Swift Construction Ltd. - v. -, 2011 SKPC 117

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 117 Date: July 20, 2011 File: SC 09-10 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Swift Construction Ltd. - and - Ian Leaman and Rhonda Heinrichs Robert Serack For the Plaintiff Andrea V. Argue Counsel for the Defendants _____________________________________________________________________________ JUDGMENT M.T.

GORDON , J _____________________________________________________________________________ INTRODUCTION [ 1 ] Small Claims actions 09-10 and 16-10 were heard at the same time as a result of a Consent Order at the Case Management Conference. The parties agreed and are to be commended for their cooperation during the two day trial. [ 2 ] I will deal first with action 09-10 in which the Plaintiff, Swift Construction Ltd. sues Ian Leaman and Rhonda Heinrichs for payment for work done in a renovation project.

Ian Leaman and Rhonda Heinrichs counterclaim for damages claiming breach of contract and unacceptable work by the Plaintiff.

EVIDENCE [ 3 ] Robert Serack, owner of Swift Construction Ltd., is a journeyman carpenter and since 1974 has built and renovated many homes and buildings. At the time of this project he was winding down his career. [ 4 ] In April 2009, Mr. Serack was asked to renovate two bathrooms for the Defendants. Mr. Serack was a family friend of Rhonda Heinrichs’ parents. Rhonda had liked the work he had done in his home and as a result the Defendants met with Mr. Serack to discuss this project. Ian Leaman stated Mr. Serack had some good ideas.

Rhonda and Ian were getting married in July and were anxious to have the work done. [ 5 ] The parties agreed to proceed based on the plans prepared by Mr. Serack, and accepted by the Defendants. Mr. Serack reduced his normal rate. The agreement was Mr. Serack would be paid $40.00 per hour for two workers and $200.00 for travel. The Defendants would supply all materials as per the list provided by the Plaintiff. The Defendants would also do some of the “rough” tearing down work. [ 6 ] Following the plans agreed to, Mr.

Serack ordered two custom built vanities for the Defendants, for which the Defendants promised to pay. [ 7 ] Early on in this project there was a problem with the installation of the Jacuzzi tub. Mr. Serack testified that despite being advised, the Defendants purchased an air jet tub as opposed to the more expensive aqua jet tub. The first tub was installed and then removed. An aqua jet tub, which was 3/4 inches shorter was installed. Ian Leaman testified there was only ever one tub and that Mr. Serack was not familiar with this newer product and that he had not measured correctly on the plan. [ 8 ] Mr.

Serack testified he brought the wall out to the tub. He admitted on cross-examination to drilling one hole in the tub and then would have concealed the hole when completing the final installation. However, Rhonda Heinrichs did not like the result and wanted the small bathroom enlarged. She now wanted one long vanity. Therefore Mr. Serack ripped out the work done, moved the sewer stack and the old plumbing and reframed the walls. He did not do any of the actual plumbing. [ 9 ] Another area of disagreement was with respect to the installation of a pocket door. Mr.

Serack said the Defendants purchased incorrect hardware. Mr. Serack also told the Defendants he needed to know what product they wanted on the walls and vanity counters. There was some discussion and at the request of the Defendant, Ian Leaman, the Plaintiff spoke to Darren Cleave (an acquaintance of the Defendants) about a new product. Mr. Serack was frustrated as the Defendants seemed to be changing their minds and/or slow in making necessary decisions in how to proceed.

At this point, the relationship between the parties had deteriorated to the point they agreed to mutually terminate the contract. [ 10 ] The Plaintiff was to be paid for his hours of work which he estimated in the heat of the moment to be 10 hours. The Plaintiff kept track of his hours daily in a notebook. This was confirmed by his wife. The Plaintiff sent the Defendants an invoice in the amount of $1,316.19 for the work done to date. [ 11 ] The Defendants defended and counterclaimed on the basis that they were put to extra expense as a result of the Plaintiff’s poor quality work.

Ian Leaman testified that the main problem was the incorrect measurements and plan prepared by the Plaintiff for the Jacuzzi tub. The tub was not installed according to the installation instructions (Exhibit D1). [ 12 ] Hugh Miller testified he was contacted by Ian Leaman to do some work in a bathroom before the July wedding. He installed the tub according to the instructions filed as Exhibit D-1. He said that the tub was to sit on a frame and that a hole should not have been drilled through the tub. He admitted when cross-examined by Mr. Serack that the installation could be done the way Mr. Serack suggested.

Mr. Miller has been doing renovations for three to four years. He has no formal qualifications. He was paid $475.00.

ISSUES [13] (

a) Was there an enforceable contract between the parties, Swift Construction Ltd. and Ian Leaman and RhondaHeinrichs? If so, did the Plaintiff breach the contract? (

b) Was the Plaintiff’s work of acceptable quality? (

c) Was the Plaintiff responsible for any increased costs of the Defendants? ANALYSIS [14] I accept that the Plaintiff’s accounting for 24.5 hours at the agreed upon rate of $40.00 per hour for two people. [15] The Defendants complained that the Plaintiff’s workmanship was deficient. Many photographs were filed to illustrate theirproblems. [16] I find that the additional work the Defendants had done to complete the bathrooms is not attributable to Mr. Serack. Mr.Serack did the work according to the plan as agreed. Both parties decided to terminate their relationship after the conversation withDarren Cleave.

There was no suggestion at that time that Mr. Serack would not be paid. I find the additional cost to the Defendantsresulted from their change of plans and indecision regarding the type of product they were going to use. The Defendants agreed to Mr.Serack ordering the custom built vanities. Obviously, a change of plans by the Defendants would involve extra work and cost. [17] There is an implied term in a contract that work will be carried out in a “proper and workmanlike manner”.

In Maisonneuve v.Burley, 2001 SKQB 407, the Court stated at paragraph 26: The contract between the plaintiffs and the defendant was a contract to do work and supply materials. The governing law is setforth in Mack v. Stuike (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask. Q.B.). At p. 771 of Mack, supra, Balfour J. quotes from Halsbury’s Law of England, vol. 3, 3rd ed. (London: Butterworths, 1953) at 435, para. 818 as follows: ...

A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a conditionthat the work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of theordinary amount of skill possessed by those exercising the particular trade ... [18] In order to succeed in negligence the Defendant must establish that the worker’s actions amount to a breach of a duty of careowed to them by the worker. In Maisonneauve v.

Burley, the Court stated at paragraphs 31 and 35: In order to succeed in negligence the plaintiffs must prove Burley’s actions amounted to a breach of duty of care owed them by Burley. The tort of negligence revolves around three elements — duty, breach and loss and, as stated by the Saskatchewan Court of Appeal inSedco v. William Kelly Holdings Ltd., (SK CA), [1990] 4 W.W.R. 134 (Sask. C.A.) at p. 152, three questions areraised: ...

Did a duty of care arise; if so, what was the nature and scope of that duty; was the duty breached; and, if the duty was breached, wasthere a loss, that is a compensable loss of the nature recoverable under the form of the tort at issue?

Conduct is negligent if it creates an unreasonable risk of harm. The measuring rod used in negligence law to judge an actor’s conduct isthe reasonable person. In 1856, Baron Alderson furnished the common law world with a definition of negligence that is still appropriatetoday: ... Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate theconduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

The defendants might havebeen liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which aperson taking reasonable precautions would not have done ... [19] The basis of the Defendant’s defence and counterclaim is that the Plaintiff breached the contract and is liable in both contractand tort. [20] Failure of the Plaintiff to do work in the proper and workmanlike manner is a breach of contract. Failure to perform work to areasonable standard of care can constitute negligence where one party owes a duty of care to the other.

This is discussed in Landru v.Inter City Contractors Ltd. (1987), (SK KB), 54 Sask R. 53 (Sask Q.B.). The objective standard of a reasonable andprudent man is the standard to use in deciding if there has been a breach of the standard of care. A higher level of skill is required ifsomeone holds himself out as a professional. Industry standards can also come into play. [21] The Plaintiff is a journeyman carpenter with almost 40 years experience. He has worked on larger projects for governmentand on many residences. He has done many renovation projects.

The Defendants, Ian Leaman and Rhonda Heinrichs, admitted that thePlaintiff had good ideas and Dr. Heinrichs liked the work done by the Plaintiff on his home. [22] This was an older home that was in need of an upgrade. This can present additional challenges when renovating as describedby Mr. Serack with respect to the plumbing and sewer stack. [23] At the time Mr. Serack was asked by Rhonda Heinrichs to do this work, he was winding down his business. Dr. Heinrichs’parents and Mr. Serack are acquainted and it was on this basis he agreed to take on this renovation project at a reduced rate.

Dr.Heinrichs had seen and liked the work Robert Serack had done on his own home. [24] All the parties met and agreed on a plan and payment. Robert Serack had some good ideas noted Mr. Leaman. TheDefendants were to purchase the supplies as itemized by the Plaintiff. There were some problems with Mr. Leaman’s father bringingsupplies different than what the Plaintiff had specified. It is not surprising, that with Mr. Serack’s experience, he was quite particular asto the supplies he wanted to use.

At paragraph 36 in Maissonneuve the Court noted: The plaintiffs cannot simply allege negligence or show how the wall could have been done better. Except where the matter is a non-technical matter within the knowledge of the ordinary person, the plaintiff must adduce evidence, preferably expert evidence, to supportits claim: Kauffman v. Toronto Transit Commission, [1963] S.C.R. 251 (S.C.C.). [25] I am satisfied there was an enforceable contract between the parties.

I am satisfied that it was mutually terminated by RobertSerack and Ian Leaman, after the conversation with Darren Cleave about floor and counter coverings. [26] Again, the agreement was mutually terminated. The Plaintiff was to be paid for the work done at the agreed upon rate whichI find to be as quoted, $40.00 per hour for two people. [27] The Defendants’ assertion that the tub installation was done incorrectly needs to be examined. [28] Hugh Miller, called by the Defendants, said he had been doing renovation work for three - four years. He has no special skillor training.

He took home the tub installation instructions (Exhibit D1) to read prior to installing. The instructions do not require holesto be drilled on the top edge but rather the tub is to sit on a frame. These are detailed installation instructions, as these items may be

installed by the weekend handyman or an experienced journeyman carpenter such as Mr. Serack. [ 29 ] Mr. Miller admitted on cross-examination that the tub could be installed the way Mr. Serack had intended. I accept Mr. Serack’s evidence that with trim and edging the completed tub would have functioned fine and the appearance would have been acceptable. [ 30 ] Installing the tub in the manner that Mr. Serack used and was going to use again, if he had finished the work, at most invalidates the warranty. However, without any evidence of an expert or someone more qualified than Mr.

Miller, I cannot award any damages. [ 31 ] The Defendants have not convinced the Court of the deficiencies as particularized in their statement of defence, or additional costs as specified in their counterclaim. [ 32 ] They testified as to trips to Regina for supplies. These are not attributable to the Plaintiff. The agreement with the Plaintiff was that the Defendants would purchase the materials once the Plaintiff gave them a list, which was done when the Plaintiff was still working on the project. [ 33 ] As is often the case with renovations, the individual homeowner has difficulty visualizing the outcome.

Often changes are requested by the homeowner part way through a project, or there is some indecision regarding materials to be used. Often homeowners want the deluxe work without having to pay for the deluxe product. [ 34 ] The claim for interest is dismissed. Interest needs to be agreed upon by the parties at the time the agreement was made.

Interest also needs to be stated in an annual amount not just two percent per month. [ 35 ] Therefore, the Plaintiff, Swift Construction Ltd., shall have judgment against the Defendants, Ian Leaman and Rhonda Heinrichs, in the amount of $1,316.19 plus the cost of issuing the summons and service of the summons with pre-judgment interest from April 28, 2009, to date of judgment. Dated the 20 th day of July, 2011, at Moose Jaw, Saskatchewan. _______________________________________________ M.T. Gordon, J