Name Carvery’s Construction Limited Claimant Name Kathy King-Briere. Defendant Editorial Notice : Addresses v. phone numbers have been removed from this electronic version of the judgment., 2014 NSSM 51

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Carvery’s Construction Ltd. v. King-Briere, 2014 NSSM 51 Claim No: SCCH 424885 BETWEEN: Name Carvery’s Construction Limited Claimant Name Kathy King-Briere. Defendant Editorial Notice : Addresses and phone numbers have been removed from this electronic version of the judgment. Glen Carvery and Stan Kedy, appeared for the Claimant, Carvery’s Construction Limited; Kathy King-Briere and Jean-Marc Briere – Self Represented; DECISION This matter concerns the

interpretation of a contract between the Claimant, Carvery’s Construction Limited (“Carvery’s”) and the Defendant, Kathy King-Briere. Certain of the facts are not seriously in dispute. Facts The contract in this matter is a construction contract for renovations in the Defendant’s home at 15 Beaver Crescent, Cole Harbour, Nova Scotia. Representatives from Carvery’s attended to the Brieres’ residence and provided a quote for the work. There were two parts to the work, the first job being the removal and replacement of the support wall in the basement together with the realignment of the furnace room wall.

The second job was the installation of new drywall on the exterior walls, ceilings and new walls and taping the drywall in preparation for painting. A quote was delivered to Ms. King-Briere. It is the wording of the quote which is the subject of this dispute. The quote was prepared by Stan Kedy, who was the project manager for the work. The quote is undated and states the following: “Thank you for selecting Carvery’s Construction Ltd. to provide you with a quotation for your project.

To provide labour and materials to do the following work: To remove supporting wall in basement To install new support wall in basement with proper headers & jacks To realign furnace room wall TOTAL PRICE $2,695.75 + HST

• To install new drywall on exterior walls, ceilings & new walls • To tape new drywall ready for paint • This price does not include any insulation TOTAL PRICE $3,855.50 + HST ” Carvery’s was at the Defendant’s home to complete the work from November 12, 2013 to November 29, 2013. Once on site, the Claimant agreed to perform additional work including installation of a steel door and the construction of a bottom step and floor joist. The work was completed and Carvery’s rendered an invoice in the amount of $8786.49. A cheque or money order issued by TD Bank for $3610.50 was given by Ms.

King-Briere to Carvery’s along with a letter explaining the amount. Essentially, Carvery’s claims the initial quote above was for two separate jobs while Ms. King-Briere claims the second figure, $3855.50 + HST was an all-inclusive figure for both jobs. The Claimant is seeking the difference plus interest and costs, namely $5564.82. The Defendant, claims she owes nothing further. The Evidence Both parties testified to the creation of the contract. While much of the facts have been summarized above, there remain findings to be determined based upon the credibility of the witnesses.

Glen Carvery is the President of Carvery’s Construction Ltd. He did not give evidence other than to swear that Mr. Kedy was the project manager for the job. Stan Kedy testified that he attended to the Brieres’ residence at 15 Beaver Crescent to give a quote for a job to renovate the basement walls. Essentially it consisted of removing and replacing the supporting wall and to reinstate the drywall to prepare it for taping. The quote was sent to Ms. King-Briere and she directed them to proceed. The crew attended and completed the work along with the additional jobs referred to above.

An invoice was prepared showing separate charges for the items stated above along with $1089.18 for the additional work and $1146.06 HST. He testified that he received a letter from Ms. King-Briere together with a cheque for $3610.50 which she explained was to deduct a few items. Kathy King-Briere testified that she asked for two separate quotes from the Claimants, one to replace the supporting walls and the second being a total bill for the job. She testified that she thought the quote of $3855.50 + HST was for all of the work. She produced photographs showing the work to have been rough in places.

There were also cigarette butts on the floor. She explained the few items she purported to deduct. She testified that it took her and her husband three hours to clean the basement after the work was completed for which they charged $70 per hour, a “smoking charge like the hotels, etc.” for $300, and an additional $200 to complete the door. It is clear from her evidence and the photographs that the work was a rough job, meaning that it was done to the point where the finer finishing work was to be conducted by the Brieres at a later date.

She also testified that there was mold on the premises which was closed over by the drywall. The Issues - What are the terms of the contract? - Specifically, what was the aggregate amount of money to be paid by the Claimant under the contract?

- Is either party in breach of the contract, and if so, what is the appropriate remedy? The Law It is necessary to review the law regarding the

interpretation of contracts. Reference is made to the following passage from the SupremeCourt of Canada in Eli Lily v. Novapharm, (SCC), [1998] 2 S.C.R. 129, where Justice Iacobucci stated the following for the majority of the Court: “The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read inlight of the surrounding circumstances which were prevalent at the time.

Evidence of one party’s subjective intention has no independentplace in this determination.... ...Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face.... ...When there is no ambiguity in the wording of the document, the notion in Consolidated-Bathurst that the

interpretation whichproduces a “fair result” or a “sensible commercial result” should be adopted is not determinative. Admittedly, it would be absurd toadopt an

interpretation which is clearly inconsistent with the commercial interests of the parties, if the goal is to ascertain their truecontractual intent. However, to interpret a plainly worded document in accordance with the true contractual intent of the parties is notdifficult, if it is presumed that the parties intended the legal consequences of their words.” The decision of Justice Iacobucci stands for the principle that the first step in the

interpretation of any contract is to look at the plainmeaning of the words, and only if necessary, to consider the context in which they are written. Findings In looking at all of the evidence, I find the quote was for rough work. The walls were not to be painted, but merely taped and the steeldoor installed. I will not comment on the quality of the work other than that I do not find there is sufficient evidence to find it defective.With respect to the individual jobs, I make the following findings: Supporting Wall – It is clear the work was performed and both parties agree the amount quoted was $2695.75 + HST.

I allow $3100.11for this work. Drywall – In order to determine the amount payable for the drywall work, I must review the circumstances of the quote. While I agree itwould have been even clearer had the Claimant used some method to segregate the items and showing a total price, it is far fromambiguous. In looking at the wording of the quote, I find on a balance of probabilities that the Claimant intended to quote both jobs separately,leaving their customer to complete the arithmetic. While it is possible Ms. King-Briere requested a total price, it is clear Mr. Kedy chosenot to give her one for whatever reason.

In my opinion, an objective review of the invoice makes it clear that two prices were given for two separate jobs. There is no evidencewhich I accept that the drywall work was unsatisfactory. The Defendants have not proven the substance in the photographs was mold orthe mold had been covered over by the actions of the Claimants. I find the drywall work was completed. I find the amount quoted andagreed upon to be $3855.50 + HST. I allow $4433.83 for this work. Steel Door and Step – The installation of the steel door and step plus the completion of the floor joist was not quoted in writing.

Ms.King-Briere claimed the amount quoted was $325. She did not see the crew at her house as she expected and feels the amount charged,$1089.18 plus HST was too high. The Claimant is required to prove the contract on a balance of probabilities. I find the work wasperformed adequately and in a proper and workmanlike manner. No evidence was provided as to how the sum was calculated by theClaimant. I agree with Ms. King-Briere it is too high. I find the fair approach is to award a total of $725 + HST. I allow $833.75 for thiswork.

Cleaning – The Defendant has tendered a series of photographs as proof of a mess left behind following the Claimant’s work. I have

found the work to have been completed according to expectations, namely that it was to be completed to a point where the Defendant would be responsible for painting, moulding and other finer finish work. Carvery’s was to perform the rough features. The photographs are not clear there was an unreasonable mess, other than the cigarette butts. There is no reference to cleaning in the quote, thus, only a reasonable amount of cleaning is expected. I disallow the $210 claim for cleaning. I have previously found the door to have been hung as stipulated and disallow the $200 claimed.

With respect to the smoking and leaving cigarette butts, I agree with Ms. King-Briere, smoking by contractors, or anyone else for that matter, in one’s house without permission is inappropriate. Indeed, I would suggest it is presumptuous and unprofessional. This is particularly so where the crew leaves cigarette butts on the floor. However, such actions while rude, do not lead to liability unless evidence of damage can be established. I am unable to find any. Thus, I disallow the “smoking clean up” charge of $300. Relief In

summary, I find the Defendant liable to the Claimant for the following amount under the contract (inclusive of HST): Supporting Wall: $3100.11 Drywall, etc. $4433.83 Steel Door/Step/Joists $ 833.75 (Less: Amount Paid) ($3610.50) Amount outstanding $4757.19 In addition, the Claimants are entitled to pre-judgment interest at 4% per annum from November 29, 2013 to May 27, 2014, the initial date of the hearing, namely $95.14. As Carvery’s was partially successful and the amount awarded is less than $5000 (the limit for the higher filing fee), I fix costs of $150.00 to represent the lower filing fee plus costs of service

Summary The claim is allowed in part. I order the Defendant, Kathy King-Briere, to pay to the Claimant, Carvery’s Construction Ltd. as follows: Total Debt $4757.19 Prejudgment Interest $ 95.14 Costs $ 150.00 Total Judgment $5002.33 Order accordingly. Dated at Halifax, NS, on September 4, 2014.

______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)