Hammer ’ s Construction Ltd. Plaintiff - v. -, 2011 ABQB 613

Court of Queen ’ s Bench of Alberta Citation: Hammer ’ s Construction Ltd. v. Comrades Parts & Accessories Ltd., 2011 ABQB 613 Date: 20111004 Docket: 0812 00328 Registry: Wetaskiwin Between: Hammer ’ s Construction Ltd. Plaintiff - and - Comrades Parts & Accessories Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Hammer’s Construction Ltd. seeks judgment for $28,708 against Comrades Parts & Accessories Ltd.

This is the amount Hammer’s alleges Comrades is obliged to pay pursuant to an entirely oral contract pursuant to which Hammer’s constructed a concrete pad abutting the existing business premises of Comrades and sidewalks at two residences. The work was performed in May 2008. [ 2 ] Hammer’s claim gives rise to two main issues:

a) What price was agreed for the work?

b) What work was covered by that price? Was the price all-inclusive or was work incidental to the provision of the pad and sidewalks to be paid for outside the contract price? [ 3 ] In addition to disputing Hammer’s allegations as to the contract price and the scope of the work covered by the contract price, Comrades defends on the basis that Hammer’s work was defective. Comrades has counterclaimed for the cost of remedying the allegedly deficient work. It also claims that it has suffered damage as a result of a lien registered against the title to the land by Hammer’s.

It claims the lien was wrongfully registered. The Plaintiff’s Claim Contract Price [ 4 ] There was no written contract. Evidence as to the agreement reached by the parties was given by 3 witnesses, the principal of Hammer’s, Graeme Bevington; a principal of Comrades, Ina Fisher; and Ms. Fisher’s daughter who was 12 at the relevant time. [ 5 ] The work consisted of 3 parts – construction of:

a) a concrete pad 40 feet by 60 feet to be placed immediately adjacent to Comrades’ existing business premises,

b) a sidewalk at the residence of the principal of Comrades, and

c) a sidewalk at the residence of a parent of one of the principals of Comrades. [ 6 ] Mr. Bevington testified that when he was in Comrades’ store in May 2008 Ms. Fisher asked him what he would charge to construct a 4" thick floating concrete pad. He said $6 a square foot. The next day she asked him if he would do the two sidewalks. They went to the house where one of the sidewalks was to be constructed and discussed what Ms. Fisher wanted which was a “stamped” concrete sidewalk. Mr. Bevington testified that he quoted $10 a square foot for that job.

The other sidewalk was to be a brushed concrete sidewalk for which, Mr. Bevington testified, the going rate was $8 a square foot. He did not quote any price for that sidewalk. He eventually charged it at $8 a square foot. [ 7 ] Ms. Fisher’s testimony was that Mr. Bevington initially quoted $6 a square foot for the concrete pad and when she asked him about the two sidewalks, he said he would construct them at the same price, $6 a square foot, if he was retained for all 3 jobs. [ 8 ] Ms. Fisher’s daughter’s testimony was exactly the same as Ms.

Fisher’s. [ 9 ] Counsel for each party points to aspects of the evidence which they submit bolster or corroborate the evidence of their respective clients. In my view none of the matters they refer to provides a basis for preferring the evidence of one over the other. [ 10 ] I am certainly not prepared to hold that the evidence of Ms. Fisher’s daughter provides reliable corroboration for Ms. Fisher’s evidence. The daughter testified that she was not aware of the dispute until 2 years after it occurred and was asked at that point what she recalled of a conversation between her mother and Mr.

Bevington which she had witnessed 2 years earlier when she was 12 years old. Those circumstances and the fact that her testimony as to the price she heard quoted was almost in exactly the same words as her mother’s testimony on the subject renders her evidence unworthy of any weight. I think it necessary to state that in my view the decision to call this child to give evidence at this trial was extremely misguided.

[ 11 ] Even so, I am left without any satisfactory basis upon which to resolve the conflict in the evidence. The onus is on the Plaintiff to prove that which it alleges on a balance of probabilities. I am not satisfied that Hammer’s has done so. That Mr. Bevington quoted $6 a square foot for any portion of the work is the only point at which the evidence of the two witnesses intersect. I find that the contract price was $6 a square foot for all 3 parts of the contract. [ 12 ] I find that the square footage involved in the 3 jobs and the total amount payable for Hammer’s work was:

a) the concrete pad 2400 sq ft @ $6 $ 14,400

b) the stamped sidewalk 660 sq ft @ $6 3,960

c) the brushed sidewalk 208 sq ft @ $6 1,248 Total 19,608 Scope of Work Included in Contract Price [ 13 ] Ms. Fisher understood the price quoted was the price for all work necessary to construct the concrete pad and sidewalks as they were described in the conversations between her and Mr. Bevington. [ 14 ] Mr. Bevington did not testify that there had been any discussion as to exactly what was included in the price. He testified that he assumed that some of the required work was incidental to the concrete placement and, in accordance with normal industry practice, would be charged for separately.

In his accounting for the amount claimed, he identifies the removal of a step and existing sidewalk, transporting of sand from a sand pit on the property where one of the sidewalks was constructed, and labour for the placing and packing of gravel screenings as incidental work. In addition after commencement of the work on the concrete pad, a discussion between Mr. Bevington and Ms. Fisher resulted in a change in the design of the pad from what Mr. Bevington had originally understood. This required further excavation. For all of this incidental work Mr.

Bevington charged a total of $5074.75. [ 15 ] There is no evidence of any agreement on the part of Comrades to pay anything more than the $6 a square foot. Mr. Bevington’s assumption as to what would be included in the price and what would be incidental are incapable of creating an obligation on the part of Comrades unless they were the subject of express agreement. The evidence does not indicate they were ever mentioned, let alone made the subject of express agreement. Hammer’s has failed to prove that the contract contemplated any payment beyond $6 a square foot.

I find that the contract price was all-inclusive. Conclusion Regarding the Plaintiff’s Claim [ 16 ] The evidence establishes an oral contract between the parties pursuant to which Comrades is obligated to pay Hammer’s $19,608 plus G.S.T. for work performed. Before determining whether Hammer’s is entitled to judgment in that amount, I must consider Comrades’ counterclaim. The Defendant’s Counterclaim [ 17 ] In the counterclaim Comrades alleges that Hammer’s work was defective. In particular:

a) it did not meet the standards required in the Building Code or municipal standards,

b) it was not capable of being used for the purpose Comrades intended,

c) it was not built in compliance with the engineering plans intended to be used in the construction,

d) the concrete pad cracked and the surface bubbled and flaked,

e) the concrete pad was uneven, and

f) a drainage hole placed in the pad was not properly sloped. [ 18 ] Comrades alleges that it paid $14,125.67 to remedy the deficiencies in Hammer’s work. It alleges further that as a result of having to remedy these deficiencies it was delayed in proceeding with the project of which the concrete pad was part and that the cost of materials for the remainder of the project had increased by the time it was possible to proceed. It claims that the increased cost of the materials was $4,924.62. [ 19 ] Comrades also claims that Hammer’s wrongfully filed a builder’s lien against the title to its business premises.

It claims that its bank “withheld the amount set out in the Plaintiff’s lien, namely, . . . $28,708 and is charging interest thereon at the rate of 6.85% p.a. until the lien is removed”. [ 20 ] The evidence establishes that Mr. Bevington set out to construct a 4" thick concrete pad. After he had begun construction, Ms. Fisher became concerned that the pad he was constructing would not suit Comrades’ purpose - the construction of a building on the pad. Accordingly Mr. Bevington made changes required to provide a thickening of the pad around the edges. He testified that he placed re-bar in the concrete.

He testified that he complied with Ms. Fisher’s request regarding sloping the pad in one area to accommodate a drain. [ 21 ] There is no evidence that the oral contract contemplated that Hammer’s would construct the concrete plan according to engineered plans. Indeed there was no evidence that engineered plans existed for the project. There had been engineered plans for the existing original building and Comrades intended to use the same plans for the addition, notwithstanding that the addition was 1200 square feet smaller than the original building. There was no evidence that this was possible.

There was evidence from a building inspector that it was not permissible. There was no evidence that the parties agreed as a term of the oral contract between them that the plans would play any

part in the construction to be undertaken by Hammer’s. [ 22 ] Indeed the evidence is in conflict as to the specifications which the oral contract contemplated. Mr. Bevington testified as to the specifications he was working to. He testified that he achieved them. Ms. Fisher testified that the agreed specifications were different and were not achieved. As in the case of the contract price, I am unable to resolve this conflict. In this instance, since it is Comrades who alleges that the agreed specifications were not met, the onus of proof is on Comrades.

It has not proved that there was any meeting of the minds regarding specifications. It has not proved a failure to meet contractual specifications. [ 23 ] Neither has Comrades proved a failure to meet the Building Code standard or any other externally imposed standard. The evidence on that point was that of a building inspector called by Comrades who testified that on his inspection of Hammer’s work, he concluded that the concrete pad met the requirements of the Building Code. There was no expert evidence to the contrary.

There was no evidence as to “municipal standards” as alleged in the counterclaim or as to whether they were met. [ 24 ] Both Mr. Bevington and Ms. Fisher testified that Ms. Fisher requested that the concrete pad be sloped in one area to facilitate the operation of a drain. Mr. Bevington testified he provided what Ms. Fisher requested in that regard. Ms. Fisher testified that what he

provided was not satisfactory. Comrades has not satisfied its onus of proving that Hammer’s did not perform as it agreed to in relation to the drainage sloping. [ 25 ] There was evidence that Comrades retained an engineer after the fact to advise what was necessary to make the concrete pad capable of bearing the building Comrades wanted to build on it.

There was also evidence that Comrades retained another contractor to perform the upgrading work that the engineer recommended. [ 26 ] That evidence however does not establish that there was any design deficiency in Hammer’s work because, as noted, the evidence does not establish that there were any design requirements agreed between Hammer’s and Comrades, let alone that they were not met. [ 27 ] The engineer retained by Comrades did test the concrete pad to determine if it contained re-bar. He also measured the thickness of the concrete pad placed by Hammer’s in various places.

He could not however recall the measurements he observed. Hammer’s objected to the report he provided to Comrades being adduced in evidence because there had been no compliance with the Rules of Court regarding notice of expert evidence. I ruled the report and the engineer’s opinions to be inadmissible.

Comrades has not proved that there was any deficiency with regard to re-bar in the pad or that the pad was not of appropriate thickness. [ 28 ] The contractor who carried out the work recommended by the engineer who advised as what was necessary to permit Comrades to build on the pad, testified as to the work he did and what he charged for it.

Given that it has not been proved that Hammer’s work did not meet contract specifications, since no contract specifications have been proved, that portion of the second contractor’s work which rendered the pad usable as Comrades wanted to use it has not been shown to be damages suffered by Comrades as a result of any breach of contract by Hammer’s. [ 29 ] Photographs purporting to show cracking and an uneven surface were put in evidence. Any conclusion that the photographs show deficiencies would depend on accepting the opinion of lay persons, Mr. and Ms. Fisher. That would not be appropriate.

No expert evidence interpreting the photographs was adduced. [ 30 ] Moreover, there was no evidence that the flaws depicted in the photographs, if they were flaws, resulted from any failure on the part of Hammer’s to properly perform the work it undertook. [ 31 ] The claim for increased cost of building materials resulting from project delay must fail. Comrades has not proved any breach of contract by Hammer’s.

It follows that even if there was satisfactory evidence that materials cost more when they were purchased than they would have cost when Comrades had expected to purchase them, which there is not, it has not been proved that the extra cost resulted from any default on the part of Hammer’s. [ 32 ] As to the claim for damages for a wrongfully filed builder’s lien, it was not established that the builder’s lien was wrongfully filed, or that, if it was, any damage resulted.

The cryptic allegation in the counterclaim regarding the bank withholding funds and charging interest as a result of the builder’s lien was not mentioned in the evidence. [ 33 ] In

summary, Comrades has not satisfied its onus of proof in relation to the counterclaim. Conclusion [ 34 ] Hammer’s shall have judgment on its claim for $19,608 plus G.S.T. ($980.40) plus interest at the applicable pre-judgment interest rate calculated from June 30, 2008. The counterclaim is dismissed. [ 35 ] There has been mixed success. Each party shall bear its own costs.

Heard on the 16 th day of June 2011. Dated at the City of Edmonton, Alberta this 4 th day of October 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Wayne Throndson for the Plaintiff Douglas A. Sawle and David R. Francoeur for the Defendant