Glen Rittinger v. Connie Rittinger, 2014 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 068 Date: April 14, 2014 File: 56/2013 Location: Swift Current _____________________________________________________________________________ Between: Glen Rittinger and Connie Rittinger - and - The Concrete Guy Inc. Self-Represented For the Plaintiffs Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] The plaintiffs hired the defendant company to do certain outside cement work, being the installation of countertops for their outdoor kitchen. A price was agreed upon of $3,100.00 plus tax and in July of 2011, the plaintiffs paid the defendant the sum of $3,255.00 for the countertops. The countertops lasted through the summers of 2011 and 2012. However, in the spring of 2013, the plaintiffs noticed that certain areas around the outdoor sink in particular had deteriorated.

The countertop had crumbled prematurely and was unstable. The plaintiffs also stated that this deterioration caused discolouration to the metal cupboard doors.

[ 2 ] The plaintiffs had some difficulty contacting the defendant as the defendant’s contact information had changed. The plaintiffs happened to see Dan McLaren, a local tradesperson or handyman, who had also done work for the plaintiffs in the past. Mr. McLaren was able to relay a message to the defendant about the plaintiffs’ concerns. [ 3 ] The defendant initially told the plaintiffs he would look at the problem. However, due to the defendant’s busy schedule, this did not occur. However the defendant suggested to the plaintiffs that they contact Joel LaVerdiere, a young fellow who did excellent cement work.

The plaintiffs understood from this conversation that the defendant would look after and pay for the repairs. Joel did the work and invoiced the plaintiffs $3,295.10. Joel’s company is called Inora Concrete. The plaintiffs state that the estimated cost of the cupboard doors is $313.95, however since the doors are still functional, they have not had them replaced. The plaintiffs seek reimbursement for the invoice from Inora in the amount of $3,295.10. [ 4 ] The plaintiffs filed as Exhibit P-2 pictures of the concrete countertop.

It is clear there is a very significant deterioration of this countertop in a short period of time. It should be noted that the countertop area that was replaced is a relatively small portion of the total work done by the defendant. The defendant estimated it would be about 10 percent of the total amount of work done by the defendant. [ 5 ] It is the plaintiffs’ position that they had a verbal contract with the defendant to supply cement countertops for his outdoor kitchen. The defendant supplied same and the plaintiffs were satisfied with the work done at the time and paid the invoice as agreed upon.

However, in the space of 20 months, areas of the countertop had deteriorated significantly and they had understood that the defendant was going to cover the cost of having this portion of the countertop remedied. The plaintiffs say the work was not done in a satisfactory fashion. [ 6 ] The defendant admits that he and the plaintiffs have always had a good relationship and that he has done previous work for the plaintiffs. The plaintiffs have always paid the defendant’s invoices on time without any difficulty. The defendant’s position with respect to this work is as follows:

a) The defendant says that the plaintiff hired Dan McLaren to be the contractor on this job with respect to the counters for the outdoor kitchen and consequently the plaintiffs should be suing Mr. McLaren. The defendant says that Dan McLaren made all the arrangements and that he, the defendant, did not deal with the plaintiffs.

b) The defendant says that Joel LaVerdiere from Inora Cement supplied a much superior product to the plaintiffs. The defendant testified he had been at Joel’s workshop and saw for himself that he uses a different mix than the defendant. Joel apparently adds polymers and other synthetic material so the plaintiffs actually received a superior product. The defendant notes that this is evident in the price charged by Joel. The price of $3,295.10 for this smaller area is as much as the defendant charged for the entire job.

c) The defendant says these proceedings are unfair as Dan McLaren and Joel LaVerdiere were not present. Therefore the defendant feels he is the “scapegoat in these proceedings”.

d) The defendant says the plaintiffs did not care for the counter surfaces properly and used cleaners and abrasives that removed the final seal on this portion of the counter. Therefore water and snow were able to seep in and cause the problems as described by the plaintiffs.

e) The defendant says that the discolouration on the doors is a result of the screws or fasteners not being put in correctly and therefore rusting occurred and caused the problem.

f) The defendant did assist the plaintiffs by allowing Inora Cement to use the frames to pour the new portion of the counter. He estimates this value to the plaintiffs between $800.00 and $1,000.00. ANALYSIS [ 7 ] First of all I will deal with the defendant’s argument that the plaintiffs should be suing Dan McLaren, not himself. I do not accept this argument as there is insufficient evidence to support it. The invoice that the defendant made was to the plaintiffs and was paid directly by the plaintiffs.

I accept the plaintiffs’ evidence that he and his wife attended at the defendant’s home to view the product and make the selection for the work to be done. The main issue, in my view, is whether the defendant should compensate the plaintiffs because a portion of the concrete, was not durable for a reasonable period of time. In Cash v. Gross , 2003 SKQB 97 , McIntyre J. held that:

... the concrete used was a consumer product”, the defendant was “a retail seller” and the plaintiff was a “consumer” all within the meaning of The Consumer Protection Act . [ 8 ] The Consumer Protection Act that is relevant to these proceedings is contained in s. 45(1), 45(2) and 48(d), (

e) and (g): 45

(1) Any promise, representation, affirmation of fact or expression of opinion or any action that reasonably can be interpreted by a consumer as a promise or affirmation relating to the sale or to the quality, quantity, condition, performance or efficacy of a consumer product or relating to its use or maintenance is deemed to be an express warranty if it would usually induce a reasonable consumer to buy the product, whether or not the consumer actually relies on the warranty. (2) Subsection (1) applies to a promise, representation, affirmation of fact or expression of opinion made verbally or in writing directly to a consumer or through advertising by a retail seller or manufacturer, or his or her agent or employee who has actual, ostensible or usual authority to act on his or her behalf. 48 Where a consumer product is sold by a retail seller, the following warranties are deemed to be given by the retail seller to the consumer: ... (

d) that the product supplied under the contract is of acceptable quality, except that this warranty is deemed not to be given: (

i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or (ii) where the consumer examines the product before the contract is made, respecting defects that examination ought to have revealed; (

e) where the consumer expressly or by implication makes known to the retail seller any particular purpose for which the product is being bought, that the product supplied under the contract is reasonably fit for that purpose, whether or not that is a purpose for which the product is commonly supplied, except that this warranty is deemed not to be given where the circumstances show that: (

i) the consumer does not rely on the retail seller’s skill or judgment; or (ii) it is unreasonable for the consumer to rely on the retail seller’s skill or judgment; ... (

g) that the product and all its components are to be durable for a reasonable period, having regard to all the relevant circumstances of the sale, including: (

i) the description and nature of the product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the product normally requires and the manner in which it has been used; [ 9 ] In that case McIntyre J. confirmed the trial judge’s decision that held that 48(

g) of The Consumer Protection Act requires that the concrete be durable for a reasonable period and that it was not and therefore the breach of warranty was of substantial character and not remedial. It is reasonable in the within case for the plaintiffs to expect the concrete countertops to be durable for a period longer than a couple of years. It is noted there was no problem with most of the concrete countertop supplied by the defendant on this occasion. The problem as described by the plaintiffs and as shown in the photographs filed as an exhibit shows the area around the sink as the most affected.

There is no evidence to establish that the concrete in this area was of inferior quality. The defendant states that the problem is that the plaintiffs did not look after the countertop in this area properly and used abrasive cleaners and soaps and did not reseal it each year. However, it is noted the defendant could not say what instructions, if any, he gave to the plaintiffs about proper care. The plaintiffs say there were none. Therefore, I find a breach of s. 48(

g) of The Consumer Protection Act by the defendant. [ 10 ] Defects are entitled to be remedied but not to the extent that results in work or product of a higher quality. This is the principle known as betterment. In Maisonneuve v. Burley , 2001 SKQB 407 , the Court noted that in some cases where defects are entitled to be remedied there should be an appropriate adjustment if the repair or replacement of damaged property results in a new product of greater value than that which existed prior to the damage being sustained.

[ 11 ] While I accept the defendant’s description of the new concrete supplied by Inora Cement, I am prepared to make a deduction for betterment as I accept the defendant’s argument that the plaintiffs did receive a better product from Inora. The amount of the invoice alone would suggest it is a much superior product.

I also accept the plaintiffs did receive an indirect benefit of approximately a $800.00 value by the defendant allowing Inora to use the forms the defendant had constructed. [ 12 ] The plaintiffs are entitled to an award of damages as a result of the defendant’s breach of the warranty and the failure to advise the plaintiffs of proper care for the countertops in applying sealer every year and for the fact that the countertops did not stand up to the outdoor weather conditions.

However, I am not prepared to award the plaintiffs the entire amount of their claim as I am satisfied, as I have indicated, that this is a situation where a better product was supplied. As well, only about 10 to 15 percent of the total area was affected. The plaintiffs have already received indirectly the benefit of approximately $800.00.

Therefore, on a quantum meruit basis, I am prepared to award the plaintiffs a further $1,000.00 in damages plus the cost of the service of the summons and pre-judgment interest from July 1, 2013 to the date of this judgment. [ 13 ] I do not accept the defendant’s explanation that the discolouration on the doors was caused by improper screws or fasteners being used. I am prepared to award the plaintiffs the cost of replacement doors in the amount of $313.95. [ 14 ] Finally, the defendant’s suggestion that the proceedings are unfair as Dan McLaren and Joel LaVerdiere were not present has no merit.

In all Small Claims actions, the parties receive materials with respect to the procedure and the conduct of a hearing. Judge Kovatch held a case management conference on December 13, 2013, at which time both the plaintiffs appeared in person and Mr. Blair Dyck, the principal involved in the defendant corporation, also appeared. The file indicates that the case management conference was conducted at that time. It is reasonable for this Court to conclude that Judge Kovatch explained the procedure in order to prepare for trial as the matter was being set down for a hearing.

The defendant admitted he did not try to have subpoenas issued for any witnesses that he thought should be present. He just somehow thought they would appear. [ 15 ] Therefore, in

summary, the defendant shall pay to the plaintiffs the sum of $1,313.95, representing the damages incurred by the plaintiffs in these proceedings. There shall be no order as to costs. M. Gordon, J