1127074 Alberta Ltd. 1127074 Alberta Ltd. operating as Fine Line Construction Plaintiff/Defendant by Counterclaim - v. -, 2019 ABQB 910

Court of Queen’s Bench of Alberta Citation: 1127074 Alberta Ltd v Olin, 2019 ABQB 910 Date: 20191128 Docket: 1301 04460 Registry: Calgary Between: 1127074 Alberta Ltd. 1127074 Alberta Ltd. operating as Fine Line Construction Plaintiff/Defendant by Counterclaim - and - Shane Derek Olin Defendant/Plaintiff by Counterclaim _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice E.A.

Hughes _______________________________________________________ Introduction [ 1 ] This is a contractual dispute between the plaintiff (and defendant by counterclaim), 1127074 Alberta Ltd., operating as Fine Line Construction (Fine Line), and the defendant (and plaintiff by counterclaim), Shane Derek Olin. [ 2 ] The parties agree that Mr. Olin retained Fine Line on or around September 30, 2012 to do certain concrete work. The parties part ways, however, on what work was included in the contract and whether the terms of the agreement were amended by discussions between Mr. Olin and Mr.

Straface, the owner of Fine Line, after September 30. In addition, Mr. Olin counterclaims alleging poor workmanship and claims for remediation.

Background Facts [ 3 ] The following facts are not at issue. [ 4 ] In August or September 2012, Mr. Olin approached Fine Line about completing concrete work at Mr. Olin’s residence that had been started by another company as well as doing additional concrete work. Mr. Olin and Mr. Straface met in person and spoke on the phone about the proposed work. On September 30, 2012, Mr. Straface emailed Mr. Olin about the scope of work and price.

The email states: Patio, stairs, walls and footing All materials will be supplied by Shane and any extra cost for materials bought from fine line will be payed back to me Two Walls with footing and the stairs are part of one of the walls setup and poured $5980 Setup the remaining lower patio and upper patio add on extra sf new price $2200 Please note fine line is not responsible for taking out the old upper wooden deck and laying down plywood but to only setup with rebar and forms and pouring the concrete Finish type (expose concrete) Pressure wash saw cuts and seal $1.50 a square foot No charge on spreading and levelling the dirt on the east side of the house No charge on usage of the dump trailer No charge on removing the old wood forms and placing new forms This quote is only for these projects only If any other projects are add it will be a separate quote. [ 5 ] To summarize, the email appears to state that Fine Line will: 1. provide two retaining walls with footing and stairs for $5,980; 2. set up the remaining lower patio, and prepare upper patio for $2,200; 3. pressure wash the concrete for an exposed finish, saw cut and seal the concrete for $1.50 per square foot; 4. not charge Mr.

Olin for the cost of the dump trailer, spreading or levelling the ground on the east side of the residence; 5. not charge Mr. Olin for removing old forms and placing new forms; and 6. be reimbursed by Mr. Olin for the cost of materials. [ 6 ] Fine Line began pouring concrete at Mr. Olin’s residence in early October 2012. The last pour occurred on November 20, 2012. On November 28, 2012, Mr. Olin noticed a crack in the lower patio and notified Fine Line. Fine Line offered to repair the cracks. The parties disagree about whether Mr. Olin allowed Fine Line to do so. [ 7 ] On November 30, 2012, Fine Line invoiced Mr.

Olin for $37,502.82 inclusive of GST ($19,823.45 for materials, $16,837.50 for labour, and $841.87 for GST). [ 8 ] On or about December 1, 2012, the parties met to discuss the issues with the project, including the cost of the work. [ 9 ] On December 6, 2012, Mr. Olin told Mr. Straface, via text, that he would send Fine Line a cheque for $18,034.69. He asked Mr. Straface to sign a document indicating the payment covered the cost for materials. That same day, Mr. Olin sent Fine Line a cheque for $19,323.45.

Enclosed with the cheque was a document that set out a list of expenses and requested a signature after the following statement: I, Robert Straface, confirm there are no further expenses in relation to any works done [at the residence] beyond those summarized and outlined herein up to and including the date hereof. [ 10 ] Mr. Olin emailed Fine Line on December 12, 2012, writing in part: I am prepared to pay you for your 3 rd party expenses in accordance with the spreadsheet I sent you last week together with a waiver similar to what I sent you.

This would reduce the amount you are claiming is owed to the $20,000 range which is an amount that you could personally persue [sic] in small claims court. If you don’t take the +/-$20,000 of costs then your claim is in the $40,000 range which would require you to go to Queen’s bench. At that level you require a lawyer, which would cost +/-$15,000-25,000. You can represent yourself at small claims and we also get free mediation to try and resolve the issue.

If you want the +/-$20,000 for your costs to pay your creditors than let me know and I will send over a revised spreadsheet. [ 11 ] Later that day, in a letter to Mr. Olin, Fine Line responded in part: Further to your email of December 6, 2012, the Release you have provided is unacceptable. You have requested that I confirm that “there are no further expenses in relation to any works done” beyond the amount of $19,323.45. As outlined in the invoice provided on November 30, 2012, the total amount for materials and labour due and owing at this time is $37,502.82. [ 12 ] Fine Line never accepted Mr.

Olin’s cheque for $19,323.45. [ 13 ] On or about December 12, 2012, Mr. Olin terminated Fine Line’s services and advised that a third party would complete the work at his residence. There are subsequent exchanges regarding further work that Fine Line was permitted to complete at Mr. Olin’s residence. In an email to counsel for Fine Line dated December 13, 2012, Mr. Olin wrote in part: There is no way [Mr. Straface] will be doing anymore work on my property with the exception that he needs to cut the slab, which is

long overdue and likely to cause damage soon if not damaged further already. Any other work he feels necessary to mitigate any potential damage to the concrete he is welcome to do as soon as possible, however, he will not be doing any further cosmetic concrete work at my property, nor will he be pouring any more slabs. [ 14 ] Fine Line sued Mr. Olin over his failure to pay the November 30, 2012 invoice. Fine Line seeks judgment in the amount of $37,502.82, representing the outstanding invoice. [ 15 ] Mr.

Olin counterclaimed, alleging that Fine Line breached the contract through unnecessary delays, poor workmanship, and the use of negligent construction techniques in violation of industry standards and the applicable Alberta Building Code. Mr. Olin initially sought $85,000 in damages for the cost of remediation, but at trial reduced his claim to $43,632.58. Issues [ 16 ] The issues raised in this matter are: 1. Whether there was an agreement between the parties regarding the scope of work? If so, what were the terms? 2. Did Fine Line carry out the work in a good and workmanlike manner? 3. Did Mr.

Olin take reasonable steps to mitigate his damages? [ 17 ] To determine these issues, findings of fact and credibility must be made. Due to the passage of time between the fall of 2012 and when this trial commenced in May 2018, memories have faded, which is not surprising. 1. Whether there was an agreement between the parties regarding the scope of work?

If so, what were the terms? [ 18 ] The parties disagree on what work was included in the September 30, 2012 email, and what additions or changes were made to this scope of this work. [ 19 ] Fine Line’s position is that the original scope of work increased, which then increased the price to be paid by Mr. Olin. Fine Line argues that there was a verbal amendment to the September 30, 2012 contract whereby the parties agreed that Fine Line would: 1. excavate the lower and upper driveway, including placing gravel on the driveway, and excavate other areas as requested by Mr.

Olin for $70.00 an hour, amounting to $3,640; 2. adjust the height of the retaining walls to accommodate for the change in the residence’s driveway design, with footing and stairs, for an additional $750; and 3. prepare and pour the upper patio and two sets of stairs from that patio for $3500. [ 20 ] Mr. Olin does not dispute that the email of September 30, 2012 was the agreement between the parties. However, he disagrees that the scope of work was amended as suggested by Fine Line.

Moreover, he argues that, as an additional term to their contract, Fine Line was required to finish the work at his residence by the end of 2012. Law [ 21 ] Mutuality of agreement lies at the root of any legally enforceable contract.

This was described in Ron Ghitter Property Consultants Ltd v Beaver Lumber Company Limited , 2003 ABCA 221 at para 9 : The common thread running through the cases is that the parties will be found to have reached a meeting of the minds, in other words be ad idem , where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. [citations omitted] [ 22 ] The objective reasonable bystander is key to the analysis. “What matters is not what the parties were thinking, planning, anticipating, or hoping; rather, courts look to how parties conducted themselves in the eyes of a reasonable, objective observer”: Schluessel v Margiotta , 2018 ABQB 615 at para 10 . [ 23 ] Determining what the essential terms are in a contract is fact-specific as depends on the nature of the transaction and the context in which it was made: Matic v Waldner , 2016 MBCA 60 at paras 59-60 , leave to appeal to SCC refused, 37161 (19 January 2017). [ 24 ] Terms are sufficiently certain when “the court can give reasonably definite meaning to what the parties have said”: Wood Buffalo Housing & Development Corp v Alves Construction Ltd , 2016 ABQB 249 at paras 43 and 47 citing Mitsui & Co (Point Aconi) Ltd v Jones Power Co , 2000 NSCA 95 at para 74 . [ 25 ] In Schluessel at para 11 , Burns J listed the guiding principles relevant to the law of oral contracts: Credibility: Witnesses’ credibility must be tested against those facts that are not seriously in dispute, and with the preponderance of the

evidence and the probabilities surrounding the events. Burden of Proof: The person seeking to enforce a disputed oral contract carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged oral contract was made. Basic Contractual Principles Apply: There must be proof of offer, acceptance, and certainty of terms. Consensus ad idem : Parties must agree on essential terms, and these terms must be capable of being determined with a reasonable degree of certainty.

Legal Test to Find Agreement: The Court must assess whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. This is not about a party’s subjective intention or belief; it is an objective test. Analysis [ 26 ] Mr. Olin testified that he was to pay for all materials. Further, I find that Mr. Olin’s December 12 email, set out above, is an admission that he owed Fine Line $19,323.45 for materials. This admission is $500 less than Fine Line’s November 30 invoice for materials.

The discrepancy appears to be in relation to a $500 line item for “wall installer for 7 foot wall.” [ 27 ] Mr. Olin provided no explanation for why the $500 claim for a “wall installer for 7 foot wall” was not paid by him. I find that these materials were paid for by Fine Line. As there is no evidence from Mr. Olin why this $500 amount should not be paid, I find Mr. Olin owes Fine Line for the total amount of the materials claimed, being $19,823.45. [ 28 ] The labour portion of Fine Line’s claim sets out six items. Two of these amounts were in the September 30 email, which Mr.

Olin acknowledges was the contract between the parties. Those amounts are $5,980 and $2,200. I find the work was completed by Fine Line respecting these amounts. Therefore, I find Mr. Olin owes Fine Line the sum of $8,180. [ 29 ] A third amount claimed was $767.50 for finishing the lower patio. The price in the agreement for finishing all concrete was $1.50 per square foot. Finishing comprised saw cutting the concrete, pressure washing the concrete, and sealing it. It appears this amount claimed was for saw cutting only.

While this work was done, in light of my findings respecting the saw cutting later in my decision, I find this work had no value and therefore is not payable by Mr. Olin. [ 30 ] This leaves three claims for labour which I must determine: Bobcat work $3,640 Top/upper patio $3,500 The additional wall $750 [ 31 ] These claims all require me to first determine whether the terms of the September 30 agreement were varied. I accept the evidence of Mr. Straface over that of Mr. Olin on this issue and find the agreement was varied to increase the scope of the work. I accept the evidence of Mr. Straface that when Mr.

Olin saw Fine Line’s quote, Mr. Olin added the driveway to the scope of work. I also accept Mr. Straface’s evidence that he discussed with Mr. Olin how other aspects of the project then needed to be increased. For example, by adding the driveway, Mr. Straface was required to excavate the area in question, which in turn increased the height of the cement planters. The cement planters were originally planned to be no more than two feet in height, and that height is what was reflected in the original labour quote of $5,980. I also accept Mr. Straface’s evidence that Mr.

Olin also increased the scope of work by adding front steps and a smaller set of steps closest to the garages. In addition, I accept Mr. Straface’s evidence that Mr. Olin asked him to remove “humps” on his property which Mr. Olin complained of. [ 32 ] I accept the evidence of Mr. Straface over Mr. Olin for two specific reasons. First, the walls of the cement planters are over two feet in height in locations. Indeed, one of the planter’s walls is over six feet high in one location. Mr.

Straface testified that while he is a journeyman, he does not have the certification to set up walls that will be over two feet high, and he had to retain another company to do the set ups. It makes no sense for Mr. Straface, who I find not to be a sophisticated businessman, to have provided a quote for concrete work when in fact he did not have the certification to do such work. Read-ins tendered by Mr. Olin in his case support this finding as well. I also note that it is Mr. Olin’s position, as set out in his amended counterclaim, that the original agreement was for “two walls, 2 feet in height”.

The counterclaim does not speak to walls that were up to six feet in height. [ 33 ] Second, Mr. Straface testified that his Bobcat has a clock on it that records the number of hours used per job. It is based on this clock that Fine Line billed Mr. Olin for an additional 52 hours of Bobcat work. Mr. Straface testified that he excavated the area for the driveway, he excavated the area for the footings due to the increased size of the planters, he spread extra loads of gravel as a result of the driveway, and that he did other extra work as requested by Mr. Olin, such as removing the “humps” on his property. Mr.

Strafaces’s evidence makes sense when considering the extra work. I note Mr. Olin testified that he was seldom at the home while Mr. Straface was working, so he is unable to testify to the hours Mr. Straface spent on the Bobcat. Once again, the read-ins tendered by Mr. Olin support this finding. [ 34 ] For these reasons, I find Fine Line has established its claim for the Bobcat work. I also find the claim for $750 is established as this was an additional cost Mr.

Straface paid to the company he retained to do the set up on the walls over two feet high. [ 35 ] Lastly, I turn to the claim for the top patio and two sets of stairs. Fine Line submits these items were not included in the original agreement. Mr. Olin submits they were included.

[ 36 ] I begin with the top patio. The September 30 email says: “Setup the remaining lower patio and upper patio add on extra sf new price $2200 Please note fine line is not responsible for taking out the old upper wooden deck and laying down plywood but to only setup with rebar and forms and pouring the concrete Finish type (expose concrete)”. [ 37 ] The evidence before me is that no wooden deck was removed from the lower patio. The photos only show an upper wooden deck on the front of the house. When I consider the evidence of the state of the structures at Mr.

Olin’s home in September, and when these two terms are read together, the only meaning I find on the standard of an objective observer is that the labour for the upper patio was a term of the original contract. Thus, I find Fine Line has not established the labour claim for the upper patio. [ 38 ] However, I do find that the original contract did not include either set of steps poured by Fine Line. The agreement makes no reference to steps of any sort. Thus, I accept Mr. Straface’s evidence that the steps were added at a later date.

I have set the value of the two sets of stairs at $750 based on the size of the steps versus Fine Line’s claim for the full amount. [ 39 ] In sum, I find that Mr. Olin owes Fine Line $19,823.45 for materials. I also find that Mr. Olin owes Fine Line $13,320 plus GST for labour ($5,980 + $2,200 + $3,640 + $750 + $750). 2. Did Fine Line carry out the work in a good and workmanlike manner? [ 40 ] In his closing submissions, Mr. Olin acknowledged that his sole complaint was with Fine Line’s work on the lower patio.

In particular, he takes issue with the number and size of cracks and the manner of the cuts in the lower patio slab. Mr. Olin submitted that Fine Line breached the contract when it failed to carry out the work in a good and workmanlike manner. He points to delays and poor workmanship, and alleges that Fine Line employed negligent construction techniques. [ 41 ] Fine Line argues that it performed the work in a good and workmanlike manner.

Law [ 42 ] Absent a clause directing the manner in which work must be carried out, there is an implied term in all contracts for work and labour that work be performed in a good and workmanlike manner: Viper Concrete 2000 Inc v Agon Developments Ltd , 2009 ABQB 91 at paras 30-33 and 39 . In Viper at para 32, Chief Justice Wittmann adopted the following description of the level of skill required to meet the standard of “good and workmanlike manner”: The contractor must do the work with all proper skill and care. It is suggested that this is a continuing duty during construction and not only upon completion.

In deciding what degree of skill is required the court will, it is submitted, consider all the circumstance of the contract including the degree of skill expressly or impliedly professed by the contractor. Analysis [ 43 ] Fine Line and Mr. Olin each tendered expert evidence with respect to the construction of the lower patio slab. Fine Line’s expert, Mr. Ken, observed the slab on June 20, 2013 less than one year after it was poured. Mr. Olin’s expert, Mr. Park, observed the slab in February 2017, almost four years after Mr. Ken, and four and one-half years from the date the lower slab was poured. By the time Mr.

Park was retained to examine the slab, Mr. Olin had made a number of changes to the property itself, and the slab had undergone further frost heave cracking because Mr. Olin took no steps to mitigate the damage over the years. Because Mr. Ken observed the slab at a time much closer to its pouring I prefer his evidence over that of Mr. Park unless stated otherwise. [ 44 ] Mr. Ken described his observations of the slab in this way: Along the north side of the residence a slab on grade concrete patio with an exposed aggregate finish was poured.

The south edge of the slab abuts the residence; the northeast edge has an exposed aggregate concrete pathway extending away to the east and curving to the south to the residence; the west and north faces do not connect to any other elements. Steel support posts extended down to ground level were also observed due to an existing above grade wooden deck. The concrete slab was poured around the posts but the interface between the post and concrete was not visible due to existing architectural embellishments.

It is M•L’s understanding that the south edge of the slab is connected to the residency through steel dowels and that steel reinforcement was also placed within the slab in an approximate 400 mm square grid. The slab thickness was approximately 75 mm thick and saw cuts were visible on an approximate 3 m by 3.5 m spacing. By inspecting random locations the saw cut depth appeared to vary between 5 mm to 20 mm.

It is also M•L’s understanding that the patio concrete was poured during the month of October 2012 and that the saw cuts could not be completed until December 2012 due to various building materials being placed in the work area by other trades working at the residence. Once the slab was cleared saw cutting was completed on, or around, December 19, 2012. During the course of our inspection no surface deterioration was observed, however, cracks within the slab were visible.

The largest crack was observed running in the east to west direction almost the entire width of the slab at approximately 1.5 m away from the residence. Additional cracks were also observed between the columns running east to west and in the slab near the sidewalk near the northeast corner. M•L was made aware that the cracks were more visible and wider during the winter months but have since subsided.

During the steady rainfall at the time of inspection no standing water, or ponding, was visible on the patio slab and the water appeared to be draining adequately away from residence. No downspouts were observed within the vicinity of the patio directing runoff away from the slab on grade. The overall visual condition of the concrete slab was positive with no visible surface deterioration and some cracking. Some blemishes, which appears to be masonry mortar, on the surface were observed that appeared to be left behind from other trades building materials. [ 45 ] Mr.

Ken went on to discuss the slab on grade patio and said this: In our opinion the patio slab has been subject to shrinkage cracking and frost heave action. No visual evidence of surface deterioration was observed. The patio slabs appear to have undergone frost heave action which has caused horizontal cracking approximately 1.5 m away from the residence. In accordance with typical construction practices it is our understanding that dowels extend 1 m into the slab from the face of the house to prevent upward movement and maintain the threshold at patio doors.

The presence of additional reinforcement overlapping the dowels and extending throughout the remainder of the slab will aid in preventing cracking due to freeze-thaw action, as it strengthens the concrete slab in tension; however, due to the fixed point at the steel columns from the upper level deck the tension in the slab may have been to [sic] great for the reinforcement to withstand resulting in the formation of a crack. The second form of cracking observed is shrinkage cracking.

This is caused by the shrinkage of the concrete due to moisture loss and it being restrained by the subgrade and surrounding concrete. Although saw cuts are present they were put in place one and half months after the pour at which point all the shrinkage cracking would have already taken place. [emphasis added] Our recommendation at this time to mitigate the potential of frost action would be to ensure all overland drainage and eavestrough down spouts be diverted away from the patio slab in order to reduce the amount of moisture in the ground beneath the slab. [ 46 ] Mr.

Ken concluded as follows: It is M•L’s opinion that the material in place displays evidence of frost heave cracking and shrinkage cracking within the slab on grade patio. The potential for future frost heave can be mitigated through proper drainage and ensuring that surface and eavestrough runoff is directed away from the patio area. It is our recommendation that the existing cracks all concrete surfaces be sealed to prevent water absorption into the concrete and ground below.

It should be noted that it is good practice for homeowners to reseal all concrete surfaces once every two to three years to maintain water resistance. [emphasis added] It is also our recommendation that all cavities on the planter walls be filled with a hand troweled grout mixture if a smooth surface is desired. Since no surface deterioration in the form of concrete delamination or scalling was observed it is our opinion that the material in place is adequate for its intended use. [ 47 ] Mr.

Olin submitted that Fine Line failed to carry out its work in a good and workmanlike manner by failing to cut the concrete within the time it should have been cut. The first crack observed by Mr, Olin in the lower patio slab was at the end of November. No saw cutting had been done by this time. [ 48 ] Mr. Park suggested this should have been done within approximately 24 hours of pouring the concrete. Mr. Straface said it could have been done up to one week after pouring the concrete.

Regardless of whose evidence I accept on this point, the evidence is clear that the concrete was not cut until one and one-half months after the pour. Therefore, according to Mr. Ken, all shrinkage cracking (which saw cuts are designed to limit or prevent) had occurred. This in itself establishes that Fine Line did not carry out the work in a good and workmanlike manner. [ 49 ] Mr.

Olin also submitted that Fine Line did not meet the requisite standard respecting the grade of the lower patio, the manner in which the four wood post supports were incorporated into the slab and the very placement of the slab itself. [ 50 ] As I have accepted the evidence of Mr. Ken, I also accept his observation that there was no pooling of water on the slab and that this indicates that the grade was acceptable. Therefore, I am not satisfied Mr. Olin established that Fine Line did not carry out the work in a good and workmanlike manner respecting the grade of the patio slab. [ 51 ] Mr.

Straface poured the concrete slab where the forms and gravel had been placed by a prior company retained by Mr. Olin to do the work. Mr. Olin did not ask Mr. Straface’s opinion with respect to the placement of this lower patio slab rather he hired him to finish this work. Further, I accept Mr. Straface’s evidence that it was Mr. Olin who determined the manner in which the posts would be affixed in the concrete. Mr. Olin did not ask Mr. Straface for his opinion on this matter. In addition, there is no evidence before me that these aspects of the work fall within the standard for Fine Line’s work. For example, Mr.

Park’s report speaks to “Good concrete [slab on grade] practice would include retaining a Geotechnical Engineer to confirm the soils and bearing capacity of soils to design a suitable sub-base to support the intended [slab on grade]…”. This evidence suggests that Fine Line could not have had the requisite expertise. 3. Did Mr. Olin take reasonable steps to mitigate his damages? [ 52 ] Fine Line argues that even if some of its work was not done in a good and workmanlike manner, Mr.

Olin failed to mitigate his damages by: (1) refusing offers by Fine Line to repair, remove, and repour the slab; and (2) failing to complete any remedial work on the property in a timely manner. [ 53 ] Mr. Olin argues that he: (1) permitted Fine Line to enter the residence to conduct repairs; and (2) worked as diligently as possible to resolve the problems beginning in spring of 2013 and continues to work on them to this day.

Law [54] A plaintiff has a duty to take reasonable steps to mitigate damages: Southcott Estates Inc v Toronto Catholic District SchoolBoard, 2012 SCC 51 at paras 23-24. Where a defendant alleges that a plaintiff failed to mitigate, the defendant must prove both that theplaintiff failed to make reasonable efforts to mitigate and that mitigation was possible: Southcott at para 24. [55] It is a question of fact whether a plaintiff took reasonable steps towards mitigation. The standard is one of reasonableness.

Onthe one hand, a plaintiff is not required to choose the least costly option; on the other hand, steps taken must not be grosslydisproportionate or unfair: Viper at paras 74-75; Darcy’s Hardwood Flooring Inc v Oleksyn, 2016 ABPC 104 at paras 26-27. [56] When a defendant offers to make some of the repairs such that it would reduce the loss to the plaintiff, the general rule is thatit is reasonable for the plaintiff to accept the offer: Westland Investment Corp v Carswell Collins Ltd, (AB KB),[1996] AJ No 21 at para 45, 179 AR 272 (QB); Darcy’s Hardwood at para 26.

Thus, in most cases, losses incurred as a result of thefailure to accept such an offer cannot be claimed as damages. [57] In regards to whether remediation was undertaken in a timely manner, the general rule is that the reasonable time forreplacement or repairs begins to run when the plaintiff should have known that the replacement or repairs are required: Viper at para 76.This is often the date on which the plaintiff is advised of an expert opinion that replacement or repairs are necessary. Analysis [58] I find that Mr. Olin did not permit Fine Line to attempt to remediate. Further, I find that Mr.

Olin did not take reasonable stepsto mitigate his damages. Fine Line offered two different methods of remediating the initial crack. Initially, Fine Line suggested that itwould appoxy the crack but that was refused by Mr. Olin. In addition, Fine Line offered to replace the pad at its own expense. However,Mr. Olin refused this offer because he did not want Mr. Straface on his property any longer. [59] I find that it would have been reasonable for Mr. Olin to have accepted either one of Fine Line’s offers.

As he did not, thelosses incurred as a result of his failure to accept those offers cannot be claimed as damages. [60] By 2013 Mr. Olin knew that Mr. Ken recommended that all existing cracks be sealed to prevent water absorption in theconcrete and ground below. However, Mr. Olin never took those steps. [61] Fine Line offered to take out the slab in question and re-do it at its own expense. However, there was no evidence as to thevalue of this work. Exhibit 1 at Tabs 14 and 18 provided two quotes for fixing the crack in the concrete. One was $269.08 and the otherwas $550.00.

I accept higher quote of $550.00 because it is a quote for both labour and materials while it appears the quote at Tab 14was for materials only. Considering that Mr. Olin was not apprised of Mr. Ken’s opinion until 2013, I award Mr. Olin the sum of$1,000.00. Conclusion [62] In conclusion, I find that the agreement reached by the parties on September 30, 2012 was varied to increase the scope ofwork. For this reason, I find that Fine Line shall have judgment against Mr.

Olin for: 1. $19,823.45 for materials; and 2. $13,320.00 plus GST for labour. [63] I find that Fine Line did not carry out the work in a good and workmanlike manner, but since Mr. Olin did not reasonablymitigate his damages, he is not entitled to his entire claim. I find that Mr.

Olin shall have judgment against Fine Line for $1,000.00. [64] Both parties are entitled to judgment interest calculated at the rate or rates prescribed under the Judgment Interest Act, RSA2000, c J-1 from the date of the last invoice issued by Fine Line, November 30, 2012. [65] Costs may be spoken to if the parties are not able to agree on them. Heard on the 22nd day of May, 2018 and the 1st day of June, 2018 and the 19th day of June, 2018 and the 11th day of February, 2019 and the 20th day of June, 2019 and the 9th day of September, 2019. Dated at the City of Calgary, Alberta this 28th day of November, 2019.

E.A. Hughes J.C.Q.B.A. Appearances: Ms. Ashley Hahn of Miles Davison for the Plaintiff Mr. Shane Derek Olin Self Represented Litigant