Waterston v. Kerr Date:, 2013 BCPC 148

Citation: Waterston v. Kerr Date: 20130405 2013 BCPC 0148 File No: 20356 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KEVIN WATERSTON CLAIMANT AND: TODD KERR DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. BROWN Counsel for the Claimant: C. Drinovz Appearing in person: The Defendant Place of Hearing: Abbotsford , B.C. Date of Hearing: March 27, 2013 Date of Judgment: April 5. 2013 [ 1 ] THE COURT : These are my reasons for judgment in Waterston v. Kerr , File 20356. INTRODUCTION:

[ 2 ] Mr. Waterston commenced small claims proceedings against Mr. Kerr on March 18th, 2011 for one-half the costs of constructing a new retaining wall between the parties' properties. The original Notice of Claim refers to damages in the sum of $12,092.69, but the actual claim is for half that sum, being $6,046. [ 3 ] Mr. Kerr denies liability and has made a counterclaim for damage he says was caused to his other retaining wall and patio slab and driveway. His counterclaim is for $13,885. [ 4 ] There are a number of issues in this case: (

a) Was there an oral contract between the parties that they would share the cost to replace the retaining wall? (

b) If not, has the defendant been unjustly enriched by the replacement of the retaining wall? (

c) Are the damages sought by the claimant appropriate? (

d) Is there validity to the counterclaim? And, (

e) The matter of costs. WAS THERE AN ORAL CONTRACT BETWEEN THE PARTIES THAT THEY WOULD SHARE THE COST TO REPLACE THE RETAINING WALL: [ 5 ] The onus is on the claimant, Mr. Waterston, to prove on a balance of probabilities that the parties entered into an oral agreement to split the costs for the construction of a new retaining wall between the parties' respective properties on Babich Street in Abbotsford, B.C. [ 6 ] Mr. Waterston gave evidence that in July of 2007 Mr. Kerr approached him about replacing the wall as it had fractures and it was leaning. Mr.

Waterston was employed by Portrait Homes so he explained to Mr. Kerr that he knew of tradesmen who could carry out the work necessary to replace the retaining wall. Mr. Waterston further testified that he arranged for a Mr. Niven to come to the site one Saturday in the summer of 2007 and Mr. Niven discussed the retaining wall project with both parties. [ 7 ] Mr. Waterston also gave evidence that Mr. Niven said that the retaining wall project could cost between $10,000 and $15,000 in its entirety and this was stated in the presence of Mr. Kerr. Mr.

Niven gave a quote of $1500 plus materials for his specific work to build the retaining wall footings, pour the concrete and supply the forms. [ 8 ] According to Mr. Waterston, Mr. Kerr agreed to share equally in the cost of the retaining wall project. Mr. Kerr also agreed to share in the labour to keep the costs down. Mr. Kerr said that he would pay for one-half of Mr. Niven's bill in three weeks as he did not have the money right now. Moreover, Mr. Waterston testified that Mr. Kerr told him to take the reins and move forward with the retaining wall project. [ 9 ] Conversely, Mr.

Kerr testified that he did not verbally agree to pay for one-half of the retaining wall costs. He said Mr. Waterston maintained that the normal costs for this sort of retaining wall would be $10,000, but he could do it for $5,000. When Mr. Waterston asked Mr. Kerr if he could contribute $2500, Mr. Kerr said he could only contribute $500. Mr. Kerr never did provide that $500. [ 10 ] Mr. Niven also testified in this case. He was a very experienced person in the concrete foundation trade.

He confirmed that he did attend the Babich Street properties in the summer sometime ago and looked at the existing retaining wall. It was cracked and leaning over towards Mr. Kerr's yard. Mr. Niven stated that he quoted under $2,000 for his

part in building the footings and pouring the concrete. He also explained to both parties that the overall retaining wall project could cost between $10,000 and $15,000. Most significantly, Mr. Niven said that Mr. Kerr was okay with paying one-half the costs of the whole project. He did not recall Mr. Kerr saying he would only pay $500. [ 11 ] There are obviously two versions of the oral agreement in this matter. One version is an agreement to split all costs and the other version requires Mr.

Kerr only to contribute $500. [ 12 ] Rather than relying on either parties' evidence alone in this matter, I must take into account the evidence of Mr. Niven, an independent witness, with nothing to gain. He only had a professional relationship with the claimant. [ 13 ] Based on Mr. Niven's evidence, I find that there was an oral agreement that each party would contribute one-half the total costs for the retaining wall and these costs would be between $10,000 and $15,000. To be precise, there was an offer to split the costs of constructing a retaining wall between the properties, and I find Mr.

Kerr accepted that offer. Although the costs of the project was uncertain, the costing formula was certain, each party would contribute one-half the costs incurred to complete the retaining wall with the understanding that the total costs would be between $10,000 and $15,000. UNJUST ENRICHMENT: [ 14 ] Even if there was no oral agreement, I am of the view that both parties would benefit from the building of a new retaining wall. Where the wall is retaining Mr. Waterston's land, it is of benefit to Mr. Kerr to prevent such land from falling into his property.

Furthermore, a portion of the retaining wall actually held up Mr. Kerr's land. In short, the retaining wall was a benefit to Mr. Kerr. There was a corresponding deprivation to Mr. Waterston by incurring all the construction costs, and there is no juristic reason why Mr. Kerr should retain the enrichment. DAMAGES:

[ 15 ] Given that I have found there to be an oral agreement splitting the costs for the retaining wall, Mr. Kerr is in breach of that agreement by not contributing any money to the project. The issue now is one of damages. [ 16 ] I will deal with the claimant's various claims individually as follows: (

a) The invoice from Al Niven Contracting in the sum of $1,970 is allowed, see tab 9 of Exhibit 1. Mr. Niven gave evidence that he performed the services set out, including the installation of the footings and retaining walls, supplying and installing the forms and rebar, and supplying the damp-proofing. Mr. Niven also testified that Mr. Waterston paid him that invoice. Mr. Kerr has raised an issue about whether or not municipal permits were required for this work. Mr. Niven felt permits were not required because this was effectively a repair and a backfill such that a permit was not necessary.

Exhibit 6, however, indicates that any retaining wall four feet in height or greater requires a permit. This issue was not raised in the pleadings and, in any event, no evidence was presented as to how the lack of permits devalues the retaining wall. I make no ruling as to whether or not permits were required in this instance. (

b) The cost of renting the mini-excavator for $465.80 from United Rentals is allowed as set out in tab 13, Exhibit 1. Mr. Waterston required this machine to backfill and dispose of material. I accept that the bill was sent to Mr. Waterston's brother-in-law to allow for credit arrangements and the claimant's address is shown. The Notice of Claim erroneously refers to this claim as $490. (

c) The bill for concrete from Valley Rite-Mix at tab 10, Exhibit 1, is allowed. It is in the sum of $909.65 and was billed to D. Vanderveen Contracting to allow for contractor pricing and credit. Again, the claimant's address is referenced. This concrete was for the footing for the retaining wall. (

d) Similarly, the bill for concrete for the retaining wall itself is allowed in the sum of $1,391.25 as shown in tab 11 of Exhibit 1. The concrete pump truck rental of $750 is also allowed (tab 12 of Exhibit 1). (

e) The invoice at tab 4 of Exhibit 1 is from Ben Cross, a licensed heavy equipment operator, who operated the mini-excavator. I accept that Mr. Waterston paid this invoice for legitimate excavating work totalling $1500. The defendant is concerned that this sort of invoice is done up "after the fact". However, I accept that the claimant truly paid the sums on these invoices to the contractors indicated. The claimant, Mr. Waterston, only felt the need to document these costs when it was becoming clear that the defendant, Mr. Kerr, was not contributing any monies for these items. I find that Mr.

Waterston made numerous efforts to contact Mr. Kerr while construction of the retaining wall was occurring, however, Mr. Kerr was avoiding that contact or at the very least he was wilfully blind to the fact that all this work was occurring on or near his property and monies needed to be expended for that work. Mr. Kerr never once approached Mr. Waterston with any inquiry about the project or explanation as to why he was not contributing financially. I appreciate also that this project took longer than originally anticipated, but again Mr.

Kerr's pattern of avoidance meant that he deprived himself of opportunities for explanation and details. (

e) Likewise, I accept the invoices from Les Blais and Jordan Conroy for general labour totalling $1,000, tabs 3 and 5 of Exhibit 1. The defendant was not making himself available to assist with this labour. (

f) Tab 6 of Exhibit 1 is an appropriate receipt for the rental of a jackhammer and other equipment for $240.19. The Notice of Claim erroneously refers to this claim as $295. (

g) The invoice at tab 14 from DPC Contracting Ltd. in the sum of $640 is for the trucking cost disposing of the old retaining wall. As explained above, this invoice was done up after the fact, but I accept that it was paid for legitimate disposal work. (

h) Tab 16 of Exhibit 1 is the cost of lumber materials for the fence and gate. Mr. Kerr admitted he would contribute some $400 for half of the fencing costs, but he says very little was rebuilt with the gate, which really was his gate. I will allow this invoice for $346.26 because it is the material cost only and the materials either went for the fence or the fence and some part of a gate. (

i) Similarly, I will allow tab 17 of Exhibit 1 in the sum of $60.46 for the fence upper rail. I see that the Notice of Claim makes a fence and gate material claim totalling $946.79, but my total is only $406.72. (

j) Tab 18 of Exhibit 1 is the labour charge by Kevin Dube to install the partial fence. Mr. Dube was responsible for the layout and design of the fence and the claim of $1200 is not unreasonable. The word "gate" is not even referenced in the invoice. Even if the labour includes the gate, I am of the view that some work was done on the gate (steel corners, et cetera), but it was not a large component of this invoice. I accept that Mr. Dube was paid by Mr.

Waterston. [ 17 ] These invoices and receipts total $10,473.61 as opposed to the $11,092.69 referred to in the Notice of Claim. [ 18 ] I am not allowing the thousand dollar claim by Mr. Waterston for his own manual labour. I have little doubt that he worked at least 40 hours on this project and the defendant, Mr. Kerr, did very little. However, Mr. Niven's evidence did not refer to an oral agreement as to division of labour. It was an oral agreement as to division of costs incurred. As well, the invoice at tab 22 is very generic with little detail. [ 19 ] Consequently, Mr.

Kerr is responsible for one-half of the total costs of $10,473.61, being $5,236.81. COUNTERCLAIM: [ 20 ] Mr. Kerr amended his reply to include a claim for $13,885. He alleges that due to Mr. Waterston's construction of the retaining wall his remaining retaining wall is cracked and unsafe and his patio and driveway were damaged. Mr. Kerr says he saw the excavator

on his driveway with the bucket smashing old pieces of concrete. Further, he says there are new cracks on his driveway and ramp area caused by the retaining wall project. [ 21 ] However, an expert report was prepared by the claimant on this issue and it is at tab 24 of Exhibit 1. The engineer of this report reviewed over 50 photographs of the site and he attended at the site.

At page 2 of the report the engineer states as follows: In our professional opinion the settlement/cracking of the concrete driveway and the rear patio and the signs of failure of Wall "B" located 2980 Babich Street have no connection with the construction of Wall "A" (see attached pictures, numbers 1 to 6). [ 22 ] Based on that expert opinion the counterclaim must fail. The expert geotechnical engineer was well qualified and his opinion was not challenged by any other expert.

COSTS: [ 23 ] Given that the claimant was granted most of his claim, he is entitled to $156 in filing fees and $80 in service costs. [ 24 ] Rule 20(2) states that an unsuccessful party is also entitled to: any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. As well, Rule 20(6) says that: A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. [ 25 ] Here the claimant is seeking the costs paid for an engineering report. I agree.

The counterclaim asserted that the construction of the retaining wall caused damage to the defendant's property. The retention of an expert was necessary to refute that counterclaim. The report directly relates the proceeding and the cost is reasonable. Therefore, Mr. Kerr will pay to Mr. Waterston the cost of the expert report, being $560. That cost is set out at tab 25 of Exhibit 1. [ 26 ] The claimant is also seeking the defendant pay a penalty under Rule 20(5) because the counterclaim contained no reasonable basis for success. I am not going to award such a penalty amount.

First, it is my view that the defendant had a sincere belief that the construction work caused some damage to his property; for example, he saw the excavator smashing concrete on his driveway. Once he received the expert report he should have either retained his own expert or abandoned the counterclaim, but this defendant has no legal training and he unwisely chose to rely on his own observations to pursue his counterclaim. Secondly, I did not hear any evidence that this defendant was formally forewarned about the penalty provisions in advance of closing submissions.

CONCLUSION: [ 27 ] The defendant shall pay to the claimant the following: (a) $5,236.81 for breach of contract; (b) $156 filing fees; (c) $80 service fees; (d) $560 for the expert report; In

summary, the total payable by the defendant to the claimant by my math is $6,032.81. The counterclaim is dismissed. ________________________ G. Brown Provincial Court Judge