being $3,000 or $4,000 and that Mrs. Tiwana calculated the difference from carpet and hardwood.

[582]        With respect to the exterior colours, she said that was to be similar to the Fraser Heights house they had seen with respect to the stone and stucco.

[583]        Reference was made to the photo at C2A (Ex. 5) of the house at Fraser Heights showing the stone and the brown colour of the stucco.  She said she went to see that three or four times before the contract was signed and particularly asked for those colours.

[584]        When asked if there were allowances made for fixtures or tiles, she said Mrs. Tiwana showed her tiles at the houses and told her she could choose the colour.  Similarly, she was able to choose the granite and the spindles for railing.

[585]        She was asked what extras, she asked after 1st April.  She said she was clear as to what had been agreed to, that she had asked for the most boxed windows they could get on the plan and was told that once the plan was back it could be sent back to the City and that could be done later.  Mrs. Shergill went to see the City planner and asked for the most boxed windows that the City would allow.

[586]        She said this was discussed on and before April 1st.  By that time the plan had gone to the City and it couldn’t be changed.  When asked if that was to be an extra, she said no, that that had already been discussed and they had spoken to others who had built similar houses and the difference would be $10,000 to $250,000 and therefore $250,000 was a high-end price and she further said Mrs. Tiwana told her that the boxed windows would not be that much work.

[587]        At the time she was living in the basement of the house they had sold, the sale completing in February and they stayed in the basement until July 2002.  They stored their furniture in the garage.

[588]        She was satisfied choosing the Tiwanas as they were experienced and she trusted them.

[589]        In terms of payments to be made to the Tiwanas, $20,000 was to be paid when they started building, then mortgage payments at lock-up, on completion of drywall, and on final completion.  There was no discussion of other payments.

[590]        Questions then turned back to the contract, where Mrs. Tiwana had said in her evidence “the side heating” was a mistake.  Mrs. Shergill disagreed, saying it was her husband’s writing, that it was not until rough-in and the jacuzzi was being put in, they realized and that the basement heating was not radiant, and he also wrote a note regarding track lights.

[591]        She disagreed with Mr. Tiwana’s assertion that the Shergills wanted the same heating as his house.

[592]        She had no recollection of asking for baseboard heating, that her old house had radiant heating on the ground floor.

[593]        Asked if she did any work for the Tiwanas, she said that in January they completed a house in Burnaby and Mrs. Tiwana asked for help to move the garbage from the site.  They moved two loads including some lumber from the sidewalk and she and her husband dumped it on their own lot, as it might be useable for their construction.  Some was taken to the Vancouver landfill and they paid for that and were repaid by the Tiwanas.  She believed it was approximately $100.00:  see B93 a garbage receipt dated January 20, 2002 for $127.00.

[594]        She was asked how much was paid to the Tiwanas and she said $208,000 in all.  Reference was then made to C4, page 2 listing the payments.  She said there was $4,800 cash and a small cheque.

[595]        C5 is three pages of VanCity bank statements.  Page 3 shows $1,000 cash withdrawal which she said she gave to Mrs. Tiwana on July 27, 2002.  When asked why there were more payments, she said Mrs. Tiwana was asking for more money and she paid cash.

[596]        She said Mrs. Tiwana said there would be a lesser amount to pay at the end and advances were needed to pay trades.  Mrs. Shergill said Mrs. Tiwana knew she was working two jobs and making some $5,000 every two weeks, and said to pay her cash.

[597]        She said her bank allowed $400 ATM withdrawals per day, so after work they would go to the bank and draw out monies.  She referred to a $400 withdrawal August 19 and $400 withdrawal August, 2002.

[598]        C6 is Mrs. Shergill’s bank statement for February 2002 to May 2003.  She said that she had paid Mrs. Tiwana through various withdrawals from her accounts $2,000, largely in cash, by cheque dated August 14, 2002 for $300, a $500 withdrawal from the CIBC account, drawings from the Coast Capital account of $300, $200, and $300, and a $400 cash payment from the ATM withdrawal totalling $2,000.

[599]        As well, she referred to a $1,000 withdrawal on August 30th.

[600]        Mrs. Shergill said that she had paid $4,800 to the Tiwana’s over and above the $204,000 otherwise recorded.

[601]        She made reference to C5, the Van City Chequing Account, showing three withdrawals totalling $1,800; C6, showing the Coast Chequing Prestige Account showing a $1,000 withdrawal on August 30th; and the previously discussed $2,000, which included the $500 to be found in the saving account, (C7), at CIBC.

[602]        C8 reads:

To whom it may concern:

This is to inform you that as of September 29, 2002, $208,000, I have received cheque number 108 $10,200 within $208,000.

[603]        She said the handwriting was Mr. Shergill’s, and the signature was Mrs. Tiwana’s.

[604]        She said the documents prepared to record payments made to that time including $10,000 paid to her as cash payments.

[605]        Wording at the bottom was crossed out which reflected their wish to have the house completed, their wording reading: “date of having key.  We want house on October 12, 2002”.  She said Mr. Tiwana crossed that out, but she did sign for the money.

[606]        It was put to her that Mr. Tiwana had said the $208,000 comprised $203,000 paid, and $5,000 credit (for a contract referral), and that was denied.

[607]        Asked about the $5,000 credit, Mrs. Shergill said Mrs. Tiwana said she was going to pay for the referral for an employee.

[608]        She said Mrs. Tiwana agreed she owed the $5,000 but said that was off-set by putting granite instead of tile in the kitchen and eating area. 

[609]        Mrs. Shergill said she paid two more cheques, that she owed $5,000 for moulding and $3,000 for granite, and a couple of things that she came up with (windows, tubs) added $3,600 for granite and other items were extra.  Mrs. Shergill agreed and paid a cheque of $1,377 for moulding, and one cheque for medallions, but she stopped payment on that. 

[610]        Asked of the $5,000 difference between tile and granite, she said in fact the difference was $3,600 between the tile and the granite.  As well, there was $2,000 owed for the moulding and therefore, she wrote the cheque $1,377.  She said Mrs. Tiwana came up with a stain on the cabinets and agreed that would be without cost, but then she said Mrs. Tiwana created more bills and Mrs. Shergill said her husband said do not fight, and pay it.  She says they did the calculations and it came out to $1,377.  She said that was at one meeting on September 29, 2002.

[611]        She was asked whether she worked on the house during construction and she said “we hauled all the garbage, we agreed after April 1st we would do the garbage and cleaning otherwise we could be paying for clean-up and garbage fees.  We were never paid.”

[612]        The cleaning was done mostly on the weekends, but early on it was not necessary, but once the drywall was done it was necessary and more often. 

[613]        Asked of her observations about the building progress, she said they started hauling garbage when the floor started going in.

[614]        She referred to Vancouver dump records between May 2002 and July 2003, and she said that was usually she and her husband or her daughter, and that they paid the bills.

[615]        B19 shows eight visits to the City of Vancouver dump between May 2 – 23, 2002.  They were hired by the Tiwana’s to move the garbage from the Tiwana house at 6222, and Tiwana’s truck is noted on all of the invoices. 

[616]        She said some were garbage, some were drywall.  It was all Mrs. Tiwana’s.  They had to take two full loads from the garage, and gypsum is noted as one of the garbage items.  She said the Tiwana’s did their drywall in April and they took the garbage in May.  She said the Shergill’s did the cleaning at Mrs. Tiwana’s house and they were not paid for that.  She said Mrs. Tiwana told her that when the last draw came in for the house she would pay Mrs. Shergill back for the cleaning she had done at the Tiwana’s house, and the Shergill house, however, that never happened.

[617]        She said the eighth ticket from May 2002 she gave to Mrs. Tiwana.  Mrs. Shergill had 25 tickets that she said related to the removal of materials from 6133 noting the drywall removal July 29th, August 8th, and November 17th.

[618]        With respect to the May removals from the Tiwana house, they cleared the Tiwana front yard so that she could put in the driveway, and the lot was graded and levelled after the garbage removal.

[619]        As well she accompanied Mrs. Tiwana when she bought appliances at Future Shop and also bought drapes and towels.  The Tiwana driveway was put in in May, and in the first week of June she said Mrs. Tiwana borrowed her pick-up, as the Tiwana house was not ready so they had to move into the 6222 basement in June 2002. 

[620]        With respect to the appliances bought at Future Shop for the Tiwana house, Mrs. Shergill said her daughter was working in Future Shop and Mrs. Tiwana wanted to use the Shergill discount.  The appliances were similar to what Mrs. Shergill wanted to buy.  With respect to the drapes, she knew the installer.

[621]        With respect to tile installation, she recalled going to Euro tiles, that Mrs. Tiwana told her she had bought from Euro tiles before Mrs. Shergill bought hers in August 2002, and also at another location in Burnaby.

[622]        Mrs. Shergill generally went to the house on weekends, and would drive by occasionally.  She did not recall speaking to the trades until August 2002, and spoke to the plumber, painter, and the stucco man.  She had concerns as they felt “stuff was not being down properly” and she was concerned that work was not being done. 

[623]        She recalled speaking to Mrs. Tiwana in September 2002, when Mrs. Tiwana said she was having problems with her husband and had kicked him out.  She raised the question of the trades not being paid, especially the painter, who said he was not getting paid, and the plumber said he was owed monies, and the stucco man said they had finished their work and not been paid. 

[624]        Mrs. Shergill said she had paid $109,000 to Mrs. Tiwana by that time and was becoming concerned.  She said the stucco man had spoken to her about a lien meaning that they were owed $9,000 and were not paid.  So she took the stucco man to Mrs. Tiwana, but Mrs. Tiwana would not talk while Mrs. Shergill was there, so Mrs. Shergill left and told them to call her if they were not paid, and they did not call. 

[625]        Mrs. Shergill said  she did not ask any of the trades to change the work, until she took two weeks off.

[626]        She said Mr. Tiwana said he was not going to work, that Mrs. Tiwana had kicked him out and the trades were not working, and Mrs. Tiwana had not paid trades for her own house.

[627]        Mrs. Shergill said that they moved into the Tiwana’s basement in the first week of August.  Until then they had stayed in the house that they had sold.

[628]        They stayed in the Tiwana’s basement until the first week of October.  They moved their own furniture out of their own garage and into storage in late June or July.

[629]        Put to her that Mr. Tiwana said that the Shergill’s did not care when the house was completed, she denied ever saying that.

[630]        In September 2002 Mrs. Shergill became concerned that the Tiwana’s did not seem to be completing the house, and the trades were not getting paid, and therefore she began to think Mrs. Tiwana was using the Shergill money for her own house. In August she started asking how the trades were paid, and in September she started speaking to the trades, that she felt something was going on about the dollars were being spent.  Mrs. Tiwana assured her that “all would be complete”.   She asked Mr. Tiwana how the monies were being used, lots of times, but never was any detail given, it was just “in the house”.

[631]        She said in September, after she had met the trades, she then went to the suppliers and her trust disappeared.  Mr. Tiwana was saying that the trades were his people and he had been kicked out, and the trades were not working.  On 29th September, she thought they should give it one more try.

[632]        She was asked about the floor plans and whether there was discussion about any changes and she said no. 

[633]        Asked if she authorized any changes from the contract on April 1st,  she replied that Mr. Tiwana said they would do the box windows later. 

[634]        Asked if she discovered any changes, she said the biggest change was the fourth bedroom becoming a deck, and there were many small changes, including smaller bathrooms.  She said that they did not discover the change in the deck until after the trip to Australia in the last week of July.

[635]        She said that she went to Australia the first week of July, or end of June.

[636]        She said that she spoke to both the Tiwana’s: that she was mad.  She had sold her house, which had three bedrooms, and she had three children and wanted four bedrooms.  Mr. Tiwana said he had made a change in the foundation and it was the first time that he had been caught, that he had done it before. He said it would put it back into a bedroom after they took up occupancy.

[637]        Asked if there were discussions about other changes, she said the stones on the plans were an extra compared with the first plans, the jacuzzi was not six jets, that the shower seemed very small, that they cut a foot off of the bathroom, and the basement heating was baseboard, rather than floor radiant.

[638]        Asked about changes, she denied requesting changes to the staircase landing, the changes to the powder room on the main floor, or the changes to the bathroom on the main floor.

[639]        Ex. 41 is Shergill cheque number 290, dated October 1, 2002, made out to Can Pro Painting.  She said she gave the cheque to Mrs. Tiwana because Mrs. Tiwana asked for it to ensure the painters would get paid.  She said she did not write Can Pro.

[640]        The meeting of September 29, 2002 was held at Tiwana’s house. Mrs. Tiwana signed the document regarding payments received and Mrs. Shergill gave her a cheque for $10,200.  A list of deficiencies had been prepared (C18) and the Shergills wanted it all done, as this seemed the last chance for they were losing trust.

[641]        She said they went to the job site with the list and the Tiwana’s and went over it.  She said the Tiwana’s “flipped”, and said they would not send sub-trades to the site, that the cost would be more than they had calculated, Mrs. Tiwana said they would lien the property, and they would never have the house finished.  Mrs. Shergill decided she did not want the Tiwana’s to do any more work. 

[642]        Mrs. Shergill said that they noticed the trades not working and the locks changed on the door.  They went to a lawyer to write a letter, and they retained another locksmith to re-key the door: C19 an account from Coastal Lock and Key dated October 5, 2002. 

[643]        C20 is the Shergill’s lawyer’s letter, dated October 3, 2002.  She said she saw no Tiwana trades after September 29, 2002. 

[644]        They hired a painter October 4th, to change the color of the exterior stucco, because it was more orange than brown. She referred to the photograph of the house (C2C), taken September 26, 2002.  She said Mrs. Tiwana had tried to find a painter without success and she then contrasted that with the picture of the front of the house: C2D.

[645]         She said there were other discussions and arguments on October 5 and 6th. On October 5th, she said they went to the house and some things were missing. 

[646]        On October 6th, she said Mr. Tiwana came again, that Mrs. Tiwana was down the street, that Mrs. Tiwana backed in and opened his car trunk.  She said she was sweeping, and that Mr. Tiwana asked to remove the hardwood flooring and started swearing at her and threatening to burn down her house and called her names in front of her 11 year old daughter. Mr. Tiwana said there was no more construction, that no trades would come and he would not finish the house and that he would lien it and that he would “put the house on fire”.

[647]        As a result, they hired a security guard for a few days, and they moved out of the house and slept in the car.  At that stage they did not have house insurance nor a building permit.  Therefore, they could not insure the house.

[648]        The lock was changed on the house October 5th, and on October 6th they moved out of the Tiwana’s house. 

[649]        Asked what was missing on October 6th, she said the tile, wall medallions, and a faucet, and she said she saw the tile and medallions at the Tiwana’s house when they were taking their fridge out.

[650]        The solicitor’s letter C22 of 11 October, 2002 to Goodwill Holdings stated:

We have been advised by our client that you have not completed the residence as required and have no intention of doing so.  Accordingly, this letter will serve notice to you that our client has terminated your contract and shall be hiring a third party to complete the construction of the residence and repair and/or rectify any of the deficiencies with respect to same.

[651]        Mrs. Shergill said the house was incomplete.  Cabinet doors and mouldings were not on, some countertops were to be done, there was no granite or carpet installed, and linoleum only found on two kitchens and the bathrooms.  The basement was almost done.  Two floors had been primed for paint.  The toilets had been put in but still a lot of plumbing and fixtures were to be done, the sidewalks were not done, the deck railings were not done and the boiler was not working.

[652]        When asked about moving in, she said she went to the City to get a permit.  She got a number for the plumbing and electrical trades.

[653]        The plumber did not want to do the job, and he wanted $12,000 in advance to fix and she then had a lot of concerns.  The electrician was “fine”.  They stayed in the basement until November 2002 and they gradually moved into the balance of the house in early 2003.  Ex. F contains the documents relating to payments for work done to complete the house.

[654]        In order to complete the house they were obliged to borrow money privately as the defendants’ lien froze the bank’s mortgage draws.  Mrs. Shergill said she borrowed $70,000 from her family.

[655]        Mrs. Shergill referred to C22A, a Coast Capital account, where the money borrowed from the Sihota’s began October 23rd and further deposits were made in their account in 2003: Ex. C26.

[656]        C23 lists loans from Dhaliwal from February 25, 2003 through August 1, 2003, plus other charges totalling $68,000.  That in turn was secured by a mortgage to Dhaliwal filed July 8, 2003: C23A which shows a brokerage fee of $2,500, monthly payments of $700 per month and annual rate of interest at 18.598%.

[657]        She then made reference to a Coast Capital statement C28 showing the $700 per month payments which she said were for interest only.

[658]        She then reviewed the tabs at Ex. F and the Scott Schedule (Trial Record Tab 6) showing monies expended by the Shergills to complete the house or to make repairs.  She said Items 1 -21 reflected expenses on the Scott Schedule.

[659]        In Ex. F items 22 through 47 are lumber invoices.  Tabs 48 through 72 of Ex. F are other related documents.

[660]        Each item in the Scott Schedule was then cross referenced to Ex. F.  F1, paint bill for exterior stucco colour change $1,300.

[661]        F2 electrical wiring bill of $2,996 for finishing was agreed.

[662]        F3 relates to concrete delivery October 23 with total charges of $1,598 for the house sidewalks.

[663]        F4 November 28, 2002 miscellaneous finishing including framing, stucco, drywall, windows and stairs and re-doing fireplace plywood.  The payment was $1,000 cash and $850 cheque dated December 23, 2002. The window repair was four big windows on the main floor which did not close and had to be re-framed.  The hallway frame in the basement had to be moved to relocate the hot-water tank so that it drained into the appropriate place.

[664]        F5 were light fixtures for much of the house totalling $5,200 including smoke detectors, lights and two chandeliers.

[665]        F6 granite kitchen countertops were agreed at $3,702.20.

[666]        F7 repair front-arch living-room window for $321.00 related to the front big window being broken and having to be re-framed.

[667]        F8 exterior house stair deck railings was agreed at $2,050.

[668]        F9 interior and exterior final painting by Dillon Painting, $7,597 in January and August 2003.  Mrs. Shergill said the painting was not complete and there were a lot of repairs.  She said painting was required on two floors.  The hot-water tank area had to be re-primed and the outside fascia boards required some replacing and some repairing and the gutter had to be moved to fix that.

[669]        F10 is foam sponge painting by Kapoor Arts in the amount of $1,500 paid December 2002 and was for family-room work on the ceiling.  He was paid one-half in cash and one-half by cheque.

[670]        F11 for landscaping November 2002 was agreed at $3,200.  Work related to the house being raised and therefore a retaining wall to the back was required.  Grass, grading, and retaining walls was reflected in the receipt.  Payment was in part cash and in part cheque.

[671]        F12 carpet for house from Best Carpet in the amount of $6,400.  Mrs. Shergill said Mr. Sandhu was incorrect in his evidence in talking of a $2,000 credit.  She said she went with Mrs. Tiwana to Sandhu’s shop and she didn’t see payment of $2,000.  She said the carpet that he had in his shop he installed in the basement and he did install upstairs.  He was paid $4,400 as reflected in the invoice of January 25, 2003.  I do accept Mr. Sandhu’s evidence as being correct as to the $2000, which he credited to Mrs. Tiwana.

[672]        F13 garage door-opener in the amount of $375 was agreed.

[673]        F14 stones for fireplace $565.37 and vent $286.25. Mrs. Shergill said the fireplace in the family-room was “so far out” that it had to be removed and replace on January 20, 2003.

[674]        Mrs. Shergill continued her examination-in-chief with reference to the Scott Schedule documents and F14A which she said related to vents on both fireplaces.  F15 related to drywall repairs in the main hallway and around windows in December 2002 at a cost of $1,230.

[675]        F16 Euro-Tech Kitchens account for $14,000.  She said that was for all kitchen cabinets.  Some boxes had been installed but the main kitchen boxes had to be changed as they were not level, nor could the mouldings be matched.  She said it covered doors, mouldings, countertops, cabinet doors and handles, the cabinet in one of the bathrooms and box-in for a sink in the powder-room.  She paid by three cheques in November 2002, December 2002, and January 2003.

[676]        F17 is finishing for alarm system wiring and intercom, vacuum and windows in the amount of $1,345 January 2003.

[677]        F18 replace damaged front door, entry door and missing door parts through A-Class Doors, $1,654.97.

[678]        F19 three toilets and a sink bought at Costco in the amount of $479.96.

[679]        F20 is Acme Shower Doors bill of $2,186.36, October 2002, for shower doors, organizers and mirrors.

[680]        F21 is labour for fireplace finishing being redone in the amount of $588.50 paid December 2002 to Newton Masonry Ltd. and relates to the installation of fireplace stones.  With the change in carpentry the fireplace appears to be level.

[681]        F22-47 are Dick’s Lumber invoices for repairs, fixing and finishing.

[682]        F48 and Scott Schedule No. 23 are various plumbing bills for plumbing fixtures and amounts paid to Save More plumbing totalling $6,962.79.  Mrs. Shergill said she bought two more toilets, and the remainder are faucets, sinks, washbasins and the like.

[683]        F49 is another cheque to the plumbing in the amount of $245.04.

[684]        Item F50 and Scott Schedule No. 24 are three cheques regarding payment to Home Depot for various items including basement drywall, plumbing, screws, lights, etc. totalling $1,094.76.

[685]        F51 and Scott Schedule No. 25 is for KGS Finishing House Interior in the amount of $6,525 paid in two cheques December 4, 2002 and February 25, 2003 and see also KGS invoice under F52 and F53, KGS Finishing invoice No. 119401.

[686]        F54 and Scott Schedule No. 26 is hardwood flooring for living and dining-room and installation and payment by cheque to Mark’s Carpet Ltd. for hardwood floors for the living-room and dining-room.  Mrs. Shergill said Mr. Tiwana had supplied nailed-down hardwood flooring but given the radiant floor was concrete, the hardwood floor could not be nailed down and she was not successful in returning the hardwood.  This is the replacement hardwood.

[687]        F55 and Scott Schedule No. 27 is tile work and caulking (main kitchen and China kitchen, basement bath and other house areas).  Mrs. Shergill said these were payments to the tilers and reflected in cheques on March 1, 2004 for $400.00, March 1, 2003 for $1,000 and March 20, 2003 for $327.00.  The March 2004 payment relates to the basement bathroom.

[688]        F56 and Scott Schedule No. 28, spindle railing installation on one side from main floor landing to basement is reflected in three payments of $300, $325 and $130 in March, 2003 for railing work done by Steve Perkash and includes materials and labour for one side of the staircase.  Mrs. Shergill she had tried to get Mr. Saggu to finish the work but he did not want to finish the work and after two discussions she hired someone else in March 2003 to finish the work.

[689]        F57 and Scott Schedule No. 29 relates to fascia boards around the whole house, and labour by Sewna Construction.  Their account dated March 28, 2003 is “re-do fascia board around entire house and install blocking for soffits”.  Mrs. Shergill said she paid the monies because there were gaps in the fascia and they were not on straight and some was bad lumber.  Some of the lumber was repaired and some had to be replaced, some had the gutter lying on them, others were fixed by the painters.

[690]        F57A and Scott Schedule No. 30, plumbing and heating repair and installation, is Mr. Mocha’s account dated July 8, 2003 for $11,502 and paid by two cheques. Mr. Mocha’s bill reflects a rebuilding of the hot-water heating system but he was unable to get final plumbing approval.

[691]        F58 and Scott Schedule No. 31 relates to three lights and one mirror for the kitchen and master bedroom purchased at the Lighting Warehouse and totalling $1,623.33.

[692]        F60 and Scott Schedule No. 32 are for refinishing of the front entrance to the house (straighten and finish the pillars and roof).  Mrs. Shergill said that reflected fixing the two pillars and Mr. Blakeley was paid on February 2003.

[693]        F61 and Scott Schedule No. 33 relate to two toilets in the master bathroom and main floor bathroom purchased from Euroline Plumbing and payment in the amount of $708.75, dated July 18, 2003.

[694]        Beginning at F62 and Scott Schedule No. 34 are disputed items relating to finishing of the basement.  No. 34 relates to two hood fans for $445.41 paid January 2004.

[695]        F62 and Scott Schedule No. 35 for a shower, tub and taps in the amount of $411.06

[696]        F63 and Scott Schedule No. 36 is from Acme Glass Ltd., dated March 2004 for bathroom tub and shelf in the amount of $262.15.

[697]        F64 and Scott Schedule No. 37 is basement plumbing to Dave the Plumber, the bill being dated February 28, 2004 in the amount of $1,605 and relates to kitchen completion for hood fan, bath-tub and two kitchen sinks.

[698]        F65 and Scott Schedule No. 38 is for basement rental suite kitchen cabinets.  The account of Excellent Ideas of Kitchens Ltd. is dated January 18, 2004 in the amount of $2,247 and payment from the Shergill account.

[699]        F66 and Scott Schedule No. 39 describes basement “final electrical” and is dated November 7, 2004 being a payment to the electrician.  Mrs. Shergill said this was for stove outlets and wiring for the hood fan on the cabinets.

[700]        F67 and Scott Schedule No. 40, basement closets and baseboard repairs is reflected in a payment for $196.00 paid February 21, 2004.  Mr. Shergill said he made a closet in a bedroom in the rental suite and closed part of one wall and made and framed the closet.

[701]        F68 and Scott Schedule No. 41 is said to be two basement rental suite kitchen sinks purchased from Home Depot and reflected in the bill of February 2004 for $228.95.

[702]        F69 and Scott Schedule No. 42 are four items which relate to miscellaneous expenses and a payment to a security guard in October 2002.  Mrs. Shergill said she paid for the security guard and other nights they stayed in their car outside the house out of their concern for their safety.

[703]        F70 and Scott Schedule No. 43 relates to the charge for the locksmith in redoing the key for the door in the amount of $85.98 dated October 5, 2002.

[704]        F72 and Scott Schedule No. 44 is a claim for public storage of household items for July 2002 to January 2003 in the amount of $1,231.71.  Mrs. Shergill said the storage was necessary until the upstairs was completed.

[705]        Mrs. Shergill said her additional claims relate to the rental suites and the interest costs incurred in borrowing money.

[706]        With respect to the rental suites, Mrs. Shergill said there was an agreement that two rental suites be built by the Tiwanas.  The Shergills had to complete them, one side January 2004 and the other side in May 2004.  She said the main issue causing delay was the plumbing and they still did not have a final plumbing inspection or an occupancy permit.  They began renting the units in February 2004 and June 2004. They are two bedrooms and rent for $600 each and have been rented continuously.

[707]        C36 is a typed calculation sheet showing the claim for lost rentals at $25,200: Ex. 64.

[708]        When asked what other problems she faced, she said the radiant heating was leaking in three places, in the master bedroom, in the laundry, and over the garage and began in 2004. She said the leaks and the final occupancy issue meant that realtors would not list the house for sale. C34A are pictures taken February 24, 2004.  The bottom photo shows the basement bedroom where the ceiling had been exposed to show a leak coming from the entry area.

[709]        The top picture is said to be the laundry room showing a leak from the master bedroom above it.

[710]        She said that the leak started showing in 2004 when they started using the whole house and the heat was turned on.

[711]        Mrs. Shergill went on to say that in the winter of 2003 they did not use the whole of the house and the heating was only partly turned on.

[712]        She said there were still other deficiencies they were looking at repairing including the upstairs deck, that is the former bedroom, where the floor leaked and the heating goes up outside in the floor of the deck, and a manifold was in the closet that covers both the deck and the adjoining computer room.  She said the heating cannot be cut off and she said “I just want to sell and get out”.

[713]        When ask if she tried to list the house, she said she had spoken with a couple of real estate agents about final occupancy and the leaking pipe problems meant people won’t look and no realtor had listed the house.

[714]        She was shown Ex. 36, a cheque to Raj Singh (Mrs. Tiwana) for $96.00.  She said that was the only occasion where she paid Mrs. Tiwana for purchases at Costco.

[715]        Ex. C18, the deficiency list of September 29 became Ex. 65.

[716]        With respect to borrowing monies, Mrs. Shergill said she borrowed the monies from the Sihota’s.  She said the note she gave was for $70,000 and there was $5,000 she did not bank.  $2,500 was used for carpeting, and $3,000 was used for landscaping.

[717]        She said she borrowed the monies between October 2002 and January 2003.  She made reference to her account at Coast Capital, No. 54775 at C22A which covers February to December 2002 and C26 covering the period January to December 2003.  The VanCity account was marked Ex. 66.  The Sihota loan document was marked Ex. 67.


[718]        Mrs. Shergill agreed the contract was oral and in writing stated the full price.  She agreed no changes were made after April 1st.  She said it was the third time that it was written and Mrs. Tiwana said it couldn’t all be written and she trusted Mrs. Tiwana.

[719]        None of the later works were ever evidenced in writing.

[720]        The handwritten notes in black are Mr. Shergill’s.

[721]        There are notes saying some things were okay, e.g. granite, front-door, vacuum rough-in, cabling, TV, and those are her husband’s notes.

[722]        She said they were made in mid-construction when her husband was seeing to the status and what was not being obtained in the contract such as the jacuzzi and heating.

[723]        She said she was with her husband but she agreed she didn’t show the contract to Mrs. Tiwana but she did “bring it to them”, e.g. the stone at the house front, the four-jet Jacuzzi, and the lack of in-floor heating in the basement.

[724]        She said she told Mrs. Tiwana when she saw the baseboard heaters put in the side wall.

[725]        She said it was a major concern and she had paid for in floor heating.  She could not remember when she raised the issue with Mrs. Tiwana, but she said it was when the floors were put in.

[726]        Mrs. Shergill said she didn’t meet Mr. Tiwana that much but she did see a lot of Mrs. Tiwana at the weekends if not working, and Mrs. Tiwana said her husband doesn’t look at the contract and she would talk to him.

[727]        Mrs. Shergill questioned a number of things.  Mrs. Tiwana said she would adjust the contract, but not the difference between base-boards and radiant floor heating.

[728]        When asked if the price had been adjusted, she was not happy but the heating was already in.

[729]        She said when she raised concerns Mrs. Tiwana would say you have no choice, you are stuck, and you need to finish the contract.

[730]        When asked if Mrs. Tiwana asked Mrs. Shergill if the house was ready in October 2002, Mrs. Shergill said the 29th was the last time they spoke and Mrs. Tiwana said no trades would come, that it would cost too much, and the deficiency list was too long.  Mrs. Tiwana said she was giving up and her husband would have nothing to with the house.

[731]        Mrs. Shergill said she complained a couple of times pointing out the contract was not being done and Mrs. Tiwana said there would be adjustments, that Mrs. Tiwana would say the jacuzzi is in, the construction is going on and you don’t have a choice, and the contract was all done, so they went along just to get it finalized and get it over.

[732]        Mrs. Shergill agreed she didn’t say she would terminate the contract in August 2002, she did go along and she didn’t want a lawsuit.  Mrs. Tiwana said she would lien the property.  When asked if she knew what it meant, Mrs. Shergill said she didn’t know until September because she never built a house before, that she didn’t know if she paid Mrs. Tiwana, that a trade could still lien if he was not paid.

[733]        Mrs. Shergill could not pin-point when they first complained about the contract being performed, she claimed she did not know about the room conversion, that if the Tiwanas made changes they didn’t tell them.

[734]        She said they were told the bedroom would be “done” and she did not talk to the City.

[735]        Later she said she found that the City had not approved and that false information was being given, that they could not restore the deck to their bedroom, that they would get into trouble with the City and she found that out after October.

[736]        Mrs. Shergill knew it was a single-family dwelling and she responded there were so many houses that have basement suites, they all have one or two bedrooms.  She knew the City did not allow rentals and she said the City doesn’t enforce that but tax people on their property taxes and utility charges are higher.  She was aware the City didn’t allow exterior steps up to the back balcony and she said Mrs. Tiwana said she would change the deck back to a bedroom and the rental suites were in a similar situation.

[737]        She denied Mrs. Tiwana explained the loss of heating from the open deck and how the loop needed to be changed.

[738]        She had no concerns at the time about the loss of heating, because Mr. Tiwana didn’t explain the issue.

[739]        When asked if she had a concern about heat loss, she said not at that time because Mr. Tiwana said he would “put it back” and Surrey said she could not put the deck back into a bedroom.

[740]        Mrs. Shergill was then questioned regarding the contract and the payment terms.  She was directed to A1, the contract between the parties dated April 1st and asked her understanding.  She said it was not clear, they did discuss it and she understood there were to be four payments, one at the start-up of $20,000 and then other payments at lock-up, at completion of drywall, and final occupancy.

[741]        The payments other than the $20,000 would be draws from the bank.  It was suggested that a further $20,000 was due and payable at the lock-up stage but she said no, it was not her understanding, that Mrs. Tiwana had written the contract and explained it and we discussed the four payments.  When asked the meaning of the second $20,000 difference, she said that meant $20,000 from the bank.  As well, she said she paid $34,000, then $39,000, so two payments were made.  She agreed the contract terms were not clear but that they did pay $20,000 before the lock-up.  It was put that she paid $18,625.

[742]        When asked what payments had been made, she made reference to C4, paragraph 8, totalling $203,000, listing (1) $20,000 paid by May 7, 2002; (2) $75,000 by cheque May 31, 2002; (3) payment of $34,000 by August 2, 2002; (4) payment of $39,000 by cheque August 24, 2002; (5) $25,000 paid by cheque September 6, 2002; and (7) payment of $10,2000 by cheque September 29, 2002.

[743]        When asked about the first draw, Mrs. Shergill said as well they had paid the $303 for plan approval and in total $326.

[744]        Mrs. Shergill was referred to A4 the purchaser’s Statement of Adjustments for the purchase of land at 6133, 127 Street on 28th February, 2002.

[745]        The purchaser’s Statement of Adjustments show the first mortgage to Surrey Metro Savings Credit Union in the amount of $303,000, with the first draw of $202,000 for the land purchase.

[746]        When asked if the bank explained the construction mortgage to her, she said no.

[747]        When asked how the draws would work, she said the bank said they would attend when they were called and they submit the percentage completion and then process the draw payment.

[748]        She said the bank decided the amount of the draw based on the percentage completion.

[749]        She said Mrs. Tiwana told the Shergills when to call the bank.

[750]        She did not recall the bank or the lawyer explaining how the draws worked, but she said the lawyer gave her papers because the bank draws would go to the lawyer and the lawyer would write the cheque.  When asked why the monies were given to the lawyer she said that was the procedure.  The bank registered the mortgage against the house and that was the procedure.  When asked if the bank employed the lawyer to check the liens, she said she thought that was part of the lawyer’s job.

[751]        She agreed the dollars came from the bank and went to the lawyer who checked the liens that might be registered against the house, although she was not aware of any liens until September 2002.

[752]        She said the first draw from the lawyer was when they bought the land in February 2002.

[753]        It was put that the second draw was at lock-up at end of May and there was 45% completion.  She did not recall receiving the draw but she was shown the progress inspection on May 29, 2002 and said she had never seen the inspection report, but the bank would require that.  She did not know whether she saw it before or after the bank paid out on the draw.

[754]        The progress inspection of May 29, 2002 became Ex. 68.  The bank paid out about $75,000.  She said she did not look at the report and compare it to the construction contract, that she left that to her husband.

[755]        She said she was working two jobs.  She agreed that she would have seen the house at the end of May.  When asked if she was happy about the construction, she said she didn’t know about construction.  Her recollection was framing, foundation, and rough-ins had been done.

[756]        When asked if the lock-up stage had occurred, she could not remember.  She agreed she did construction clean up and removed garbage while the house was being framed.

[757]        She said there was no padlock on the front door until after the 29th September as there was damage to the door which meant it was tied with a chain with a lock on it.  She agreed she had a key to that and was able to access the house to clean up.  She agreed she had a key for the lock and was able to access the house to clean.

Cross-examination of Mrs. Shergill

[758]        Mrs. Shergill was asked given the payments of about $208,000 paid to the plaintiff on the 29th September, 2002, did she understand how much work had been done on the house?  She said there was much to be done and things to be fixed and she couldn’t fix a percentage.

[759]        She agreed the foundation had been done, the framing done, the windows and doors were in, to lock-up.  Floor tile was mostly done, the stairs had been done, interior framing was done and drywall was done.

[760]        Finishing plumbing, electrical, and carpentry was to be done.

[761]        Plumbing called for seven bathrooms.  She said one was in the basement and had a toilet and sink.  It was a tub the City removed from the plan as only 2-1/2 bathrooms were allowed in the basement so the tub went in later.  Upstairs there were four bedrooms.

[762]        There were four bathrooms upstairs.  There was a powder-room with a toilet but the sink was not in.  She purchased the toilet at Costco.  There was no mirror and the faucets were not in.  She purchased them later.

[763]        There was a master bathroom with four jet Jacuzzi and shower stall but no door on it, no sink, no toilet, no mirror and no cabinet boxing.  The two other upstairs bathrooms had toilets, sinks and tubs on the plans but only the tubs were in, not the toilet and sinks nor any mirrors, cabinet boxes or lighting.

[764]        She went overseas in June as soon as school closed with one of her daughters while her husband and another daughter stayed in Surrey.

[765]        When asked if she saw the house before she left, she said no because it was an emergency.  She was still staying in the basement of the house that they had sold.

[766]        She had concerns when she came back in July, because Mrs. Tiwana said she couldn’t finish.

[767]        When asked if she knew that before she left for overseas she said the last two weeks before she left she was very disturbed and really was not interested in the house.  She agreed her husband was interested and saw the progress draws being made from March through June.

[768]        They called for lock-up in May and then the next call for a draw did not occur until August.  She was concerned about the house not being finished.  Mrs. Shergill said that was the reason Mrs. Tiwana invited them to move into their basement and told them they would be finished in two more weeks.

[769]        She agreed the drywall was done in August.  The exterior doors from A-Plus doors were put in.  When asked if she saw the house before approving the draws, she said Mrs. Tiwana would simply call her and ask for a draw.  Asked how she could have an argument about the change in the upstairs bedroom to a deck and after that still make the payment for $74,000, she said she still trusted Mrs. Tiwana.

[770]        When asked if she was still doing the garbage disposal, she said generally that was done at the weekends, and her husband might have done some others days.

[771]        A8 was put to her, a list prepared by her husband.  She said he worked at night-time.

[772]        For a while in August he opened and closed the house.  She could not recall whether exterior doors were on the house in August but they were on by the 29th September.  She had a key to open and close before that time.

[773]        Mrs. Shergill did not remember where she first sought an accounting save it was some time in August.

[774]        She said she first asked after she came back from overseas in July and that Mrs. Tiwana’s response was to say as long as the house was completed she did not have to say how she spent the money, as long as there were no liens.

[775]        She wasn’t satisfied but she didn’t have time to review until she took time off and investigated matters.

[776]        She did not see Mrs. Tiwana frequently while she was staying in a basement.  She would leave for work at 5:30 a.m. in the morning and come home after midnight.

[777]        Regarding access to the house before 29th September, she said there was a chain that she was able to open before the 29th September but then the Tiwana’s put a lock on the door.

[778]        Asked if she was saying A-class doors installed a new door on the 29th September, she said she couldn’t say, she just recalled there being a chain and padlock and that changed after the 29th September.

[779]        She read the letter sent by her solicitors dated October 3, 2002 which gave the Tiwana’s 14 days to finish.

[780]        She agreed she was living in Tiwana’s basement at the time and moved out 6th October.  Asked if she discussed the letter with the Tiwanas, she said no, the last discussion was on October 6th when Mr. Tiwana came and wanted to take the hardwood away.

[781]        She agreed she took two weeks off work in September of 2002 and first met the lawyer on October 3rd.

[782]        She did not tell the Tiwanas they would seek legal help if the didn’t finish.

[783]        She agreed that they had stored their belongings in the Tiwana’s garage and those items stayed there until October 6th and moved them out at 7:00 pm or 8:00 pm.

[784]        When asked if on the 5th October they called a locksmith to change the house lock, she said no, simply to make a key for the lock and they did not change the lock.  She agreed the lock was changed after October 11th.

[785]        When asked why they terminated the contract October 11th, she said they had been told by Mr. Buckley to give 14 days notice, but on October 6th Mr. Tiwana said he would burn the house down and no one would come to work.  As well, on October 5th on looking in the house they found things missing which was a big concern.  They were convinced the Tiwanas were not going to finish the house and she didn’t want to give any more time.

[786]        She said the things missing between September 29th and October 5th were tiles, two medallions, and the faucets she had purchased.  She said the tiles had been stored in the garage, the faucets were in rooms with other supplies she had bought including lumber, and the medallions were by the fireplace in the living-room.

[787]        She said the list of work to be done was written by her husband.

[788]        Mrs. Shergill said some things there made no sense, e.g. moving the laundry-room would create an extra.  When referred to item “living-room window out”, she said it was the seat box which was in the plan but not built.

[789]        When asked when the list was prepared, she said it was prepared by her husband but she didn’t know when.  She thought the stage of construction would have been before the drywall went in and would be before August.

[790]        She was referred to A2, page 6, a handwritten list which she said was written by her husband at the beginning of September.  She was unable to say if the first list items had been completed.

[791]        When referred to #7 (Amritas dark paint in window), she said that was the colour her daughter had asked for.

[792]        When asked if the house was being painted she said it was probably primed but not finished.

[793]        When asked if deficiency meant mistakes, she said it didn’t say that but it was simply things that were not done and that was their list.  Item no. 7 was not done and the foam paint was not done.  Some things had not been done properly.

[794]        She denies the painting had been done and the Shergills asked for a change of paint.

[795]        It was put to her the painters said the foam paint had been completed.  She disagreed and said not it was not all done nor had all the painting been done.

[796]        When asked if the list was given to the Tiwanas in early September, she said sometime there.  He said none of the times were done.

[797]        She agreed she came back from Australia in July.  Then the request for an accounting was made, i.e. after the trip to Australia in late July.  (She said there had been earlier discussions about an accounting) and Mrs. Tiwana said she would pay everybody.

[798]        In spite of her concern she agreed the mortgage draws had gone ahead.

[799]        When asked if she was not aware of the change in the powder room, she said she saw the room in the same place and that she didn’t see change until she saw the City plans and sat with her son-in-law after 11th October.  She said she didn’t have a set of plans before that time.

[800]        When referred to A2, page 3, a handwritten note, window out, she said many windows had a seat so reading the plan meant to her that it was not done.

[801]        She said Mrs. Tiwana and herself spoke to the planner to have the window seat boxes put in.

[802]        When asked if she had plans for her house, Mrs. Shergill said she did not have a copy until October, 2003 and she obtained them from the City.  She was asked if she recalled providing a set of plans to the bank, she said no, that the 28th was the date for the land to be put in their names and she believed that the mortgage was done before then.

[803]        Mrs. Shergill was then directed to C15, a credit application dated September 19, 2002 and a mortgage loan commitment for $326,252.  She said that was an increase and that could be contrasted to a February 14, 2002, a mortgage loan commitment but she said that was not the initial mortgage, that the initial mortgage had been for the land purchase in the amount of $303,000.  She said they knew they were building but they didn’t know the price or how much.

[804]        She was directed to Tab no. 17 which set out inter alia first draw in the amount of $101,000 including s.m.s. fee.  “Need confirmation of home warranty and builder’s permit before second draw.  Also need confirmation of construction insurance before second draw.”  She did not recall discussing that term and when they started construction Mrs. Tiwana gave them the paperwork.  It was put to her the bank said they would have the plans for the construction mortgage, Mrs. Shergill said she did not know.

[805]        C16, a letter to Buckley Hogan from the Residential Warranty Insurance Services Ltd. stated: “This is to confirm that our inspection of the above home and your clients’ termination of the licensed builder.  We have issued a 10-year structural only warranty on the home.”  The letter is dated December 16, 2002.  The lien was obtained by their lawyer. 

[806]        Mrs. Shergill agreed they moved out the Tiwana’s home the evening of the 6th October, 2002 after the argument at their house with Mr. Tiwana.

[807]        She agreed Surrey RCMP were called by her October 5th.

[808]        A57 comprises three cheques of the Shergills; #110 dated September 29, 2002 to Goodwill Holdings in the amount of $100.00 re medallions, #107 dated September 28, 2002 in the amount of $1,377 re “service” and #290 dated October 1, 2000 in the amount of $4,700 made out to Canpro Painting, “full painting, payment in full”.  Mrs. Shergill said the memorandum and the payee was not in her handwriting and she believed it was her husband’s and she had signed the cheque.

[809]        When asked why the cheque was given to Canpro, she said she did not, that Mr. and Mrs. Tiwana were having a problem and Mrs. Tiwana had kicked Mr. Tiwana out of their house and Mr. Tiwana was telling the trades they were not going to get paid.  She believed this was in September.  She said the only thing she wrote on the cheque was her signature.

[810]        She agreed her evidence was that the cheque had been given in September at the request of Mrs. Tiwana.  She denied giving the cheque to the painter.

[811]        Continue at page 268 with Mrs. Shergill’s ongoing cross-examination

[812]        It was put to Mrs. Shergill the Scott schedule regarding costs of completion totalled $111,627.22, yet she borrowed $70,000 from the Sihotas and got a Best Way mortgage for another $60,000 and therefore had approximately $19,000 in hand.

[813]        She said that the $70,000 borrowed from the Sihotas bore no interest.

[814]        It was suggested that she still had some leaks in the house and yet claimed to have no money to fix the leaks.  Mrs. Shergill said she didn’t get the full $60,000 from Best Way because of their fee charges and she had to repay the Sihotas.

[815]        She said she paid her family first and she spent what was available.

[816]        She said the $70,000 was used to pay construction bills including some that were not listed.  She got $54,000 from Best Way and also there were inspectors’ costs and legal costs.

[817]        With respect to the leak in the house she said the City said to rip it all out.  When asked when the leak started she said when the heating system was turned on.  She said she heard some noise and the dripping in 2004 in the cold weather.  She said it came from the radiant heating in January 2004.  She agreed she took over the construction in October 2002 and from then on she was responsible for hiring the trades.

[818]        It was put to her that some trades would have used nails such as the finisher.  She did now know.  It was believed the leak was in the floor of the master bedroom.  She simply knew it leaked when the boiler was going.

[819]        The defendant’s Scott schedule of completion costs, F1, is the account for exterior paint, dated October 6, 2002.  She said Mr. Khella was hired October 4th and began painting October 5th.  She agreed that was within the 14 days’ notice that had been given to the Tiwanas.

[820]        When asked why the painter was hired then, she said she had picked the colour on the 1st of April.  She said Mrs. Tiwana had been looking for a painter to change the colour and even Mrs. Tiwana couldn’t find anyone at the time.

[821]        F2 is the account of H.S. Electric who were the original electricians.  She agreed the original invoice for October 23, 2002 was an estimate to Mr. Tiwana and that she re-hired them October 2002.  The rough-in had been done and the account was to “finish the job”.

[822]        She could not remember if the three ceiling fans were in the original contract.

[823]        F5 at page 4, is an undated account of West Craft  Lighting and Electrical Supply Company showing 6 fans and it was put to her she had 6 fans in all and not 3.  She did not agree.

[824]        At F50, page 4 two receipts from Home Depot, the first dated October 24, 2001.  Mrs. Shergill said that should be deducted ($69.18).

[825]        At F18 is a credit card slip for A-Class doors for $1,654.97 and $54.18 was returned.  Mrs. Shergill said that was taken into account.

[826]        F23 to F47 are Dick’s Lumber invoices and those at F36 and F37 were questioned and put aside for later consideration.

[827]        Mrs. Shergill said the sequencing of the trades used to finish the house were plumbers first and deficiencies were found, then everyone else.

[828]        It was put to her that the painter was hired before firing the builder and then the electrician, then the inside painter.  Mrs. Shergill disagreed.  When asked when H.S. Electric finished the work, she couldn’t say when.  She said the electrician finished the hallway wiring, all the other wiring, and obtained final electrical inspection which included the bedroom fan and smoke detectors or lighting.

[829]        Mrs. Shergill was directed to F2 and the cheques paid to H.S. Electric on January 13, 2003 for $1,500 and August 2, 2003 for $500, while the account of October 16, 2002 in the amount of $2,800 plus taxes noted a payment of $1,000 which was receipted October 24, 2002.

[830]        When asked if the work related to the upstairs of the house, she said they still owed a balance on the downstairs of $400.  She agreed the work was not finished January, 2003.

[831]        F9 shows payments made to Dhillon Painting on January 7, 2003 for $5,500 and August 4, 2003 for $2,097.  The account for $7,597 was dated August 4, 2003, the description saying “paint all new home inside and outside.”

[832]        Mrs. Shergill said that referred to outside fascia board.

[833]        Inside, main and upper only primed and basement hall only primed and painted.  She agreed Mr. Sivia left paint behind and that his partner possibly used it, that the $7,597 would include paint as well as labour.

[834]        When asked when the house was painted, she said the outside fascia was painted in the summer and the rest later and that she paid twice, in January, and August after the repairs had been done by the finishing carpenter.

[835]        F52 is the invoice of K.G.S. Finishing carpenter dated February 23, 2003.  It is noted thereon “payment received 25 February, 2003”.  Mrs. Shergill thought he started in December and she made two payments in January and February.

[836]        It was put that Mr. Sivia’s account said the whole house was painted and Mrs. Shergill applied that the Gosae report required many repairs to drywall that required a re-prime and re-paint.

[837]        F12 is the account of Best Carpet Ltd. dated January 25, 2003.  Mrs. Shergill agreed that was the installation date.

[838]        When asked if that related to the upper two floors, she said they had moved in downstairs in November.

[839]        The cheque in payment is dated January 10, 2003 and the invoice reflected the installation.

[840]        When asked if the painters came in afterwards, she said the painters came first, that in November the carpet went into the basement and the upstairs was done in January.

[841]        When asked if the $4,400 was total, she said they paid $2,000 for the basement for a total of $6,400.

[842]        She said the sequence was that they had the finishing work done, then the carpet installed and then the painter was paid in August 2003.

[843]        It was put to her that by January 25, 2003 the painting, the carpentry and the electrical work were all finished.  She said she couldn’t say that, that she couldn’t pay them and work went on in March and April and the fascia board was painted in August and that the inside work was done in January before the upstairs carpet went in.  She agreed most of the work upstairs had been done by January 25, 2003.

[844]        F11 is a handwritten invoice in Mr. Shergill’s handwriting dated November 6, 2003 for part payment for landscaping and retaining wall.  She said some of the payment was cheques, some was cash.  She said the work was to level the soil, put in topsoil, put in grass, put in the retaining wall, put in the window well, i.e. all the landscaping.

[845]        F48 and F49 relating to plumbing expenses of $7,182.63 were compared to (Scott Schedule no. 23) where the amount was stated to be $6,950.13 for plumbing and bathroom fixtures.  It was put the payments totalled $5,064.53 and the invoices $5,514.53.  Mrs. Shergill said that she paid one or two bills by cash or visa and the invoices were there.  It was put to her that her daughter had built a house.  Mrs. Shergill said a long time after and it was not her daughter but her husband’s uncle.

[846]        When asked when she finished their own house, she said 2003 and they kept on doing work until February and March doing carpentry and painting.  The 2004 invoices relate to the basement.  The upstairs was done in 2003.

[847]        It was suggested the cash notes were not regarding the Shergill house, Mrs. Shergill disagreed.

[848]        Regarding the landscaping Mrs. Shergill said $1,100 was paid by cheque and the rest in cash.  F11 is the November 6, 2002 landscaping receipt.  The receipt acknowledges receiving $1,900 cash and $600 cheque and a further cash payment of $1,000.  Mrs. Shergill claimed another cheque was cashed November 22, 2002 in the amount of $2,000.

[849]        It was put to her there was no invoice.

[850]        The documents do show a cheque of November 6, 2002 for $6,000 and another cheque for $500 on December 6, 2002.

[851]        Now this equates to the $6,600 claimed on the Scott’s schedule, item 11 for landscaping.

[852]        It was also pointed there were different people named on the cheque, namely Baghri Daliwal and Claire.  Mrs. Shergill said there were two people working and they were told they had to write their name.  It was put she only spent $1,100 and that the receipt was signed by her husband.  She disagreed.  When asked about the $2,000 cheque (which was not produced) she said it was for Unico.

[853]        Mrs. Shergill was asked to look at tab 6 of the trial record which contained the response to the Tiwana’s amount for particulars of the allegation that the Tiwanas diverted materials for their own use.  Mrs. Shergill was asked what was the basis for the alleged diversion of $4,000 to $5,000 worth of lumber, and sub-paragraph 8(b) where lumber was billed to the Shergills but delivered to Tiwana in the amount of $10,000, in total $15,000 of lumber, allegedly diverted to the Tiwanas.  Mr. Morton stood and said the defendants conceded there was not sufficient evidence to prove those allegations.


[854]        In re-examination Mrs. Shergill was asked about the number of fans and she said there was one in each bathroom and therefore there were seven.

[855]        Asked if she had been able to find any documents establishing the borrowing of the $70,000, she was not able to produce any documentation.

Barinder S. Jutle

[856]        Mr. Jutle is a finishing carpenter with 12 years experience.  He was hired by the Shergills in the winter of 2002 to fix some work in the house.

[857]        His initial observations were that some work that wasn’t very good and some work was very bad.  As to very bad, he described the family-room arch, the beam in the kitchen which was crooked and had been finished and dry walled.  He said the more work he did the more imperfections he found.  For instance, in the powder-room there was a pipe sticking out of the wall.  In other places closets, doors and windows were not level.  With respect to windows, he fixed all the sills, finding that the windows were sagging, and were not supported underneath.

[858]        With respect to the doors, he said some stuck on top, some had not been installed properly and the entry to the front door had a broken area around the lock.  Other doors were tight on the sides or just did not line up.

[859]        In the general sense, he found many things uneven and out of level.

[860]        F52 is his account of February 23, 2002 under the business name of KGS Finishing Carpentry in the amount of $6,500.25.  The items were listed.  With respect to the fireplace mantle, he said the mantle in the family-room was 1-1/2 inches out of level and he had to pull the mantle out which damaged the surroundings.  He found inadequate supports underneath the fireplace and no plywood.

[861]        He had to take out the granite flooring and re-do the fireplace and stone, and then re-do the mantle, saving as much as he could.

[862]        Crown moulding referred to work in the upper floor.  He found the wall was crooked and some parts were missing. To fix it he placed new crown mouldings.

[863]        There were no baseboards and he installed them in the upper floor, dining-room, living-room and family-room.

[864]        Dining-room hutch columns; he said the wall was crooked and he put in fibre-board on either side so the discrepancy could not be seen from the front.  Washroom accessories referred to paper towel-holders and the like not being installed.

[865]        Reference was made to pictures (Ex. 63) showing his attempt to cover over a 6-inch pipe that extruded from the wall.

[866]        With respect to the cabinet boxes in the main floor kitchen, he said the boxes were there but they were not level, but he did not do cabinet work.  He said he tried to do his best to hide the mistakes.  With respect to the kitchen beam, he said it was crooked, and he tried to cover that over.  The beam divides the kitchen from the kitchen nook.

[867]        He worked on the window casings and sills.  He said the windows were not hung properly and not in line and not level and to fix them he had to shim them and line them up level.

[868]        Reference to the hallway arch referred to the entry area which he said was 1‑1/2 inches out because the bottoms of the arch were not level.  He took it all out and rebuilt it as a box without an arch.

[869]        With respect to the upstairs hallway, he said the trusses were not straight from the dining-room area and the drywallers had filled drywall with mud.  He built a header in the middle and cut into the moulding to finish the job.


[870]        He said he started the work in December of 2002.  He said he did not provide an estimate, he simply said it would cost them.  He said his charges were only for labour as the Shergills provided the materials.

[871]        He said it took him about three weeks of intermittent work.  His bill of February 23, 2002 was issued when he had finished.  He said he did not work in the basement.

[872]        He said the work he did on the beams in the kitchen was due to the drywall being bad, that it was crooked.

[873]        With respect to the pipes sticking out of the wall, he said that was because the wall should have been 2 ft. x 6ft. rather than 2 ft. by 4 ft. and the location was for the plumber to calculate.

[874]        He said he fixed the windows in the kitchen by shimmying the inside casing.  He did not recall seeing any finishing work save for the drywall on the south side of the family room, and there was no wood under the window.

[875]        He said he saved as much as he could of the crown mouldings and he just installed where they were missing. He used the same style or profile throughout the living-room and the dining-room. He built the pillars between the nook and the kitchen.

[876]        The bathroom towel holders and toilet-roll holders were not there and he provided and installed them.

[877]        With respect to the fireplace, he took the mantle off and worked on it December through February, taking the granite off and putting the stone back on.

[878]        He could not recall when the painters were there.  He did not do any ceiling drops to the chandelier.

[879]        F14, mojave fireplace stone.  Someone else installed the stone while he was there and he had to make a different mantle. He said the carpet was not in and there were no paintings above the fireplace.  He said he built columns because the fireplace box was not straight and he saved the top section of the arch in the living-room. He said he saved the granite around the floor on the fireplace.

[880]        Reference was then made to C3-13.  With respect to the dining-room, he said he fixed the hutch and he built columns for the hutch and saved all the moulding.

[881]        He said he first did the hutch then he fixed the windows.  He said the mantle was not straight and he pulled out the granite tile but not the front base and then he built the columns.  The box stayed and he covered it with board.  He said the mantle was out of line and he had to change the whole thing.

[882]        He disagreed a lot of the changes were aesthetic saying it was a question of hiding mistakes and that he listened to the owner and gave them the options and they paid the bill.

[883]        With respect to the arch, he said he took it out because he could not fix it.  He said the framer makes it with plywood and it is covered with drywall and it depends on how well it is framed.

[884]        In re-examination he was asked the cost of estimated labour for the fireplace columns and he put it at $400.00.

[885]        I noted Mr. Jutle to be honest and straightforward.

Mr. Broughton

[886]        Mr. Broughton, a plumbing inspector for the City of Surrey, has been working for Surrey for some 3-1/2 to 4 years.  He described his duties as inspecting installations from water pipe to heating and providing final approvals.

[887]        Document C30 showed above slab heating in place with approval to pour concrete as of May 23, 2002.

[888]        When asked if the plumber was correct to say this was a record of installation of the piping in and out, he said no, that the heating and water pipe loops were in place but no boiler was in place and the supply and return may or may not have been in.

[889]        Mr. Broughton referred to the engineer’s heating drawings and said the plumber was meant to follow them. 

[890]        He agreed it was just the radiant heating loops which he had inspected and approved for concrete covering.  He was then asked what the supply and return piping related to and he said the loops would go to the manifold, the supply is boiler to manifold to loops then returning back through manifold to the boiler.

[891]        He was shown a further inspection notice of May 30, 2002 which was a rejection notice.  He said it was done in the ordinary course of his duties to record the results of his inspection.  Item 5 stated the supply and return was still not complete.  The document became Ex. 69.

[892]        He was then shown C33 dated June 24, 2003, another rejection notice.  When asked if he recalled the supply return heating being completed, he said he would need to review but he said he did not apparently inspect it.

[893]        Item 2 noted 1/2-inch piping.  He said he saw that.  He said plans called for 3/4-inch piping and it had been changed to 1/2-inch piping before it got to the manifold.  He said there were four manifolds in the house.  Generally they were not out in the open.

[894]        Item 3 was “another shut off boiler” which he said meant some manifolds had been in the boiler room and he recalled zones being changed to 5, compared to 4 on the plan, and he noted some valves had been boarded over.

[895]        When asked if checks to items 1, 3 and 5 were corrected, and he said he found some heat in the living-room and dining-room, the shut-offs, and to locate valves.

[896]        Items 2, 4, and 6 had nothing to show those items had been completed.

[897]        When asked why he did not approve the 3/4-inch piping, he noted the plans called for 16,000 b.t.u. on the slab, the engineering calls for it in the drawings, and 1/2-inch pipes would not supply enough heat to the slab.

[898]        When asked about item 6, “locate all balancing valves”, he said on the return manifold on each line there is a valve which needs to be identified and tagged so that one can control the zones.

[899]        He said he never approved the heating system.

[900]        He was asked if he had any discussions with the plumbers and the owners and he thought of some.  He did not recall whether or not he spoke with Mr. Dave Mocha.

[901]        C33 became Ex. 70.

[902]        In cross-examination he was referred to C31 on 4th June, 2003.

[903]        He agreed that the first plumber in 2002 was different.  In June as he had noted a new application for plumbing May 29, 2003.

[904]        He agreed there were 15 items listed and no mention of supply or return.  He noted usually he only does one page and he thought two pages would be very unusual, that he would just leave and say correct and then come back and see what else had to be done.

[905]        He believed he had gone into the boiler-room because he thought there had been an attempt to change from 3/4 to 1/2 inch in the boiler-room ceiling.  He did not recall if anyone was present at the time of his inspection.  He did not know who had done the installation but did know that Mr. Mocha called for the inspection.  Various other inspection dates were put to him.  The last inspection had been done on the 22nd July.  It was a rejection notice as well for items noted 24th June and on follow-up the items had not been completed.

Ruby Hans

[906]        Ms. Hans was the bank officer at Capital Savings who dealt with the Shergills.

[907]        She was shown C15, C16 and C17.

[908]        C15 is the mortgage loan for construction in the amount of $326,250 for a principal residence.

[909]        C16 is a statement showing a $295,860 advance and the balance not being advanced due to liens on title.

[910]        C17 advises interest on an unadvanced $30,000 to July 2005 is $2,612, and interest to date of hearing would be a further $600.

[911]        She recalled Mrs. Shergill said the Tiwanas had been hired and they would hire the trades.  She said the file initially came from the bank manager.

[912]        She met Mrs. Tiwana, once when coming to cash a cheque, and she wanted to verify funds were there to cover the cheque, and she  wanted to know the balance. She did not give her that information.

[913]        She said advances were made through the lawyer. They had an independent appraisal of the construction stages and then would advance the funds to the lawyer.

[914]        She recalled Mrs. Shergill saying Mrs. Tiwana was a friend when she came in to do the application.

[915]        The documents were respectively marked Ex. 71, 72 and 73.

[916]        On cross-examination she agreed a mortgage had been registered against the property in the amount of $303,000 on April 15, 2002.

[917]        She said that she explained to the Shergills the percentage draw procedure, but generally the customer would call her, that she would then call for an appraiser and based on a percentage assessment a draw would be made.

[918]        When referred to C15, she noted the application for the increase to $326,250 was done on the September 19, 2002, as they had had an appraisal at the time and increased the amount that could be borrowed.

[919]        She said with respect to process, the clients would provide a plan and a costing sheet to the bank and then they would give that to the appraiser and he would set the overall value.

[920]        With respect to C17, the $30,000 not advanced due to the liens on title, that they became aware of that when the lawyer was asked to search title and found liens.  She believed that would have occurred in July, 2003.

Baldive Mocha

[921]        Mr. Mocha has been a plumber since 1986.  He was hired by the Shergills to work on their house to finish the plumbing and heating.  He assessed the work done and found it a mess, “I didn’t know where to start”.  He was not able to identify the pipe system.  There was a water heating system in place with baseboard heating downstairs and radiant heating on the main floors and both had problems.  He found the radiant piping heating was not tagged and there were no zone controls on the valves.  He found supply and return pipes installed but some had 3/4-inch piping and some had 1/2-inch piping.

[922]        He found the mechanical room had pipes coming into it from the top and the bottom and there was a problem because generally they should be on one side or the other and clear of the vent.  He described it as being like a spider-web.  Other principal parts, like manifolds were hidden behind headers and he could not visualize what was behind the drywall in place.

[923]        He said 3/4-inch pipe should be in the space between the boiler and the manifold and it was 1/2-inch.

[924]        He was shown C34, his account of 8th July, 2003 for the work he did in the amount of $11,502.50.

[925]        With respect to the boiler, he said he took it apart and re-did it and in essence said it was not connected properly to the various zones.

[926]        With respect to the hot-water tank, it was found in a bedroom closet, contrary to code.  It had to be relocated in the mechanical room where the floor drain was located.

[927]        Vent connections were made to the roof from the bathrooms.

[928]        Other work was partially completed, e.g. changing the zones.

[929]        He said much of the work was not to code but he tried to do what he could.

[930]        When asked if he contacted Red Rose Plumbing, he said he telephoned for help on the heat loss calculation.  He was told they had the engineers’ calculation but because he had taken the job he wouldn’t get the paper.  He said he had been working for 15 years on heating systems and he didn’t know how they could get a system passed in this condition.

[931]        With respect to toilets, taps and the like, he said the 7 bathrooms were partly done and various work had to be done to complete them.

[932]        With respect to fixtures, he said they were supplied by the Shergills and they installed them.

[933]        With respect to the controls in the boiler, he put in a new zone control.  A further account for $1,605 dated February 28, 2004 is for work in the basement for kitchen hood fans, relocation of baseboard heating, and a tub installation.

[934]        He recalled in March, 2004 there was leak in a second-floor bathroom through the radiant pipe and he couldn’t figure it out.  He recalled cutting the drywall in the basement to find the leak from the daughter’s bedroom.  He said he cut into the basement ceiling to try and locate a leak at the entry way, underneath the granite.

[935]        When asked of the work done in July, 2003, he said it took several weeks on and off and some 40 or 50 hours.  He gave up trying to repair the leak he found.  C34 became Ex. 74.


[936]        C31 is a plumbing Rejection Notice from the City of Surrey dated June 4, 2003.  Mr. Mocha called for the inspection before he started working on the 4th June, so he could get the problems noted.  The first ones listed comprised 2 pages and 15 items, and he did what he could and then called for further inspection.  The second inspection was dated June 17, 2003: C32.  A third inspection was June 24, 2003: C33.  Mr. Mocha said the inspector found new deficiencies each time he came around.  He agreed he was relying on the City to assess the problems.

[937]        Item 2 was the supply and return piping of 3/4-inch.  He said it had to be 3/4-inches between the manifold and boiler unless the heating was less than 16,000 b.t.u.  When asked if it was something he had tried to correct, he said he didn’t have to take off the drywall.  When asked how the inspector found it, he noted the inspector found it on the third visit.

[938]        He said he did change the 3/4 inch pipe end of the coupling to the 1/2-inch, but he just did that in the mechanical room.  They needed 3/4-inches to the manifold to get heat into the house.

[939]        When asked if there were any leaks when he left the job on July 2003, he said that someone may have put nails into the plastic pipe which might be okay for a while but would later leak.  Pointed out the radiant heating was in the concrete, he responded that the pipe was laid on wood before the concrete pour and the nail from an underneath joist could be in the piping, and they were using a nail gun.

[940]        Asked if the heating system worked, he said to a minimum but some rooms were not heating and that is why he gave up.

Kevin Aney

[941]        Mr. Aney has been a building inspector since 1990. He was called with respect to the stop work order that he issued June 18, 2002.  C12 is a “request for action”.  Someone had telephoned to the City and said “once survey was done forms were changed to make a larger floor area – elevation also changed so house will be higher”.  Mr. Aney attended the site and found the house had not been built to the approved City plans, that the foundation was 0.26 metres wider than the plan and he asked for elevations to be confirmed by a new survey.

[942]        He said the stop work order was lifted June 27th and on June 29th revised plans were accepted.  A room on the second floor was converted to a sun deck to meet the floor area ratio.  He recalled having discussions with Mr. Tiwana.

[943]        A further notice of July 16, 2002 referred to basement stair top rise being 9 inches instead of the code 8 inch step.  He believed that was fixed.

[944]        Cross-examination.  He said changes after inspections were rare, that he knew Mr. Tiwana and this had not been a previous issue.  He referred to A20,  the engineers design for the structural and geotechnical issues.

[945]        He agreed he had issued the approval for the plans and footings April 3, 2002 (see A21) and approved the forms on April 4th, the “poly” on the 1st May, the sheeting on the 13th June, and insulation on the 23rd of July.

[946]        He passed the framing on three inspections, July 9, July 12 and July 16, the 16th July being the final inspection.  It met code structurally and otherwise and was ready to insulate, and would bear loads.  The B.C. Building Code was the basis for the inspection.

[947]        On site plans were required. “Clouds” and initials and dates generally were placed on the plans by the City Planning checker and highlighted the changes to the builder.

[948]        The City keeps a set of plans and when changes are made they are re-checked and re-stamped.  A copy of that plan is to be kept on site.  Minor floor plan changes would be discretionary.

[949]        He said after insulation the next inspection is the “final”.

[950]        When asked about basement suites in single family dwelling plans, he said if it was on an approved plan it would pass. When considering this plan however, it did not show two basement suites and if he had seen two basement sinks he would not have passed it. When asked about stairs being shown to the second floor, he said they were not. Asked if there were stairs to the basement would he pass them, he said not with these plans. If he became aware that was done after final inspection he would not approve them.


[951]        He did not assess the floor levels on the 16th June whether he.  When asked if he measured the foundation as level, he said the code simply says “level”.

[952]        When asked what he would do with basement suites if they were not on the plan, he said he would not approve the building.

[953]        When asked if basement suites were built after final inspection, he said the action would be to investigate and post a stop work order and either they would have to be removed or they would have to get planning approval.

[954]        If there is no complaint nothing would happen as it is a complaint-based system.

David Sheehan

[955]        Mr. David Sheehan, a pipe and gas fitter and plumber gave evidence.  He has plied his trade since 1965.  The purchase order of VIP Plumbing and Heating under Mr. Sheehan’s hand is C35 dated April 14, 2005 and refers to an assessment on April 1, 2005 and work done April 1, 3, and 5, 9 and 10, 2005.

[956]        He found the system in a deplorable state. He found the kitchen thermostat in a back den and listed the rest in his report.  He had been requested by Richard Marier of Beaver Engineering to evaluate the heating system.  He found no zone piping identified, no isolation valves, that the system was a bare minimum and not functioning.  Thermostats were in the wrong rooms. Two of the thermostats were improperly wired, e.g. the foyer thermostat he found in an upstairs bathroom.  He found a cross-connection between a supply and return pipe with a standard ball-valve instead of a pressure-relief bypass.  He found no air-vents at the higher points, i.e. on the second or main floor, which stopped the system circulating. He found an unsecured pipe, i.e. not adequately strapped to the woodwork or walls to stop moving when expanding.  He then detailed the work that he did as set out in the invoice, namely (1) putting air vents in the system; (2) putting isolation valves so that each zone was isolated; (3) correctly locating the master bedroom valve and wiring it; (4) labelling all zone risers in each bathroom; (5) refilling the system; and (6) re-setting the systems.

[957]        On the 5th April he re-wired the upper guestroom and the daughter’s bedroom and flushed out the systems.  On 9th and 10th April he provided telephone advice on bleeding the systems in the guest bedroom and the daughter’s bedroom.

[958]        He said the system did not work satisfactorily and he referred to C59 setting out remaining deficiencies June 16, 2005 which is cross-referenced to Mr. Marier’s engineering opinion.  They are: (1) balancing all loops $180; (2) location of thermostats; (3) relocation of combustible piping; (4) adjust boiler valves; (5) balancing of radiant heating system; (6) leaking pipe; (7) cut off pipe to open balcony.  His total estimate was $2,070 and GST.

[959]        The item relating to a leaking pipe was under floor tiles and required carpentry work to access from the basement.

[960]        His invoice and estimates became Ex. 80 and 81.

[961]        On cross-examination he was asked to guess at the cause of the leak.  He had indicated the piping could have been damaged in the pour of the concrete or it could be at a joint, or it could have happened subsequently if a wall was added to the floor.  He did not think it would be “a nailing situation” and if so it would be  defined.  He agreed all that was really known was that there was a leak, and its location and cause was not established.

[962]        He was asked to comment on rejection notice June 4, 2003: C31.

[963]        He did the work in item 9, locate and identify all balancing valves to radiant heating and make accessible; item 10 install safety high limit switch at boiler; item 11 referred to a secondary transformer which he did not see as the zones had not been labelled; item 12 boiler temperature indicator he did not do but he said it was a good thing to have; and item 14, he did label all zone valves at boiler.

[964]        C32 was a notice of June 17, 2003 and he said item 5 to locate and identify zone #7 balancing valves was still not done when he looked at it.

[965]        C33 notice of rejection June 24, 2003 noted item 6 re location of balancing valves for zone #7: he said the plumber was not “hearing”, and he did the work.

[966]        When referred to item 2, 3/4-inch pipe he said the pipe changed at the ceiling to 3/4-inch and that he had seen 1/2-inch in the floor.  When asked if he realized there had been two previous plumbers he said no, nor could he differentiate their work.  When asked about the 3/4-inch piping he said that is required at the headers before going to the loops and off that there could be 1/2-inch piping to the radiant heating loops. There should be 3/4-inch pipe in the basement.

[967]        The size of the headers would depend on the size of the zone being served.  When asked what was wrong he thought the layout of the piping seemed to be wrong, i.e. the design which should be a serpentine or reverse loop system.

Mr. Satnam Shergill

[968]        Mr. Shergill said the contract was discussed for some two to three hours and the wives did most of the talking.  Mrs. Tiwana said much would be in the contract but other things would not.  When asked what other things, he said for instance, mirrors, toilets, lighting, sensor lights front and back, a rough-in storeroom with electricity at the back of the house, that the house would be ready at the end of July and two basement suites would be built after final occupancy.

[969]        He agreed that the handwriting on the document was all his.

[970]        When asked what “ok” meant beside 11 items, he said that as the house was built they would go in and check it and make the note.

[971]        The granite in the entry had been framed, the seven TV outlets and the seven telephone outlets were roughed-in, “radiant heating” meant the Tiwanas were  to put in radiant heating in the basement but put in baseboard heating.  The spotlights and track-lights were not installed.

[972]        When asked about the gas fireplace, “ok” meant the fireplace had been framed.

[973]        Page 3 of Ex. A2 entitled Work to Be Done was in Mr. Shergill’s handwriting save the note at the bottom.  The note had been made during the course of framing when the windows were going in.

[974]        Item a) master bedroom window referred to pushing a 2 x 4 out, that it was not straight.

[975]        Item b) bedroom without washroom window to go outside meant the window frame was not straight and needed to be pushed out. 

[976]        Item c) computer room window to go outside referred to the left frame of two windows was not straight and the same problem was upstairs.

[977]        Item d) two bedroom doors to go on walls meant the doors hit each other.

[978]        Item e) downstairs family room, bath windows to go outside was the same window problem, they were not straight, that they were sagging and had not been properly shimmed.

[979]        Item f) move laundry room:  the rough-in sink was too close to the door and had to be moved to create space for the sink and the cabinet.

[980]        Item g) front window top of the door referred to the semi-circle window over the front door which was not straight.

[981]        Mr. Shergill was then referred to A2, page 6, another handwritten list of 9 items.  He believed he wrote this in August, that it was to list deficiencies and some agreed items that were to be done.

[982]        Item 1, fascia board at the front of the house referred to the fascia board not being one piece but in assembled pieces.

[983]        Item 2, wall of computer room – he said the wall was bulging out in the main floor.

[984]        Item 3, box on top of phone desk referred to a beam going into the kitchen with the electric wire under the beam and they did a drywall box to cover the wires.

[985]        Item 4, fireplace – foam paint he said had been agreed April 1st foam paint was to go on the fireplace and in the family room.

[986]        Item 5, balance the windows referred to other windows to be properly shimmed as they were sagging.  He thought they were the China kitchen and the computer room and perhaps others.

[987]        Item 6, niche box.  A verbal agreement for two niches to be built at the entrance and the nook had not been done.  He said his wife built one and he installed it.

[988]        Item 7, Amrita-dark paint in window.  There had been a verbal agreement at the time of the contract with Mrs. Tiwana that the Shergills could choose the colour of the paint for Amrita’s room and she wanted dark paint.

[989]        Item 8, arch foam paint referred to the arch in the family room.  There had been a verbal agreement re foam paint.

[990]        Item 9 referred to the outside sundeck floor which he said had not been cleaned and the material had broken down and it leaked.

[991]        He said he prepared the list and Mrs. Shergill gave it to Mrs. Tiwana although he couldn’t remember when.  He said none of the items had been done.

[992]        Asked about the work he did on site, he said he cleaned the site and hauled garbage to the dump.  He did that in the first week of April and the first week of May.  He took out all the junk pieces and swept out the property.  He generally did that at weekends and he would take the garbage to the dump when they had a load.

[993]        He said he also picked up two loads of garbage from the Tiwanas at the property in Burnaby in January and February and from Mrs. Tiwana’s own house in May of 2002.  He said he did that several times.

[994]        He was then referred to the deficiency list C18 dated September 29, 2002.

[995]        He said he prepared the document with Mrs. Shergill and listed 24 items and they took it to the Tiwana’s house and he said the Tiwanas “freaked out”.  Mr. Tiwana said they could not do it, they were not making any money and they would lock up the house and no-one would work there.  He recalled they paid $10,200 to the Tiwanas to fix the deficiencies.

[996]        When asked about the lock being changed he said the Tiwanas had changed the lock because when he went to clean the house he couldn’t open the door.

[997]        He was asked about discussions with the Tiwanas after 29th September.  He said they were at the house and there was painting going on the exterior and Mrs. Tiwana asked the painters to stop and said that the Shergills were crooks and they would not get paid.  They asked Mrs. Tiwana to leave and Mr. Tiwana insulted his sister.  He said that was at the back of the house at 6133 and he thought it was in the first week of October, it was a weekend and he was at home and not working.

[998]        He said the painters were there because the house colour was wrong and they were changing it from an orange colour to a brown colour.

[999]        He then went through the items on the list:

1.         Fascia board around the house.

2.         Wall near computer room not straight.

3.         Wall not straight in the computer room.

4.         Both fireplaces not straight.  He said the framing was crooked and out by an inch to an inch-and-a-half.

5.         All windows in house not shimmed and not closing properly.

6.         Niche boxes to complete.

7.         Arch to be fixed (crooked).

8.         Railing in house not straight (and he said this referred to the upstairs rails).

9.         All finishing in the house to be re-done (wall not straight).  He said this referred to windows and doors and he said this in part was due to the fact that the Tiwana’s finisher was working late at night and not using levels.

10.       Closets not straight throughout the house.

11.       Outside sundeck floor torn (as previously mentioned).

12.       Front post not straight.  It was the post near the front door.

13.       Remove hot-water tank from the closet of bedroom.

14.       Kitchen cabinets not straight.  He said they were obviously not level at installation and no level had been used during installation.

15.       Gutter outside of house to be done.

19.       Front entrance door broken.  He was referring to the hinges on the inside and the panels being cracked.

22,       Downstairs radiant heating not provided.

23.       He referred to the water leaking from the sundeck to the computer room to the basement.

24.       Not enough space between the wall and the window in the basement.

[1000]    He was then referred to the plumbing bill from Dave M the plumber: C34.  He said they found water leaking into the basement from the ceiling. Beside the boiler  they found mould and mushroom.  The pictures became Ex. 82.

[1001]    Mr. Shergill was referred to the document entitled “Work to be Done” with items a) – h), A2, page 3.

[1002]    He said the other lists were given mid August and 29th September. The list at A2, page 6 was mid-August  reflected the house being at the drywall stage.  Item 9 the outside sundeck floor concerned the floor not being cleaned and then finish material was put over the top.  He agreed he was the cleaner for the house.

[1003]    Item 4 fireplace foam paint.  He said the fireplace had just been framed and drywall put in at the side.  When asked if it was premature, he said the item had been agreed and he wrote it as a reminder to Tiwana and similarly the item regarding the arch (no. 8) and Amritas paint (no. 7) was yet to be done.

[1004]    When put to him Mr. Saggu/Sivia said he had painted and fixed the fireplace, Mr. Shergill said no he didn’t, he only did the primer, and that Mr. Shergill would choose the final paint colour.  He agreed garbage pickup was his job.

[1005]    He was referred to B45, weigh-scale tickets.  He agreed the ticket showed his driver’s licence and his pick-up truck and the work claimed there was for 6133.  He was referred to page 5 showing two tickets for the 24th June and the 20th July, 2002.  When asked about the stop-work order and when he became aware of it, he said not until the end of July.

[1006]    He said he did not see the stop-work order (C10) made the 18th June, 2002 and lifted  27th June.  It was put to him the City of Surrey would have posted the stop-work order.  When asked if he would not query why no trades were on site, he said he was told it was hard to get trades, and maybe the Tiwanas lifted the notice.

[1007]    He said he left Canada in July and that he hadn’t been told at that time.

[1008]    Given the lifting of the stop-work order 27th, he was asked then did he see the tradesmen on site working and he said no.  He denied the Tiwanas met with him before he went to Australia and discussed the stop-work order. 

[1009]    He agreed he left for Australia 15th July, 2002 and that the bedroom wall would have been demolished by then.  Mr. Shergill said he first noticed it on his return from Australia at the end of July.

[1010]    He agreed the notice from the lawyer on 3rd October was followed by the painter changing the exterior house paint.  He said his wife hired the painter.

[1011]    Mr. Shergill was referred to F1, his receipt for the exterior painting dated October 6, 2002.  The work had been finished.  F3 is payment for concrete to LaFarge dated October 23, 2002 and the fourth page is a handwritten receipt for $300 for pumping the concrete on the same day which he paid in cash.  F4 is a receipt for downstairs framing for drywall and fixing outdoor windows, stucco pads, making stairs and fireplace plywood.  He said the work involved taking four windows out of the back of the house at the balcony and on the main floor and fixing them and re-doing some stucco outside and some drywall and then moving the water-tank from the closet to the boiler-room.  He paid both by cash and cheque as reflected in the receipt, $1,000 cash and $850 cheque.  The cash would have come from Mrs. Shergill.

[1012]    He said there were three ceiling fans.  He was referred to F5 and said three had been installed and three were to be done.

[1013]    F11 records Mr. Shergills note of payment to Unico Landscaping November 6, 2002 of $1,900 cash and $600 cheque.

[1014]    Two cheques November 6 for $600 and December 6 for $500 were proffered.. It was put to him there was no cash payments.  He disagreed.  He said there were four workmen who did the retaining wall and two who did the landscaping.  He could not produce invoices for the handwritten receipt.

[1015]    He denied he was given invoices and he did the receipts to inflate the costs.    When asked about Mr. Sivia doing the painting, he said Mr. Sivia came to the Shergills house to get his gear and said he wasn’t being paid.  Asked if he did not remember signing a cheque to Sivia, he was referred to A57, a cheque dated October 1, 2002 to CanPro Painting in the amount of $4,700.  He said he signed the cheque and the memorandum at the bottom was his and that Mrs. Tiwana had told him to write “payment in full” for painting.  He said Mrs. Tiwana said she wanted to show the painter the cheque so they would come and finish the painting.  He said he gave the cheque to Mrs. Tiwana.  Mr. Shergill denied giving the cheque to the painter and said he gave the cheque to Mrs. Tiwana.  He agreed that the painting done to that stage was  prime and  two colourss.  As well, there was  cheque No. 107 payable by the Shergills to Goodwill Holdings for $1,377 and another cheque No. 110 dated September 29 for $100 for medallions.  He said that the drop ceiling had not been built and these were for medallions to go into there place.  He said the cheque was given to Mrs. Tiwana by his wife.

[1016]    He agreed there were no discussions with the Tiwanas between September 29 and October 3 and they saw their lawyer in the meantime who advised them to write the letter:  Ex. A9.

[1017]     He was asked if he gave the builder 14 days to complete and he said no (contrary to the letter).  He was referred to a further solicitor’s letter dated November 5, 2002 which asked if there were “a mechanism to resolve dispute”.  He acknowledged receiving a copy of the letter but did not know if there was a reply.

[1018]    A16 is the residential warranty letter of December 16, 2002 and Mr. Shergill  did enquire about the warranty but was told they could not give a full warranty.  When asked if he was aware the builder had a 10-year warranty, Mr. Shergill said only on the structure.  He agreed that the letter said there needed to be final occupancy and that the reason he understood there was no coverage because the builder had the warranty.

[1019]    A17 is a Progress Inspection Report dated September 5, 2002.  This reflects the appraisal for construction progress on the house being financed by Coast Capital.  He did not recall giving the plans to the bank but they had obtained the construction mortgage, and they would call the inspectors who would fill in the form and the mortgage terms had been explained by the bank.

[1020]    The document shows 88% completion as of September 5, 2002.

[1021]    Mr. Shergill said the lawyer had explained what a builder’s lien was and at the time of the notice to the Tiwanas October 3, 2002 he did not know of any liens against the property.

[1022]    Mr. Shergill was referred to A30, a letter he wrote to the City of Surrey plumbing department advising Red Rose Plumbing had been fired.  He said he called Red Rose who wanted $12,000 to finish the job and get it passed by the City.  It was put to him Red Rose offered to put the money into trust and Mr. Shergill denied that, saying the plumber asked for the payment.

[1023]    When asked of changes to the basement floor plan, he said there had to be changes to expand the boiler-room when the hot-water tank was moved to its proper location.  When asked about doing garbage removal with the Tiwanas, he said he had done one trip for them and two trips at the McKay house.

[1024]    Mr. Sandhu was a student until December 2005 and then began his articles as a solicitor.  Prior to that time he worked with his family firm as a tile installer and had done so for 10 years.  He worked in the summer of 2002 and remembered installing tiles at the Tiwana’s house at 622 – 126b Street, Surrey.

[1025]    He was shown a cheque B67 dated August 26, 2002 made payable to Jason Sandhu from Goodwill Holdings Ltd.  He said it was his name but not his writing.  He said he got a copy of the cheque from his bank and that the original had come to him from his brother Raymond.  He could not say who had written his name on the cheque.  He recalled the work was done at 6222 and not 6133 as noted on the cheque, though the number appeared to have been changed.

[1026]    He said tiles were ordinarily done before or after lock-up and before or after the painter.  He said with respect to tiles people have to keep off it from 2 to 16 hours.

[1027]    He agreed he would install tiles before appliances would be installed, but he said appliances were not in the areas when he installed. He recalled the entry, the bathroom and the kitchen.  He could not remember the kind of tile.

[1028]    It was put to him the appliances were in the house and the cheque was for 6133 and his brother had put his name on the cheque.  Mr. Sandhu disagreed and he said he only worked on the Tiwana’s house and was paid for that.

[1029]    He said he did not issue invoices, it was summer work and he was working for his brother.  He was an independent contractor to his brother’s firm.

[1030]    Asked if he was given cheques from the company, he said at least one.  Put to him he had never worked at the Tiwana house, he disagreed.

[1031]    In cross-examination Mr. Morton showed him a true copy of the cheque. It showed the 6222 address on it. B67 became Ex. 83.

[1032]    Mr. Morton introduced Ex. 83 earlier when Jason was giving his evidence.  That was the changed cheque No. 0211 of Goodwill Holdings Ltd. in the amount of $1,500.  That cheque in its original form was dated August 26, 2002 and was cleared by the bank August 29, 2002.

[1033]    The description read “tiles, 6222 – 126b Street” and was signed by Raj Tiwana.  It was acknowledged that Mrs. Tiwana had changed the cheque after it had cleared the bank and before it became evidence at trial.

Paul Singh Sandhu’s Evidence

[1034]    Mr. Sandhu was shown C46, the invoice of March 28, 2003.  He had been working as a tile installer since 1983.  New Century Tile was his company but owned by his son Raymond.  He recognized C46 as a bill that he had made out and his signature was on it.  He said the Tiwana’s telephoned him and asked for the invoice, and Mr. and Mrs. Tiwana came to his house.  They said that they had telephoned his son but couldn’t get hold of him.  They had brought cheques and were prepared to pay.  He trusted them.  There was no argument.  It was a house he had worked on and the parties were happy at that time.  He issued them a bill.  He recalled one cheque was post-dated and one was “normal”.  The tax number was for GST and the sale of services was to Goodwill Holdings for work at 6133.  He read the bill payments as a cheque for $1,500, a cash payment of $500 and a cheque for $1,000, in total $3,000.

[1035]    When asked what else was written he said there was remaining $3,500, that was what he was told.  It was a big house.

[1036]    He said they had tiled three or four houses for Mr. Tiwana but he couldn’t recall the addresses, although he did recall working on Mr. Tiwana’s house.

[1037]    He was then referred to C49, a New Century Tile invoice to Goodwill Holdings Ltd. for 6222 – 126b Street, in total $3,400.  He said that was not his writing and thought it was his son’s invoice.  When asked if his son had worked at 6222, Mr. Sandhu said he had worked at all the houses.  He did not know whether it was the correct amount.  He was asked about another address at 6248 – 12A Street, and he did not recall that specifically.

[1038]    He was asked if he saw cheque No. 142 and he said he didn’t deposit those and his son looks after that aspect.  He did recall working on a house in McKay Street, in Burnaby.  He did not know if there were any monies owing from the Tiwanas.  He recalled saying there was one house where they said they will pay a lien.  When asked if it was regarding 6133, he said yes.  When asked if he remembered getting a cheque for $1,500, he said no he couldn’t remember, he just trusted the Tiwanas.

[1039]    He thought he got two cheques but no cash.

[1040]    When asked if the total was for 6133, he said thought that was what he was told, that they sat and negotiated, that they had worked for them.  He did say the work was totally completed at 6133 with only silicone to apply on the surfaces and both parties had been happy with their work.

[1041]    He recalled one cheque did not clear the bank.  He thought it was the $1,000 post-dated cheque.

[1042]    On cross-examination he agreed he was given two cheques by Mr. and Mrs. Tiwana for $1,000 each and that they asked him to make a bill and they gave him the amounts and he trusted them, and he had no idea if the company had already been paid for the work done on 6133 nor if the $1,500 and $500 had been paid on the house.  They said that and he trusted them.  That concluded Mr. Sandhu’s cross-examination.

[1043]    The plaintiffs asked that the Sandhu’s/New Century Tile confirm the other invoices and payments received from the Tiwanas.

Mr. Raymond Sandhu (recalled)

[1044]    Mr. Sandhu was recalled to produce documents relating to the tile work.  He advised he was not able to locate invoices for McKay Street and 126A Avenue, i.e. other work done for the Tiwanas.

[1045]    He was shown a cheque cashed November 23, 2002, which he agreed relate to the work on McKay.

[1046]    He was shown a cheque No. 142 referring to the house at 6248 for $2,000 and acknowledged depositing those monies.  When asked if he had been paid for the two jobs, he said the $2,000 was not usual.

[1047]    He was asked if he knew the square footage, and he said the McKay house had three storeys and he thought the payment should be more than $2,000.

[1048]    He said the house at 126A was almost the same as Mr. Tiwana’s house.  He could not find any invoice for the Tiwana house.  He agreed his evidence was “paid in full save for the Shergill’s house.”

[1049]    The documents at A50 show an account for 6222, 126b Street, cheque No. 211, June 5 for $2,000 and another cheque No. 325 for $1,400 on October 30, 2002 in “final payment for house at 6222”.

Amrita Shergill

[1050]    She said she was a witness to events in late 2002 that occurred at the garage at the Shergill home.  She was with her mother and a man arrived and a discussion ensued.  The gentleman was Mr. Tiwana, the builder.  She said that her mother yelled at Mr. Tiwana as he was wanting to take the hardwood from the house and there was an argument about not letting the trades on site, and her mother then told her to go and Dad, and by the time she returned no-one was there.  She said she was standing in the garage with her mother and Mr. Tiwana was outside the garage.

[1051]    She said Mr. Tiwana had driven his truck into their driveway, opened the trunk and taken out a stick and just held it saying he was not going to let anyone work at the house, that he was going to burn the house down and he was swearing at her mother in Punjabi.

[1052]    She said her mother said, go and get your father, I am calling the police, and to Mr. Tiwana, “you’re not getting the hardwood”.

[1053]    She said Mrs. Tiwana was about two houses down the street.  She said the exchange was possibly 10 minutes.  She thought Mrs. Tiwana was talking to the bylaw man across the street.  She recalled the event occurring in late September or early October on a weekend.  She and her mother had been cleaning the house.  She said the hardwood stayed in the garage and it went into the living-room

[1054]    On cross-examination she said they were moving out of the Tiwanas.  When asked where she was sleeping at the time, she couldn’t remember and then she said possibly at his sister’s but they still had some items at the Tiwana’s house but they were not living at the Tiwanas.  She agreed it was a bit of a rush to move out but she did not know how long it took.

[1055]    That concluded the defendant’s witnesses.


[1056]    Ms. Nijjer then discussed the A-Class door invoices.

[1057]    She said the defendant says the doors were taken to the Tiwanas.  Mr. Morton said the Shergills said the Tiwana’s doors were paid out of their progress and with respect to the $7,600 allege the Tiwanas used a Shergill payment.

[1058]    Mr. Morton eventually conceded the defendants had no evidence to support the allegation in their response: See Tab 6, paragraph 8(c), conversion of doors $1,000.

[1059]    Reference was made to the bank statements of Mrs. Tiwana who also runs an account under the name R. Singh, which shows $99,000 being paid from her funds and it was noted the Shergill’s monies had from time to time been moved to that account.  The TD-Canada Trust accounts became Ex. 86.

[1060]    Documents from Ex. C became Ex. 87.

[1061]    Ex. F had within it at Tabs 23 to 47 Dick’s Lumber accounts that became Ex. 88 and the remaining documents became Ex. 39.

[1062]    With respect to the defendant’s case there was no issue regarding the borrowing from BestWay and receipt of the funds had been received by Mrs. Shergill, but the issue was whether the funds were spent on the completion and repairs.

[1063]    With respect to the loans from the Sihota’s, there was an issue as to whether the funds were received and expended on the repairs and completion.

[1064]    With respect to the plaintiffs’ documents in Ex. B a number of expenses were not put to Mrs. Tiwana.  The defendants were satisfied they related to the house unless they had been contested.  Ex. B became Ex. 90.  Ex. A became Ex. 91.

[1065]    Then I go with the experts

Expert Witnesses

Uwe Naumann

[1066]    Mr. Uwe Naumann AScT, CPI, an experienced general mechanical contractor and instructor at BCIT and trade licenses in plumbing, electrical, gas fitting, boiler ventilation, and related matters, gave evidence to the defendant.  Mr. Naumann stated he found the house to have:

1.         Variations in the foundation affecting floor levels and walls;

2.         Walls out of plumb;

3.         Resulting cabinet installation problems;

4.         Ceilings out of level or out of alignment;

5.         Stair rises not uniform;

6.         Doors that did not close;

7.         Floor tiling not bonding to sub-floor; and,

8.         Exterior widows out of square.

[1067]    He said all of these matters indicated that the building structure was out of square, out of level, and out of plumb.

[1068]    Measurements with a laser level found elevation of the foundation bearing one and half inches over approximately 40 feet, walls out of plumb over eight feet by three quarters of an inch.

[1069]    With respect to the heating, he said:

1.         In flow heating was not installed per contract drawings;

2.         The heating ventilation and air conditioning piping was not up to code; and,

3.         The wiring was not to ordinary standards.

[1070]    With respect to the exterior of the building, he noted that the building envelope failures were to be found at the windows, the front entrance, the front columns, and arches.

[1071]    While Mr. Naumann correctly described and indeed showed through photographs the various deficiencies, many in large part, in my view would not be done by the home owner as the overall costs by my calculation is $237,000.  Much of it is premised on the differing floor levels which in turn goes back to an uneven foundation, and in Mr. Naumann’s view was most noticeable in the kitchen area, where there was a movement of over an inch over eight feet.  But the house has been well finished, and a virtual re-building of the house is not practical. 

[1072]    That said there is substantial evidence of a failure to meet a reasonable workman like standard on the original construction. 

Peter Link CRA, C. TECH, CPI

[1073]    The defendants also called Peter Link, who is both a real estate sales man, and an independent home inspector and land appraiser.  He was duly qualified and able to give his evidence as to market value.

[1074]    As of May 2, 2005, he said the market value of the house was $460,000 as is, i.e. with the deficiencies as he found them.

[1075]    He found the finish and exterior appearance superior but found structural and mechanical deficiencies and noted the City of Surrey had still not issued an occupancy permit.  He found it difficult to find comparable sales in the immediate area.  He noted at the back upper level of the house there is a “deck” which originally was designed as a bedroom. 

[1076]    The city building inspector stopped work on the area so that part lies unfinished.

[1077]    Mr. Link’s pictures show visible irregularities, such as out of plumb windows, out of line stair railings, incomplete exterior trim, irregular ceiling levels, irregular shaped landings on the stairs, and headers out of alignment.  In a report of the same date, Mr. Link spoke of “unexpected deficiencies…unusual on homes with qualify finishing”.  He showed through his pictures the effect of the poor framing of the house, mainly sloping floors, windows out of plumb and noted a similar slope was to be found on the upper floors.  With respect to windows, he found 11 out of 38 to be out of plumb. 

[1078]    He made a comparison to a one level house being raised to provide the top floor of a two level house where the costs would be $125,000.

[1079]    He concluded that it was essentially a foundation problem that would be difficult to level.  Once given that foundation problem it led to out of plumb interior and exterior walls which would cost more than any increase in value, and therefore was best to sell it with a discount i.e. disclose the irregularities at a price of $460,000. 

[1080]    That report was to be contrasted with Mr. Link’s earlier report of March 7, 2005 which assumed there were no deficiencies, occupancy permit had been granted, and the second level bedroom was enclosed. 

[1081]    Mr. Link concluded:

It appears that the foundation pour was not level and that the main floor was framed without correction of the foundation deficiencies.  It is extremely difficult to level a building especially with a finished basement.  Compound this with interior and exterior walls that are not plumb creates a near impossible task and/or extremely expensive to correct.

[1082]    Thus he put forward the $460,000 as a discounted price. 

[1083]    He noted the assessed value of lands and buildings totalled $502,000 for the year 2004 and that prices in the neighbourhood ranged from $270,000 to $676,000.

[1084]    He felt the adjustment in sale price would result in a buyer aware of the deficiencies paying $460,000 for the house as is. 

[1085]    His March 5, 2005 opinion put the market at value at $590,000 so that in summary he concluded a discount of $130,000 was necessary to affect the sale of the premises. 

Richard Marier P. Eng.

[1086]    Mr. Richard Marier provided an opinion regarding the heating installation as of May 6, 2005.  He is qualified as a professional engineer in building and mechanical design and is particularly involved in building radiant heating and knowledge of the standards.  He inspected the house February 14th and March 19, 2005.

[1087]    Mr. Marier was asked to report on whether the heating system installed at 6133 127 Street meet the requirements of s. 9.33 “heating and air conditioning” of the B.C. Building Code (1998), and if not, what would be necessary to correct the heating system in order to bring it up to code i.e. to maintain a minimum temperature of 22 degrees in each room during outdoor winter conditions. 

[1088]    He noted that the heating system was a gas fired boiler providing hot water to one air radiating heating system in the upper two floors to a hot water baseboard system in the basement. 

[1089]    Mr. Marier noted the City of Surrey inspected on June 24, 2003, and issued a notice of rejection as the inspector could not locate two heating manifolds servicing a total of five rooms.  Mr. Marier assumed the city inspector passed for inspection the radiant piping installation in the floors before the general contractor was allowed to pour the concrete over the piping.

[1090]    Mr. Marier tested the system on February 14, 2005 and March 19, 2005.  He adjusted thermostats, opened some zone valves manually and found some of the automatic controls were not operating properly.  To find the missing heating manifolds he made holes in the walls of two closets. 

[1091]    He found the heating system did not meet the code requirement of 22 degrees centigrade as there was insufficient or no heat in some areas of the house due to the thermostats not operating zone bells properly, and air traps preventing hot water circulation.

[1092]    Mr. Marier noted heating system deficiencies and proposed repairs to be effected by Mr. Sheehan, including:

1.         Adding shut off valves;

2.         Addition of air vents to stop air bubbles forming in the pipes;

3.         Re-wiring the thermostats properly to their respective zone valves;

4.         Differing return for water temperatures indicating balancing of the pipe loops needed to be done, which he suspected was due to a lack of piping in the North West corner of the upper floor;

5.         Inappropriate thermostat locations prevented proper control of some room temperatures (living and dinner room, upstairs corner bedroom);

6.         Relocation of combustible piping to move it away from the oilier vent;

7.         Adjustment of boiler valves necessary to provide proper return        of water temperatures;

8.         He said the radiant heating system pump was too small to provide sufficient flow to all ends on cold days and should be replaced with a larger capacity pump;

9.         A leak from a section of radiant piping near the main entrance could be seen on the ceiling of the basement; and,

10.       The radiant piping is installed in the area of the upper floor that was to become a deck and the piping would have to be cut off to such an open area.

[1093]    He also noted some non code issues for better operation of the system.  He then hired a heating contractor, Mr. Sheehan, to correct deficiencies to verify and rectify the wiring between the thermostats and zone valves, install air vents at the heating manifolds, and purge the air from the piping system which was preventing heating water from circulating properly in the in flow piping.

[1094]    In cross-examination he said he had been given the engineer’s drawings.  He said Mr. Sheehan said most of the work was per design.  When asked was not done to drawings he said the wiring to the thermostats, the lack of flow which he presumed to be air in the system.  He agreed that once the pipes were properly in place and the air bubbles were taken out, the system would be largely complete.

[1095]    It was noted he wrote his opinion on March 31, 2005 and Mr. Sheehan did his work afterwards.  He said the system continued to leak it would mean air would get into the system and if it was leaking in the concrete, it would depend on how tight the concrete was around the pipe.

“R. Crawford, J.”
The Honourable Mr. Justice R. Crawford



Tiwana v. Shergill,


2006 BCSC 1834

Date: 20061211
Docket: S78073
Registry: New Westminster


Raj Tiwana and Goodwill Holdings Ltd.



Satnam Shergill and Jaginder Kaur Shergill


Before: The Honourable Mr. Justice Crawford

Interim Findings and Conclusions

For the Plaintiffs:

Raj Tiwana,
with assistance of T. Nijjer

Counsel for the Defendants:

R. J. Morton and Mr. S. Charles

Date and Place of Hearing:

February 13, 2006 – March 6, 2006


New Westminster, B.C.

I am issuing a summary of my conclusions.  Full reasons will follow before January 31, 2007.

The action by the plaintiff builders seeks damages for breach of a residential house building contract made April 1, 2002.  I find the defendants by their actions effectively ended the contract October 4, 2002.  The defendant owners counterclaimed for the cost of finishing the house and repairing deficiencies, loss rental income, and related claims.

The trial took over three weeks.  The plaintiffs appeared without a lawyer, though a friend appeared and assisted in the presentation of the builder’s case, and I take this opportunity to thank Ms. Nijjer for her assistance.  However the builder’s organization, recording, records and operating practices were such that the evidence at trial was very difficult to assess.  I have reviewed all the evidence and arrived at certain conclusions.  Given the time since the end of trial, I am providing my conclusions.


[1]                The parties began discussions about building a new house in late 2001.

[2]                The Shergills obtained their building financing on the 14th February, 2002 with the assistance of Mrs. Tiwana, who steered them to the Surrey Metro Savings. Building plans were complete by February 27, 2002.  The Shergills purchased the lot at 6133 – 12th Street, Surrey, on or about 28th February, 2002 for $152,500.

[3]                Several drafts resulted in a written contract on the 1st April, 2002.  The contract was prepared by Mrs. Tiwana who provided a price and payment terms and some but not all of the specifications which were in part provided by the building plans completed in February.  The contract provided the house would be constructed by Goodwill Holdings Company owned by Mrs. Tiwana, and the price would be $250,000 including GST.  Payment terms were not entirely clear but I find payments were for $20,000 at the beginning, the next payment at lock-up stage, a next payment at drywall stage, and the final draw on completion, i.e. final occupancy.  Basements and back balcony were to be completed after the final occupancy.  Provision was made for extras.

[4]                The second, third and final payments would come through the bank who would assess the completion of the second and third stages.

[5]                No completion date was stated.  In the application for homeowner protection Mrs. Tiwana indicated an estimated construction start of March 25, 2002 and estimated completion July 25, 2002 with possession July 29, 2002.

[6]                While the Tiwanas were experienced home-builders they did not follow ordinary building practices.  No budget was put forward breaking down the component parts from the foundation to roof, through interior completion to final landscaping.  Nor was there a construction schedule of any kind.  Rather, it appears a lot of the business was conducted on a promise and cash payments.  This was inevitably going to lead to problems if there was a disagreement between builder and owner.

[7]                A review of the documents shows the plans approved by the City of Surrey February 27, 2002 and the forms for footings were approved 3rd and 4th April.

[8]                There was more concrete work in May and framing would have begun in April.

[9]                On the 18th June, 2002 Surrey issued a stop-work order.  They received an anonymous complaint that the footings exceeded the footings shown in the house plans.  The complaint proved accurate.  The foundation was 0.26 metres wider and there was some question about the elevations being higher than specified.

[10]            Mr. Tiwana said he met with the City planner and a compromise was worked out whereby a second storey bedroom was deleted in favour of an open deck so that the square footage requirements were left in place and the foundation remained in place.  Work restarted on the 27th June.

[11]            Roof trusses were ordered 22nd May, and on the 5th June a garage door.  Plumbing began in May and went on for a large part through June, although the account was not dated until the 16th September.

[12]            Fireplace installation occurred in mid-June and on the 19th June roofing materials were supplied.  Up to the end of June the evidence was Mrs. Tiwana and Mrs. Shergill had a lot of discussions about the house.  Various small changes were made in the framing stages.  Some of the small changes and deficiencies were noted in a list.

[13]            Mrs. Shergill and one daughter went to Australia in July and Mr. Shergill followed later.  They returned in late July or early August.

[14]            The Shergills claimed they did not know of the stop-work order and the change of the bedroom to a deck before they went to Australia.

[15]            I am unable to accept that.  The Shergills claimed their job was to keep the building site clean and it should have become apparent the stop work order halted construction, and a bedroom in the plan was not being proceeded with.  Mr. Tiwana said he informed them.  I doubt that too.  In any event there was no written complaint by the Shergills prior to the 29th September.

[16]            After the Shergills returned from Australia and it was apparent their house would not complete at the end of July, the Tiwanas allowed them to stay in their basement, which was just around the corner from the building site so that for August and September the builders and the owners were living but a few houses away from the building site.  Mr. Shergill made a deficiency list in mid-August listing several items.

[17]            Payments by the Shergills were as follows:

May 30. 2002                           $20,000

May 31, 2002                           $75,000

July 28, 2002                           $1,000

August 1, 2002                        $1,700 and $300

August 2, 2002                        $34,000

August 19, 2002                      $400

August 24, 2002                      $39,000

August 30, 2002                      $1,400

September 6, 2002                 $25,000

September 29, 2002               $10,200

[18]            A bank document indicating construction stages dated September 5, 2002 indicated (in the assessor’s view) the house was 88% complete.

[19]            The form indicates lock-up stage complete, drywall stage complete and that the final stage had five parts either wholly or partly incomplete.

[20]            However, by September the Shergills were becoming concerned at the lack of trades on site, rumours or hints from some of the trades that they were not being paid, that Mr. Tiwana was not on good terms with Mrs. Tiwana and that was in turn a problem, and rightly or wrongly they were forming the impression that the Tiwanas in whose house they were staying, had used building materials from the Shergills’ building site to build the Tiwana house.

[21]            Mrs. Shergill began to press for an accounting of the monies that had been advanced, fearing Mrs. Tiwana was not using the Shergills monies to pay for the Shergills house.

[22]            Finally a meeting was held on 29th September.  The Shergills presented a 3-page list headed (see C-18) “List of Deficiencies in the House to be done by Raj Tiwana” listing 24 items.

[23]            Mrs. Tiwana said she needed money to pay the trades and Mrs. Shergill provided payment of $10,200, thinking this would ensure prompt completion of outstanding work.  Mrs. Tiwana acknowledged in writing she had received $208,000 from the Shergills.

[24]            The Shergills saw little improvement.  They consulted with a lawyer.  A letter dated October 3, 2002 was delivered to the Tiwanas.

[25]            The letter (see C-20) noted it had been nearly seven months since construction commenced and the house was still not complete, and there were many deficiencies requiring rectification or replacement.  The letter alleged the Tiwanas had been provided draws totalling $208,000 and it would cost $50,000 to complete.  It was alleged complaints from sub-trades that they were not paid.

[26]            The letter alleged that there were several promises made by the Tiwanas to complete the residence by a set date and that had led to a temporary stay of two weeks in the beginning of August in the Tiwana’s basement, i.e. that the residence would be complete by mid-August yet the residence was still not complete.  The Shergills complained they had been locked out and needed a key to inspect the work in progress.  At the conclusion the letter said if the works were not completed according to plan within 14 days, i.e. 17th October, the Shergills intended to terminate the contract and hire another contractor and that any additional costs would be the Tiwana’s responsibility.

[27]            On the 4th or 5th October the Shergills had a new painter commence repainting the house exterior, which they claimed was the wrong colour.  I note that item had not been complained of prior to that time.  Mr. Tiwana attended the house site.  He asked the painter to stop.  Mr. Tiwana said that no trades would come to the house and he would burn the house down.  Another heated exchange occurred between Mrs. Shergill and Mr. Tiwana at the Shergills’ garage the following day.

[28]            As a result Mrs. Tiwana made a complaint to the police on October 7th claiming that the Shergills had threatened to harm the Tiwanas and the police report quotes “I will cut you from the centre in the next 24 hours and I will drag you on the street”.  Mrs. Tiwana said she was not concerned for her safety.

[29]            The police then spoke with the Shergills and when it had become apparent that both sides had lawyers, the police closed their file.

[30]            The Shergills moved out of the Tiwanas basement on the 6th October and into their own house basement.

[31]            On the 11th October letters were exchanged (see A-10 and A-11).  The Shergills took the position Mr. Tiwana said he would not complete.  The Tiwanas’ solicitors responded firstly to the Shergill’s letter of October 3, 2002 claiming $20,000 was owing on the drywall completion.  Then it was said that on or after October 1st, the Shergills claimed an accounting and provided a list of deficiencies.  The parties agreed $208,000 had been paid and that included three post-dated cheques totalling $6,177 which had not been honoured.

[32]            The letter noted on October 4, 2002, the Shergills had a painter doing exterior painting, changed the locks and told the Tiwanas not to enter the premises.  It alleged trades sent on 5th October were told not to enter the residence, including sub-contractors for concrete, cabinets, landscaping and carpets.

[33]            The letter then acknowledged receipt of the Shergills’ lawyer’s letter of October 11th which had stated “You have not completed the residence as required and have no intention of doing so.  Accordingly, this letter will serve as notice to you that our client has terminated your contract ...”.

[34]            The Tiwana’s solicitor said they accepted the notice as a breach of the contract.

[35]            It may be noted the day before on 10th October, 2002 the plaintiff company filed a claim of lien in the amount of $62,000 which was said to include the balance of the unpaid purchase price plus an amount for extras.

[36]            As to extras, I note that while there had plainly been discussions from time to time about changes or additions of a relatively small nature, nothing in the way of a formal work change order was prepared by the builder or signed by the owners.

[37]            By February 2003 the Shergills had gone ahead and made substantial progress finishing the house so they could take up residence.

The Plaintiffs’ claim

[38]            The plaintiffs claim damages for breach of contract which in turn depends on the determination of the issue as to who ended the contract.  The defendants say they gave the builder notice that the house had not been completed in time, that they had extended time and gave another 14 days’ notice.  Within that time the builder said they would not call any more trades and they would burn the house down, which the defendants say was a clear repudiation of the contract.

[39]            The builders on the other hand say that there was no intention to allow 14 days for completion, that the Shergills had a painter on the premises the next day changing the exterior colour and refused to allow the Tiwana’s trades on site. 

[40]            On this issue the better argument lies with the plaintiffs.  It is one thing to say through your lawyer you are given 14 days for completion, but when your actions run to the contrary, namely the repainting of the house with a different painter, and access to the builders trades are refused, that is evidence that the contract has been terminated. 

[41]            The onus then lies with the builder to establish damages.  As showed so plainly in the evidence, the builders had no organized record of their building costs and were obliged to go back to their trades and try and resurrect through a collection of post-dated paper, the monies they spent.

[42]            At trial, the plaintiff presented a summary of funds paid, claiming they spent $213,102.39: see A-3, page 4.  The documents put in support of this were found in Exhibit “B”, the plaintiffs’ book of documents – Statement of Expense.

[43]            They acknowledged receiving $203,200: see Exhibit “2-A”, paragraph 2 and on September 29, 2002 had acknowledged receiving $208,000 from the Shergills.

[44]            As well, the plaintiffs’ claim extras valued at $27,244.50.  Again, because of the lack of organization, non existent or inadequate paperwork, and lack of recording, the claim proved to be merely an exercise in estimating work said to be different from that envisaged in the contract.  The listing of the work, some 20 items, was in part due to work not being done properly in the first place and other parts were indeed extras, e.g. extra box windows, granite flooring, niches in walls and the like.

[45]            The plain difficulty facing Mrs. Tiwana in accounting for the use of the monies paid to her was that there was no one account that she used, and there was no paper tracing the use of the monies to pay the trades and contractors and thus when the pleadings required she account for monies received she was not able to.  The defendants alleged she could not account for between $24,073.40 to $25,424.

[46]            That reflects the initial difficulty between Mrs. Tiwana and Mrs. Shergill when Mrs. Shergill started asking whether the monies she was paying to Mrs. Tiwana were being used on the Shergill house.

[47]            To try and establish the monies spent on the Shergills home, Mrs. Tiwana had to rely on payments she said she made after the end of the contract, in late 2002 and early 2003.  An example was the payments made to the framing contractor, Mr. Hayre.  Another was the use of the monies received on 29th September in the amount of $10,200 where it appeared that Mrs. Tiwana put $9,000 towards monies drawn from another account in another family name of Singh.

[48]            With respect to Mr. Hayre, it was sadly patent that he has had a serious drug problem and could be easily persuaded to one view or another.  He was the person responsible for placing the forms of the foundation which proved to be an issue in the construction, yet he seemed to have no idea of the event.

[49]            Exhibit “B” which lists the payments that the builders sought to establish contains 11 payments said to be made to Mr. Hayre.  Five are reflected by cheques while six are said to be cash payments.  The cash payments are in the same handwriting and total $10,100.  Identical receipts were produced regarding the cash payments and did not withstand scrutiny.  The cheques were sporadic.  Two have been altered.  Further, Mr. Hayre said that the cheques though dated September of 2002, were not negotiated until early 2003.  He said Mrs. Tiwana took him to the bank, had the cheque cashed, and then took much of the cash.  From his evidence it would seem at a time when he was afflicted by his drug problem.

[50]            As well, he had put his name to three typewritten documents dated 10 June, 2002, two of which were said to be relating to extras and one for the contract itself.

[51]            The first invoice for extra work relates to the shed, driveway and sidewalk for $1,123.50.  The second is for various extra work, some of which may well be correctly described but priced at $366.50.  The third invoice is for framing and foundation, the framing $18,000, the foundation $3,500 for a total of $23,005, each of them have been endorsed by Mr. Hayre as having being paid by Goodwill Holdings.

[52]            Mrs. Tiwana conceded she had prepared the documents for Mr. Hayre to sign.  At best it appears Mr. Hayre may have received about $11,000.

[53]            Similarly, with respect to the tile installation by New Century Tile, the focus of attention was on a document prepared by Mr. Sandhu, Snr., but done at the request of the Tiwanas in March of 2003.  However, the evidence could not equate payments to the statements.

[54]            While the cost of construction as presented by Mrs. Tiwana in the amount of $213,102, does in large part represent monies the Tiwanas and the plaintiff company would have expended in the course of construction to the end of September 2002, that claim was substantially reduced on close examination and I accept the defendants’ argument that some $24,000 was not accounted for.

[55]            The same “vagueness” affects the claim for lien.  A lien was filed against the Shergills’ house on the 10th October, 2002 for $62,000.

[56]            It is not clear how the calculation was arrived at, but in argument it was suggested that the contract price was $250,000, the extras were $27,244 and the plaintiffs had spent $213,102, a difference of $64,142.

[57]            That is close but reflects the contract price rather than the monies spent by the plaintiffs.

[58]            A charge was filed on the Tiwanas house by the Shergills because of the suspicions that developed when the Tiwanas were not able to account for their funds, and it was also thought that there had been a misappropriation of building materials.  As it turned out during the course of the trial, the evidence did not substantiate deliberate theft of monies or conversion of building materials, in part because of the rather hazy recollections of the framer.  But given the circumstances it is understandable why the accusations may have been made but not until the trial process took place, were the inadequacies of the accusations exposed and I do not fault the defendants in any tortious sense.

The Defendants’ Claims

[59]            A portion related to completion of two basement suites.

[60]            It was conceded the house is in a single-family area and the basement suites did not show on the building plans.  The building inspector said that final occupancy would not have been given approval had completed basement suites appeared that were not on the approved plans.

[61]            The builders argued strongly at trial that the Shergills finished their house to a higher standard than the building contract, but made little in-road on the costs presented by the Shergills.  Nor was it clear whether costs were for the completion of the house, for repairs to work that had been done by the builders, or were in fact something over and above the original contract.

[62]            I refer to the Scott schedule at Tab 6 of the Trial Record:


Item No.




Item 1

exterior house painting



Item 2

electrical wiring and finishing



Item 3

contract for sidewalk and finishing



Item 4

miscellaneous carpentry finishing



Item 5

lighting fixtures


12/2002 – 01/2003

Item 6

granite main kitchen counter-top



Item 7

front arch, living-room repair window



Item 8

exterior house stair deck railings



Items 9/10

interior/exterior painting

$7,597 and $1,500.00


Item 11




Item 12




Item 13

Garage door opener



Item 14

Stones for fireplace



Item 14.5

vent for fireplace




drywall repairs – main hall and around windows




reinstallation of kitchen cabinets and installation of basement bathrooms and china kitchen




finishing alarm systems and wiring


11/2002 – 1/2003


replace damage to front door and missing door parts




three toilets and sink




shower doors, mirrors and closet organizers




installation of fireplace stones (see 14 above)


11/2002 – 1/2003


lumber for finishing two exterior basement stairs and framing for hot water and boiler-room


9/2002 – 1/2003


plumbing fixtures for kitchen and bathroom sinks


9/2002 – 1/2003






carpentry, finishing




hardwood flooring for living and dining-room and installation


1/2003 – 3/2003


tile work and caulking kitchen and bathrooms




Spindle railing installation




fascia boards


11/2002 – 7/2003


plumbing and heating repair and installation – Mr. Mooka




three lights, one mirror




front entrance finishing




two toilets in master bathroom and main floor bathroom







[63]            With respect to the basement suites, I find this part of the contract is not enforceable, which has two aspects: the first being the cost of construction and the second being the Shergill’s claim for lost rental income.  The cost of construction relating to development of the basement suites were items 34 – 41 and totalled $5,384.16.

[64]            In large part the costs were substantiated as presented in the Scott Schedule.

[65]            It was apparent from some of the reports and pictures that a very high standard finish had been obtained in spite of the structural deficiencies.  The work done by Mr. Mooker the plumber was obviously totally unsatisfactory, and is apparent from Mr. Marier’s report and Mr. Sheehan’s work.  He was simply not up to the job, yet he billed the Shergills over $11,000.

[66]            There was no evidence the exterior painting was deficient before 29 September, 2002.  The only complaint about the change in the plan from a bedroom to an open deck appeared to be that some of the flooring materials was badly laid.

[67]            Cabinets were taken out and replaced.  The landscaping was substantially more than envisioned by the builder.  The plaintiff’s difficulties in attacking this aspect of the case were apparent.  Doing the best I can, I reduce the defendants’ claim by $15,000.

[68]            The contract price plus the extras of $15,000 gives a total of $265,000 against which $203,000 has been paid by the Shergills, leaving $62,000.  With the reductions I have made, the total allowable cost of completion is $88,000, which results in $26,000 damages as against the builder for completion.

[69]            The defendants sought interest paid on the Bestway mortgage.  They said they had borrowed $70,000 from family but that was not substantiated.  They did borrow a high rate mortgage.  If indeed $130,000 was borrowed, it is more than I can fairly attribute to the completion of the contract and deficiencies.  I do find some borrowing was necessary and I allow $10,000 on this item of damages.

[70]            As well, I am satisfied there has been a loss in market value established.  Mr. Link put it at $130,000.  He did this on the basis of an assessment dated March 5, 2005, where he put the market value at $590,000, but after consideration of the deficiencies particularly the framing and the heating issues, he set an “as is” value at $460,000.  The final plumbing and heating certificate has still not been provided nor an occupancy certificate provided by the City of Surrey.

[71]            On the other hand, I note the Tiwana’s in their argument offered to purchase the house for $512,000.  Whether that was a valid offer backed by true financial resources can only be speculated at, and I have not heard anything from the parties as to whether that offer was turned into something more than a closing point in argument. 

[72]            No contrary report to Mr. Links was filed.  At the time of his inspection in 2005 he noted the framing affected headers, guardrails, cracks in tile, non-square windows and uneven floors.  On the other had, the pictures as I earlier noted, show a very high level of finish.  Accepting Mr. Link’s expertise in the market place, the standard of finishing persuades me that the buyer may well pay closer to the figure offered by the Shergills, and I set the loss of market value at $100,000. 

[73]            As I indicated earlier in my view the claim regarding the portion of the building proposed to be rented is contrary to public policy, and the claim for loss rental similarly is not enforceable as against the plaintiffs.

[74]            A Class Doors Limited claims $8,650, which is awarded.

[75]            New Century Tile and Granite claimed an amount to be determined at trial.  I fix that amount at $3,500.

[76]            The owners claim a constructive trust on the basis that there has been misappropriation of funds by the contractor.  The defendants claim a remedial constructive trust to give the defendants a proprietary claim on the Tiwana’s house for the amount of the liens, which I allow.

[77]            As well, the Shergills seek punitive damages against the plaintiffs. 

[78]            While the Tiwanas plainly did not keep records and did not tell the truth in the course of the trial, it is apparent that within the community the parties live in, a good deal of the building industry operates on trust, on a promise without paper, and when that trust is lost, the lack of proper recording inevitably leads to the conflict represented in this trial.  Given the number of trades that evidently operated on a cash basis, I can only assume that I was not looking at the only builder that operates in this fashion.  Counsel rightly point out the trust obligations contractors are obliged to respect under the Builders Lien Act is obtained by operating with proper building practices, proper accounting practices, and proper recording practices, and in this case, in my view, the damage award alone is enough to bring home to the community the disadvantages of not adequately managing, recording, and accounting in a proper business like fashion.  Had this been a trust claim under the Act, the plaintiffs would not be able to defend.  As it is they have barely managed to assemble a vestige of an accounting, parts of which proved false.


[79]            The Defendants seek special costs.  I am not inclined to award special costs.  However, the case has been one of particular difficulty to the defendants.  They have been largely successful.  Much of the difficulty faced in presenting their case was created by the plaintiffs’ lack of business practices, lack of accounting, and lack of proper paper record, and at trial it was apparent that attempts had been made to falsify some of the records.  I will therefore award costs at level 4 to the defendants.

[80]            However, there was one aspect of the trial, namely the issue of repudiation, and the plaintiffs claim for damages which were in part successful.  However, in my view that took but a small part of the trial and the plaintiffs may offset four days of the trial at scale 3.

“R. Crawford, J.”
The Honourable Mr. Justice R. Crawford