Kratz v. Poirier Date:, 2014 BCPC 151

Citation: Kratz v. Poirier Date: 20140704 2014 BCPC 0151 File No: 39635 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WALTER ABRAM KRATZ CLAIMANT AND: CHRISTINA MARY POIRIER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Claimant: Ms. Jasmine Kooner Counsel for the Defendant: Mr. Tyson McNeil-Hay Place of Hearing: Kamloops , B.C. Date of Hearing: June 17, 2014

Date of Judgment: July 4, 2014 [ 1 ] Mr. Kratz was in a personal relationship with Ms. Poirier for some years. He is, by trade, a contractor. His claim is that in 2011 and 2012 he performed services to repair the exterior of Ms. Poirier’s home located at 1152 Dominion Street, Kamloops, BC. He claims he was not paid for the work done. He also claims that he loaned Ms. Poirier money to pay for materials required to do those external repairs which loan she has also not repaid. Finally, Mr. Kratz said he had a number of tools stored at Ms. Poirier’s residence which have not been returned to him. [ 2 ] Mr.

Kratz claims $8,803.37 for the repairs, including labour, use of machines and installation of an underground sprinkler system; $2,562.78 for the loan; and $315.00 for the tools left at Ms. Poirier’s home. [ 3 ] The loan is said to have been from insurance proceeds paid to Mr. Kratz for work he did on the interior of Ms. Poirier’s home following a flood. He loaned the funds he received from that payment to Ms. Poirier so that she could buy materials to repair the exterior of her home. [ 4 ] Ms. Poirier on the other hand said that the work was done by Mr. Kratz in his capacity as her romantic interest.

He had agreed to do the work for free and had borrowed the equipment from his employer for free. [ 5 ] There is a good deal of bitterness between the parties. Mr. Kratz feels that she reinstated the relationship just before the work was needed and broke up immediately after it was completed. Ms. Poirier, on the other hand, says the break up is unconnected with the work. [ 6 ] Without belabouring all of the evidence put before me, I find that Mr. Kratz is entitled to payment for a part of the work that he has done, but has not proved on a balance of probabilities that the remainder should be claimed.

I find that he assisted in installing the sprinkler system with a number of other people not as part of his exterior work but as a friend and a boyfriend to Ms. Poirier. This amount must be deducted from the claim. [ 7 ] There is also not satisfactory evidence before me that tools were left at Ms. Poirier’s residence and I dismiss that claim. [ 8 ] As Ms. Kooner argued, no one is saying that Mr. Kratz did not do the work and that the property was not thereby improved. When he saw that the foundation to the house was lacking proper waterproofing and realized that Ms.

Poirier would have to dig up the whole foundation, he offered Ms. Poirier help and machinery. He said, and I accept, that they discussed the costs later that evening. At that time, both Mr. Kratz and Ms. Poirier expected that the insurance company would cover the loss. Ultimately, the insurance company said it was the responsibility of the City of Kamloops. Mr. Kratz and Ms. Poirier worked on a submission demanding compensation from the City, which was rejected by the City. It is clear that Ms. Poirier expected Mr.

Kratz to be compensated for his work, but she maintained at trial that it was only if the insurance or the City were paying. Mr. Kratz’s view was that he was to be compensated either way, although he had offered to do the work outside of his company to spare Ms. Poirier the additional taxes if the insurance was not going to cover his work. [ 9 ] Mr. Kratz prepared an invoice for his work done and to come in order to make the claim to the City. He spent more time than he invoiced but he only invoiced his time.

While he recognized that others did assist, he felt that their contributions were not as extensive as his. He agreed that he did get the machines as a perk from his employer but said that he was allowed to charge out those machines. This was corroborated by his employer, although his employer was clear that he did not expect Mr. Kratz to charge Ms. Poirier, viewing the loan of the machines as a personal rather than business use. [ 10 ] Mr. Kratz said that Ms. Poirier assured him before they broke up that he would be paid but Ms. Poirier denied she ever said that Mr. Kratz would be paid by her. [ 11 ] Ms.

Poirier is in the unenviable position of having fully supported a claim to the City for expenses she had not paid out of pocket although the letter signed by her clearly indicated that she had been met with those expenses. She cannot now claim ignorance of Mr. Kratz’s intention to be paid not only for his work but for the machines. Of course, if he had been paid for the machines, he would have had to compensate his employer for part of those costs.

I found her evidence regarding the letter to the City to be entirely disingenuous and it severely impacts her credibility on this trial. [ 12 ] With respect to the loan, Ms. Poirier agreed that Mr. Kratz had been paid for the insured work he performed in the interior of her house. She claimed that he gifted the money to her because he did not intend to be paid for work he did in her home. Mr. Kratz insisted that he loaned the money to her so that she could get started on the exterior repairs needed to her house.

It was expected that she would be compensated by either insurance or the City and so he was expecting that those funds would also be returned to him. I accept Mr. Kratz’s evidence in this regard and find that he has proved the loan on a balance of probabilities and award him this amount less the materials Ms. Poirier paid for herself for the interior work. [ 13 ] I find that it is Ms. Poirier’s anger which minimizes the value of the work Mr. Kratz performed on the exterior of her home.

Without the work that he performed, she would have faced considerable expenses and possibly even further damage to her home if those repairs were not effected. I do not accept that Mr. Kratz interloped in the offer to repair while Ms. Poirier’s brother, Mr. Rizzetto was hand digging the foundation. It was clear that Mr. Rizzetto could not have finished that work in the limited time he had. While he had some experience in the construction industry, he simply did not have the time or the expertise to complete the work in a timely fashion. Further, since Mr.

Kratz had already completed the interior repairs brought about by the same damage to the exterior foundation, I find that Ms. Poirier had every expectation that Mr. Kratz would assist her. I also find that both parties expected Mr. Kratz would be compensated by either the insurance or the City; and if he were not compensated by either, that he would offer a reduced rate to Ms. Poirier to assist in avoiding taxes and to obtain a reasonable price for his work. [ 14 ] Mr. McNeil-Hay argued that the work was intended as a gift and therefore is irrevocable. This constitutes a juristic reason for

the enrichment. However, if this were in fact a gift, the parties made it revocable by the contingent aspect of payment to Mr. Kratz if either the insurance or the City paid her. In any event, I am not satisfied that the work was intended as a gift. The preponderance of the evidence coincides with Mr. Kratz’s version of the agreement that he would be paid for his work regardless. [ 15 ] Mr. McNeil-Hay argued that the invoice to Ms. Poirier was not advanced until eight months after the work was completed. However, it must be remembered that Ms. Poirier had cut off communications with Mr. Kratz.

He was desperately attempting to resurrect the relationship which she was rebutting by silence. [ 16 ] I find on a balance of probabilities that Mr. Kratz has proved Ms. Poirier has been unjustly enriched by his expertise and hard work. However, there has been no unjust enrichment by the use of the machines which Mr. Kratz obtained for free. I disallow the claim for the machinery. [ 17 ] Both parties have been successful to some degree and therefore I award no costs unless the parties wish to argue that there was an exchange of offers which should impact any award for costs. ___________________________ S.D.

Frame Provincial Court Judge