$10,000 in windows, $200,000 in court costs

Niagara builder’s fight over payment leads to fine, contempt of court and $200k in costs assessed

“All this over $10,000.”

So begins a 41-page Divisional Court ruling handed down in Hamilton recently that lays out how a Niagara home builder and associated parties have been hit with $200,000 in court costs over the course of a decade-long fight to avoid paying $10,000 for windows.

Along the way, the defiant defendants have also been found in contempt of court, hit with a $10,000 fine and lost ownership of the property in question after it was ordered sold by a judge.

The story seemed simple enough when it started back in 2008.

One of Andrew Ferri’s companies was building a house in Fort Erie as part of a subdivision development, and the builder installed windows costing $12,800 from Burlington-based Pollard Windows.

About $2,500 was paid but a little over $10,000 went unpaid, so Pollard registered a lien against the property and went to court to try to collect the balance owing.

Then things went badly off the rails.

“Rather than paying $10,000 for the windows used to enhance the value of the house that his company was building, Mr. Ferri embarked on a decade-long effort to defeat the rights of the supplier,” the Divisional Court decision states.

Ferri did not respond to requests for comment made through his lawyer.

In 2010, a judge awarded Pollard Windows a judgment for $10,313 and ruled the construction lien against the Fort Erie property was valid.

Four years later, the same judge ordered the property sold, and the $358,000 in proceeds from the sale are still being held by the court for final distribution.

Undeterred, Ferri came forward with a different numbered company and tried to argue that it was the mortgage holder on the Fort Erie property. He claimed his mortgage took priority over Pollard’s lien and the proceeds from the sale should be paid to his company.

Not surprisingly, the judge asked for proof, and then discovered there really wasn’t any.

There was no evidence that any funds had been advanced under the mortgage and no bank records were produced.

Ferri claimed the documentation was lost in a fire. But his lawyers testified and they could provide no documentation either that money had been advanced under the mortgage.

“The mortgage was a sham to defeat creditors’ interests,” the court ruled. Pollard’s claim, and its growing mountain of cost awards, were given priority when the proceeds of the sale eventually get released.

Ferri’s company then tried to sell the property through a power of sale — at the same time the court was proceeding with a judicial sale of the property.

That earned Ferri’s company a finding of contempt and a $10,000 fine in March 2018.

Even after admitting liability for its contempt before the judge and apologizing to the court, Ferri’s company then tried to argue the judge shouldn’t have found it liable for contempt.

Ferri and his companies then launched a flurry of six appeals of various decisions earlier this year. On Aug. 19, the three judges on the Divisional Court panel unanimously agreed to dismiss all six appeals.

Costs against Ferri and his companies have now climbed to about $200,000, not counting whatever costs Pollard is awarded from the latest decision.

In a statement provided to The Spectator, Pollard Windows said it was “very pleased” with the Divisional Court decision.

The Burlington company is “encouraged by this result and are optimistic that a positive outcome will be obtained after more than 10 years of litigation.” Yet still the saga continues. Ferri has decided to appeal the latest ruling to Ontario’s Court of Appeal.