Sherman (White Palms Drywall) v. Everest Builders Ltd., 2011 ABQB 754

Court of Queen ’ s Bench of Alberta Citation: Sherman (White Palms Drywall) v. Everest Builders Ltd., 2011 ABQB 754 Date: 20111201 Docket: 0903 14803 Registry: Edmonton Between: Joshua Sherman operating under the style and cause of White Palms Drywall and White Palms Drywall Ltd. Plaintiffs - and - Everest Builders Ltd. and 1334926 Alberta Ltd. Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Sterling Sanderman _______________________________________________________ [ 1 ] A developer in the City of Edmonton, 1334926 Alberta Ltd., owned property on Gateway Boulevard. The developer wished to build an office building on this property. Everest Builders Ltd. (“Everest”) was hired as the general contractor to ensure that the project was completed. A number of subcontractors employed in a number of trades worked on the project.

The Plaintiffs, Joshua Sherman operating under the style and cause of White Palms Drywall and White Palms Drywall Ltd., were involved in this project. [ 2 ] The Plaintiffs became involved in this project when they were approached by Randy Dunn, an individual who appears to have occupied a number of positions. It certainly would have been enlightening to have had Mr. Dunn’s testimony at the trial of this matter. Neither party called him.

[ 3 ] Mr. Dunn had a business card that indicated that he was the Vice-President of Operations of Everest. He was involved in companies of his own that were connected to the construction industry. One of them, K2 Drywallers was in charge of the drywall installation at the Gateway Boulevard project. It appears as if Mr. Dunn served as the project manager for this building site. [ 4 ] K2 Drywallers hired the Plaintiffs to perform work on the Gateway Boulevard Project. Mr. Sherman and his companies did not perform any work other than to hire other drywalling firms to do it.

The Plaintiffs were to supervise their work. [ 5 ] Everest was the general contractor. Dunn appears to have been an employee of Everest who either quit or was relieved of his responsibilities during the course of the project. [ 6 ] Mr. Sherman on behalf of himself and the companies he operates started this action against Everest and 1334926 Alberta Ltd. The action against 1334926 Alberta Ltd. was discontinued. Mr. Sherman advanced his claim against Everest. Everest filed a counterclaim seeking compensation from Mr.

Sherman on the basis that the work that he performed was substandard and had to be substantially remediated. [ 7 ] As Mr. Sherman failed to take the proper steps to ensure that the Builders’ Lien he filed against the property was perfected, this matter proceeded as a debt action. Mr. Sherman claimed that he is owed slightly in excess of $55,000.00. Everest’s counterclaim is almost $48,000.00. [ 8 ] On November 14, 2011 three individuals testified at this trial. Mr. Sherman testified on behalf of himself and his companies. He called one of the subcontractors who did work on the project in accordance with Mr.

Sherman’s instructions. An officer for Everest presented evidence on its behalf. Documents identified by the witnesses were entered as Exhibits in the trial. [ 9 ] The counterclaim advanced by Everest can be dismissed out of hand. Mr. Lewczyk, the officer who testified on behalf of Everest, offered no evidence of any sort in relation to the alleged shortcomings of the work performed by drywallers on behalf of the Plaintiffs. There was no evidence of any work having been performed to fix any deficiencies in relation to the drywalling performed at the Gateway project.

The evidence led fell far short of even establishing a suggestion of inferior work. The counterclaim fails. [ 10 ] If one was called upon to characterize the evidence led by the parties at this trial two words would suffice. It was sparse and imprecise. Limited and incomplete documentation was provided by Mr. Sherman. It was difficult to get a true picture of what was done, by whom and when. Both Mr. Sherman and Mr. Lewszyk have incomplete memories. There were significant gaps in the documentation provided. Even the documents that were presented by the parties were incomplete. [ 11 ] Mr.

Sherman claimed that he faxed certain invoices to Everest but could not provide fax confirmation numbers for any of them. He was not able to provide cancelled cheques in relation to payments he said he made to other drywallers who performed work. He claimed that the cheques had been honoured but there was no independent evidence of this. [ 12 ] He was not able to provide bank records in place of the cancelled cheques. He had been asked to produce these to show that the sub-trades he employed had been paid. He had given an undertaking to do so but had not complied with it. Mr.

Sherman claimed that he had substantial dealings with Mr. Dunn on the work site but could provide no documentation that showed he had a firm relationship with Everest. [ 13 ] The same criticisms can be made in relation to Mr. Lewszyk’s evidence. He made many assertions that were not supported by invoices, cancelled cheques or written instructions. He chose to produce very few documents. He blamed Mr. Dunn for being lazy and not producing the proper paperwork. At times his evidence, like Mr. Sherman’s, was impressionistic as opposed to precise and accurate.

The Court has been hampered considerably in making firm findings of fact that could be embraced in good conscience. As indicated earlier, the person in the middle between the parties was Mr. Dunn. Both parties attributed certain actions to him that they claim support their position. Neither party called him.

[ 14 ] The incomplete documentation, compromised memories, recollections influenced by hearsay and biased perceptions have made it difficult for the Court to make unassailable findings of fact. The best the Court has been able to do is to arrive at a rough reconstruction of what took place between the parties. [ 15 ] It is abundantly clear that although the Plaintiffs in their individual and corporate forms did not perform any work for Everest, funds were paid to subcontractors hired by Mr. Sherman who did some work. Everest received the benefit of the work done. Everest did not pay for it.

Everest has not been able to establish that the work was deficient in any fashion. Everest owes the Plaintiffs $27,000.00. That is the amount that the Plaintiffs have been able to establish is owed to them on a balance of probabilities. Even with all of the problems inherent in the evidence presented by the Plaintiffs, the claim is established to this amount. The Plaintiffs will have judgment in the sum of $27,000.00 and are entitled to costs. Heard on the 14 th day of November, 2011. Dated at the City of Edmonton, Alberta this 1 st day of December, 2011. Sterling Sanderman J.C.Q.B.A. Appearances: Jason R.

Thomas for the Plaintiffs Cameron B. Falconer for the Defendants