Larry Grozell - v. -, 2013 SKPC 91

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: May 27, 2013 File: 414 [2012] Citation: 2013 SKPC 091 Location: Judicial Centre of Saskatoon _____________________________________________________________________________ Between: Larry Grozell - and - Gary Gibson T. Adamus For the Plaintiff G. Gibson For the Defendant ______________________________________________________________________________ JUDGMENT S. P.

WHELAN , J ______________________________________________________________________________ Background [ 1 ] The Plaintiff retained the Defendant for services regarding the preparation of plans to build a group home in the R.M. of Corman Park. The Plaintiff sought the return of the funds paid; claiming that he did not receive the plans contracted for and they were not provided in a timely fashion. The Defendant filed a counterclaim in which he claimed payment for additional hours which he felt were occasioned by the many changes presented by the Plaintiff. [ 2 ] The Plaintiff, Mr.

Grozell, who testified to possessing experience with single family and multi-family residential construction, was referred to the Defendant, a structural engineer, by his general contractor, Brad Hamilton. He was looking for engineered stamped drawings and expertise in structural insulated panel (SIP) construction. As the Defendant resided in Alberta, much of the initial discussion between the parties was by email or phone.

The Plaintiff testified that he wanted engineered stamped drawings to complete the process to get a building permit and before retaining the Defendant, sent a sketch depicting the concept of the proposed building. The Defendant then provided a letter, quotation and invoice, all dated March 23, 2012, which described the services that he would provide, set out below in part:

Quotation Re: Design, Drafting, Notes & Specifications for Engineered Building Plans Plus Engineered SIP Foundation . . . Scope of Work This is to advise that Mr. Larry Grozell has engaged the services of Gary J. Gibson, P. Eng. o/a Sure-West Engineering Consultants to prepare the design, drafting, notes and specifications for engineered building plans plus the engineered SIP (Structural Insulated Panels) foundation for a proposed facility. . . [ 3 ] The quotation and attached invoice are expressed similarly.

The design, drafting, notes & specifications for engineered building plans and SIP foundation drawings have been treated as separate services with costs as follows: 1. Design, drafting, notes & specifications for the preparation of engineered building construction drawings for the above referenced building project plus the supply of five copies of same $ 5,867.44 2. Design, drafting, notes & specifications for the preparation of engineered SIP foundation drawings for the same referenced building project plus the supply of five copies of same $ 4,680.88 3.

Blueprinting, collating, packaging (at cost plus labour) $ 436.70 4. Shipping via Purolator to owner, Mr. Larry Grozell, Saskatoon Saskatchewan (sans GST) $ 58.92 Subtotal $11,043.94 GST @ 5% $ 552.19 Total $ 11,596.13 [ 4 ] The covering letter, quotation and invoice state that payment in full is required before work will commence.

The invoice expressly provides: Note: Company policy requires that payment in full be received prior to work commencing on the preparation of the engineered drawings. [ 5 ] In the quotation the Plaintiff is required to retain the services of a geotechnical engineer to do a soil and groundwater analysis as well as a surveyor to determine the depths of the excavation for the foundation footings, including the elevation of the footings for the proposed basement walkout vs. the depth of penetration of frost. [ 6 ] The Plaintiff testified that he understood that the Defendant would provide a site plan.

In an email to the Defendant dated July 9, 2012, the Plaintiff wrote to the Defendant: I have had a chance to review the plans sent out last week. In their current state of completion they do not meet requirements for me to make an application for a building permit. I have attached the building permit instructions for the municipality for your review. You will notice building permit application required work yet to be completed includes: 1. A site plan providing information as sent on Tues of last week

2. Electrical information i.e. plug light switch panel locations etc. 3. Some Mechanical information furnace, hot water tank location bath fans etc. This is the first indication in writing that the Plaintiff expected that the Defendant would provide the three enumerated items. [ 7 ] There was some discussion of site inspection, including the cost of the Defendant travelling from Alberta and it was resolved between the parties that he need not attend.

It did seem that the lack of direct contact contributed to the communication problems that developed. [ 8 ] The Plaintiff made a number of significant changes to the plan for the building including a change to the structure from a “T” shape to a rectangular shape. Just before the Plaintiff couriered a new second sketch the Plaintiff sent an email dated May 7, 2012, in which he inquired whether this change would be a challenge to providing a completed plan. Some of the email is unintelligible. It provides: This weekend I sketched the outline of the add [sic] on so it is ready to send to you. . .

I just want to confirm you will be able to marry the new structure to the existing. . . without a visit to the site. Would you expect any significant challenges to accomplish this . . . In reply the Defendant wrote that same evening and did not indicate any difficulty with the plan. [ 9 ] The Plaintiff sent another email dated May 8, 2012, wishing to confirm that he needed the plans before June 15 th : . . . I would need plans to obtain a building permit in advance of a June 15 th construction start. Does that work in your schedule?

In his reply email that morning, the Defendant wrote: I’m not sure just how long it would take for you to obtain a building permit once you submit your plans to the municipality but I don’t foresee any scheduling problems at our end in getting the plans done by say, the first week of June. Once we have the drawings/sketches from you we will work non-stop to get them done. Following that the Plaintiff testified that he sent the second sketch with a deposit of $8,000.00.

In a further second email that morning he indicated that he’d send the package that morning. [ 10 ] There were subsequent changes required by the Plaintiff including with respect to the placement of the septic tank under the existing structure. Just prior to June 1, changes to the SIP panel requirements were made. Emails were exchanged on June 1 st and 2 nd in which the Plaintiff talked about the need for a quick turnaround. [ 11 ] The Defendant forwarded the first set of preliminary drawings on June 5 th and they were received about June 8, 2012.

There was some testimony about the delay in forwarding drawings by courier between the Plaintiff in Saskatoon and the Defendant in Alberta. The Defendant remarked that at times it could take over the expected 2 to 3 days. In forwarding these preliminary drawings with a covering letter the Defendant offered some explanation and posed a number of questions. [ 12 ] The Plaintiff testified that he had major concerns with the first set of preliminary drawings. Despite numerous phone calls

between the parties over the next two weeks they were, according to the Plaintiff, unable to resolve these issues which he testified concerned: the length of the walls which should have been divisible by 4feet, the internal walls were not the correct width for SIP panels, the stairway and bathroom locations, room for plumbing due to the placement of the SIP panels, placement of posts and beams, use of truss joists in the basement interfering with an open area plan and having implications for proximity to the water table.

The Plaintiff concluded, stating that they “had troubles from this point forward”. [ 13 ] Before obtaining the second set of drawings, the Plaintiff forwarded the balance of the monies payable pursuant to the quotation. These drawings, dated June 26 th were received about July 2 nd or 3 rd . Asked if these were to be the final drawings, the Plaintiff replied that they were represented as such but they were not complete. The drawings did not include what he expected in order to get a building permit; they did not include a site plan.

He said he called the Defendant about the site plan who suggested that he send the dimensions required for the site plan. The Plaintiff then drafted a sketch and emailed it that day, July 3 rd . He identified a number of other issues with the second drawings in an email, dated July 9 th , referred to in part above. He itemized “errors that need to be addressed”: 1. Exit door and small deck are not drawn in on the right elevation. 2. Couldn’t locate detail for upper exit doors from halls. 3.

The front deck location is on the existing building front door exit not on the new building front so should be eliminated. 4. The north wall is [sic] should be 72’ 10” not 73’ 3”. We discussed the measurements and it was agreed to make the hall 3’ 6” instead of 3’ but that the 3 north right side bedroom sizes would be adjusted to accommodate the difference (even panel number 72’ plus the 60’ wall thickness of 10”) 5. The bathrooms as drawn don’t provide for a sink drain and vent cavity. This can be solved by changing door location and rotating the bathrooms.

The four bathrooms on the left need a 10” wood cavity wall added the same as is done on the others instead of running the sip straight through the hall wall. . . . [ 14 ] The Plaintiff testified that he did not receive a response to these two emails. There was evidence however of verbal communications in this time frame, referred to by Mr. Hamilton in testimony and the Defendant, notably in his email of July 30 th . As well during this time the Plaintiff had asked Mr. Hamilton to communicate with the Defendant on his behalf.

Not known until the trial, the Defendant became ill in the first part of July and was in and out of hospital. He had difficulty remembering everything that transpired in July. Mr. Hamilton was not precise about what transpired in this time frame either but he did not suggest that the Defendant broke off communications. Indeed he stated that he was aware of a lot of communication and sent his July 25 th email so as to be clear. [ 15 ] The Defendant cross-examined the Plaintiff about the failure to provide further information so that he could complete his work.

He put it to the Plaintiff that he instructed his general contractor, Mr. Hamilton, to correspond with him and referred to the email dated July 25 th which indicated the items that were not addressed and that marked-up drawings would be forwarded immediately: Gary, Change of plans. I am going to stick around Saskatoon to get the other information and drawings together to land the building permit. Here is the list of changes required for the drawings. The Municipality wil not give us a permit without the following changes being shown on the plans.

I am sending a copy of the marked up drawings to you via courier tomorrow a.m. Following this excerpt Mr. Hamilton listed the changes needed, which list did not include a site plan, electrical or mechanical plans or information. The email closes with: Please feel free to call to discuss once the markup set arrives. The Plaintiff agreed that he stepped back and directed his general contractor to continue dealings with the Defendant. He did not have any further direct dealings with the Defendant. The marked-up drawings were not forwarded, nor did the Plaintiff communicate with the Defendant again through Mr.

Hamilton.

[ 16 ] After consulting with his general contractor, Brad Hamilton, the Plaintiff had prepared his own site plan and submitted it together with the Defendant’s plans to obtain a building permit. This was rejected by the permit approving authority of the R.M. of Corman Park because it was incomplete. It was surprising that the Plaintiff submitted the plans when he knew them to be incomplete. It was apparently subsequent to this, that the Plaintiff asked Mr.

Hamilton to refer him to another professional to complete the plans. [ 17 ] In an email filed by the Plaintiff, dated July 30, 2012, the Defendant wrote to Brad Hamilton to express his concern about not receiving the marked-up plans from Mr. Hamilton as promised in the July 25 th email and his concern that perhaps they have been waylaid. This email was forwarded by Mr. Hamilton to the Plaintiff on the same date. It states in part: The marked-up plans you said would be here Friday a.m. have still not arrived. . . . I cannot really interpret the items in your email without having the marked-up plans in hand. . . .

A couple of items that popped out during a review of your email are bothering me and, again, without marked-up plans in hand I might possibly be misinterpreting something. During our phone conversation last week, you stated that just some additional details would be needed but that the overall footprint of the building as drafted would not be changing. If I’m reading your email correctly, it seems that the overall footprint of the building is being changed – again. If so, then this would be the fourth time that these plans will have been drafted.

If the overall footprint of the building is being changed then I will have to scrap everything and start over again. And, again, if memory serves, you have indicated that the direction of the floor trusses is being changed – which changes the complete foundation layout. Why is the floor truss layout being changed? And, now I’m been [sic] told that there will not be SIP panels installed in the basement area? What is going to support the main floor system?

There is now no money left in doing these plans and, if the footprint is going to be changed (again) then there will be a charge for the re-drafting the complete set of plans. Every time we do a complete re-draft of these plans it costs us $6,840.00 plus GST in design and drafting time spent, overhead, blueprinting costs, etc. And, before tackling these plans again, very specific directions will have to be received before we begin. . . . I am being completely serious when I say that this set of plans is now starting to affect my health.

And, as discussed on the phone, and for the record, we don’t do electrical layout designs, heating, ventilation or air- conditioning designs – just structural. To ask us to do the above noted mechanical designs and layouts is just not fair as we don’t get involved in these things.

And, if there has to be some provision for mechanical ductwork to run through the trusses (referring, I believe, to an item in your email) why were we not given this information before rather than have the fellow at Rimbey go through all the work of doing the floor truss layout without us being able to tell him that the floor truss design has to be done to accommodate such ductwork? . . . I will await the arrival of the marked-up plans and then contact you. In the meantime, I’m shortly going to be leaving for our appointment at the hospital. Gary Gibson

[ 18 ] On July 27 th , the Plaintiff engaged the services of Dan Custer, of Environmental Design Group Limited, to complete the plans to obtain a building permit. Mr. Custer prepared the necessary drawings for a building permit and submitted them. The Plaintiff then received the building permit on August 10 th . [ 19 ] Mr. Custer was qualified as an expert witness in the area of building design and building permit requirements in Saskatchewan. He was approached by Mr. Hamilton on July 27 th when he produced the Defendant’s drawings and asked him to do the mechanical and electrical drawings.

He explained the work he did to make them ready to obtain a building permit. He pointed out that there was no site plan, no mechanical or electrical plans and that there were some problems with the Defendant’s drawings. He estimated that the Defendant’s work represented about 50% of the work needed to get a building permit. He initially endeavoured to work with the Defendant’s drawings but ultimately created complete new drawings. However, he submitted his new drawings with the 34 to 36 shop drawings prepared by the Defendant when applying for the building permit.

He was quite satisfied with the design he created, remarking that he solved some of the problems with which the Plaintiff and Defendant had struggled and believed he saved the Plaintiff about $30,000.00 in construction costs. [ 20 ] Mr. Custer offered an explanation as to why he was retained to complete the Defendant’s drawings.

He said that they were going to courier the changes to the Defendant for revision but they realized that with the long weekend, it would take five days just to get them delivered one way and that all told there would probably be a delay of two to three weeks before the drawings could be completed. He offered to work over the long weekend from Thursday to Monday, which he did, meeting with Mr. Hamilton and the Plaintiff on Saturday and producing new drawings for approval and issuance of the building permit. [ 21 ] Mr.

Custer was asked if the Defendant’s drawings needed to be redone because of deficiencies or indecision and he felt that it was a bit of both, remarking that it was a complicated building because it was attached to an old house and that the design evolved. He noted that prior to issuance the permit granting authority faxed a minor list of deficiencies which he rectified. He made a point of emphasizing the importance of direct communication, having delivered the drawings, in person.

When asked if the shop drawings were necessary to the building permit, he replied that he didn’t believe so but could not be sure that they did not assist in obtaining the permit. [ 22 ] Mr. Brad Hamilton, the general contractor was qualified to testify as an expert as a general manager of construction. He had worked with the Defendant in the past and seen his drawings as an engineer. He was shown the email that he sent to the Defendant on July 25 th and was asked to describe the deficiencies in the drawings. He listed the major deficiencies to be: site plan, details on exits, and joisting.

He did not mention site plan in the email and he did not mention the deficiencies that the Plaintiff complained of in testimony: absence of mechanical and electrical drawings. He did refer to a “change of plans” and that he was going “to get the other information and drawings together to land the building permit”, discussed above. [ 23 ] Mr. Hamilton, with the Plaintiff, marked-up the drawings with a view to sending the needed changes to the Defendant. He believed that these changes had already been verbally communicated as a result of discussions with the Plaintiff.

He maintained that he’d had phone conversations with the Defendant but he was not specific about what was said; he was concerned about whether the verbal communications were clear so he prepared the July 25 th email. [ 24 ] Mr. Hamilton did not send the marked-up drawings as promised in his July 25 th email, nor did he advise the Defendant that they had retained Mr. Custer to complete the work.

Asked about the extent of his instructions to act on behalf of the Plaintiff, he maintained he was not an agent but he did not deny telling the Defendant in a phone call that he was not to communicate with the Plaintiff but with him. [ 25 ] Mr. Gibson, the Defendant, is a professional engineer, and licenced to practice in Alberta since 1964 and in Saskatchewan since 2011. He testified, as he indicated in his pleadings, that they do not do site plans and his quotation does not include a site plan.

He testified to the waste surrounding changes in the Plaintiff’s plans, especially between the first and second sketches provided by the Plaintiff. [ 26 ] He described the problems around the SIP panels and the floor joist system which had implications for the layout. He felt that many changes could have been avoided had the Plaintiff done more homework before submitting the criteria for his plans. [ 27 ] The Defendant expressed frustration that he did not receive the marked-up plans from Mr.

Hamilton as promised in the July 25 th email and felt that he could not proceed until he received them as he could not assume what they contained or that they merely reflected the information in the email. It was his view the Plaintiff breached their contract.

[ 28 ] With respect to the counterclaim, the Defendant felt justified in making the claim because of the many hours of work that were generated by the numerous changes made by the Plaintiff. [ 29 ] During cross-examination, the failure to have “a meeting of the minds” became very clear. The Plaintiff’s counsel put it to the Defendant that it would be standard practice in the industry for him to provide all the necessary construction drawings in order to get a building permit. The Defendant explained that he is a structural engineer and that he does not feel that he has expertise outside of that.

It was never his intention nor did he feel that he has sufficient expertise to provide anything more than the structural building plans needed for a building permit. [ 30 ] He was asked why his March 23 rd letter asked for a geotechnical and surveyor’s report but did not specify the need for other construction drawings. He explained that the items requested were necessary for him to prepare his plans. He does not recall having a discussion with the Plaintiff about the need for mechanical or electrical plans and said that he was not aware that they were needed for a building permit.

He remarked that site plans are done by surveyors. He felt that his experience with SIP panels was significant to the Plaintiff seeking him out to do the structural plans. [ 31 ] When asked about the promise to deliver plans within eight to ten working days, he said that he did not anticipate the huge number of changes to the plans. He maintained that he was working constantly, seven days a week, to keep up with all the changes. He illustrated how the changes impacted his work with reference to the bathrooms and the inquiry about venting.

He had hoped that the Plaintiff would consult with a plumber and he changed the bathroom placement to accommodate the venting. [ 32 ] The Defendant was asked a number of questions about what transpired in July and he simply couldn’t recall. He eventually volunteered that he had been ill and in and out of hospital undergoing tests. He could not say that he advised the Plaintiff of this. [ 33 ] He agreed that the last set of drawings that he forwarded were not complete. He was waiting for specifics as expressed in his email of July 30 th . The drawings were about 40 to 50% complete at the time.

He had yet to do four elevation views, the foundation plan and the roof truss layout. [ 34 ] The Plaintiff maintained that it was a term of their agreement that “time is of the essence”. In the March 23 rd letter that accompanied the quotation and invoice the Defendant wrote: As time is of the essence due to our mutual work schedules, could you please advise us as soon as possible as to your decision whether to engage our services or not. At the foot of the quotation the Defendant wrote: Time of Completion From the time of receipt of payment, approximately 8 – 10 working days.

Discussed above, the Plaintiff reinforced that timing was important in his email of May 8 th , which was sent prior to his having retained the Defendant. This was addressed by the Defendant in his reply email that same date, referred to in paragraph 9, above. Issues

a) What was the agreement between the parties?

b) Was timing an essential term of the contract?

c) Are damages payable to the Plaintiff?

d) Is the Defendant entitled to his counterclaim? Reasoning [ 35 ] I made my findings having regard to the civil burden of proof, on a balance of probabilities. Invariably in any trial proceedings there is an assessment of the testimony of witnesses. Sometimes findings of credibility and reliability are necessary. It is not necessarily a matter of accepting all or none of a witness’ testimony. In this case, I found that differences in testimony were more a matter of perception. Where I have made findings of fact I have weighed and considered the testimony together with the documentary evidence, having regard to the civil burden of proof.

a) What was the agreement between the parties? [ 36 ] It is surprising that the parties did not have a meeting of the minds, especially as the Plaintiff professed to have considerable experience in residential construction and he relied on advice from a general contractor, who was familiar with the Defendant’s work. Indeed the general contractor, Mr. Hamilton, did not seem to be operating under the same misapprehension, given his testimony and the content of his July 25 th email.

The distance between the parties and reliance upon phone calls and emails likely contributed to the misunderstanding. [ 37 ] Counsel for the Plaintiff argued that there was ambiguity in the contract as to what was to be provided and that it should be construed against the Defendant. The differences are far too fundamental to be attributed to ambiguity. The Defendant’s quotation of March 23, 2012, was not ambiguous.

The Plaintiff must be taken to have understood what he read in the quotation and if he thought it should include the site plan, mechanical and electrical plans, he should have made this known to the Defendant and had it clarified in writing. There is no evidence that he raised these matters until the relationship between the parties was on the verge of breakdown. His email of July 9, 2012 which referred to the site plan, electrical and mechanical information is the first evidence in writing that he expected the Defendant to provide these things.

He testified that he expected that the Defendant would produce all necessary plans to enable him to obtain a building permit; in this he was imprecise. I cannot say that the Defendant was ambiguous or imprecise; rather he expressed himself consistently within the context of his practiced role as a structural engineer. Further it is telling that the July 25 th email from the general contractor, Mr. Hamilton, does not list a site plan, electrical or mechanical plans or information as deficiencies. In his testimony, Mr.

Hamilton asserted only that a site plan should have been provided and made no mention of mechanical or electrical plans being expected. [ 38 ] I find that the parties were in agreement to the extent that the Defendant contracted to provide structural engineered stamped building plans necessary to obtain a building permit. They were not in agreement that the Defendant was to provide a site plan, electrical or mechanical plans. These types of plans are very specific in nature and before the Defendant can be found to be bound to provide such plans they must have been specifically enumerated in writing.

The contra proferentum rule does not apply. See: Wawanesa Mutual Insurance Co. v. Hewson, 2004 SKCA 112 , Goffin v. Abbey Life Insurance Co. of Canada, [1996] S.J. No. 481 (SKCA) . [ 39 ] However where the parties are apparently not ad idem and where there was a mutual mistake a court may, having regard to what a reasonable person would believe, infer the agreement from the words and conduct of the parties. See Henderson v. Knogler , 2009 SKQB 96 . [ 40 ] I found that the parties contracted for structural engineered stamped plans and SIP panel expertise in a format suitable to obtain a building permit.

It was to be provided for a fixed sum, without regard to the number of hours employed in producing the product.

b) Was timing an essential term of the contract? [ 41 ] Timing was expressly addressed in the Defendant’s covering letter and quotation of March 23, 2012. A court may imply that it was the parties’ intention that something be treated as a term of the contract. See Greenside Properties Inc. v. 8458429 Holdings Ltd ., [1996] B.C.J. No. 531 (BCSC) .

[ 42 ] I found that there was an express or implied term that “time was of the essence”. The Plaintiff understood this. The Plaintiff indicated that he had a deadline of June 15, 2012 and as late as May 8, 2012, the Defendant agreed that he could comply with the Plaintiff’s deadline. [ 43 ] The initial June 15 th deadline was waived by the actions of the Plaintiff, though the urgency of the situation continued to be part of the ongoing understanding. On a practical level the deadline moved, but it likely remained at 8 to 10 business days following the last requested changes by the Plaintiff.

The Defendant’s ability to complete within his self-imposed deadline was dependent however upon his receiving clear and final instructions about his requirements for the plans. This did not take place as he waited for final instruction that never arrived. [ 44 ] The Defendant’s location affected accessibility, most significantly the exchange of large drawings by courier. Over a weekend, the delay one way could be five or more days.

The Plaintiff must be taken to have understood that before he entered into the arrangement with the Defendant as he encountered this with the exchange of his first and second sketches. [ 45 ] I noted the delay in payment of the balance of the funds which were not sent until late June, despite the fact that there was apparently no allowance for payment in two steps.

I interpreted the Defendant’s silence on this point to indicate that at some point he and the Plaintiff agreed to alter this aspect of the quotation. [ 46 ] The Defendant cannot be taken to be responsible for the delay in the delivery of the plans associated with the Plaintiff’s unsuccessful submission to obtain a building permit.

In this time frame, the Plaintiff acted unilaterally and must be taken to have contributed to that delay. [ 47 ] Finally, and this is most important, given the behaviour of the parties, if the Plaintiff intended to rely upon the term that “time was of the essence”, he was required to put the Defendant on notice that it was his intention to rely upon it. See Stefan v. Lichter , 2005 SKQB 383 and Dixon v. Wiebe , [1979] S.J. No. 110 (SKQB) . This did not take place. [ 48 ] There was further delay between July 3 rd and 25 th .

There were a number of phone calls and likely miscommunication, prompting the email of July 25 th from Mr. Hamilton to the Defendant. The Defendant told the Court that he was ill, in and out of hospital in July. During testimony he was not certain whether he shared the fact of his illness with the Plaintiff but there were two references to it in his email of July 30 th . It was in the July 9 th email of the Plaintiff that the misunderstanding as to the types of plans to be provided was first made known to the Defendant. Mr.

Gibson’s July 30 th email made a number of points about his difficulties, noted in paragraph 17 above, and specifically stated, referring to a phone conversation, that “we don’t do electrical layout designs, heating, ventilation, or air- conditioning designs – just structural”. The delay in this time frame was the contributing factor in the Plaintiff’s decision to retain Mr. Custer. I am unable to say however, as between the Plaintiff or Defendant, who was responsible for the delay. Their miscommunication about the type of plans required was the primary factor in the delay. [ 49 ] The Plaintiff and Mr.

Hamilton testified that they were clear about the deficiencies that they say they enumerated verbally and repeatedly about the plans that were produced. However a comparison of their correspondence in this time frame indicates that they were not providing the same instructions to the Defendant. Further, Mr. Hamilton felt that there was sufficient ambiguity in the verbal communications to warrant sending the July 25 th email. [ 50 ] The Plaintiff left the Defendant hanging as he waited for the marked-up plans promised in the July 25 th email.

The Plaintiff did not put the Defendant on notice that he intended to treat the contract as at an end and in particular that he was relying on time being of the essence in so doing. He did not say to the Defendant, for instance, “if you do not comply with your obligations within a stated time, I will take this work elsewhere”. [ 51 ] Further, apart from the cost of retaining Mr. Custer, there was no evidence of the cost to the Plaintiff as a result of the delay. It must be remembered that Mr. Custer provided plans and services that the Defendant was not contracted to provide. While Mr.

Custer redid some of the Defendant’s work, I am unable to speculate as to the cost of so doing or to determine how much of Mr. Custer’s work was as a result of different specifications provided by the Plaintiff. Delay would have resulted in any event to obtain the site plan, mechanical and electrical plans. [ 52 ] Having regard to everything that transpired in this time frame, while the Plaintiff’s time pressure contributed to his dispensing

with the services of the Defendant, the failure to clearly communicate his expectations to the Defendant was also a contributing factor. He needed to employ someone to assist him in completing the requirements for a building permit. As I understood Mr. Custer’s testimony; when he was first approached that was the intention but concern over the needed changes to the Defendant’s plans and time pressures contributed to the decision to dispense with the Defendant’s services altogether. The Plaintiff was not in all the circumstances entitled to set aside the agreement with the Defendant or absolve himself of responsibility toward the Defendant for payment of his services.

c) Are damages payable to the Plaintiff? [ 53 ] Payment of the quotation in full before the work began, did not entitle the Defendant to these funds if he did not perform the work. There was nothing about the quotation that suggested that the Defendant was entitled to the full sum if the agreement fell apart. Payment in full in advance was merely a form of security. [ 54 ] Both Mr. Custer and the Defendant estimated that about 50% of his work was complete by the time the arrangement fell apart on or about July 26, 2012. The Plaintiff utilized the Defendant’s work with respect to the SIP drawings.

I interpreted the testimony of the Defendant and Mr. Custer regarding the amount of work that was completed to refer to the other structural plans. The SIP drawings were submitted unchanged to the permit granting authority. They were contracted for and it matters not that they may not have been required to obtain the building permit. [ 55 ] With reference to the quotation, the Defendant is entitled to the entire sum quoted for the SIP drawings and 50% of the quoted sum for the engineered building construction drawings.

He is also entitled to an allowance for the blueprinting, collating, packaging and courier services, stated in the quotation as follows: Quotation Claimed Allowed 1. engineered building construction drawings 5,867.44 2,933.72 2. SIP drawings 4,680.88 4,680.88 3. blueprinting, collating, packaging 436.70 200.00 4. courier services 58.92 30.00 Subtotal $11,043.94 $7,844.60 GST 552.19 392.23 Total $11,596.13 $8,236.83

d) Is the Defendant entitled to his counterclaim? [ 56 ] The contract was not based on hours of work but on the final product. The Court has sympathy for Defendant’s position regarding the number of hours expended fruitlessly, particularly in the time between his forwarding the second set of plans and the point at which the Plaintiff retained Mr. Custer and terminated the agreement. The Defendant’s counterclaim enumerated 98.25 additional hours at an hourly rate of $115.00 but he did not attribute the work to specific time frames.

In the circumstances it was difficult to find that any sum should be awarded under the counterclaim. Decision [ 57 ] The Plaintiff received value from the Defendant to the extent $7,844.60. The Plaintiff shall have judgment for the difference between what he paid and this amount, inclusive of GST, in the sum of $3,359.30. I am not persuaded that the Plaintiff should be awarded costs.

________________________________ Whelan J