Nichol v. Horner Date:, 2012 BCPC 164

Citation: Nichol v. Horner Date: 20120518 2012 BCPC 0164 File No: 0934961 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WENDY ANN NICHOL CLAIMANT AND: PAUL HORNER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Appearing on their own behalf: W. Nichol Appearing for the Defendant: C. Dunsmore,

Article Student Place of Hearing: Prince George , B.C. Date of Hearing: August 24, November 21, 2011; January 12, 2012 Date of Judgment: May 18, 2012 INTRODUCTION

INTRODUCTION [ 1 ] Wendy Ann Nichol (the Claimant) has sued Paul Horner (the Defendant) for return of money paid to him (the Contract) and for further damages for remedial work arising from exterior renovations done by the Defendant to her house in Fraser Lake, BC. [ 2 ] The Defendant denies the Claimant’s allegations and counter claims for the amount of money remaining due under the Contract. ISSUES [ 3 ] 1. Was the Contract substantially completed and done in a good and workmanlike manner by the Defendant? [ 4 ] 2.

Was the Defendant's performance of the work so deficient as to permit the Claimant to rescind the Contract, obtain the return of money already paid and be forgiven for any other amount owing? [ 5 ] 3. If the answer to 2 is yes, is the Claimant entitled to have the Court require the Defendant to pay for the work performed by a subsequent contractor to redo the work originally contracted for? [ 6 ] 4. If the answer to 2 is no is the Defendant entitled to be paid the funds remaining outstanding under the Contract? [ 7 ] 5.

If part of the Contract was deficient and part was properly completed by the Defendant is he entitled to be partially compensated? THE WITNESSES [ 8 ] There were three witnesses called by the Claimant, one by the Defendant. [ 9 ] The Claimant retained the services of the Defendant to perform exterior renovations. There was no evidence that the Claimant had any skill, knowledge or expertise in that area. [ 10 ] Daniel Patten, through his company D. J. Patten Contracting Ltd., was the contractor hired by the Claimant to redo the work done by the Defendant when the Contract was terminated by the Claimant.

He is a journeyman carpenter with 30 years experience in construction and renovations. [ 11 ] Jason Berlin is a building inspector who viewed the Defendant's work on the Claimant's house on two occasions. He is a journeyman carpenter who worked in the construction industry for approximately five years, had taken the Building Inspector certification and worked as a building inspector for four years at the time he viewed the Claimant's house. [ 12 ] The Defendant is not a journeyman carpenter but has 35 years of experience in home renovations.

He employs journeymen carpenters on his crew and generally supervises the work. THE CLAIM AND COUNTERCLAIM [ 13 ] The Claimant claims the return of $7,920.00 which she paid the Defendant for the materials for the renovation. The Claimant alleges there were significant deficiencies in the work performed by the Defendant. She also claims for the money she paid to Mr.

Patten for his work in the amount of $19,083.75 but abandons any amounts over $25,000.00. [ 14 ] Although not set out in her Claim the Claimant, during the trial, also claimed for asphalt shingles, soffits and pine boards belonging to her but used by the Defendant. [ 15 ] The Defendant counterclaims for the remaining money due under the Contract for labour in the amount of $4,840.00. The Defendant alleges the Claimant refused to permit him to address any deficiencies which he was prepared to undertake.

THE EVIDENCE [ 16 ] The Claimant relied on a chronological and detailed “will say” statement which became her direct evidence in the trial. The Defendant acknowledged that he did not have a detailed chronological recollection of the events, relied on more generalized observations and said that he could not swear to which date a specific event may have occurred. [ 17 ] Each of the parties relied on different written reference materials with regard to the proper methodology concerning installation of asphalt roofing shingles.

Those materials suggested a variety of acceptable methods for shingle and associated roofing component installation. None of the references covered all the topics at issue with regard to appropriate shingle installation methods. [ 18 ] Both parties relied on various booklets of photographs depicting the work done by the Defendant and the subsequent work done by Mr. Patten.

Each of the parties maintained that the photographs substantiated their evidence but both acknowledged that in some cases the angle of the photographs may not accurately reflect what was meant to be observed. [ 19 ] The Claimant also provided Fraser Lake weather data from Environment Canada for the period of time the work was being conducted. [ 20 ] In a number of areas of his evidence the Defendant referred to conversations he said he had with the Claimant which she was not confronted about during her cross examination. [ 21 ] In this decision I will, as much as possible, refer to the evidence of each the witnesses within the chronology of when events

occurred. [ 22 ] The Claimant said that in late August 2007 she arranged, through the Defendant’s son, for the Defendant to prepare an estimate of the renovation work. That quote was left at her house on September 18, 2007. The Defendant said that on September 20, 2007, he received a request from the Claimant for a quote for her house and her son’s house and he prepared both quotes. The Defendant explained that the quote was broken into various categories so that each could be accepted or rejected.

The Defendant's quote is dated September 18, 2007. [ 23 ] The Defendant said that on October 15, 2007, he received a call from the Claimant instructing him that she wished to proceed with the renovation, had received mortgage approval and was awaiting funding. The Claimant said that she had a telephone conversation with the Defendant on October 23, 2007, where she indicated that the mortgage paperwork would be completed on October 24, and that work could commence on October 25.

She says that they also spoke about some roofing shingles and other materials she had available which might be utilized in the project. [ 24 ] The Claimant said that the Defendant commenced work on October 24, 2007, and on that day she and the Defendant had discussions about extending the eaves on each end of the house and the carport by two feet. They also discussed the colour of the siding and the roofing shingles and other materials she had available.

The Defendant reduced the shingle price on the quote to reflect the shingles provided by the Claimant. [ 25 ] When the Claimant went to the bank later that day she was informed that the mortgage money would be advanced on November 19, 2007. She relayed that news to the Defendant who was unhappy because he had already arranged for the purchase of the materials and it was his normal practice to have the customer provide that money immediately. However, he decided to commence work. [ 26 ] The Defendant said that he commenced work on November 8, 2007 and finished on November 23, 2007.

The Defendant stated that there was some delay in getting started because materials had to be ordered and the crew assembled. [ 27 ] The Defendant said that he also discussed with the Claimant applying rigid foam insulation (the Insulation) before the new siding was installed and explained that the maximum thickness that could be applied given the width of the window and door sills was half-inch. He told the Claimant he could apply thicker insulation if the sills were extended at an extra cost. The Claimant declined saying it was not in her budget.

The Defendant contends that there was no discussion of the Insulation’s R-value. [ 28 ] The Claimant says that the Insulation was applied on October 29 and she questioned the R-value to which the Defendant replied that the windows would have to be removed to accommodate the extra thickness, that it was a lot of work and that the half-inch was adequate. [ 29 ] The Claimant and the Defendant also discussed the eave extensions which the Claimant says were attached on October 29, 2007. Both agreed there was a discussion about utilizing braces to support the extensions.

The Defendant said that the Claimant did not wish to use braces. The Claimant said when she asked if there is a way to do it without the braces the Defendant acknowledged that there was. [ 30 ] The Claimant said that the roofing shingles were removed on October 29 and no further work was done to the roof until November 7. [ 31 ] The Defendant said that while his crew was stripping the shingles from the roof, rot was detected because a worker’s foot went through the sheathing. He was not present at the time but later talked to the Claimant about the sheathing suggesting the entire roof be re-sheathed.

The Claimant said she did not have the money for that and it was agreed that they would fix only what really needed to be fixed. The Defendant said that he paid for the cost of the additional sheathing to make the repairs because he did not want to argue with the Claimant. [ 32 ] The Defendant said he was not on the site all the time but was there from one to two to four hours per day supervising and checking the work done by the crew. [ 33 ] The Defendant said that due to inclement weather the roof had to be tarped and that the job length was extended.

The cold, snowy and rainy weather affected the roofing and in part the siding because it turned the product brittle. The Defendant acknowledged that he thought there was enough time to complete the job before bad weather set in but that he had miscalculated. [ 34 ] The Claimant disagreed with the Defendant’s claims of inclement weather and submitted weather data for Fraser Lake.

Those records show that between October 24 and November 23, there was 39 millimetres of rain and 24 centimetres of snow spread out over 16 days but with snow melting on some days due to warm daytime temperatures. [ 35 ] The Claimant said that the siding was installed on November 13, but that there were several deficiencies including the Insulation and siding missing from near the front entrance and siding covering the furnace fresh air return which she immediately brought to the Defendant's attention. [ 36 ] The parties agree that on November 20, 2007, the Defendant came to get paid for the cost of materials.

At that time, the Defendant attempted to add an additional cost of $1,460.00 for the eave extensions but the Claimant protested and that amount was struck out.

The Claimant then wrote the Defendant a check for $7,120.00 for the material costs which was acknowledged by the Defendant on the quote. [ 37 ] The Claimant said that on that date she expressed some concerns about the roof but that the Defendant declined her request to walk around so she could show him her concerns and that he told her that the roof "look good" the last time he saw it and that the cold weather was to blame for the shingles which would "lay down" with warmer weather.

[ 38 ] On November 20, 2007, the Defendant wrote on the back of the quote the following: Customer says roof is not lined up due to weather or workmanship. If there is any problem we will come back in spring and replace or fix any problem. [ 39 ] The Defendant said that he knew he would have to return to do the caulking around the windows and on the roof because the weather had turned too cold to complete that task.

He acknowledged he did not notice any deficiencies when he was there that day including the unconnected furnace fresh air vent, the cablevision wiring by the door and the uninstalled light fixtures. [ 40 ] The Defendant acknowledged it is evident that there were deficiencies in the job that had to be remedied and that there would be a cost for such remediation which he would have had to bear had he been allowed to return to the Claimant's house. These deficiencies included:

a) the J-trim was pushed out too far around some of the windows because of the insulation thickness due to his miscalculation. The repairs would have included adding additional sills to each of the windows at between $100.00 -$150.00 per "hole" for the eight openings resulting in an additional expense of between $800.00 and $1,200.00;

b) improper installation of the siding in several locations resulting in it falling away which would have cost $200.00 to repair;

c) errors in installation of the siding around the water line, the furnace air intake vent and some J-trim which would have cost $200.00 to repair;

d) installing additional bracing to hold the soffits in place of the cost of an additional $250.00;

e) the facia installation was "terrible" due to the bad weather and the use of too many nails and all of it would have to be replaced at a cost of approximately $300.00; [ 41 ] With regard to the installation of the roof the Defendant's said:

a) the shingle installation pattern used was “random” and that with the exception of the top five or six rows shown in one photograph, which could be replaced at a cost of about $500.00, the installation was appropriate. He prefers a random insulation over six inch spacing because it lasts longer;

b) the roof valleys were different, should not have been, were not aesthetically pleasing but worked fine;

c) he was not present when much of the roofing was being done and it is possible that two roofers working into different areas may have utilized a different random pattern;

d) on occasions the crew had to cease roofing due to weather concerns but then worked on the siding;

e) the rake edge of the sheathing did need to have a drip edge installed but it did comply with the 1/4 inch to 3/8 inch overhang of shingles suggested by the manufacturer;

f) the eave extensions were screwed on the last truss and sheathing was put over the extension and then back at least one trust for support. In the Defendant’s words "we did the best we could";

g) the electrical service wiring touched the eave extension because of the extension itself and not because it was sagging. [ 42 ] On November 21, 2007, the Defendant's crew departed. The Claimant maintains that there was construction debris left behind. The parties met and the Defendant confirmed to the Claimant the job was complete. The Claimant said that she attempted to show the Defendant her concerns and he said that wasn't the best job he had seen but it wasn't really bad either.

At that point the Claimant advised that she was withholding the final payment until the repairs could be made and the Defendant became angry asking how he was going to pay his workers and telling the Claimant "I've other ways to collect you know". [ 43 ] Photographs taken on November 21, 2007, show the roof free of snow or other impediments which might have interfered with an inspection. [ 44 ] On November 22, 2007, the eave troughs were installed by another contractor and that person expressed to the Claimant concerns about exposed roof sheathing and roof shingle overhang. [ 45 ] The Defendant said that he did not contact the Claimant again until late February because he wanted to fix the problems and to get paid. [ 46 ] The Claimant said that on December 3, 2007, she contacted the Defendant by phone to request certain items be completed by the Defendant.

He replied that nothing further would be done until he received the money outstanding. [ 47 ] Between mid-December 2007 and January 2008, a portion of the carport soffit came loose and siding fell off the house. About that time, the Defendant advised the Claimant that he would return to fix the roof as soon as the weather broke.

[ 48 ] On February 18, 2008, the Defendant arrived unannounced at the Claimant’s house to discuss the necessary repairs asking the Claimant to prepare a list of deficiencies. She advised that she needed time to find out what work needed to be done. The Claimant said that two days later the Defendant again arrived unannounced with another man who went up on the roof and advised that the only thing left to be done was to replace some shingles, replace the facia and to redo one of the valleys.

The Defendant advised the Claimant that they could start next week and she advised him to call in advance of his return. [ 49 ] The Defendant said that the Claimant agreed to make a list of the deficiencies he had to address but when he came by to her house on several occasions either she wasn't there nor she did not provide the list. [ 50 ] On February 21, 2008, the Claimant asked other carpenters to examine the house and they advised her that the eave extensions were weak and not tied into the trusses, the fascia boards were applied incorrectly, the roof valleys were installed incorrectly, the roof sheathing was exposed and would rot if left in that condition because the shingles did not overhang enough.

Those carpenters suggested that the Claimant contact the building inspector. The Claimant immediately called the Defendant and told him to do no further work and that she would be obtaining further information. [ 51 ] On March 28, 2008, the Defendant left his business card at the Claimant's residence and they had a subsequent conversation in which the Claimant advised that she was arranging to have the building inspector looked at the house. The building inspector, Mr.

Berlin, first examined the house on April 1 and did so again on June 10 at which time he took photographs which were exhibited at trial. [ 52 ] On April 9, 2008, the Defendant left a note at the Claimant's house requesting payment of the amount outstanding, a list of deficiencies the Claimant wanted fixed and advising that he had his crew and equipment at the Claimant's house several times, something unknown to the Claimant.

The Claimant called the Defendant and advised of the building inspector's observations and told the Defendant of her plans to contact a lawyer. [ 53 ] Based on her subsequent meeting with a lawyer the Claimant obtained additional quotes from three other contractors to redo the work done by the Defendant. One of those was from Mr. Patten's company.

He provided two quotes, one dated May 26, 2008 and another more detailed one dated September 7, 2008. [ 54 ] On May 22, 2008, the Defendant wrote to the Claimant demanding payment of the outstanding amount and a copy of the Building Inspector’s report. [ 55 ] During the summer of 2008, the Claimant discovered water in her basement near the chimney after rainstorms. [ 56 ] On August 31, 2008, the Claimant had Home Tech Energy Solutions perform an energy evaluation on her house. There was no evidence presented with regard to when that consultant was contacted by the Claimant.

The report of that evaluation, dated October 10, 2008, indicated additional exterior insulation would be appropriate and would qualify for a government rebate of up to $1500.00. [ 57 ] On October 17, 2008, Mr. Berlin provided a letter to the Claimant noting that some of the work completed by the Defendant was substandard and would require additional work to repair and noted in particular five areas of concern:

a) water was able to get behind the fascia;

b) building paper was not installed before the vinyl siding was attached;

c) roof sheathing was left exposed and could deteriorate over time;

d) the furnace fresh air vent was not properly fastened to the exterior wall or connected to the furnace; and

e) the eave extensions were structurally questionable. [ 58 ] After considering the quotes from other contractors, the Claimant chose Mr. Patten's company to do the work. In his evidence, Mr. Patten acknowledged that he was in the same business as the Defendant but that he had never bid against the Defendant for work. Mr. Patten said his overall impression of the Defendant's work was that it was a "botched job" and that there wasn't any good feature about the work that had been performed. [ 59 ] With regard to the roof, Mr. Patten observed the following which he said was indicative of poor workmanship:

a) the shingles did not overhang the roof sheathing and there was no drip edge installed thereby exposing the sheathing edge to the elements;

b) the facia was improperly installed;

c) the eave extensions were not supported and unsafe to stand on. To repair that deficiency the sheathing had to be installed back over the existing roof structure to provide strength and prevent sagging;

d) the sagging eave extension rubbed against the electrical services. This was rectified by repairing the extension and lowering the electrical services on the pole;

e) there is no roof membrane applied before the shingles were installed;

f) there was no protection placed in the roof valleys and nails were used to attach the metal in the valleys;

g) each of the two valleys differed in shingle installation and although such difference does not necessarily make them unfit to protect

against water infiltration neither was installed properly;

h) there was improper offset spacing of each row of roof shingles, there was no pattern and not enough overlap;

i) the roof vent turbines were installed at incorrect locations and not according to the manufacturer specifications;

j) silicon, rather than tar, was used to seal the roof vents;

k) there was no storm collar on the chimney which permitted rainwater to infiltrate between the roof and the chimney and then down into the basement;

l) the roof shingles were installed over the chimney flashing rather than under the flashing which is the correct method. [ 60 ] Mr. Patten acknowledged that there are several different suitable methods to install roofing shingles including a six inch, five inch and four inch offset and a random installation but regardless of which method the Defendant had used, the shingles were not installed properly. [ 61 ] With regard to the siding installation, Mr. Patten observed the following which he said was indicative of poor workmanship:

a) none of the top row of siding was crimped as required by the manufacturer. Some of the top row was held in place by nails which is improper installation;

b) there was insufficient overlap of the siding in each row to accommodate temperature related expansion and contraction;

c) the nails used to hold the siding in place were spaced up to 32 inches apart instead of the required 16 inches which would allow the siding to bow in place. In addition, the siding was nailed tight to the wall, an incorrect installation method;

d) the Insulation did not have duct tape on the seams and was not cut properly to follow around the windows or the corner of the house leaving gaps;

e) the Insulation was not thick enough as 1/2 inch does not provide enough insulative protection. It should have been between 1 1/2 and 2 inches for good R-value;

f) in several areas the siding was not installed properly and had just fallen off;

g) in several places the J- trim was not installed tightly to the window or door sills as required;

h) the soffits in the carport were installed in the wrong direction in relation to the trusses so they were not properly attached;

i) the soffits and fascia were incorrectly installed using steel nails rather than aluminum nails needed to protect against chemical reaction;

j) the facia was improperly installed and became wrinkled allowing water infiltration;

k) the cold air return vent for the furnace was damaged during installation thereby permitting water to infiltrate and it was not connected to the furnace. [ 62 ] In Mr. Patten’s view, which was accepted by the Claimant, the entire job done by the Defendant had to be removed and redone. Mr. Patten's crew started work on October 20, 2008, and completed the project by October 31, 2008. SUBMISSIONS [ 63 ] The Claimant’s submissions were brief and can be summarized as follows:

a) she was not knowledgeable in the area of siding and roofing renovations and relied on the Defendant's expertise;

b) she wanted thicker Insulation but accepted the Defendant’s advice that only narrower insulation would work;

c) she noted problems with the work as the job was finishing but the Defendant refused to walk around with her so she could point out her concerns so she held back money until her concerns were addressed;

d) the Defendant demanded a list of deficiencies but she did not know what to list because she couldn't observe the completed work due to weather conditions;

e) the more people she spoke to about the Defendant's work the less confidence she had in him to the point where she concluded he was not competent to do the necessary repairs;

f) the strength of the roof extensions were of particular concern to her so she hired Mr. Patten to get the job redone before second winter set in;

g) she believes the Defendant should bear the cost of having to have the work redone in addition to returning the money she paid to him.

[64] The Defendant’s counsel submitted that there were two key factors to the case namely:

a) the mistaken belief by the Claimant that the roof shingles were installed improperly or were not fit for the purpose; and

b) the Claimant's regret in not qualifying for a government rebate with the amount of Insulation installed by the Defendant. [65] In support of his submissions, the Defendant’s counsel relied on several cases and a learned legal text including:

a) First City Development Corp. v. Bekei

(1986) B.C.L.R. (2d) 175 (BCSC)

b) Lau v. 1755 Holdings (BC CA), [1996] B.C.J. No. 2441 (BCCA)

c) J.R. Jones Builders Ltd. v. Gossen and Gossen (1978) 186 N.S.R. (2d) 286 (NSCo.Ct.)

d) Scott (c.o.b. Maritime Elevator) v. Sarsfield Foods Ltd. [2000] N.S.J. No. 253 (NSSC)

e) Homes by Jamen Ltd. v. Kellam Berg Engineering & Surveying Ltd. (1995) 20 C.L.R. (2d) 161 (ABQB)

f) Goldsmith on Canadian Building Contracts, 4th Edition, Immanual Goldsmith Editor, Toronto: Thomson Carswell 2007. [66] The cases and text cited provide helpful reminders about the law on building contracts but none are exactly similar on theirfacts to this case. For example:

a) numerous deficiencies may not amount to a fundamental breach of contract but if such deficiencies amount to a “congeries ofdefects” it may amount to a fundamental breach such that the innocent party can repudiate the contract.

b) unless the contract provides for special conditions or specifications the contractor can select the method by which the contract is tobe completed so long as the work is done properly.

c) if there are defects but not enough to amount to a fundamental breach the contractor should be permitted to remedy the defects andfailure by the owner to permit such corrections should disentitle or reduce the amount of damages the owner can claim to remedy thedefects as a result of their failure to mitigate.

d) in the event there is a fundamental breach such as to entitle the innocent party to rescission of the contract the breaching partyshould not be liable for any new costs incurred to complete what had been contemplated to be done in the first place. [67] From those sources, the Defendant’s counsel contended that the Court could find ample evidence to support the submissionsthat:

a) the Contract between the Claimant and the Defendant was based on the Defendant’s quote;

b) the Defendant substantially completed the Contract, the work was done in a good and workmanlike manner;

c) if there are any damages owed by the Defendant to the Claimant for any breach of the Contract or deficiencies, those damagesshould be reduced because the Claimant failed to mitigate by permitting the Defendant to remedy the deficiencies. [68] Defendant's counsel also referred to several areas of the evidence which he submitted weakened the Claimant's case and/orstrengthened the Defendant's case. These included:

a) a lack of photographs to demonstrate what Mr. Patten said were deficiencies in the Defendant's work;

b) inclement weather in November prevented the Defendant from making good on his guarantee to rectify any deficiencies until earlyspring;

c) the lack of specificity in Mr. Patten's quote regarding what he described as "extensive repairs" to rectify the drooping eaves shouldlead the Court to conclude that such repairs were not needed or completed because in fact the eaves it did not droop;

d) the Claimant's acknowledgment that "vapour plastic" was installed should be preferred to the evidence of Mr. Berlin and Mr. Pattenwho testified that no building wrap was used;

e) the Claimant's direct evidence as set out in her "will say" statement included ad hominem remarks about the Defendant whichshould lead the Court to give less weight to her evidence. DISCUSSION [69] In examining the issues of whether the Defendant substantially completed the Contract and whether the work was done in agood and workmanlike fashion, I consider the following evidence to be of importance:

a) the Defendant's admission that he was not on site full-time but supervised the crew for one to four hours per day;

b) the Defendant's acknowledgment that he miscalculated with regard to getting the project completed before the weather became inclement and that such a miscalculation affected the ease of placement of the shingles and siding material;

c) the uncontested evidence that there were deficiencies noted by the Claimant when both the Insulation and the siding was attached, many of which could have been rectified immediately but in many cases were not;

d) the Defendant's acknowledgment that although he directed his workers to apply the roof shingles in a "random" pattern there were problems with several of the top runs shingles, the valley installation was not consistent and that there was a possibility that the two workers laying shingles at the same time may have adopted a different "random" application process;

e) the Defendant's refusal to examine the completed work with the Claimant despite the fact the roof was free of snow on the day he was partially paid by the Claimant;

f) the Defendant statement to the Claimant that the work performed was "not the best but wasn't bad either";

g) the Defendant's admission that the fascia installation was very substandard. [ 70 ] In assessing evidence of the witnesses it bears repeating that a Judge can accept all, some or none of a witnesses evidence in assessing their credibility and reliability. [ 71 ] I have no difficulty accepting all of the evidence of Mr. Berlin. His observations, photographs and letter were clear and fair and were not undermined in cross-examination. [ 72 ] In a similar vein, I cannot conclude that Mr. Patten's evidence was weakened by cross examination.

The evidence of his observations and opinions was clear, comprehensive, detailed and persuasive. I do agree with the Defendant's counsel's submissions that photographs of the deficiencies in the Defendant's work would have been helpful to the Court. However, I am not satisfied that the lack of such photographs undermined Mr. Patten's evidence to any great degree. [ 73 ] In considering the evidence of the Claimant and the Defendant, I make the following general observations:

a) I accept the evidence of each of them where they agree or where each gave evidence in areas which were uncontroversial or uncontested and unknown to the other;

b) some of the Defendant's evidence must be given less weight in areas of controversy where the Claimant was not confronted in cross examination and given the opportunity to give her side of the story;

c) in considering the chronology of when events happened, I prefer the evidence of the Claimant to that of the Defendant because the Claimant provided a detailed chronological

summary with dates which accorded with the evidence of Mr. Berlin and Mr. Patten and the Defendant acknowledged that he did not have a clear recollection of when to give their events occurred. [ 74 ] With regards to areas of specific disagreement, I find as facts the following:

a) there are several methods to apply roof shingles that meet the industry standard including random as used by the Defendant and 6 inch offset is used by Mr. Patten. However, there are minimum standards regardless of the method used to ensure that the shingle tabs are not too close together between runs, that there is sufficient shingle overlap or alternatively, drip edging installed to protect the roof sheathing and appropriate flashing installed where necessary;

b) based on all the evidence presented, the Defendant did not meet those minimum standards such that the roof shingles would have to be replaced regardless of any other roof defects;

c) as commented on by other carpenters, Mr. Berlin and Mr. Patten, and as can be seen in the photographs, the eave extensions were not properly mounted and secured to the roof and as a result sagging occurred causing both a visual distraction and the structural hazard. The shingles in those areas would have to be removed to allow for a safe and solid repair. As the contractor, it was the Defendant's responsibility to ensure that the eave extensions were properly and safely installed;

d) there was some rot on the roof sheathing when the Defendant started the project. However, I cannot conclude anything about the amount of sheathing that he replaced or it’s value;

e) there was no building wrap or roof underlay used on the project. Mr. Berlin and Mr. Patten, both experienced with construction, testified to a lack of building wrap on the house. The only evidence the Defendant provided was that such a wrap must have been used because he purchased some for the project;

f) there were discussions between Claimant and the Defendant about the thickness of the Insulation that could be installed. I accept that the issue of R-value was not directly discussed and that in the end the Claimant agreed to the suggested thickness of the Insulation because she did not want to incur the additional costs of extending the window and door sills. The Claimant's engagement of the energy consultant came about almost a year later;

g) there were numerous deficiencies in the siding installation as detailed by Mr. Patten including, but not limited to, siding falling from the walls, siding not fitting closely around the windows, nail spacing and siding tightness, lack of sufficient siding overlap, lack of proper

crimping in some areas and improper installation of the J- trim around the windows that would have required, by the Defendant's own estimate, close to $2,000.00 to repair;

h) the Defendant did make some attempts to arrange to repair the deficiencies and complete the sealing of the siding and roof areas but during that time the Claimant came to the conclusion that the work already done was so deficient that she could not trust the Defendant to make the necessary corrections in a competent manner. [ 75 ] When looking at all of the evidence concerning the siding and it’s deficiencies, I am satisfied that they amount to a "congeries of defects" as described in the cases such that the Claimant should expect that part of the project to be redone in entirety in order to ensure a proper installation. [ 76 ] Therefore, to answer the issues to be decided, I conclude the following: 1.

Although the Contract was substantially completed, it was not done in a good and workmanlike fashion; 2. The work done was so deficient that the Claimant is entitled to rescind the Contract and obtain return of her money subject to my conclusions set out under issue 5 below; 3. The work undertaken by Mr. Patten was substantially the same as what the Claimant had contracted to be done by the Defendant. With the return of the funds she paid to the Defendant the Claimant is in substantially the same position she would have been had the work not been done by the Defendant at all. Her decision to engage Mr.

Patten and change the scope of the work involved does not entitle her, subject to some minor exceptions, to expect the Defendant to pay for Mr. Patten's subsequent work; 4. The Defendant is not entitled to receive further payment under the Contract; 5. Some of the materials supplied by the Defendant were reused by Mr. Patten which reduced what he would have otherwise had to charge to the Claimant.

The Defendant is entitled to be paid for those materials as an offset against what he otherwise owes the Claimant in this matter. [ 77 ] I do not accept the Claimant's claim that the Defendant should compensate her for roof shingles and other items he utilized for the project because they were not set out in the Notice of Claim and not raised by the Claimant until trial. DECISION [ 78 ] In arriving at the outcome in this matter, I conclude the Claimant is entitled to judgement against the Defendant as follows:

a) The amount to be returned by the Defendant to the Claimant based on the fundamental breach of the Contract $7,920.00;

b) The value of siding, soffits and installation supplied by the Defendant and utilized by Mr. Patten $2,240.00 + $580.00 + $960.00 = $3,780.00;

c) Net amount to be repaid by the Defendant to the Claimant $7,920.00 - $3,780.00 = $4,140.00;

d) Filing and service fees $176.00;

e) Pre-judgment interest on $4,140.00 from November 20, 2007 to May 18, 2012 = $267.77

f) Total judgement due to the Claimant = $4,583.77. [ 79 ] The Defendant shall pay the full amount due and owing by June 30, 2012, unless he has applied for a payment hearing before that date. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of BC