Everlast Eaves & Exteriors Ltd. - v. -, 2011 SKPC 158

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 158 Date: October 24, 2011 File: 149/10 Location: Yorkton _____________________________________________________________________________ Between: Everlast Eaves & Exteriors Ltd. - and - Joan Fayant Richard Leland, Q.C. For the Plaintiff Self-Represented For the Defendant (Plaintiff by Counterclaim) _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I.

OVERVIEW: [ 1 ] The plaintiff installed seven windows at the defendant’s house in Yorkton and claims against Ms. Fayant for its unpaid account of $8,923.75, together with interest under The Pre-judgment Interest Act and the cost of issuing its claim. The plaintiff’s president Lynton Evans testified that he initially provided a quote to Ms. Fayant for windows to be provided through the Federal

Government’s Residential Rehabilitation Assistance Program (referred to as the RRAP Program). His quote was accepted by the program, and his company then installed the windows, completing the installation in April 2009. The plaintiff subsequently issued invoices to the defendant totalling the above sum. No payment was ever received from Ms.

Fayant. [ 2 ] The defendant counterclaims for: 1) the cost of replacing five defective windows ($7,983.15); 2) the cost of repairing and painting walls and casings ($1,300.00); 3) compensation for the stress and work involved related to having to tear her house apart again ($3,000.00); and 4) the removal of the Builder’s Lien on her property at the plaintiff’s cost. [ 3 ] At the trial, Ms. Fayant acknowledged that the issue regarding removal of the Builder’s Lien was outside the jurisdiction of this Court.

She also accepted that, rather than a counterclaim, the nature of her claim was better described as a set off against the amount she otherwise owed the plaintiff. [ 4 ] The RRAP Program is a Federal Government program designed to financially assist low income applicants in doing home improvements. Both parties, at trial, accepted that the money paid under this program, for the work done by the plaintiff, should have been paid by a cheque made out in the names of both the plaintiff and the defendant.

In effect, that would have resulted in the plaintiff receiving the amount quoted, as soon as the work done was approved by an inspector for the RRAP Program. Unfortunately, this did not happen, as a cheque covering the vast majority of the work done (all but $262.50 for grills on the windows that were requested by Ms. Fayant but not covered by the RRAP Program) was sent directly to Ms. Fayant, but made payable only in her name.

She cashed this cheque, which I accept was in the amount of $8,661.25, and kept that money, refusing to pay anything to the plaintiff because she was not satisfied with the windows. [ 5 ] Mr. Evans said the windows installed were not top of the line windows, but were the best the RRAP Program would pay for. He viewed this arrangement as a three way agreement between himself, the RRAP Program and Ms. Fayant. In effect, his participation in providing these windows was based on the assurance from the RRAP Program that the plaintiff would be paid by that program.

He said, given his experience with the RRAP Program, a representative of that program inspected and approved work done before a cheque was issued. While he was not present when the inspection happened in this case, he knew the inspection had occurred as the RRAP Program issued a cheque in the full amount of his quote, albeit not in joint names. [ 6 ] Mr. Evans said that he had attended to Ms. Fayant’s house after the work was done, and had replaced two windows because of a crack in the PVC. He said that he had taken the representative of his supplier, Gentec Building Products Inc., to Ms.

Fayant’s house to look at the windows. After the initial two windows were replaced, that representative, Derek Johnston, refused to provide any further warranty replacement to Ms. Fayant, as she had not paid her account. [ 7 ] Mr. Evans said that his company did approximately $800,000.00 worth of work through Gentec in a year, and had minimal problems with the windows supplied. He maintained that, when installed at Ms. Fayant’s house, the windows were in working order, as the work done had been approved by the RRAP Program before the cheque was issued.

That said, he testified that, once the amount owing by the defendant was paid in full, he would attempt to remedy Ms. Fayant’s concerns, both through his company’s warranty and through Gentec. [ 8 ] Ms. Fayant filed a series of pictures with the Court. These pictured, in early 2011, some of the windows supplied by the plaintiff. These pictures can be categorized as follows: 1) Regarding the living room window , she had a number of complaints. She said the seal around the casements did not close tightly, as the locks on the casements did not pull the window in.

She said the window was leaking, causing staining at the top of the window and the bottom of the window from the water leaking in. She also said that the window was sagging, and that the screens were difficult to get on to the window. In total, she said the cold and heat transference through the glass in this window was extreme. She stated that, a few weeks before the trial, she replaced the living room window in question for $2,500.00;

2) Regarding the window in her southeast bedroom , she complained that the window was not sealing, and that cold transference through this window was extreme. She also said it was of poor quality, which she claimed was less than quoted; 3) Regarding the window in the northeast bedroom , she said the centre of the window did not line up, and as a result, the window rubbed when it closed, causing chipping to the window.

She also claimed that there was a very poor seal on the window, and that cold transference through the glass was extreme; 4) Regarding the north upstairs bedroom window , she said the centre of the window did not line up, and as a result, it would not close and chipping was caused. She further said that the right lock would not lock, and that the window fits too tightly, resulting in the window jamming when being folded out.

She said this window was difficult to push up, as a result of the window being installed too tightly on the sides, and claimed that cold transference through this window was extreme; and 5) Regarding the south bedroom window upstairs , she complained that the cold and heat transference through this window was extreme (although she did not provide a picture of that window). [ 9 ] In cross-examination, she admitted that her house - a so-called “wartime” house - had been in the midst of construction and renovation during the time when these windows were installed.

She said the construction undertaken included the walls around the windows that were replaced. These walls then had drywall applied as part of the renovation. She also confirmed that further work on the house included the roof being reshingled. All of these renovations, she said, were to make the house warmer. When asked why she didn’t pay the money provided to her by the RRAP Program to the plaintiff, she said that the windows were not worth anything and she needed the money to replace them. [ 10 ] In rebuttal, Mr.

Evans said that, in his opinion, an adjustment to the windows would address a number of the concerns raised by Ms. Fayant. Regarding the water marks (leakage), he said that this was a so-called “wartime” house and that the leakage may not have been caused by the windows, but rather by the reality that many of these houses had significant heat loss problems together with ice damming and other leaks on the roof. As well, he said the renovations undertaken would increase the moisture level in the house, which could easily result in leaks on the windows or ice on the floor.

This was because constructions materials brought more moisture into the house. [ 11 ] Mr. Evans repeated that the windows he provided were not the top of the line windows, but they were the best the RRAP Program provided for. Regarding a complaint by Ms. Fayant that a mohair sealed barrier protruded from the side of one of the windows, he said that this was there to prevent the PVC windows from rubbing together. Regarding the chipping, he was prepared to reconsider this by way of warranty work, but only if the plaintiff’s account was paid. II. ANALYSIS: [ 12 ] There was no written contract in this case.

However, I am satisfied that the basis upon which the plaintiff entered into this contract was that the work quoted would be funded by the RRAP Program. I am further satisfied that both parties agreed that the money from the RRAP Program would, in effect, be paid to the plaintiff upon release of the funds by the program. I am further satisfied, and find, that the work performed by the plaintiff, in installing the seven windows at Ms. Fayant’s house, was the work quoted to the RRAP Program, except for the window grills which Ms. Fayant requested above that covered by the program.

While there may have been concerns about these windows later after installation, I am satisfied that the work was inspected and approved by a representative of the RRAP Program, and that, as a result, the work was satisfactorily completed at the time the invoices were issued by the plaintiff to the defendant. [ 13 ] While the defendant did not raise The Consumer Protection Act , I note that s. 57(1)(

a) states that where there is a breach by a retail seller of a statutory warranty in the Act , and where that breach can be remedied and is not of a substantial character: (

i) the party in breach shall, within a reasonable period, make good the breach free of charge to the consumer but, where the breach has not been remedied within a reasonable period, the consumer shall be entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied; and (ii) the consumer is entitled to recover damages for losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach regardless of whether the breach is remedied.

[ 14 ] I accept that there were concerns about these windows on the dates the pictures tendered were taken, about two years after the work by the plaintiff was complete. I am satisfied, and find, that a number of factors contributed to these concerns. These factors included the effects of the renovation project undertaken by Ms.

Fayant, around the site of these windows, the characteristics of a so- called “wartime” house into which these windows were installed, and the reality that these windows were not the highest quality windows on the market, in particular in terms of retention of heat. [ 15 ] I am not satisfied, based on the evidence at trial and the factors outlined in the above paragraph, that the plaintiff was negligent in installing these windows. I am satisfied that any of the concerns Ms. Fayant ultimately raised with Mr. Evans about these windows could have been remedied and were not of a substantial character.

If there was a breach here by the plaintiff of the statutory warranty (in s. 48 of the Act ) that the windows be durable for a reasonable period of time - even though Ms. Fayant did not counterclaim against the manufacturer of the windows or raise the provisions of this Act - I am nevertheless satisfied that any action required to be taken by the plaintiff in response to these concerns would presuppose that the plaintiff had been paid for the work done. Here, I find that the plaintiff was more than prepared, and still is, to take any reasonable steps towards remedying Ms.

Fayant’s concerns, upon being paid. [ 16 ] The fact that the defendant chose, while this action was pending before this Court, to replace her living room window for $2,500.00, was in my view a decision taken solely by herself, and a decision for which she is not entitled to be compensated. [ 17 ] In total, I am satisfied on a balance of probabilities that the plaintiff is entitled to be paid the full amount claimed, covering both the work covered by the RRAP Program and the window grills which were not covered by the RRAP Program.

I am not satisfied on a balance of probabilities that any amount should be set off against that amount. In effect, this is an action that never should have arisen, because the amount paid by the RRAP Program should have gone to the plaintiff, leaving only a small amount owing for the window grills. III. JUDGMENT: [ 18 ] The plaintiff shall have judgment for $8,923.75, together with interest on this amount from May 1, 2009 (the date of the final invoice sent to Ms. Fayant) and the cost of issuing this claim ($90.00). Ms. Fayant’s counterclaim is dismissed. R. Green, J