Strauss and Lamb v. MacDonald Date:, 2014 BCPC 367

Citation: Strauss and Lamb v. MacDonald Date: 20140610 2014 BCPC 0367 File No: 16718 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TARA KATHLEEN STRAUSS AND BRENT EVERETT LAMB CLAIMANT AND: LIAM MACDONALD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: T. Strauss and B. Lamb Appearing on their own behalf: L. MacDonald Place of Hearing: Smithers , B.C. Date of Hearing: June 2 and 3, 2014 Date of Judgment: June 10, 2014 Background

[ 1 ] The claimants hired the defendant to work on their home in the Quick district in August 2011. There had been previous problems because of snow accumulation and improper drainage of ground water. There was an existing metal roof that was replaced with shingles in the fall of 2011. There were some leakage problems in the spring of 2012 and major leakage problems discovered in the spring of 2013. The claimants filed their notice of claim against the defendant in September 2013.

Issues [ 2 ] Were the claimants or the defendant the general contractor for the job? [ 3 ] Whether or not he was the general contractor is the defendant liable to the claimants for the work done? [ 4 ] If the defendant is liable for the work done, is he responsible for the damages suffered by the claimants? Evidence [ 5 ] Fred Stewart testified that the shingles on the north slope of the house were installed improperly as they were overexposed by approximately 3/8 of an inch.

He further testified the manner of installation of the shingles would allow water to enter under the shingles from ice damming or even a heavy rain. [ 6 ] Mr. Stewart also testified that the slope on the roof of the house was 2.5 inches per 12 inch baseline. [ 7 ] Mr. Stewart testified that the degree of ice damming on roof in the winters of 2011-12 and 2012-13 in the Quick area was normal. [ 8 ] Joe Hug testified that he had been a roofer for eleven years. He also stated with a low slope roof such as 2.5/12 a sealed underlay is critical to prevent leakage from ice damming.

He described ice damming as ice accumulation caused by a cycle of thawing and freezing during the winter and spring which traps water on the roof. [ 9 ] Mr. Hug testified that the degree of ice damming on roofs in the winters of 2011-12 and 2012-13 in the Quick area was normal. [ 10 ] Brent Lamb testified that he assumed that the defendant was the general contractor. He added that Mr. MacDonald had purchased self-adhesive ice guard and he assumed that he would install it on the roof. [ 11 ] Mr.

Lamb testified that major amounts of mould were discovered in April 2013 on the OSB installed by the defendant and in the insulation in the roof and north wall. He entered photographs of this (exhibits 7 and 8). [ 12 ] Mr. Lamb testified that the defendant was first advised of leakage problems in the spring of 2012. He testified that at that time the defendant said he would do nothing about the problem as he believed it would be corrected when the shingles sealed by being heated by the sun the summer of 2012. [ 13 ] Mr. Lamb testified that there had been ice dams before Mr.

MacDonald’s work but that there had been no leaking. He added that before the work, snow would slide off the metal roof and accumulate on the south side deck and beside the north wall. He added that on the north side the grade of the land was such that the melting snow accumulation drained towards the north wall and caused damage. [ 14 ] Mr. Lamb admitted to working on the shingling but said that he was only following the instructions of Mr. MacDonald. [ 15 ] Tara Strauss testified that she asked Mr. MacDonald if they should hire a roofer to shingle their existing roof and Mr.

MacDonald said that he was experienced and could do the work. [ 16 ] Ms. Strauss testified that Mr. MacDonald told them that using shingles instead of a new metal roof would help keep the snow on the roof and prevent snow accumulation next to the house. [ 17 ] Ms. Strauss testified that there was an inspection of the roof by herself, Mr. MacDonald and Mr. Olson on April 15, 2013. She recorded that conversation (exhibit twelve). In the conversation, Mr. MacDonald acknowledged a ventilation problem which he stated causes ice dams on that slope “like crazy”. [ 18 ] Ms.

Strauss filed various invoices for repairs done as exhibits 14 through 18 inclusive. [ 19 ] Ms. Strauss testified that the decision to use shingles instead of a metal roof was a consensus amongst the claimants and defendant based on the information provided by Mr. MacDonald about reducing snow accumulation on the ground. [ 20 ] In cross-examination, Ms. Strauss admitted that there was no leakage on the roof of the new addition built by Mr. MacDonald. She also admitted that Mr.

MacDonald did not say that he was a roofer but qualified that by saying that he had said that he was competent to put on a shingled roof. [ 21 ] In cross-examination Ms. Strauss stated that she had no understanding of roof systems in 2011. [ 22 ] Liam MacDonald testified that he was hired as a finishing carpenter who also did small renovations. He believed that the claimants were managing the job as the general contractor. [ 23 ] Mr. MacDonald took steps to avoid being the general contractor such as having the claimants set up an account at the lumberyard so they would pay for the materials he ordered.

He also provided a labourer who was paid directly by the claimants. [ 24 ] Mr. MacDonald testified that he had suggested foam insulation as in his mind the vapor barrier between the ceiling and roof

was questionable. This could release heat into the roof cavity and lead to problems. [ 25 ] Mr. MacDonald testified that the existing roof had to be re-roofed to tie it into the addition. [ 26 ] Mr. MacDonald testified that as the shingling was not finished until October that he had suggested another worker was needed. He advised the claimants that to save money the claimants could assist. He referred to the claimants as the “client”. The term “client” is also used in the terms of work Mr. MacDonald prepared (exhibit 4). [ 27 ] Mr.

MacDonald described the structure of the roof he put on the existing house as follows: First the existing 2x10 rafters; then 2x4 he laid flat to provide 1.5 inches of air space for ventilation; then OSB covered with 30 lb. felt for 38 inches from the edge of the eves; then synthetic non-adhesive membrane over the whole roof; then the shingles. [ 28 ] Mr. MacDonald testified that there were four people working on the shingling, himself, the two claimants, and a labourer that he provided that the claimants paid. He stated that he was supervising. [ 29 ] Mr.

MacDonald testified that on the south wall there was vented aluminium soffit. On the north wall similar vented aluminium soffit covered plywood with holes cut into it. [ 30 ] Mr. MacDonald denied saying that he was capable, willing and able to fix the roof but did admit saying “I could do a shingled roof” when asked if the claimants should hire the job out. [ 31 ] The defendant testified that he believed both he and the claimants were responsible for the mistakes made. [ 32 ] Mr. MacDonald in testimony disagreed with Mr.

Watson’s suggestion that all the flooring and drywall on the north side of the house had to be removed and replaced to check for possible water damage. [ 33 ] In cross-examination, Mr. MacDonald agreed that the claimants were not qualified to lay a roof. [ 34 ] In cross-examination Mr. MacDonald agreed with an e-mail of Roye Lovegren (exhibit 23) that insufficient ventilation would cause condensation problems. [ 35 ] Dave Jones testified that he was a small renovations contractor since 1979. He indicated that he did a visual inspection of the existing house in 2012 before the defendant took the job.

He described the existing metal roof as being “in pretty rough shape”. He also testified that this area is known for ice damming and that it is common. His inspection concerned joining the proposed addition to the existing house. [ 36 ] Dennis Olson testified that he has been a roofer for 29 years. His inspection of the house revealed over-exposed shingles on the north slope. He added that should not have caused the problems suffered. [ 37 ] Mr. Olson believed the slope on the roof was 4.5 inches per 12 inch base.

He added that during the winters of 2012-12 and 2012-13 there was an abnormal amount of ice damming in the area and that the self-adhesive ice guard that was not used by Mr. MacDonald would have helped prevent the damage. It is also noted that in exhibit 14 that Gilles Rousseau states the roof in question has a 3.5 inch per 12 inch base. Analysis [ 38 ] As a civil claim the onus is on the claimants to establish the elements of their claim on the balance of probabilities. That is normally defined as being more likely than not. [ 39 ] Much evidence was called on whether Mr.

MacDonald or the claimants were the “general contractor” of the job. Mr. MacDonald took steps to avoid that status such as having the claimants set up an account with the lumberyard so he could purchase the necessary supplies and they would pay. Similarly, he provided a labourer but the claimants paid that labourer directly. [ 40 ] This court finds that the issue of whether Mr. MacDonald was the general contractor is not relevant. It would only be relevant if Mr. MacDonald could argue that he was simply following a defective design plan provided by the general contractor.

The trial concerns not the addition build by Mr. MacDonald without any problem. In that addition the work was done to some plan in the most general sense provided by the claimants. [ 41 ] This trial was about work done to re-shingle a preexisting roof that Mr. MacDonald inspected before commencing the job. While the re-shingling was necessary in part to join the addition to the existing roof, it was in most part done to avoid the problem of snow accumulation against the exterior walls caused by the pre-existing metal roof. [ 42 ] Mr.

MacDonald was not a roofer but he did provide advice to the complainants about which type of roof to install and held himself out as someone capable of doing the job. It is also obvious that the claimants had no knowledge at that time about roofing. [ 43 ] This court therefore finds that Mr. MacDonald had a “duty of care” towards the claimants in providing advice about the roofing and in doing the roofing itself. [ 44 ] That being determined the next issue is whether the advice and work provided by Mr.

MacDonald met the “standard of care” of a carpenter removing a metal roof and replacing it with a shingled roof. [ 45 ] It is clear from the evidence of the witnesses, Stewart, Hug, Olson and Mr. MacDonald himself that the shingles on the north slope were “overexposed”. Mr. Olson suggested that would not cause the water damage ultimately suffered by the claimants. Mr. Stewart and Mr. Hug both stated that it would contribute to leakage. That was particularly so, if there were ice dams. Mr. MacDonald himself admitted it could contribute to leakage.

The court finds that the installation of overexposed shingles under Mr. MacDonald’s

admitted supervision was negligence below the “standard of care”. This negligence was compounded by not remedying the problem when he was first told of it in the spring of 2012. [ 46 ] It is also clear from the evidence of Stewart, Olson and the letter of Mr. Lovegren (exhibit 23) that the use of self-adhesive “ice guard” would have reduced or eliminated leakage. The use of that membrane rather than the non-adhesive and less expensive one used by Mr. MacDonald was also negligence below the “standard of care”. [ 47 ] What is not as clear is whether the ventilation system installed by Mr.

MacDonald was less than the “standard of care”. He described constructing the roofing platform in such a way as to allow 1.5 inches of space through which cool air could be drawn from the eaves up between the insulation and the OSB and finally to escape out the peak-vent. There is no evidence that is less than the “standard of care”. [ 48 ] The court has thus found Mr. MacDonald to have been negligent in certain aspects of the roofing. The next question is whether the claimants have proven on the balance of probabilities that this negligence caused damage to their home. [ 49 ] Mr.

MacDonald argued that the ice dam build-up during the winters of 2011-12 and 2012-13 were abnormally high and that in a normal year the defects in his job would not have caused the leakage that was discovered in the spring of 2013. Mr. Olson testified that the ice dams were unusually large that winter. Mr. Stewart and Mr. Hug testified that they were within the normal range. The court finds that Mr. MacDonald has not established on the balance of probabilities that the ice dams of the winter of 2011-12 and 2012-13 were so exceptional as to be an unforeseeable risk.

Even if those winters were exceptional he has not discharged the onus of satisfying the court that no one could have reasonably foreseen that risk. Rather, based on the evidence of Messrs. Stewart and Hug that the amount of ice damming in the winters of 2011-12 and 2012-13 were normal. [ 50 ] Exhibit 7 shows a large amount of mould damage in the insulation and OSB in the roof as well as lesser amounts of mould damage on the north walls. [ 51 ] Exhibit 8 shows water damage to interior walls and floors on the north side of the house. [ 52 ] Ms. Strauss and Mr.

Lamb in their amended notice of claim seek the following damages:

a) repair of interior walls floors and ceiling $2,975.56

b) drywall and flooring (Ex 18) $3,150.00

c) electrical work (Ex 19) $ 432.80

d) replacement of roofing (Ex 16) $7,595.70

e) spray insulation (Ex 15) $7,822.50

f) interest on roof replacement $ 306.86

g) filing fees $ 156.00 [ 53 ] It is clear on the evidence that the damage to the roof and roof insulation did not exist before the work done by Mr. MacDonald. The costs of repairing the roof and the spray insulation were caused by Mr. MacDonald’s negligence. Accordingly, the claimants have proven they are entitled to those amounts. [ 54 ] What is less clear is how the claimants arrived at the amount of $2,975.56 for the repair of the interior walls, floor and ceiling. There are invoices from Howson Timber that total $2,325.56 (Exhibit 17). There is also the invoice from Mr. Rousseau for $383.60 (Exhibit 14).

Exhibit 17 is divided into two invoices. One specifies it is for bathroom demo. The other specifies for bathroom subfloor framing. The invoice in Exhibit 14 only states “materials, labour and dumping fees”. As the letter included in Exhibit 14 states that Mr. Rousseau’s role was to re-sheet the roof and provide ventilation” it is unclear if that amount in part of or in addition to the amount claimed in Exhibit 16. Accordingly, the court finds that the claimants have not established on the balance of probabilities Mr.

MacDonald’s liability for the invoice in Exhibit 14. [ 55 ] A further complication in determining whether the Howson Timber bill is all for work necessitated by the negligent installation of the shingles appears in Exhibit 9. In that exhibit, Mr. Watson, the owner of Howson Timber refers to the removal of the drywall and insulation in the bathroom and pantry on the north side of the house. Water was discovered in both the wall cavity and the floor system. His letter goes on to say “the water appeared to originate from a leaking roof due to ice damning.

This ice damning was present at that time.” However, the last paragraph of the letter reads, “The floor system also had extensive water damage from historical drainage control issues. A leak was also noted in the plumbing to the bathtub.” [ 56 ] Accordingly, the court finds that the claimants have not established on the balance of probabilities that the water damage to the flooring was caused by the negligent roofing. It is equally likely to have been caused by the earlier ground water drainage problem.

While the leakage from the roof into the north wall probably caused damage the evidence before the court is unclear on how to apportion the damage between leakage from the roof and leakage from ground water. Accordingly, that portion of the claim is not established. [ 57 ] Similar logic applies to the claim for electrical work and interest on the roof replacement. Accordingly, the court finds that those amounts claimed are not established on the balance of probabilities. Decision

[ 58 ] The claimants have established their claim for the expenses claimed to replace the roofing in the amount of $7,595.70 plus the spray insulation in the amount of $7,822.50 plus service fees in the amount of $156.00. [ 59 ] The claimants shall have judgment in the amount of $15,574.20. ________________________________ W. F. M. Jackson Provincial Court Judge