Yaris v. Zuccatto, 2017 ABPC 243

In the Provincial Court of Alberta Citation: Yaris v. Zuccatto, 2017 ABPC 243 Date: 20170908 Docket: 17016 00032 Registry: Drumheller Between: James Yaris Heather Jones - and - Dean Zuccatto Judgment of the Honourable Judge G.J.

Gaschler [ 1 ] The Plaintiffs brought action against the Defendants Dean Zuccatto and Zuccatto Lawncare and Bobcat Services Ltd. for the cost of repairing a fence damaged by a windstorm, which fence was built by the Defendants at the Plaintiff’s newly constructed home. [ 2 ] In reference to naming the individual Dean Zuccatto as well as the corporation, counsel for the Plaintiffs submitted that the Plaintiffs did not know and were not made aware that they were dealing with a corporation, but believed rather that they had been dealing with Dean Zuccatto.

Plaintiff’s counsel cited Business Corporations Act RSA 2000, C. B-9, s. 10. Dean Zuccatto admitted that he had not used any of the terms: Limited, Incorporated or Corporation, nor any abbreviations thereof and had not informed the Plaintiffs that he had incorporated his business.

I accept that the action is properly brought against the individual Dean Zuccatto. [ 3 ] During the course of the trial a number of documents and photographs were presented, explained considered and marked Exhibits, excepting that a package of 32 photographs presented by the Defendant, taken before, during and after the construction of the fence were, by error, not officially marked as an Exhibit. The Defendant’s photographs are accepted as an Exhibit and will, all together, be marked with the next Exhibit number.

Photograph 32 of the Defendant’s Exhibit shows a completed perimeter fence, described as board panels, 6’ in height, 8’ in width (adjusted for corners and gates). Eight foot 4x4 posts were placed two feet into the ground from grade. The completed fence appears above ground to be straight, level, plumb and well-constructed. [ 4 ] Two months, approximately, after the fence was built, it was blown over in a windstorm. The fence was rendered unsuitable for its purpose and unsafe. Repair is required. The Defendant described the windstorm as horrific.

No other evidence concerning the windstorm was called by either party. There was no evidence that other structures or trees were damaged in the windstorm.

[ 5 ] The Defendant did not argue that by reason of the velocity or nature of the wind that his construction was without fault, rather the issue was the extent of and cost of repair. [ 6 ] The Plaintiffs insurers directed an inspection of the fence for determination of cause of failure and cost of repair. Cory Nickel gave evidence for the Plaintiffs. After a voir dire wherein Mr. Nickel gave evidence as to his experience in construction, I accepted that Mr.

Nickel was qualified to give opinion evidence as to methods and practises in respect of fence building and his opinion as to why this fence failed in the windstorm. [ 7 ] Mr. Nickel testified that the fence was not properly installed; that most of the posts were not placed in the ground deep enough. Mr. Nickel further gave an estimate of cost of repair of the fence which included replacing 8’ (4x4) posts with 10’ (4x4) posts, with 1½ bags of redi-mix concrete at the base of each post. Mr. Nickel testified that the posts ought to have been placed 3’ in the ground rather than 2’.

Further that 1½ bags of concrete ought to have been used in each posthole rather than the 1.1 bags that he determined the Defendant had used from examination of the Defendant’s invoices. [ 8 ] The fence had been built in levelled ground upon which topsoil had been spread.

At the time of construction the Plaintiffs had expressed concern with placing the posts only 2’ in the ground below grade, especially since topsoil had been hauled in and spread. [ 9 ] Following upon this conversation with the Plaintiffs the Defendant modified the design whereby 6x6 posts 10’ in length were used for corner posts and gates. [ 10 ] The Defendant testified that he purchased the Co-Op standard fence package for a 6’ tall board fence, which included 4x4 posts 8’ tall.

The Defendant testified that he believed the post depth was determined by a one third in the ground, two thirds above ground “rule of thumb”. Myrna Doktorchik was called as a witness by the Defendant. Ms. Doktorchik works for Drumheller Co-Op and assisted the Defendant in his purchase of the 6’ tall board standard fence package. Ms. Doktorchik acknowledged that she knew of the 1/3-2/3 rule of thumb, but said her understanding was that it is the minimum. She testified that Co-Op invites customers to upgrade the materials in the standard package.

She testified that she did not know the soil type of the area for the proposed fence and was not consulted nor asked for advice as to proper depth of the fence posts. She testified that Co-Op standard package includes sufficient redi- mix concrete for 1½ bags per fence post hole. [ 11 ] I accept that the failure of the fence was due to the fence posts being placed insufficiently deep in the ground. I accept that at least 3’ of depth was required. [ 12 ] The Defendant is liable in damages for the cost of repair. [ 13 ] Mr.

Nickel gave an estimate of the cost of repair as follows: Labour to take down panels on existing fence 16 hours Labour to take out existing parts 12 hours Labour to install new posts 12 hours Labour to install concrete around new posts 38 hours Labour to install panels back in place 20 hours Labour hours 98 hours Mr. Nickel’s estimate claims a labour rate of $70/hour Total labour cost $6,860.00 Mr.

Nickel’s estimate includes a cost of a Bobcat to remove and replace posts: 16 hours at $160.00 per hour; Bobcat cost $2,560.00 The cost of materials, new posts and concrete is stated in the Nickel estimate: 60 bags of concrete $ 579.00 Posts (45, 10’ – 4x4s) $ $851.06 Total $1,430.06 [ 14 ] In his evidence Mr. Zuccatto agreed that the labour rate of $70.00 per hour was correct. He disagreed however with the number of hours estimated by Mr. Nickel, and further disputed the hourly rate of $160.00 for the Bobcat. Mr.

Zuccatto testified that he charges $85.00 per hour for his Bobcat. [ 15 ] In respect of the number of hours of labour required Mr. Zuccatto testified as follows: Remove the fence panels 2 workers – 1 day (8 hours) 16 hours Install posts and place concrete 2 workers 1½ days (8 hours)24 hours

Re-Install panels 2 workers 1x 10 hour day 20 hours Labour hours 60 hours Total Labour Cost $4,200.00 [ 16 ] Respecting the Bobcat, Mr. Zuccatto did not dispute the number of hours required (16) but did dispute the hourly rate ($160.00). Mr. Zuccatto’s hourly rate for the Bobcat ($85.00) however requires an operator. I accept that the Nickel Bobcat estimate at $160.00 per hour included an operator. Accordingly I find no real dispute as to the cost of the Bobcat $2,560.00 nor materials (posts and concrete) $1,430.06. Mr. Nickel’s labour estimate: $6,860.00 (98 hours) Mr.

Zuccatto’s labour estimate: $4,200.00 (60 hours) [ 17 ] I accept that each of the calculations of the number of hours of labour required was made thoughtfully. The Defendant however has had the actual experience of building the fence.

I accept the reasonable labour cost is found at ½ of the difference between the two labour estimates: 79 hours at $70.00 per hour: Labour Cost Total: $5,530.00. [ 18 ] Judgement is awarded to the Plaintiffs against Dean Zuccatto in the sum of $9,996.00, determined as follows: Labour Cost of Repair: $5,530.00 Bobcat Cost: $2,560.00 Materials Cost: $1,430.06 $9,520.06 Rounded $9,520.00 GST @ 5% $ 476.00 Total $9,996.00 [ 19 ] The Plaintiffs shall recover costs at 5%, $499.80 plus disbursements. Heard on the 8 th day of September, 2017. Dated at the Town of Drumheller, Alberta this 19 th day of September, 2017. G.J.

Gaschler A Judge of the Provincial Court of Alberta Appearances: C. Kloot for the Plaintiffs D. Zuccatto

for the Defendant