Travespine Construction Ltd. Plaintiff And: Christopher C. Webb First Defendant And: Robin L. Webb Second Defendant And: Iam Building Systems Inc. Third Defendant, 2021 NLSC 94

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Travespine Construction Ltd. v. Webb , 2021 NLSC 94 Date : June 28, 2021 Docket : 201708G0042 Between: Travespine Construction Ltd. Plaintiff And: Christopher C. Webb First Defendant And: Robin L. Webb Second Defendant And: Iam Building Systems Inc. Third Defendant Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: September 22-24, 2020; October 16, 2020

Appearances: William S. Kennedy Appearing on behalf of the Plaintiff Jamie Merrigan, Q.C. Appearing on behalf of the First Defendant and Second Defendant No Appearance On behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: William Roberts Electrical & Mechanical Ltd. v. Kleinfeldt Consultants Ltd. (1985) , 38 A.C.W.S. (2d) 468, 20 C.L.R. 206 (Ont. H.C.J.) ; Becker v. Petkus , 1980 2 S.C.R.; Garland v. Consumers’ Gas Co ., 2004 SCC 25 ; Nu-West Drywall Inc. v . Bingham (1991) , 27 A.C.W.S. (3d) 979, 47 C.L.R. 68 (Sask. Q.B.) ; Wacky's Carpet & Floor Centre v.

Maritime Project Management Inc., 2006 NSSC 353 STATUTES CONSIDERED: Judgment Interest Act, R.S.N.L. 1990, c. J-2 REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] The Plaintiff, Travespine Construction Ltd. (Travespine), brought an action against the Defendants for monies owed to Travespine. Travespine assisted in the construction of a residential home for the First and Second Defendants, Christopher and Robin Webb (the Webbs).

Although not specifically pleaded, Travespine asserts that there was not only a contract between it and the Third Defendant, IAM Building Systems Inc. (IAM), but either the Webbs acted as agents for IAM, or a separate contract existed between Travespine and the Webbs. Travespine acknowledges that there was no written agreement between Travespine and the Webbs, but submits it relied on statements by Chris Webb that Travespine was guaranteed to be paid.

Travespine further asserts that the Webbs were unjustly enriched. [ 2 ] The Webbs deny there was a contract with Travespine, and Chris Webb denies making any personal guarantee to Travespine that he would pay for the work. He asserts Travespine was always working for IAM. He acknowledges there was a conversation in which he assured all subcontractors, not just Travespine, that they would be paid by IAM. While it appears most subcontractors were ultimately paid by IAM, Travespine has never been paid for its work.

IAM is apparently no longer in business and no one appeared for IAM at trial. [ 3 ] For the reasons that follow, while I am satisfied that the Plaintiff established they are still owed monies from IAM as a result of a contract between IAM and Travespine, there is no basis to find liability against the Webbs. There was no contract with the Webbs, and the Webbs did not act as agent for IAM. Any monies owed to Travespine for their work in the construction of the Webbs’ house are due solely from IAM.

OVERVIEW OF THE CIRCUMSTANCES [ 4 ] The evidence at trial was largely through the owners of Travespine, Edmund and Joanne Sampson, and the Defendants, Chris and Robin Webb. A former employee with IAM, Lauren Manning (nee “Oickle” at the time of the events) testified by video. She had dealings with both Travespine and the Webbs. Numerous documents, including emails, were filed, by consent. The emails showed communications between the parties and assisted in confirming the timing of events, particularly as the witnesses recollections were vague as to when specific events occurred.

Despite lapses in the recollections of all the witnesses, as well as differences in their recollections during the three days of evidence, for the most part the parties are in agreement as to the circumstances. [ 5 ] In 2015, the Webbs hoped to build their own home on a small parcel of land Mr. Webb inherited in the town of Happy Valley– Goose Bay, NL. Their hope was to have a “turn key” house, meaning a house that the family could move into upon completion. There was a dwelling on the lot, but they intended to remove it and replace it with new construction. Their budget was limited. Mr.

Webb was familiar with Travespine and its owners, Edmund and Joanne Sampson. Mr. Webb knew Edmund Sampson through the Nunatsiavut

Group of Companies where Mr. Webb worked. Travespine was retained by the Nunatsiavut Group to do several projects over the course of two to three years. In that capacity, Mr. Webb had come to know Edmund Sampson and Travespine. [ 6 ] Travespine is a small family owned business operated essentially by Edmund and his wife, Joanne Sampson. Edmund Sampson looked after the construction work with as many as seven men under his supervision, and Mrs. Sampson looked after the bookkeeping. Mr. Webb thought highly of the work done by Travespine and of Edmund Sampson, and he and Mrs.

Webb inquired about an estimate from Travespine to build their home. The price provided by Travespine was beyond the Webbs’ budget so they pursued other options. [ 7 ] The Webbs settled on IAM as the builder. IAM was a construction company operating out of New Brunswick and specialized in modular homes. Mr. Webb was familiar with IAM, as the company had also been retained by the Nunatsiavut Group on occasion. Chris Webb signed a contract with IAM on July 25, 2015 (CW#1). Robin Webb was a signatory as a witness to the contract.

The contract was described as a “design and build” contract to build a modular home at a cost of $268,000. Because the home was a modular home, payment was to be made on “substantial completion” of the project, subject to the required 10 per cent hold back for 30 days. According to the parties, this method of payment was different from other construction projects where payments would be made in installments.

The contract also contained a clause that communications by Chris Webb (“the owner”) with subcontractors were to be through IAM. [ 8 ] Chris Webb testified that preparations for construction commenced soon after signing the contract. Much of the home was to be constructed in New Brunswick, and then transported to Happy Valley-Goose Bay to be assembled. While that construction was underway, the existing dwelling was demolished. The demolishment of the former dwelling was not part of IAM’s responsibility under the contract.

Chris Webb also made his own arrangements to have a foundation and water and sewer connects installed. [ 9 ] While the exact path to Travespine becoming involved in the construction was recounted differently by the parties, there is no issue that by late fall of 2015, Travespine was on site, with crew, assisting in the construction and assemblage of the Webbs’ new home. [ 10 ] According to Chris Webb, Travespine became involved through a request by IAM for names of possible subcontractors in Happy Valley-Goose Bay.

Around mid-August, Chris Webb received an email inquiry from Kevin Surrette with IAM seeking names of possible subcontractors to assist with assembling the home once there in Happy Valley-Goose Bay. According to the emails, Mr. Surrette sought an electrician, plumber and drywall finisher or painter. One of the names provided to Mr. Surrette by Chris Webb was Edmund Sampson. In the email, Mr.

Webb described Edmund Sampson as a “local contractor that can help us needed [ sic ] (I trust Ed 100%)” (CW#2). [ 11 ] According to Edmund Sampson, he had nothing to do with the construction until late September or early October when Chris Webb telephoned him asking if he could provide equipment to unload trucks that were arriving from New Brunswick. Edmund Sampson testified that he had no dealings with IAM initially. However, Lauren Manning confirmed in her testimony that there was an email to Chris Webb (CW#2) advising that she had been in touch with Edmund Sampson, and that “He will help us out for sure”.

CW#2 supports that Edmund Sampson, or someone on behalf of Travespine, was in touch with IAM at least as of October 21, 2015. [ 12 ] It is clear that by mid-November, 2015 Travespine was working on the house, providing both equipment and workers. There is no dispute that Travespine had made arrangements with IAM to provide the work and had told IAM what the hourly rate would be for such work in terms of equipment, and manpower.

Crews from IAM were also on site; however they finished in early December 2015 and did not return until sometime in January 2016. [ 13 ] A series of photographs (CW#5) were tendered by Chris Webb showing the progress of construction. The photographs show walls erected as of November 18, 2015. By December 21, 2015 there were not only several windows installed, the roof was attached.

The photographs also show that while on November 18, 2015 there appeared to be little snow, by December 21, 2015 there was a substantial covering of snow on the ground. [ 14 ] Edmund Sampson testified that he had concerns about the quality of the work being done by the IAM construction workers, and often had to re-do work that was done by IAM. As work continued, Edmund Sampson testified he became concerned about how Travespine was going to be paid. In early February, Mrs. Sampson forwarded an invoice on behalf of Travespine to Chris and Robin Webb (ES#6).

According to the Sampsons, they sent the invoice because there had been no payment. The Webbs advised the Sampsons that they had to send the invoice to IAM, which the Sampsons did. [ 15 ] Although Edmund Sampson testified that from the beginning of his involvement he was concerned about payment, his testimony was, at times, confusing. Edmund Sampson tended to embellish his testimony. He often expanded at length beyond what was needed to answer the question. I do not find he did this intentionally to mislead the Court, as I found that he was generally credible.

But his embellishments often resulted in him being corrected by documentation. For example, he testified that it was late September or early October that Travespine became involved by assisting IAM in off-loading equipment that had arrived from New Brunswick. However, the documentation showed that this likely occurred on Nov. 12, not in late September or early October. [ 16 ] Having said that, I accept that by March 2016, after the first invoice was sent to IAM, and no payment resulted, Edmund Sampson became concerned enough that he refused to work any further on the house.

This caused other subcontractors also working to become concerned and work stopped entirely for a period of time. Edmund Sampson testified that it was not until Chris Webb spoke to him personally that he agreed to continue working on the house.

Chris Webb did not deny there was conversation between he and Edmund Sampson in early spring, but he had a different recollection about what was said. [ 17 ] According to Edmund Sampson, in that conversation Chris Webb “guaranteed” that Travespine would be paid, and that it was on the strength of this guarantee that he permitted Travespine employees to continue work on the house. Edmund Sampson testified that Chris Webb told him “not to worry”, that he (Chris Webb) “put the signature on the mortgage”. [ 18 ] According to Chris Webb, he denied making any kind of “personal” guarantee to Edmund Sampson.

He testified that he told all of the subcontractors, including Edmund Sampson, that once the mortgage monies were paid to IAM, the subcontractors would be

paid by IAM. [ 19 ] Upon review of all the evidence, and having carefully observed both witnesses in their testimony, I accept Chris Webb’s testimony as to what was said and why.

I found Chris Webb to be a straightforward and credible witness, and his understanding as to his relationship with Travespine is corroborated in the evidence by the documentation. [ 20 ] In contrast, while I found Edmund Sampson generally credible, as stated, Edmund Sampson’s testimony was confusing at times; not only about Chris Webb’s statements to him that Travespine was “guaranteed” to be paid, but generally on the sequence of events. On direct examination, Edmund Sampson stated this conversation happened in the spring of 2016, possibly in March of 2016.

At other points on direct examination, Edmund Sampson testified that Chris Webb was telling him “every day” that he would get paid. Under cross-examination, Edmund Sampson testified that the conversation could have occurred four or five weeks after Travespine started working on the job. [ 21 ] Given this, while I find Edmund Sampson was credible, I do not find his account reliable regarding the circumstances of this conversation. I accept Chris Webb’s recollection on this point. Chris Webb’s text to Kevin Surrette on March 1st (CW#4) confirms there was a problem.

I also accept there was a conversation sometime in the spring of 2016, after the first invoice from Travespine was not paid by IAM. I also accept that Chris Webb spoke to the subcontractors because of concern about payment. I find as a fact that Chris Webb advised Edmund Sampson, and the other subcontractors, that payment would be made by IAM, after the mortgage monies were released. [ 22 ] A second invoice was sent by the Sampsons in May, 2016. In July, 2016, a third invoice, claiming amounts that were claimed in February and May, was sent to Chris Webb.

Edmund Sampson explained that he was not getting any response from IAM, so he sent the invoice to the Webbs (CW#12). The July invoice represented the final amount owed. According to emails sent by Kevin Surette from IAM to Travespine and Chris Webb (CW#7), IAM raised issues with the amounts being charged by Travespine. A more detailed breakdown was required. Joanne Sampson confirmed that IAM required a more specific breakdown of costs incurred by Travespine. IAM asserted that the amount invoiced by Travespine exceeded the amount to which the parties previously agreed.

A further invoice with a “breakdown” of costs incurred was sent in October, 2016. [ 23 ] In late July, 2016 the house was completed. The Webbs, concerned that the Sampsons were sending them invoices on behalf of Travespine, contacted Kevin Surette at IAM over the summer and September of 2016 ((RW#1, CW#9 and CW #13). At this point, all other subcontractors had been paid. [ 24 ] The next major event was that sometime in December of 2016, there was a meeting between the Webbs and the Sampsons at the Webbs’ home.

I accept that Joanne Sampson and Edmund Sampson were invited to the Webbs’ home to discuss the monies owed by IAM to Travespine. According to Joanne Sampson, the Webbs offered to sell their personal possessions to help pay for the monies owed. Joanne Sampson was adamant the Sampsons did not request payment from the Webbs, but Chris Webb offered to pay. Mrs. Sampson also disagreed that she and Edmund Sampson told the Webbs they could get a line of credit to pay. Mrs.

Sampson stated that the Webbs maintained that IAM was responsible for the payment. [ 25 ] The monies owed to Travespine were not paid, and Travespine commenced the action against all three Defendants for the monies. ISSUES [ 26 ] The issues to be decided can be framed as follows: 1) Was there a contract between Robin Webb and Travespine? 2) Was there a contract between Chris Webb and Travespine? 3) If there was no contract, were the Webbs unjustly enriched by the work done by Travespine? 4) Was there a contract between Travespine and IAM? 5) What is the amount of monies owed to Travespine, if any, and by whom?

ANALYSIS ISSUE 1) Was there a contract between Robin Webb and Travespine? [ 27 ] This issue first can be dealt with quickly. There was no contract between Robin Webb and Travespine. There is insufficient evidence of any agreement either in writing or orally, that supports a contract existed.

There is no doubt Robin intended to live in the dwelling once built; but she was not party to the construction agreement with IAM, or to any purported agreement with Travespine. [ 28 ] While I accept that the Sampsons were invited to the Webbs’ home in December of 2016, this is insufficient to establish that Robin Webb had an agreement between the Webbs and Travespine, or herself and Travespine, to construct the home.

The fact that she, along with her husband, may have invited the Sampsons to their home was equally consistent with the Webbs acting out of friendship and concern than because they believed they had a contractual arrangement with Travespine that needed to be honoured. [ 29 ] There being no evidence of a contract between Robin Webb and Travespine, the action against Robin Webb is dismissed. ISSUE 2) Was there a contract between Chris Webb and Travespine? [ 30 ] There is also no basis to find a contract between Chris Webb and Travespine.

While I accept Edmund Sampson’s evidence that he spoke regularly, even daily, with Chris Webb regarding the progress of construction, I do not accept that as “far as he was concerned

he was working for the Webbs” or that he had no dealings with IAM. That assertion is not borne out by the other evidence. [ 31 ] To the contrary, the evidence consistently points to Travespine having been retained by IAM. In particular, the email sent by Joanne Sampson (as shown in both JS#1, CW#15) to Kevin Surrette of IAM on December 7, 2016 supports that the Sampsons understood that any agreement regarding payment for the work done was with IAM, not the Webbs.

The writing could not be clearer: Kevin, I am sending you this email in regards to the invoices which is owed to my company, Travespine Construction Ltd . We are a small family based company here in Happy Valley, Your Company agreed to pay Travespine Construction for all work that was done on Chris Webb’s house , as of today’s date we have not received one red cent for all the hard work that my husband Ed Sampson and his crew has put into this project including materials, labour costs, machinery costs, working in the cold weather to make sure your client was able to move into his home.

If we do not hear from you ASAP I will be contacting my lawyer, and we will deal with you that way, as a business person I am appalled that you would even let this go this far without even an explanation on why there has been no payment sent yet, you are the cause of hardship to my company which we put our trust in but you have failed us completely, I will be forwarding this email to my Lawyer. [ emphasis added ] [ 32 ] The content of this email, of which neither of the Sampsons disputed, is not language that suggests anything other than there was an agreement with IAM to be paid for work done by Travespine, and now Travespine is concerned because the work is complete and no payment has occurred. [ 33 ] Further, Lauren Manning’s testimony confirmed that she had made contact with Edmund Sampson, and supports that there was an intention by the Sampsons to have an agreement between Travespine and IAM.

It also contradicts any assertion by Edmund Sampson that he had “no dealings” with IAM. [ 34 ] Further, that the Sampsons forwarded their hourly rate to IAM supports that Travespine understood with whom they were agreeing to do the work, and by whom they would be paid.

Similarly, the invoices being required to be sent to IAM, and directed to IAM, supports that Travespine understood that they were to be paid by IAM, and that is for whom they were working. [ 35 ] Further, the contract that Chris Webb signed with IAM specifying that communications with subcontractors would be through IAM (CW#1), supports that subcontractors, such as Travespine, were to be contracted by IAM and not the Webbs.

That this was the intention of Chris Webb is supported by the email from Kevin Surette of IAM, for names of possible subcontractors. [ 36 ] When these undisputed facts are considered with the above email from Joanne Sampson to IAM (JS #1), the evidence supports that there was no contract between Chris Webb and Travespine, but a contract between Travespine and IAM.

Joanne Sampson testified under cross-examination that Edmund Sampson stated to her as early as November, 2015 that he was “doing this for Chris”, but that he would be paid by IAM. [ 37 ] I take no issue that Edmund Sampson raised concerns about payment with Chris Webb while working on the project. I also take no issue that Edmund Sampson may have communicated concerns about the quality of the workmanship of IAM, and also took it upon himself to ensure certain aspects of the work were done properly. But this does not create a contract between Chris Webb and Travespine.

The two were friends, and I would be surprised if they had not had regular conversations about the progress of the construction. [ 38 ] Nor do Chris Webb’s statements to Edmund Sampson that Travespine would be paid by IAM create a contract. Chris Webb was candid he was concerned that the house was not going to be finished. I agree with Chris Webb that when he advised Edmund Sampson that Travespine would be paid by IAM, it was not with the intention to create an agreement between Chris Webb and Travespine, or that he was personally guaranteeing payment.

I accept that Chris Webb intended to assure all the subcontractors that based on his contract with IAM, the monies would be available from IAM to be paid when IAM was paid the mortgage monies. It is clear to me from the evidence, particularly of Chris Webb, that when Chris Webb told Edmund Sampson and the other contractors that they would be paid, it was not that they would be paid by the Webbs, but by IAM. [ 39 ] Further, I accept that Chris Webb had no intention to be personally responsible for payment to Travespine or any of the subcontractors.

This is corroborated by his email communications with Kevin Surrette of IAM in the spring of 2016. In discussing payment to one of the subcontractors, Mr. Surrette suggested that Chris Webb could pay them directly (CW#7). However, Chris Webb refused, citing the terms of his mortgage, which required the monies to go to IAM. This supports that he had no intention of being directly responsible for payment to subcontractors, but that he expected IAM to pay the monies when they received the release of the mortgage monies.

Given this, I accept, and find as a fact that he had no intention to create a contract between he and Edmund Sampson, or personally guarantee payment if IAM did not pay them, when he spoke to Edmund Sampson and the other subcontractors. [ 40 ] I accept his evidence that in telling the subcontractors that they would be paid by IAM once the monies were released by the bank, he was doing no more than explaining to the subcontractors about the manner of payment. The payment to IAM for the construction was not in the typical fashion, that is, by installments, but upon completion of the house.

This is apparently why there was concern expressed by Travespine and the other subcontractors about payment. Given this, it was reasonable for him to explain to the subcontractors that payment would be made when he released the mortgage monies to IAM. Chris Webb was not holding himself as agent for IAM, nor guaranteeing that he would take responsibility for payment. [ 41 ] That IAM did not pay Travespine does not mean that the relationship between Travespine and Chris Webb changed into one of contract whether by agency or because a new contract was created.

The circumstances here are distinguishable from many of the decisions filed by Travespine in support of their argument that Chris Webb acted as agent for IAM.

[42] Chris Webb had no intention to assume responsibility for payment to subcontractors. It was outside the terms of his contractwith IAM and, importantly, outside the terms of his mortgage with the bank. Nor does the evidence support that Edmund Sampsonintended, or misunderstood, that Chris Webb in saying this, created a contractual relationship between Travespine and Chris Webb. Mr.Sampson was an experienced businessman, as he so testified, and I do not accept that he believed that there was a contract between heand Chris Webb (see William Roberts Electrical & Mechanical Ltd. v.

Kleinfeldt Consultants Ltd. (1985), 38 A.C.W.S. (2d) 468, 20C.L.R. 206 (Ont. H.C.J.), at paragraphs 28-31). [43] For the above reasons, I find there was no contract between Chris Webb and Travespine, and there are no monies owed byChris Webb to Travespine. ISSUE 3) If there was no contract, were the Webbs unjustly enriched by the work done by Travespine? [44] Travespine argued that Edmund Sampson relied on the statements of Chris Webb that he would be paid in continuing toconstruct their home. Edmund Sampson testified that he otherwise would not have continued working on the home.

In so doing, theWebbs have received the benefit of the work performed by Travespine, yet Travespine has not been paid as promised. This is, as Iunderstand the argument, an assertion that the Webbs have been unjustly enriched by the work of Travespine. I disagree. [45] The principles of unjust enrichment are well established. There must be an enrichment, a corresponding deprivation to theperson who provided the benefit, and no juristic reason that justifies the enrichment by the defendant, in this case the Webbs (see Beckerv. Petkus, (SCC), 1980 2 S.C.R. 834 at page 848, and Garland v.

Consumers’ Gas Co., 2004 SCC 25 at paragraph 30). [46] I accept that Edmund Sampson was satisfied to work on the home after Chris Webb advised that IAM would pay thesubcontractors when the mortgage monies were paid to IAM. There is no dispute that the Webbs received the benefit of this continuedwork by Travespine. I also accept that Travespine has not been paid for this work, and as such has suffered a deprivation. [47] But I do not accept that the Webbs were unjustly enriched. There is no absence of a juristic reason for the enrichment. To thecontrary, there is a clear basis in law for their enrichment.

The Webbs contracted with IAM for their house to be built, and have paidIAM in full for that construction. While the Webbs had their house built, the deprivation suffered by Travespine for the failure of IAMto pay Travespine is not at the feet of the Webbs, but at the hands of IAM, who through its subcontract with Travespine was obliged toreimburse Travespine, not the Webbs. [48] The Webbs were not unjustly enriched by these events. They have fully paid for the construction of their home to the personswith whom they contracted to build the home, IAM.

That IAM subcontracted with Travespine, and has not paid Travespine, is withwhom Travespine has the complaint, not the Webbs. [49] When the Webbs had their bank release the mortgage monies to IAM, they expected IAM to pay Travespine; notwithstandingassertions by Kevin Surrette in his emails to Chris Webb that he was suffering financially.

The Webbs’ expectation that IAM would payTravespine is corroborated by the emails already discussed sent by the Webbs to IAM raising their concerns with the delay in payment toTravespine. [50] In the cases provided by Travespine where homeowners were held liable for monies owing to subcontractors, despite thesubcontractor having a contract with the main contractor, the evidence supported that the homeowners “personally” promised payment,or gave a personal undertaking that they would take responsibility for payment if the main contractor did not come through (see Nu-WestDrywall Inc. v.

Bingham (1991), 27 A.C.W.S.(3d) 979, 47 C.L.R. 68 (Sask. Q.B.); Wacky’s Carpet & Floor Centre v. Maritime ProjectManagement Inc., 2006 NSSC 353). That is not what happened here. [51] Chris Webb did not state or imply, or intend, that he would personally take responsibility for payment.

He explained thatpayment would be made to subcontractors by IAM upon completion of the work. [52] Given that Travespine has not established that there is an absence of a juristic basis for the Webbs having been enriched by theconstruction of their home, there is no basis to allow any claim against the Webbs on the basis of unjust enrichment. ISSUE 4) Was there a contract between Travespine and IAM? [53] As discussed above, the evidence establishes that there was an agreement between Travespine and IAM in which IAM agreedto subcontract many aspects of the construction of the Webb’s dwelling to Travespine.

Both the First and Second Defendants agree thatthere was a contract between Travespine and IAM. In the beginning, there was an agreement to provide equipment to help off loadequipment arriving in Labrador. There was also a further agreement to provide what was described as the “light tower and boom”. Theinvoices and email communications support that IAM agreed to pay Travespine for continued construction work and purchase ofsupplies for the construction.

While I am not satisfied that Travespine is owed precisely the amount it initially claimed, which isdiscussed below, I am satisfied that IAM agreed to pay Travespine for the work to be performed by Travespine, and now, for whateverreason has never paid for that work. [54] In saying for “whatever reason” IAM did not pay Travespine, I have made no finding in relation to the assertions in emailsfrom Kevin Surrette of IAM to Chris Webb that Travespine had overcharged for their services, and this was why IAM refused to pay.Nor do I accept the assertion in the emails that IAM was having financial difficulty.

As discussed earlier, the email communicationsbetween IAM and Travespine and IAM and the Webbs supports that there was an agreement between Travespine and IAM. No weightcan be attached to Kevin Surrette’s assertions in the emails about why IAM was not paying for Travespine’s work. No one, apart fromLaurel Manning, testified on behalf of IAM. Ms. Manning was not employed by IAM around the time the emails were sent.

Given this,while I accept that the email communications, along with the other evidence, supports that there was an agreement between IAM andTravespine, I am circumspect regarding the unsubstantiated assertions by Kevin Surrette in emails, in the absence of viva voce testimonyor other evidence, as to the reasons for IAM not having paid Travespine for the work. I give no weight to the email communications inthis regard.

[ 55 ] I am satisfied that Travespine is owed monies by IAM for the work performed by Travespine in construction of the Webbs’ home. ISSUE 5) What is the amount of monies owed to Travespine, if any, and by whom? [ 56 ] Travespine provided documentation in support of its claim for $167,954.37 owed by the Defendants. Apart from the discussion below, this amount has not been disputed. The invoices providing for this total amount were initially submitted to IAM, and then as Edmund Sampson testified, were forwarded to the Webbs when IAM was not forthcoming with payment.

Travespine also provided several work sheets and invoices to various suppliers to explain how the overall amount was calculated. [ 57 ] Edmund Sampson confirmed the amounts charged. However, under cross-examination, it became clear that the amounts charged by Edmund Sampson for labour were duplicated in June of 2016. Apart from this duplication, there was no evidence to dispute the claim by Travespine for the amounts owing for the work done.

Adjusting for these duplications, I accept that Travespine is owed the amount as claimed, and shall have judgement against IAM for that amount. [ 58 ] In relation to the duplication, according to the construction timesheets at Tab 2 of the Plaintiff’s supplemental book of documents (ES#2), hours for the dates of June 1, 2, 3, 6 and 7 were recorded twice. According to the timesheets, it is a duplication of 240 hours. Edmund Sampson testified on cross-examination that he charged IAM $40 per hour for labour. That means there was duplication in labour costs of $9,600.

According to invoices filed, there was harmonized sales tax of 15 per cent charged, which would be $1,440. This results in a total duplication of $10,040. There should be $10,040.00 deducted from the amount claimed by Travespine of $167,954.37, for a total amount owed by IAM to Travespine in the amount of $157,914.37. CONCLUSION [ 59 ] The action against Chris and Robin Webb, the First and Second Defendants respectively, is dismissed. The action against IAM, the Third Defendant is allowed.

There was a contract between Travespine and IAM, and IAM is in breach of its contract with Travespine for failing to pay for the construction of the Webbs’ home in the amount of $157,914.37. I award damages for breach of contract in the amount of $157,914.37, plus interest accrued in accordance with the Judgment Interest Act, R.S.N.L. 1990, c.

J-2 . [ 60 ] Travespine Construction Limited, shall have its party and party costs against IAM Building Systems Incorporated, the Third Defendant. [ 61 ] The Webbs shall have their party and party costs against the Plaintiff, Travespine Construction Limited. [ 62 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice