1579959 Ontario Inc. (Fusion Homes) v. Sheikh et al.
2025 ONSC 185 | Ontario Superior Court of Justice
A renovation contractor sued homeowners for over $140,000 in unpaid work on a $232,000 sunroom conversion project. The homeowners claimed the contractor abandoned the job and counterclaimed. After a 4-day trial, Calvin Zhang obtained judgment for $105,804.92 — after successfully excluding the homeowners' expert witness through a voir dire that exposed his complete lack of qualifications to opine on the construction issues in the case.
The Commercial Problem
Our client, Fusion Homes, had contracted to renovate a residential property at 251 Oak Hill Road, Mississauga — converting an uninsulated sunroom into a two-story living space. The project grew through approved change orders: the original contract was $104,925, an “Option A” change order added $58,916.80 for the two-story conversion, and additional approved extras brought the total contract value to $232,020.86.
The homeowners paid $91,598.06, then stopped paying in October 2021 — even as Fusion continued working on the project through May 2022. When Fusion issued its final invoice for $138,700.41, the homeowners refused to pay and accused Fusion of abandoning the work.
The homeowners then hired a “home inspector” to prepare a report cataloguing alleged deficiencies and incomplete work. Based on that report, they counterclaimed for $17,086.82, asserting that Fusion owed them money rather than the other way around.
The core anxiety for any contractor in this position is straightforward: you completed the work, you have the invoices, but the other side has hired someone with “expert” credentials to say your work was deficient. If that expert evidence goes unchallenged, it can reduce or eliminate your judgment entirely — even when you know the work was done properly.
Key Strategic Decisions
Decision 1: Challenging the Expert via Voir Dire
Most lawyers accept opposing expert qualifications without serious challenge. The conventional approach is to attack the expert's conclusions during cross-examination rather than challenge their right to testify at all. Calvin took a different approach.
The homeowners' expert, Lawrence Jeffrey Clarke, was a home inspector. Calvin requested a voir dire — a trial-within-a-trial — to test whether Clarke was actually qualified to give expert opinion evidence on the specific construction issues in this case.
During cross-examination on the voir dire, Calvin exposed critical gaps in Clarke's qualifications. His CV was thin, consisting mostly of generic courses from the 1980s and 1990s. His affidavit on qualifications was a single paragraph. His examination-in-chief during the voir dire was, as the trial judge noted, “perfunctory.” He could not specifically connect his education or training to the construction issues in this case. He even admitted that his university courses — in History, Biblical History, and Political Science — were irrelevant to the matters before the court.
The result was devastating for the homeowners. Justice Trimble ruled that Clarke was not qualified as an expert witness. Without their expert, the homeowners had no evidence to support their deficiency claims or their cost-to-complete calculations. Their entire counterclaim strategy collapsed.
Decision 2: Attacking the Hearsay Evidence
Beyond the expert witness, the homeowners attempted to introduce multiple documents to support their counterclaim — estimates, repair quotes, and cost assessments from third parties. The problem: the authors of these documents were never called to testify.
Calvin systematically objected to each of these documents as hearsay. Without the authors available for cross-examination, the documents were inadmissible. This further stripped the homeowners of the evidence they needed to establish the value of their counterclaim. One by one, the pillars of their defence were removed.
Decision 3: Proving Breach, Not Abandonment
The homeowners' primary defence was that Fusion had abandoned the project. If successful, this would have shifted liability entirely — a contractor who abandons a job loses the right to claim for unpaid work.
Calvin built the factual record to demonstrate the opposite. The evidence showed that the homeowners stopped paying in October 2021, but Fusion continued working on the project until May 2022 — seven months of work without payment. The contractor did not walk away from the project. The homeowners stopped the money. The court found that it was the homeowners, not Fusion, who breached the contract by refusing to pay for work that was performed.
Result
Justice Trimble awarded Fusion Homes judgment of $105,804.92, plus $5,642.93 in prejudgment interest. The total claim of $153,409.61 was reduced by $59,776.94 to account for HST corrections, overcharged management fees, and certain deficiency repairs that the court accepted — arriving at a net judgment of $93,632.67 plus HST.
The homeowners' expert was excluded. Their abandonment defence was rejected. Multiple counterclaim items were disallowed entirely because the supporting evidence was either hearsay or came from a witness who was not qualified to give opinion evidence.
The homeowners appealed. The Divisional Court dismissed the appeal in Sheikh v. 1579959 Ontario Inc., 2026 ONSC 1322 — confirming Justice Trimble's findings on all issues.
Comparison:
If we had not challenged the expert's qualifications through the voir dire, Clarke's report would have been before the court as expert evidence. His deficiency calculations and cost-to-complete figures could have substantially reduced or even eliminated the judgment. The voir dire was the turning point of the entire trial.
Three Takeaways for Contractors Facing Similar Disputes
1. Challenge opposing expert credentials — do not just accept them. The threshold for qualifying as an expert witness in Ontario is governed by R. v. Mohan and White Burgess. A home inspector is not automatically qualified to opine on specific construction deficiencies. If the opposing expert's CV does not demonstrate specialized knowledge, training, or experience in the precise issues before the court, a voir dire can remove that evidence entirely. Most lawyers skip this step. Calvin did not.
2. Document your work meticulously. Fusion's detailed invoices, change orders, and progress records were essential to establishing that the work was performed, that extras were approved, and that the contract value was what Fusion claimed. Without that paper trail, it would have been the contractor's word against the homeowner's. Contractors who keep organized records are contractors who win at trial.
3. Contractor abandonment claims can be defeated when the real issue is non-payment. Homeowners frequently accuse contractors of “abandoning” projects when the true sequence of events is that the homeowner stopped paying first. If you can demonstrate that you continued working after payments stopped — and that you only ceased work because the client cut off funding — the abandonment defence fails. The timeline is everything.
Facing a Construction Dispute or Unpaid Contractor Claim?
We recommend a 60-90 minute legal posture assessment to evaluate your construction dispute — including the strength of your evidence, whether opposing expert reports can be challenged, the most probable outcome range, and the best procedural strategy to resolve your case efficiently.
This is not a sales meeting — it is a litigation-focused diagnostic to help you decide whether, when, and how to take legal action.
Legal Framework
- Ontario Construction Act, R.S.O. 1990, c. C.30 (construction lien and trust provisions)
- R. v. Mohan, [1994] 2 SCR 9 (expert qualification framework)
- White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (expert independence and impartiality)
- Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (trial procedure and evidence)
- Hearsay rule — exclusion of out-of-court statements tendered for the truth of their contents
- 1579959 Ontario Inc. v. Sheikh et al., 2025 ONSC 185 (trial decision)
- Sheikh v. 1579959 Ontario Inc., 2026 ONSC 1322 (appeal dismissed, Divisional Court)
This page describes a case handled by Starkman & Zhang Lawyers. To protect client confidentiality, certain non-critical details have been generalized. The core facts, strategic decisions, and outcomes are accurate. This page does not constitute legal advice — every case depends on its specific facts. Contact us to discuss your situation.