Go Cargo Taxi Ltd. v Qillaq Innovations, 2015 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Go Cargo Taxi Ltd. v Qillaq Innovations, 2015 NUCJ 20 Date: 20150720 Docket: 21-13-646-SCO Registry: Iqaluit Plaintiff: Corey Dimitruk and Go Cargo Taxi Ltd. -and- Defendant: Sandi Gillis, Brian Langille, and Qillaq Innovations ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Plaintiff): Self-Represented Counsel (Defendant): Self-Represented Location Heard: Cambridge Bay, Nunavut Date Heard: August 15, 2014 Matters: Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 ; Small Claims REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is a claim for $19,500 arising from a dispute over an agreement for the hauling and spreading of gravel on a residential lot. II. FACTS [ 2 ] In late September of 2011, the plaintiff contacted the defendants to negotiate an agreement for the construction of a gravel pad for a residential lot. There was some discussion both orally and by email.

While there is disagreement over whether the parties agreed to the digging of a trench around the property, most of the terms of agreement are not in dispute. [ 3 ] The gravel pad was to be at least as high as the highest point on the adjoining road. The plaintiff was clearly concerned about ensuring there was proper drainage from the lot, as this was mentioned several times.

The price was agreed upon and was to be paid in four equal instalments: one before the work started, the second upon completion of the work, the third instalment on October 7, 2011, and the last payment on October 14, 2011. [ 4 ] The work was completed on October 5, 2011, and the first three instalments were paid.

It seems that there was little communication until the following June, at which time there was continued discussion about digging a trench around the lot. [ 5 ] The defendants advised the plaintiff that the digging of a trench would be an additional cost and reminded him that the last payment for work done the previous fall was still outstanding. [ 6 ] This email exchange took place at a time when, unbeknownst to the defendants, the plaintiff was travelling.

The plaintiff's response indicated that he would get back to the defendants, but did not provide a time frame. [ 7 ] On July 17, 2011, the defendants entered onto the lot and removed fill from a corner of the lot in an amount that they calculated to be of a value of $5,000. The defendants did not provide the plaintiff with notice that they intended to do this, however, they did speak with the Royal Canadian Mounted Police [RCMP] to give them notice of their intention.

Of course, the RCMP do not advise on civil matters and this is not something they would have become involved in. [ 8 ] The plaintiff replaced the fill that had been removed by buying fill on an adjacent lot and having it moved and distributed on his lot. The cost of this fill was $13,000 and the cost of moving and spreading it was $6,500, for a total of $19,500. There is some suggestion in the evidence that the fill could have been replaced for less. III.

ISSUES [ 9 ] While there is disagreement as to whether the initial agreement included the digging of a trench and much of the evidence related to this issue, that is not the issue for the court. The issue to be decided is whether the defendants were entitled to enter the premises and remove the fill. IV. ANALYSIS

A. Liability [ 10 ] In the case of Merani & Company v Girard, 2007 ABPC 165 , [2007] AJ No 690 (QL) , the defendant installed rollshutters on the exterior windows of the plaintiff's premises. There was a dispute over the quality of the work and the plaintiff withheld the last payment as it tried to resolve the issue. The defendant, without notice to the plaintiff, removed the rollshutters, causing damage in the process.

The court found that the defendant had legal remedies available to him and that his resort to “self-help” was mean and spiteful. [ 11 ] In Scepter Industries Ltd. v MacIntosh, 2006 CarswellOnt 8925 , [2006] O J No 2933 , the court briefly discussed the ownership of construction materials during a project and accepted the proposition that once materials were affixed or incorporated to the premises, ownership was vested in the land owner.

The court discussed the risk of resorting to self-help, as one who does so, only to have it later determined that ownership in the property had transferred to the land owner, has potentially committed the tort of conversion. [ 12 ] The risk of resorting to self-help is even greater when the remedy results in loss to the homeowner which is greater than the value of the goods removed.

As can be seen, the remedy of self-help is fraught with difficulties and should be resorted to only in the clearest of cases. [ 13 ] The defendants had other remedies available to them, including the commencement of a small claims action for a debt owing or the filing of a lien against the property. In an effort to recover $5,000, the defendants took steps which resulted in losses to the plaintiff far in excess of the amount owing. [ 14 ] In my view, the defendants were not entitled to resort to self-help in these circumstances. The fill had been spread, leveled and incorporated into the lot itself.

The $15,000 paid by the plaintiff included not just the value of the fill, but also the equipment and labour costs in building up the lot. B. Damages [ 15 ] Damages are difficult to assess as there is not all of the information necessary in order to make a proper assessment. [ 16 ] The invoice from the defendants for the work done is not broken down into costs of the fill and labour and equipment costs.

The defendants provided evidence that approximately 16% (80 cubic metres) of the fill was removed and that it took approximately 1.5 hours to remove it. [ 17 ] The invoices provided by the company that subsequently replaced the fill and did remedial work show 36 hours of equipment and labour. It is clear that the time required to replace the fill removed far exceeded what was necessary and must include time for additional work. Fill was purchased from an adjoining lot for $13,000, but not all of it was used.

The plaintiff testified that he did not have the option of purchasing only the amount of fill necessary to replace that which had been removed. However, the excess fill remains the property of the plaintiff; it has a value and is there to be used to the benefit of the plaintiff or to be sold. Unfortunately, I have no evidence as to the value of the actual fill. V. CONCLUSION [ 18 ] There will be a judgment in favour of the plaintiff.

His claim is reduced to offset for additional work done on the lot and for the value of the excess fill. [ 19 ] The plaintiff is granted judgment in the amount of $10,000. [ 20 ] It is not clear what the status is of the parties and, in particular, it is not clear if the defendant, Qillaq Investments, is a corporation or a different kind of business entity. I wish to clarify that judgment is as against the business entity.

Dated at the City of Iqaluit this 20th day of July, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice