Martin v Master-1-Flooring Ltd, 2023 ABCJ 270

In the Alberta Court of Justice Citation: Martin v Master-1-Flooring Ltd, 2023 ABCJ 270 Date: 20231208 Docket: 2190304725 Registry: Edmonton Between: Ruth Martin and Stephen Milner Plaintiffs - and - Master-1-Flooring Ltd. Defendant Reasons for Judgment of The Honourable Justice S.L. Corbett I. Introduction [ 1 ] The Plaintiffs hired the Defendant to renovate the ensuite bathroom adjoining the primary bedroom in their home.

The Plaintiffs allege that the Defendant breached the contract between them because the Plaintiffs say that the Defendant failed to perform the renovation work in accordance with the agreed scope and failed to perform the renovation work in a good and workmanlike manner. [ 2 ] The Plaintiffs originally sued for $51,880.00. The original suit included claims for damages for loss of enjoyment, inconvenience, and stress, and for punitive damages.

The Plaintiffs withdrew their claims for those heads of damage during closing argument, and now claim for damages based on the difference between what was owed to the Defendant at the end of the renovation project, and what they paid completion contractors to remedy the Defendant’s alleged breaches. [ 3 ] The Defendant denies any breach of the renovation contract and asserts that it is still owed monies for the renovation work completed. II. Issues and Brief Answers A. What was the agreement between the parties?

Brief Answer: The Defendant agreed to renovate the Plaintiff’s ensuite bathroom with the original scope including replacing a corner spa tub with a re-positioned free-standing bathtub, enlarging the shower area, enlarging the toilet area and installing a privacy door, relocating the toilet, replacing the vanity and countertop, replacing the light fixtures, taking space from an existing walk-in closet and linen cupboard to accommodate the larger toilet area and shower, and replacing the bathroom flooring and wall tile.

The scope was expanded to include a snake light fixture, waterfall addition to the countertop, scraping the closet ceiling, and installing bathroom wall cupboards. The all-inclusive agreed price was $42,000, to be paid in 3 installments. The work was to be performed in a good and workmanlike manner. B. Was the agreement breached by the Defendant? Brief Answer: Yes. The Defendant breached the renovation contract both by failing to perform the renovation work in a good and workmanlike manner, and by failing to perform the renovation work in accordance with the agreed scope.

C. What are the appropriate remedies? Brief Answer: The Plaintiffs were entitled to terminate the bathroom renovation contract with the Defendant because the Defendant’s breaches regarding workmanship were so defective in substance that termination was justified. The Plaintiffs are entitled to damages for the Defendant’s breaches of the renovation contract, both as to poor and defective workmanship and as to scope, in the total sum of $20,460.96 . III. What was the agreement between the parties? A.

Evidence [ 4 ] The Plaintiffs purchased their home in May 2020, and they say that their approximate 20-year-old home had existing finishes of a “very high standard”. The home had been built in 1998, and the Plaintiffs say that the existing carpentry, finishes, and mouldings in their home set the standard for the quality of finishes they were looking for in their bathroom renovation. [ 5 ] The parties first met in early October 2020. The Plaintiffs hired the Defendant because the Defendant represented that it did bathroom renovation work.

The Plaintiffs wished to modernize their ensuite bathroom, suggesting that it was probably the original bathroom.

The scope of the work agreed upon at the on-site meeting with the Defendant included: • replacing the corner spa tub with a free-standing bathtub (including repositioning the new tub in the bathroom); • enlarging the shower area; • enlarging the toilet area and installing a privacy barn door; • relocating the toilet; • replacing the vanity and countertop; • replacing light fixtures; • taking space from an existing walk-in closet and linen cupboard to enlarge the toilet and shower areas; and • replacing bathroom flooring and wall tile. [ 6 ] The Plaintiffs did not provide the Defendant with any drawings; however, when they initially met with the Defendant’s corporate representative and carpenter, they showed them the existing carpentry, finishes, and mouldings in their home and primary bedroom, and requested that they be replicated.

They agreed on the length and configuration of the new bathroom vanity unit. The carpenter sketched the proposed new vanity after measuring the space. [ 7 ] The Plaintiffs thereafter attended at the Defendant’s store, and selected floor and wall tiles from the Defendant’s showroom. [ 8 ] Unfortunately, the parties did not reduce their agreement to writing.

The Plaintiffs requested a contract; however, the Defendant refused to provide one, asserting that written quotations would suffice. [ 9 ] In mid-October 2020, the Plaintiffs received a written quotation dated October 13, 2020, from the Defendant for $38,978.67 plus GST.

The first quotation included a price for replacing the primary bedroom flooring which the Plaintiffs decided not to proceed with. [ 10 ] The Plaintiffs agreed to proceed with the renovation work, and they agreed to pay for the work in three installments, with the first installment payable prior to the work commencing, the second installment payable at the mid-way point, and the third installment payable at project completion.

The Plaintiffs paid the Defendant $13,000 on October 19, 2020. [ 11 ] The renovation work began in the Plaintiffs’ bathroom before they received a revised quotation which removed the price for the flooring on November 17, 2020, at $36,818.70 plus GST. [ 12 ] The Plaintiffs received their first invoice from the Defendant on November 26, 2020, with a revised total of $43,752.14 inclusive of GST [1] .

The invoice reflected additional charges of $4850 for extra work including a snake light fixture ($2500), a waterfall addition to the vanity countertop ($800), bathroom wall cupboards ($1000), extra wall tiles ($300), and scraping the ceiling in the closet ($250).

There appear to have been different versions of this invoice with one version including an extra $892.36 for “upgraded material” [2] . [ 13 ] The Plaintiffs paid the Defendant $17,000 on November 27, 2020. [ 14 ] The Plaintiffs agreed that the snake light fixture, waterfall addition and flattening the ceiling were added to the original scope of work. [ 15 ] The Plaintiffs did not agree to the cost of additional wall tiles or wall cupboards as an additional price.

The wall tile was supposed to go to a height of 4 feet and that height was reduced to 3 feet, so the Plaintiffs did not understand the charge for additional tile when less was proposed to be used. The wall cupboards were discussed with the Defendant before the second quotation as they were being installed to fill a space where the spa bath was, and the Plaintiffs assumed the cost was included in the second quotation since the cupboards were discussed before that quotation was provided to them.

[ 16 ] In addition to paying $30,000, the Plaintiffs paid $1000 direct to Best Plumbing for bathroom fixtures including a tub, shower head, and faucets (the total cost of the fixtures was $5892.65 of which the Defendant paid $4892.65 [3] ). [ 17 ] In total, the Plaintiffs paid $31,000 to the Defendant before the end of November 2020, while the renovation work was still underway. [ 18 ] The Defendant’s corporate representative testified that the Plaintiffs exceeded their $4,000 budget for fixtures, explaining the $1,000 that the Plaintiffs paid direct to Best Plumbing.

The Plaintiffs understood that the $1,000 paid direct was a deposit to secure the order of the fixtures. None of the quotations or invoices provided by the Defendant suggest there was any agreed budget for fixtures as the written documentation simply includes fixtures as part of the all-inclusive price. [ 19 ] The Plaintiffs agreed to an additional $1,050 and testified that they negotiated a new price with the Defendant of $42,000 inclusive of GST for all the work (excluding the $1,000 paid to Best) on December 21, 2020, the same date that the project was turned over to the Plaintiffs.

According to the Plaintiffs, the total outstanding to the Defendant was $12,000. [ 20 ] The Defendant’s corporate representative pointed to the multiple invoices from November 2020, to assert that $13,752.14 was outstanding. He did not directly contradict the Plaintiffs’ evidence that a new price had been negotiated on December 21, 2020. B. Analysis [ 21 ] I find that the Plaintiffs and the Defendant entered into an agreement whereby the Defendant agreed to renovate the Plaintiffs’ ensuite bathroom.

The agreement was verbal with the parties agreeing that the Defendant would replace the corner spa tub with a re- positioned free-standing bathtub, enlarge the shower area, enlarge the toilet area and install a privacy door, relocate the toilet, replace the vanity and countertop, replace the light fixtures, take space from an existing walk-in closet and linen cupboard to accommodate the enlarged toilet area and enlarged shower, and replace the bathroom flooring and wall tile. [ 22 ] The Plaintiffs did not provide any drawings to the Defendant outlining the proposed bathroom renovation work, although the Defendant’s carpenter/sub-contractor did prepare a drawing of the existing and new bathroom vanity.

The defence focused on the lack of drawings; however, the Defendant held itself out to be a professional bathroom renovator which meant this evidence was not helpful to the Defendant. If the Defendant did not feel it could proceed with a bathroom renovation without drawings, then the Defendant should have asked for the same. [ 23 ] The price for the proposed renovation work was contained in written quotations which outlined the scope of the work and provided an all-inclusive price. The first quotation included a price for replacing the primary bedroom flooring, which the Plaintiffs decided not to proceed with.

The second quotation included the scope of the work agreed to be undertaken, as follows: tile material and installation; custom made quartz top vanity; barn door; demolition and remodelling; tub; shower glass door; faucet; toilet; and lights for an agreed price of $38,978.67 plus GST. The second quotation did not include any reference to wall cupboards. [ 24 ] I find that the bathroom fixtures ordered from Best Plumbing totalling $5892.65 were included in the all-inclusive contract price.

There was no evidence in either the written quotations or the invoices that there was a budget of $4,000 for fixtures as asserted by the Defendant. The fixtures are listed as included in all the written quotations and invoices. I accept the Plaintiffs’ evidence that they paid the $1,000 to Best to secure the order, and to ensure delivery of the products.

I reject the Defendant’s evidence that the additional $1,000 was because the Plaintiffs exceeded the budget, it asserts there was of $4,000. [4] [ 25 ] As the renovation work was underway, the Plaintiffs decided to increase the scope of work to include a snake light fixture, waterfall addition to the vanity countertop, and scraping the ceiling in the closet. The Defendant asserted that the Plaintiffs made continual changes to the scope of work.

This was not borne out by the evidence, and I find that the only changes were those noted. [ 26 ] The Plaintiffs assumed that the wall cupboards were included in the second quotation because they were discussed prior to the second quote being received.

The parties were not in agreement on this issue as the wall cupboards were invoiced separately by the Defendant. [ 27 ] No price for these extras was agreed to prior to an invoice being presented to the Plaintiffs on November 26, 2020, with $4850 in additional charges. [ 28 ] I do not accept the Defendant’s evidence that extra charges of $300 were to be incurred for additional wall tiles when less tiles were being used than originally proposed. [ 29 ] It does not appear that either party addressed the question of the bathroom wall cupboards which were being installed in space previously occupied by the corner spa tub.

I find that the wall cupboards were not included in the original scope of work. [ 30 ] That said, I accept the Plaintiffs’ evidence that they were able to negotiate a new price with the Defendant on December 21, 2020, for the sum of $42,000.00 inclusive of GST (excluding the $1,000 paid to Best). This new price included the original scope and the additional work including the snake light fixture, waterfall addition to the countertop, scraping the closet ceiling, and installing the bathroom wall cupboards.

While the Defendant’s corporate representative testified that it was owed $13,752.14, the invoices supporting that figure were the multiple invoices dated November 26, 2020. The Defendant did not give evidence contradicting the Plaintiffs’ evidence that a new all-inclusive price of $42,000 was negotiated on December 21, 2020.

On a balance of probabilities, the Plaintiffs have established the new price of $42,000 agreed to in December 2020. [ 31 ] The Plaintiffs allege that their home had existing finishes of a “very high standard”, that they made it clear to the Defendant that they expected a high standard of workmanship in the bathroom renovation, and that the renovated bathroom would have a “wow” factor. The Plaintiffs assert that this was a term of the agreement between themselves and the Defendant. The Plaintiffs produced no evidence of the existing finishes in their home to exemplify their expectations.

While I accept the Plaintiffs’ evidence that they asked the

Defendant to match existing carpentry, finishes, and mouldings in their home, the Plaintiffs did not adduce any evidence supporting their assertion that the existing finishes were custom, high standard, or beyond whatever the standard might have been in 1998 when the home was built.

Without more, I am unable to find that the bathroom renovation would be undertaken to a “very high standard” of workmanship as it was not clear on the evidence exactly what the Plaintiffs meant to convey, in the absence of any photographs of their home, or expert opinion evidence to assist me with determining or assessing the state of the existing finishes. [ 32 ] The Plaintiffs’ evidence on their expectation that the renovated bathroom would have a “wow” factor was equally difficult to assess based on the evidence at trial.

While the Plaintiffs had certain expectations, it is not clear that those were conveyed to the Defendant at the time of contract formation (beyond the need for carpentry, finishes, and mouldings to align). I am not prepared to find that the Plaintiffs’ expectations, as summarized, were a term of the agreement between the Plaintiffs and the Defendant.

If the Plaintiffs wished the finishes to be as they assert, they should have insisted that be delineated in writing as opposed to relying on a largely verbal contract. [ 33 ] While I am not prepared to find that it was a term of the agreement that the renovated bathroom be of a “very high standard” as alleged by the Plaintiffs, I find that it was an implied term of the agreement between the parties that the bathroom renovation work be of “good and workmanlike” quality. [5] [ 34 ] The Plaintiffs say that it was a further term of the agreement that the work be completed by a certain date.

While the Plaintiffs had expectations about when the work would be completed, I find that the Plaintiffs are not able to establish, on a balance of probabilities, that there were any deadlines agreed to by the parties. There are no deadlines referred to in any of the written quotations or invoices, and the evidence disclosed that Covid-19 pandemic restrictions interfered with various aspects of the project including supply of materials, and whether the Defendant’s sub-contractors could enter the home. [ 35 ] In

summary, I find that there was an agreement between the parties whereby: • the Defendant agreed to renovate the Plaintiffs’ ensuite bathroom; • the original scope of the renovation work included replacing the corner spa tub with a re-positioned free-standing bathtub, enlarging the shower area, enlarging the toilet area and installing a privacy door, relocating the toilet, replacing the vanity and countertop, replacing the light fixtures, taking space from an existing walk-in closet and linen cupboard to accommodate the enlarged toilet area and enlarged shower, and replacing the bathroom flooring and wall tile; • the original scope was modified and expanded to include a snake light fixture, waterfall addition to the countertop, scraping the closet ceiling, and installing the bathroom wall cupboards; • the price for the agreed work was $42,000 all-inclusive (including all bathroom fixtures); • the payment terms were that the work was to be paid for in 3 installments with the first installment being payable prior to the work commencing, the second instalment being payable at the mid-way point, and the final installment being payable on project completion; • the bathroom fixtures were included in the all-inclusive price (so the $1000 paid by the Plaintiffs to Best must be deducted from the contract price); and • the work was to be performed in a “good and workmanlike” manner.

IV. Was the agreement breached by the Defendant? A. Evidence [ 36 ] The Plaintiffs had concerns about the quality of the Defendant’s renovation work from inception of the project. They expressed their concerns to the Defendant who dealt with the issues as they arose. [ 37 ] The work was purportedly complete on December 21, 2020, but for “touch-ups”. The Defendant’s testimony on what needed to be “touched up” was imprecise.

He suggested the necessary touch-ups included touch-up of the paint, tile grout, and sealer for the shower. [ 38 ] The Plaintiffs inspected the Defendant’s work on December 22, 2020, when the space was turned back to them ready for use. The Plaintiffs were not happy with the quality of the work done by the Defendant, and they were concerned that the work did not meet the agreed specifications.

The Plaintiffs were concerned about: • the snake light fixture; • the vanity; • the bathroom cupboard; • the linen cupboard; • the drywall; • the painting (the paint was not neat along the trims and edges, and the mouldings had wall paint on them);

• the mouldings; • the placement of the tub faucet in the free-standing bathtub; • the tile in the shower shampoo niche; and • the barn door for the new toilet alcove. [ 39 ] The Plaintiffs were also concerned that the Defendant had damaged the staircase handrail. [ 40 ] The Plaintiffs took several photographs documenting their concerns, and they emailed the Defendant about these issues on December 22, 2020.

The Plaintiffs suggested that they would have to hire alternate contractors to repair the issues, they advised that they would be holding back the final payment until the issues were repaired, and they took the position that the repair work would involve more than “touch-ups”. The Defendant responded, advising that it would return to address concerns, and the Defendant’s corporate representative offered to attend at the Plaintiffs’ home on December 23, 2020, to discuss their concerns on site.

The Plaintiffs told the Defendant not to come the following day, or to communicate further about the issues; instead suggesting that they would talk about the issues after the Covid-19 pandemic restrictions had been lifted, and reiterating concerns about the “whole job”. [ 41 ] The Plaintiffs testified that they expected the Defendant to return to address these issues when Covid-19 pandemic restrictions were lifted in mid-January 2021. [ 42 ] There were no further communications between the parties with respect to the Defendant returning to address the Plaintiffs’ concerns. [ 43 ] In early February 2021, the Plaintiffs learned that a lien had been filed against their home by the Defendant. [ 44 ] On February 10, 2021, the Plaintiff Martin took a bath in the newly renovated bathtub, and subsequently, on February 12, 2021, the Plaintiffs discovered a water leak in the main floor ceiling.

This was the first time that the new bathtub had been used by the Plaintiffs. The water leak led to damage on the main floor of the Plaintiffs’ home, and discovery of additional issues with the bathroom renovation work done by the Defendant.

The damage to the main floor of the Plaintiffs’ home from the water leak is not the subject of this lawsuit. [ 45 ] The Plaintiffs sent a letter to the Defendant on February 22, 2021, cancelling their contract with the Defendant, and requesting a refund on the basis that the Defendant’s work was defective, and on the basis that the Defendant was not a licensed pre-paid contractor contrary to the Consumer Protection Act [6] . [ 46 ] The Plaintiffs allege that the Defendant breached the agreement between them by either failing to perform the renovation work as agreed, or alternatively, by failing to perform the renovation work in a good and workmanlike manner.

They further allege that the finishes provided by the Defendant were not of a sufficiently high standard; however, I have rejected that as a term of the contract between the parties. 1. Snake Light Fixture [ 47 ] Both parties agree that the snake light fixture was to contain 2-inch LED lights. The photographs tendered demonstrate that ¾” LED lights were installed in the finished fixture. [ 48 ] The Plaintiffs allege that what they ended up with did not comply with what they understood they were receiving based on photographs provided by one of the Defendant’s sub-contractors.

The Plaintiffs demonstrated, through photographic evidence, that the fixture installed by the Defendant was not uniform in its shape and size, and that the lights installed were smaller than agreed. [ 49 ] The Defendant did not call the sub-contractor who suggested the Plaintiffs install the snake light fixture and explained its proposed design to the Plaintiffs, so there was no evidence called to refute the Plaintiffs’ allegation that what they received was not what was agreed to. The Defendant’s corporate representative admitted that he did not know what was installed by the sub-contractor. 2.

Vanity/Countertop/Linen/Bathroom Cupboards [ 50 ] The Plaintiffs assert that the configuration of the vanity unit was not as agreed as the drawers and panels did not accord with the design they agreed to with the Defendant’s carpenter. [ 51 ] The Defendant’s corporate representative testified that he quoted on a “basic” vanity, and that the Plaintiffs wanted more drawers and panels than agreed to in the original scope.

The Defendant’s corporate representative then admitted that he did not know if the vanity design ever changed, and he acknowledged that the design was customized between the carpenter and the Plaintiffs. [ 52 ] The Defendant did not call the sub-contractor who built and designed the vanity, so there was no direct evidence refuting the Plaintiffs’ assertion that the configuration and design of the vanity did not accord with what was agreed to. [ 53 ] The Plaintiffs also complain that the vanity, and the cupboards in both the linen closet and bathroom were poorly constructed. [ 54 ] The cupboard shelves were not cut evenly and did not line up with the walls.

There were evident gaps between the shelves and the walls in the photographs tendered by the Plaintiffs. [ 55 ] The vanity was not built to be square with the surrounding walls so there were evident gaps in the photographs entered by the Plaintiffs. The melamine was chipped and peeling, there was sharp edging on the drawers, there were screw holes inside the vanity, and the doors and drawers did not function properly.

[ 56 ] The vanity top was cut short, and the faucet aperture was not covered by the faucet. [ 57 ] The Defendant did not call the sub-contractor who built the cupboards and vanity to address the issues identified by the Plaintiffs with construction, or whether these were items that could be repaired. 3. Drywall [ 58 ] The Plaintiffs produced photographs showing cracking in the drywall installed by the Defendant. The cracking was evident in the photographs. [ 59 ] The Defendant did not call any evidence to explain why there was evident cracking in the drywall, or what the proposed repair might be. 4.

Finishes [ 60 ] The new moulding and trim did not match the existing moulding and trim as promised. It was of a different style and shape, not mitered, and no rosettes were installed. This was evident in photographs supplied by the Plaintiffs. [ 61 ] The Plaintiffs submitted photographs showing that there were issues with the finishes. There was wall paint evident on what was supposed to be white trim and moulding, and on the vanity top. The mouldings were not mitered at a 45-degree angle, but instead were installed horizontally and vertically, and cut short (and filled in with drywall mud).

The mouldings surrounding the bathroom wall cupboards were not even, with the moulding on one side being ½ the width of the other side. [ 62 ] The Defendant did not call any evidence to address these issues. 5. Barn Door [ 63 ] The Plaintiffs allege that they were supposed to receive a “rustic wood” barn door to create a privacy alcove for their toilet area based on photographs shown to them by the Defendant pre-renovation. No such photographs were tendered into evidence, although the Plaintiffs did tender a photograph of what they expected to receive afterwards.

The Defendant installed a flat slab door with no features on a sliding rail and asserted that this was what the Plaintiffs chose. [ 64 ] The written quotation sets out that the Plaintiffs were to receive a “barn door”. There is no other description of the barn door. [ 65 ] The Plaintiffs also allege that the slab door was damaged because it had a dent/hole in it. It was replaced and discarded. 6.

Tub Faucet Placement [ 66 ] The Plaintiffs complain that the off-centre placement of the new free-standing tub faucet meant that the water hit the walls of the tub instead of flowing freely into the tub due to the configuration of the sides of the walls of the tub that they choose. [ 67 ] The Defendant’s response to this complaint is that the Plaintiffs chose both the location of the tub faucet and chose the free- standing tub. 7. Shampoo Niche Tile [ 68 ] The tile selected for the new shower was textured (ie. it was not flat tile).

The Defendant installed this textured tile on the bottom of the shower shampoo niche. The result of that was that bottles placed in the shower niche fell out. 8. Tub and Plumbing Issues [ 69 ] In February 2021, the Plaintiffs discovered water leaking from their second floor to their main floor. They hired an expert plumber to investigate the cause. The expert plumber, Peter Kozjak of Sherwood Mechanical Services, gave evidence at trial.

Kozjak determined that the water leak was coming from the bathtub in the Plaintiffs’ recently renovated ensuite bathroom. [ 70 ] Kozjak removed the tub and diagnosed the leak as having been caused by an improperly connected freestanding tub drain. The tub had been connected with an 18-inch flexible hose, and the tub drain hole was offset from the center of the drain/ receiver by approximately 12 inches. This connection did not comply with the plumbing code because it did not comply with the receiver manufacturer’s instructions.

The tub drain hole should have been moved from its original location, and it should have been connected with a slip fit connection, whereby a long tail piece from the tub is placed directly into a receiver, which has two O-rings to seal the connection. Kozjak stated that the Defendant’s installation was contrary to the plumbing code, and that the result of this improper non- code approved installation was that the hose did not stay in place, causing water to leak past the receiver and down into the ceiling below. [ 71 ] The Defendant did not call the sub-contractor who installed the free-standing tub.

He asserted that the flexible hose came with the tub, but then admitted that he is not a plumber. The Defendant did not call any expert evidence challenging Kozjak’s opinion regarding the improper drain installation and cause of the water leak. [ 72 ] The repair work was deferred while the Plaintiffs dealt with restoration and remediation of the main level because of the water leak. [ 73 ] The expert plumber returned in May, 2021to address the bathtub issues. The HVAC and plumbing below the ensuite bathroom

had been exposed because the ceiling drywall was removed to address the water damage. [ 74 ] Kozjak inspected the exposed HVAC and plumbing, and discovered additional issues: • Heat Vent Pipe: A heat vent pipe had been cut to move the toilet line that was above it. When it was put back together, aluminum flex instead of galvanized pipe was used to re-attach the heat vent pipe. The Defendant’s corporate representative denied that its sub- contractors dismantled and re-attached the pipe, testifying that its sub-contractors had no access to the same from above.

The Defendant did not call any of its sub-contractors to corroborate this testimony, and the Defendant’s corporate representative had no personal knowledge of what was done. • Sink Basin Drain Back Grade: Kozjak identified an issue with the back grade on the 2” vent that served the sink basins as it was supposed to be sloped towards the main drain line. This issue could result in sink plugging. • Galvanized Strap: Kozjak pointed out that the galvanized strapping used to pull up the toilet trap arm caused the back grade on the sink basin drain line.

The Defendant’s corporate representative did not know whether one of its sub-contractors installed the galvanized strapping. • Toilet Flange: Kozjak discovered that the toilet flange was not properly engaged into the 90-degree elbow because it was not properly glued when he was repairing the back grade issue affecting the sink drain line. This issue could result in a toilet drainage leak. The Defendant’s corporate representative did not know whether movement of the toilet to its new location meant that installation of a new toilet flange would have occurred.

The Defendant admitted that its sub-contractors had to move the toilet drain hole to move the toilet. • Bathtub Trap: Kozjak discovered an illegal 90-degree elbow in the bathtub trap arm, noting that the plumbing code requires two 45-degree elbows after the first 90-degree fitting, which dropped off the newly relocated toilet.

Again, the Defendant’s corporate representative was not able to offer any evidence to address what its sub-contractors did when they relocated the toilet. • Shower Drain: Kozjak found a leaking and poorly installed shower drain resulting from the wrong kind of coupling being used to connect the shower drain to the drainpipe. A malleable joint was used instead of a Fernco rubber coupling, which would have been appropriate to connect to ABS pipe. Kozjak opined the work was recent based on the colour of the silver part of the shower drain, and the lack of evidence of water wear.

The Defendant’s corporate representative did not know whether one of its sub-contractors installed the silver part referred to by Kozjak. He also denied that his sub-contractor touched the shower drain, asserting that its shower work was restricted to tiling. This evidence made no sense as a new trough drain was installed by the Defendant’s sub-contractors.

The Defendant again called no evidence from its sub-contractor to address this issue. • Leaking from Shower: In addition to water coming from the improper coupling, Kozjak found leaking coming from above it, noting that their scope stopped because it was likely a tile based or trough drain based issue as opposed to a plumbing issue. • Permits: Kozjak testified that the Defendant did not obtain any plumbing permits to do the bathroom renovation work.

He stated that plumbing permits must be obtained when the location of fixtures such as toilets and bathtubs are moved (use of the same drains does not require permitting). The Plaintiffs say that they asked the Defendant whether any permits would be required to complete the renovation, and the Defendant’s response was that no permits would be required. The Defendant’s corporate representative admitted that the toilet and toilet drain were moved from its original location as part of the renovation. He did not know how the plumbing was adjusted to relocate the toilet.

He further admitted that he did not obtain any permits, and that he left the decision as to whether any permits were required up to his sub-contractors. [ 75 ] Kozjak obtained the necessary permits and completed repair and rebuild of all the plumbing and HVAC issues discovered on inspection. [ 76 ] The Defendant did not call any expert evidence to refute the evidence of the Plaintiffs’ expert plumber Kozjak. The Defendant did not call any evidence from any of the sub-contractors who worked on the HVAC and plumbing in the Plaintiffs’ bathroom renovation.

Kozjak’s evidence stands uncontradicted. [ 77 ] To fix the issue with the bathtub drain, the drain hole had to be moved, and the tub had to be re-positioned so that the connector and receiver could be lined up properly. [ 78 ] The Plaintiffs admit that they asked the Defendant to place the tub faucet in one corner as opposed to the center; however, they did not realize the result of that would be that water would hit the sides of the tub as opposed to flowing freely into the tub.

The Defendant did not provide any advice or recommendations to the Plaintiffs on this issue, despite holding itself out to be a professional bathroom renovator. [ 79 ] As the bathtub had to be moved to address the drain hole issue, the Plaintiffs also decided to re-position the tub faucet to the center of the tub. Kozjak installed a new mount, re-using the faucet installed by the Defendant, and centered the faucet so that water flowed directly into the tub as the Defendant’s offset installation had resulted in the water flowing into the side of the bathtub walls. 9.

Shower Issues [ 80 ] As noted, Kozjak discerned evidence of leaking from the newly renovated shower. The Plaintiffs hired Ari Laskaj of Alpha Tiles to investigate and address concerns raised by the expert plumber that there was a water leak from above the drain as evidenced by the presence of water staining. Laskaj specializes in tile flooring, and in particular, tile flooring for custom showers.

Laskaj removed the tile flooring in the Plaintiffs’ bathroom, and the shower tile flooring. [ 81 ] While Laskaj was not qualified as an expert, he gave evidence as to his observations and the repair work effected in the shower. [7] The defence did not object to Laskaj giving evidence in this fashion.

[ 82 ] Laskaj removed approximately 2/3 of the bathroom tile flooring so the plumber could address the issues with the bathtub drain. He then re-installed the bathroom tile flooring using tiles supplied by the Plaintiffs. He could not recall why so much of the bathroom tile floor was removed. He estimated that removal and re-installation comprised approximately $1000 of his total bill for services rendered. [ 83 ] Laskaj initially removed the shower tile floor to investigate the water issue.

He discovered 3 layers of anti-fracture membrane (as opposed to only 1 layer recommended by the manufacturer according to manuals tendered into evidence), and evidence of water leaking because the wood sub-floor was wet. He also removed approximately 4 feet of shower wall tile as removal of the shower tile floor affected the integrity of the waterproofing installed by the Defendant. Removal of the shower wall tile damaged the drywall. On the back wall of the shower, the tile had not bound properly to the wall. Laskaj was unable to save any of the shower wall tile installed by the Defendant.

Laskaj tendered photographic evidence substantiating his observations. [ 84 ] Laskaj pointed to two major issues with the Defendant’s shower installation: (1) too many layers of anti-fracture membrane were used; and (2) the waterproofing was done improperly resulting in the shower leaking. Again, the defence did not object to this evidence, despite Laskaj not being qualified as an expert. In my view, this evidence was opinion evidence, and ideally, the Plaintiffs ought to have sought to have Laskaj qualified as an expert.

That said, the court is left with evidence that Laskaj observed a wet wood sub-floor, he observed that the tile had not bound to the drywall, he observed that multiple layers instead of only a single layer of Ditra had been installed, and he observed that the Defendant’s waterproofing had not been effective as the wood sub-floor was wet. These observations, in my view, can be appropriately accepted by the court without stepping afoul of expert opinion rules.

I have discretion to receive evidence outside the bounds; however, I am mindful that the evidence proffered here was on critical issues related to the Defendant’s alleged defective workmanship, so I prefer to rely on Laskaj’s observations as opposed to his “opinion”. [8] [ 85 ] The Defendant’s corporate representative admitted, on cross-examination, that he did not install the shower tile floor, and that the Ditra installation manual did not support his evidence that Ditra is to be used to slope a shower floor drain.

He also purported to explain the use of 3 layers of anti-fracture membrane, and Laskaj’s observation that the wood sub-floor was wet as “normal”. The Defendant’s corporate representative’s evidence in this regard was unsubstantiated. He purported to give opinion evidence when it was clear that he had no expertise whatsoever. He appeared to have no idea what his sub-contractors were doing, despite allegedly being present on the job on a regular basis. [ 86 ] Laskaj re-built the shower floor by building a new cement base, waterproofing, applying one layer of anti-fracture membrane, and installing new floor tiles.

He re-built the shower walls by reinstalling the walls using cement board, waterproofing, and installing new wall and ceiling tiles. He also replaced a few cracked tiles outside of the shower on the bathroom walls. [ 87 ] The textured tiles originally selected by the Plaintiffs were no longer available, so the Plaintiffs selected a different shower tile to complete the remediation work in a timely fashion.

The new tiles were of a different thickness than the ones installed by the Defendant. [ 88 ] The defence complains that it was not necessary to remove all the shower wall and ceiling tiles to remediate the Defendant’s work. [ 89 ] Laskaj’s company charged the Plaintiffs $6,825 to repair and re-build the shower, and to remove and re-install the floor tiles, excluding the cost of the shower and floor tiles which were supplied by the Plaintiffs. 10. Electrical Issues [ 90 ] The Plaintiffs allege that they discovered issues with the electrical work when they dismantled the snake light fixture and vanity mirrors.

While the Plaintiffs hired an electrician to address the issues they discovered, they did not call the electrician at trial. [ 91 ] The Plaintiff Milner purported to testify as to what the electrician told him.

These were out-of-court statements being tendered for the truth of their contents, and I will not rely on these hearsay statements. [ 92 ] The Defendant’s corporate representative acknowledged that electrical work was done in the Plaintiffs’ bathroom; however, he did not know what was done. [ 93 ] The Plaintiffs replaced the snake light fixture with ceiling pot lights, and they removed and then re-installed the vanity mirrors when the bathroom was re-finished. 11.

Staircase Handrail Damage [ 94 ] The Plaintiff Milner testified that their staircase handrails were scraped or scratched by the removal or entry of materials into their home as the Defendant did not initially protect the same. [ 95 ] The Defendant then took steps to protect the handrails, and that protection allegedly took the finish off the landing handrails. The protection comprised strapped and wrapped material; however, the Plaintiff Milner did not know what type of material was used.

He asserted that the protective material “took off the sheen and the finishes” to their handrail because that part of the handrail that was not exposed and was not protected at the end of the landing did not suffer the same degradation. [ 96 ] The Plaintiffs assert that the Defendant agreed to fix the marks on the staircase occasioned earlier on before the protection was in place. [ 97 ] The Defendant denies causing any damage to the Plaintiffs’ handrail and alleges that his sub-contractors properly wrapped it to protect it.

[ 98 ] The Plaintiffs produced 4 photographs of the handrails showing the alleged issues; however, the Plaintiffs did not produce any photographs of the handrails before the Defendant entered their home. While they asserted its condition changed, they had only lived in the home since May 2020.

They did not produce any evidence as to whether the condition of the handrails was original, or whether it had been re-finished before they bought the home. [ 99 ] After the bathroom renovation work was complete, including fixing of the Defendant’s work, the Plaintiffs hired a company to refinish the entire handrail for $4462.50. The Plaintiffs did not call any evidence from refinishing company to address why the entire handrail and banister had to be refinished, although they purported to give evidence as to what they were told. I will not rely on the Plaintiffs’ hearsay statements in this regard. 12.

Stress Test [ 100 ] The Plaintiffs hired an engineer to conduct a stress test regarding the bathtub loading as part of their remediation of the Defendant’s work.

Five Star Engineering charged them $500 for the stress test. [ 101 ] The Plaintiffs did not call the engineer at trial so there was no direct evidence as to whether anything was required to address the relocation of the bathtub. [ 102 ] The Plaintiffs assert that the Defendant ought to have recommended a stress test as the location of the bathtub was being moved, particularly where the Defendant represented that it had completed multiple past bathroom renovations. 13. Remediation Work [ 103 ] The expert plumber’s company moved the bathtub drain hole, and properly connected the bathtub drain.

In addition, the expert plumber addressed all the other HVAC and plumbing issues discovered upon inspection. [ 104 ] Laskaj’s tile company repaired and re-built the shower. His company also re-installed the floor tiles that had been removed to accommodate movement of the bathtub drain hole. [ 105 ] The Plaintiffs purchased new shower tiles for the shower re-build. They were unable to secure the textured tile due to shipping delays, and so they selected a flat tile which was more readily available.

The Plaintiffs also purchased new floor tiles to replace those that were removed to address the bathtub drain issue. [ 106 ] The Plaintiffs hired a shower door company to dismantle and preserve the glass shower doors installed by the Defendant. When the shower was re-built, the new tiles were of a different thickness from those installed by the Defendant, so they were unable to re-use one panel.

The shower door company cut an additional panel to address this issue, and otherwise, re-used the shower doors/panels installed by the Defendant. [ 107 ] The Plaintiffs hired an electrical company to install ceiling pot lights to replace the snake light fixture, and to re-connect the mirror vanity lights after the countertop was re-installed. [ 108 ] The Plaintiffs hired a drywall and paint company to fix the drywall in the closet and linen cupboards, to re-paint the closet and the bathroom to address the concerns with the paint finishes, and to re-do the bathroom ceiling as it had been damaged when the snake light fixture was dismantled. [ 109 ] The Plaintiffs hired a countertop company to lift the vanity countertop off the vanity installed by the Defendant, and to re-install the countertop after the vanity had been replaced.

The countertop company cut the vanity top to fit properly along the wall where there had previously been visible gaps. [ 110 ] The Plaintiffs hired a carpet cleaning company to clean their carpets after the remediation work was complete due to issues with drywall dust and the number of tradespeople that had been in and out of their home to remediate the main floor, and the bathroom. [ 111 ] The Plaintiffs hired a carpentry and millwork company to rebuild a vanity unit to replace the one built by the Defendant, to fix the issues with the wall cupboard shelves, and to install the rustic barn door in the toilet alcove.

This company also replaced the trim and mouldings installed by the Defendant with ones which replicated the trim and mouldings in the rest of the Plaintiffs’ home, and addressed the baseboards that were removed to deal with the bathtub repair (because the floor tiles were removed and re-installed). [ 112 ] The Plaintiff Milner testified that the vanity constructed by the Defendant was removed and discarded. In addition to the issues identified in Paragraph 56, the Plaintiffs say that the base cabinet was falling apart and broken. The Plaintiffs assert it could not be re- used and had to be rebuilt.

The only issue with the vanity construction that the Defendant’s corporate representative admits to is that there were screw holes in the back of the vanity where it attached to the wall. The Defendant’s corporate representative asserted that the Defendant intended to return to “adjust” the hinges, drawers, and doors. [ 113 ] The Defendant did not call any evidence from the sub-contractor it retained to construct the vanity as to whether it could be repaired, or otherwise, re-aligned as it asserted.

The Defendant did not address the Plaintiffs’ complaints that the flaws in the vanity could not be repaired or rehabilitated as the Defendant failed to call any evidence from the sub-contractor that designed and built the vanity. [ 114 ] The Plaintiffs produced each invoice for the remediation work, and the Plaintiff Milner gave evidence that each of the invoices were paid in full. B. Defendant’s Evidence

[ 115 ] The Defendant’s corporate representative was the only defence witness. His testimony disclosed that the Defendant sub- contracted the Plaintiffs’ bathroom renovation to other companies or entities. It was not clear who these other companies or entities were as they were largely referred to by the first name(

s) of the sub-contracting company principals. The defence did not call any of the sub- contractors at trial. [ 116 ] The Defendant’s corporate representative admitted that he “didn’t do nothing in this job in [his] hand”. He “did none of the work [himself]”. He further admitted he does not do electrical work, plumbing work, framing work, or painting work. [ 117 ] Despite not doing any of the work in the Plaintiffs’ bathroom, the Defendant’s corporate representative purported to give evidence as to what the sub-contractors did or did not do.

Initially, it was difficult to ascertain that this was hearsay evidence as the corporate representative testified as though he has personal knowledge of the information that he was attesting to; however, cross- examination made it apparent that he had no such personal knowledge or information. [ 118 ] The Defendant’s corporate representative could attest to the initial communications with the Plaintiffs, and the formation of the contract; however, he had little knowledge related to performance of the contract, or agreements as to the additional scope.

While he allegedly attended on site regularly, it was not clear that he was supervising or directing the sub-contractors. He had no knowledge of the exact work being performed, and he conceded that when cross-examined. He had no expertise on which to offer opinion evidence, nor was he qualified as an expert. [ 119 ] To the extent that the Defendant’s evidence was hearsay or inappropriate opinion evidence, it will not be relied upon in this decision. C. Analysis [ 120 ] The Plaintiffs allege that the Defendant breached the agreement between them. The Plaintiffs say that the Defendant either (

a) breached the agreement by failing to perform the bathroom renovation work in accordance with the scope of work agreed to; or (

b) breached the agreement by failing to perform the bathroom renovation work in a good and workmanlike manner. In some instances, the Plaintiffs allege that elements of the renovation breached both the agreed scope, and the obligation to carry out the work in a good and workmanlike manner. [ 121 ] I find that the Defendant failed to perform the following work in accordance with the agreed scope: • Snake Light Fixture – I find that this fixture was to contain 2-inch LED lights. This was agreed by both parties. Instead, it contained ¾” LED lights.

I further find that it was to be uniform in its shape and size, and that it was not. The Defendant failed to call evidence to refute the Plaintiffs’ testimony on the agreed design of the snake light fixture, and the Defendant’s corporate representative offered no insight whatsoever into the agreed design. • Vanity – I find that the configuration of the vanity unit was not as agreed as the drawers and panels did not match the design that the Plaintiffs agreed to with the Defendant’s sub-contractor. The Defendant did not call any evidence from the sub-contractor who designed and built the vanity unit.

Although the Defendant initially purported to give evidence on the intended design, it became apparent that he had no personal knowledge of the same. • Finishes – I find that the mouldings and trim installed by the Defendant did not match the existing moulding and trim as promised. They were a different style and shape, they were not mitered, and no rosettes were installed. The scope of work included matching existing moulding and trim.

Photographic evidence tendered by the Plaintiffs confirmed that what the Defendant installed did not match as agreed. • Barn Door – I find that the barn door installed by the Defendant was not the agreed rustic barn door, but instead was a plain slab door. While the quotation contained no description of the contemplated barn door, I accept the Plaintiff Milner’s evidence that the Defendant presented a photograph of a rustic barn door to close off the toilet alcove when they were discussing design of the bathroom renovation.

The Defendant’s corporate representative suggested that the Plaintiffs chose the plain slab door that his sub-contractors installed. I do not accept his evidence in this regard. There was no evidence that the Plaintiffs had any opportunity to “select” the door as there was with selection of the tiles and bathroom fixtures. It was not clear to me whether the Defendant had any direct knowledge of how the door ended up being a plain slab door as he sub-contracted the entire job.

While there is no question that the Defendant installed a sliding door on a rail, I accept the Plaintiffs’ evidence that the contract contemplated the door being a “rustic” door according with a barn-like look, and not a plain panel door. [ 122 ] I find that the Defendant failed to perform the following work in a good and workmanlike manner: • Vanity and Countertop – I find that the vanity was poorly constructed.

I find that it was not built to be square with the surrounding walls, the melamine was chipped and peeling, there was sharp edging on the drawers, there were screw holes inside the vanity, and the doors and drawers did not function properly. I further find that the base cabinet was falling apart and broken. The vanity top was cut short, and the faucet aperture was not covered by the faucet.

In making these findings, I accept the evidence of the Plaintiff Milner supported by the photographic evidence demonstrating these flaws. • Linen/Bathroom Cupboards – I find that the linen and bathroom cupboards were poorly constructed. I find that the shelves were not cut evenly and did not line up with the walls. In making these findings, I accept the evidence of the Plaintiff Milner supported by photographic evidence demonstrating these flaws. • Drywall – I find that there was evident cracking in the new drywall, and that it was not smooth.

The Plaintiffs did not enter evidence as to why the drywall was cracking; however, I am prepared to accept, in the absence of expert evidence, that new drywall when complete should be smooth and flat, not cracked. I accept the evidence of the Plaintiff Milner supported by photographic evidence demonstrating this evident cracking.

• Finishes – I find that the painting was not done in a good and workmanlike manner. I accept the evidence of the Plaintiff Milner supported by photographic evidence demonstrating the presence of wall paint on trim and mouldings and on the vanity countertop.

Further, I find that the installation of the moulding and trim was not done in a good and workmanlike manner as supported by the evidence of the Plaintiff Milner and photographic evidence showing trim and mouldings cut short and filled in with drywall mud as opposed to being measured and cut evenly. • Barn Door – I find that the barn door installed by the Defendant was damaged.

The Plaintiff Milner tendered a photograph showing the evident damage in the slab door installed by the Defendant. • Shampoo Niche – I find that the installation of textured tile on the bottom of the shampoo niche was not good and workmanlike installation. The Defendant held itself out to be a professional bathroom renovator, and it ought to have been aware that textured tile would not create a smooth flat surface for shampoo bottles to rest on. • Tub Installation – I find that installation of the new bathtub drain was not done in a good and workmanlike manner.

The Plaintiffs called an expert plumber to establish that the tub drain had been improperly connected causing a water leak. I accept Kozjak’s evidence that the Defendant’s installation was contrary to the plumbing code.

The Defendant called no evidence to refute this evidence. • Plumbing Issues – Based on the evidence of Kozjak, I find that the Plaintiffs have established, on a balance of probabilities, that the plumbing work performed by the Defendant was not done in a good and workmanlike manner as it pertains to the following: o Heat vent modification – cut to accommodate movement of the toilet line and re-attached improperly [9] ; o Sink basin drain back grade – use of galvanized strap to pull up toilet trap arm caused back grade on sink basin line; o Toilet flange – not properly engaged into the 90-degree elbow because it was not properly glued; o Bathtub trap – improper use of 90-degree elbow when 2 45-degree elbows should have been used resulting from re-location of the toilet; o Shower drain – improper coupling used to connect shower drain to drainpipe causing leaking; and o Lack of permits – the Defendant failed to obtain a permit to relocate the toilet contrary to code. • Shower Installation – I find that the Defendant’s installation of 3 layers of anti-fracture membrane did not accord with the manufacturer's instructions for this product, and that there was evidence of water leaking under the tiles based on the observations of Laskaj.

I accept Laskaj’s evidence that investigation of the water leak required removal of the shower tile floor, and that removal of the shower tile floor then affected the integrity of the previous waterproofing, necessitating removal of wall tile.

I further accept Laskaj’s evidence that removal of the shower wall tile damaged the drywall, and disclosed evidence demonstrating that the wall tile installed by the Defendant had not bound to the wall properly. [ 123 ] I am not satisfied that the Plaintiffs have established, on a balance of probabilities, that the Defendants breached the contract on the following issues: • Tub Faucet Placement – The Plaintiffs complain that the original placement of the tub faucet off-centre meant that water did not flow directly into the bottom of the new free-standing tub because the walls of the tub were angled.

The Defendant points out that the Plaintiffs both chose the tub and the tub faucet placement. I find that the Plaintiffs have not satisfied their burden of proof that the issue with the tub faucet placement was a breach of the agreement. The faucet was functional, and the Plaintiffs’ expert did not identify any issue with the Defendant’s placement of it off-centre. • Electrical Issues – The Plaintiffs complain that there were issues with the electrical work installed by the Defendant. I heard no evidence from the electrical contractor retained by the Plaintiffs.

I find that the Plaintiffs have not satisfied their burden of proof that the electrical work performed by the Defendant was a breach of the agreement, or improper workmanship (except for the snake light fixture which I have found to be a breach of the agreed scope). • Stress Test – The Plaintiffs say that the Defendant should have recommended a stress test be obtained to facilitate re-location of the bathtub. While they hired an engineer to address this question, they did not call any evidence from the engineer.

I find that the Plaintiffs have not satisfied their burden to proof to establish that the Defendant’s failure to conduct stress testing was a breach of the agreement, or improper workmanship. [ 124 ] I am further not satisfied that the Plaintiffs have established, on a balance of probabilities, that the Defendants damaged their staircase handrail either by scratching or scraping it, or by damaging its finish with the protective covering. While the Plaintiffs tendered some photographs of its condition after the renovation, they did not provide photographs of what its condition was before the work began.

The Defendant denies causing any damage to the staircase handrail. Without more, this does not meet the burden of proof. [ 125 ] In

summary, I find that the Plaintiffs have established that the Defendant breached the bathroom renovation contract both by failing to perform the renovation work in a good and workmanlike manner, and by failing to perform the work in accordance with the agreed scope. V. What are the appropriate remedies? A. Evidence

[ 126 ] The Plaintiffs seek damages to compensate them for the Defendant’s breach of the renovation contract. [ 127 ] The Plaintiffs claim for the difference between what it cost them to have completion contractors attend at their home to complete the work as originally contemplated in the contract with the Defendant, and to remedy the defects arising from the Defendant’s failure to perform the work in a good and workmanlike fashion. [ 128 ] The Plaintiffs says that the total cost of the contract with the Defendant was $42,000 inclusive of GST, and that they have paid $31,000 towards that contract ($17,000 plus $13,000 plus $1,000 for bathroom fixtures).

I have already found that $42,000 as alleged by the Plaintiffs was the agreed price for the bathroom renovation including all extras and fixtures. [ 129 ] The Plaintiffs acknowledge that $11,000 remains unpaid; however, the Plaintiffs say that they expended $36,562.56 to remedy the Defendant’s breach of contract, leaving them with a claim for damages in the sum of $25,562.56.

During closing argument, the Plaintiffs advised that their insurer refunded their insurance deductible of $880 so their claim for damages totals $24,682.56. [ 130 ] The Plaintiffs were advancing claims for loss of enjoyment, inconvenience, and stress, and for punitive damages. The Plaintiffs withdrew those claims in supplemental written argument provided to the Court on September 8, 2023, and as such, those claims will not be considered in these Reasons. B.

Analysis [ 131 ] There are two kinds of breaches of contract – those which justify termination of a contract and those which do not. [10] [ 132 ] Damages are the usual remedy for breach of a contract. [11] [ 133 ] Termination of the contract is an exceptional remedy and is only available if the breach removes “substantially the whole benefit” of a contract. [12] [ 134 ] In these circumstances, the breaching party has repudiated the contract, and the innocent party must then decide “whether to accept the repudiation and terminate the contract”, or “continue with the contract and deal with the breach in some other way”. [13] Acceptance of the repudiation must be clearly communicated within a reasonable period. [14] [ 135 ] Upon termination (by acceptance of the repudiation), the parties are discharged from future contractual obligations. [15] [ 136 ] The Plaintiffs argue that the Defendant’s breach of contract justifies termination of the same.

They argue that a “fundamental” [16] breach occurred and cite several cases in support of this argument. [17] Essentially, the Plaintiffs assert that the Defendant’s breach deprived them of substantially the whole benefit of the bathroom renovation contract. They say that the Defendant’s breach entitled them to terminate the contract, which they did in February 2021. [ 137 ] In a construction contract, “mere bad or defective work or insignificant non-completion” [18] is not sufficient to justify termination of the contract.

Instead, the contractor must be given the opportunity to remedy the defective workmanship or complete the work. [19] The owner may then sue for damages to address the workmanship or non-completion issues, without risking arguments that its failure to permit such corrections either disentitled the owner to, or reduced the amount of damages the owner can claim because of its failure to mitigate. [20] [ 138 ] Termination of a construction contract may be justified where the contractor has “abandon[ed] the contract, repudiate[d] the contract, fundamentally breach[ed] the contract, or perform[ed] the contract in a way that it is so defective as to amount, in substance, to a failure or refusal to carry out the contract work”. [21] [ 139 ] Five factors are to be considered in assessing whether the breach justifies termination of the contract including (1) the ratio of the unperformed obligations to performed ones; (2) the seriousness of the breach; (3) the likelihood of repetition of the breach; (4) the seriousness of the consequences of the breach; and (4) the relationship of the part of the obligation performed to the whole. [22] [ 140 ] In considering these factors, I have found that the Defendant failed to perform much of the bathroom renovation work in a good and workmanlike manner.

The Defendant’s breach is serious because there were significant plumbing and tiling issues caused by the Defendant’s poor workmanship. The consequences of the Defendant’s breach were that the improperly connected bathtub drain caused a significant water leak on the main floor of the Plaintiffs’ home, requiring remediation and repair. The water leak happened immediately after the Plaintiffs’ first use of their new bathtub. The bathtub was not functional because the drain had not been properly connected.

The Plaintiffs’ new shower was leaking because the Defendant improperly connected the shower drain, and because the Defendant failed to properly waterproof the shower. The toilet flange connecting the Plaintiffs’ new toilet had not been properly glued into place, the result of which could have been a toilet leak. The repairs required to address the Defendant’s defective workmanship were extensive and required dismantling and rebuilding of much of the Plaintiffs’ bathroom to remedy the serious issues caused by the Defendant’s poor work. [ 141 ] I find that the Plaintiffs were justified in terminating the contract.

I find that the Defendant’s defective workmanship deprived them of substantially the whole benefit of the bathroom renovation. [ 142 ] The Plaintiffs concede that they owe the Defendant $11,000 for the work performed under the renovation contract. [23] [ 143 ] The Plaintiffs spent $36,562.56 to rectify the Defendant’s breach of contract, both as to scope and defective workmanship. [ 144 ] The defence asserts that the Plaintiffs failed to tender proof of payment of these invoices. The Plaintiffs produced each invoice for the remediation work and gave evidence that each of the invoices were paid.

While the Plaintiffs did not produce copies of e- transfers, bank drafts, or cheques demonstrating payments of the invoices, I accept the Plaintiff Milner’s evidence that the Plaintiffs paid

each one of the invoices submitted to the court in evidence. [ 145 ] I accept the Plaintiffs’ evidence, and find that the following remediation work was necessary because of the Defendant’s breach of contract, both as to scope and defective workmanship: • Moving the bathtub drain hole and properly connecting the bathtub drain; • Removing bathroom floor tiles to move the bathtub drain hole; • Replacing the bathroom floor tiles after the bathtub drain hole was moved; • Repairing and rebuilding the HVAC and plumbing issues; • Dismantling and rebuilding the shower including re-tiling all surfaces including the ceiling – I find that it was reasonable for the Plaintiffs to choose a new tile for the re-build where the original tile they selected was no longer available and I accept that the differing thickness/texture of the new tile required all the tile in the shower to be replaced including the ceiling tile; • Dismantling and preserving the glass shower doors installed by the Defendant and re-cutting one new panel to fit the altered dimensions resulting from the tile thickness difference; • Removing and re-installing the vanity top including cutting the top so it fit properly along the wall; • Removal of the snake light fixture and replacement of same with ceiling pot lights; • Dismantling and re-installing the vanity light fixtures; • Fixing drywall and re-painting including fixing the bathroom ceiling after snake light fixture was dismantled; and • Replacing the vanity unit, repairing the wall cupboards, replacing the barn door, repairing the shelving, replacing trim and mouldings, and replacing the baseboards that were removed when the bathroom floor tiles were removed and reinstalled. [ 146 ] I have reviewed the invoices submitted by the Plaintiffs, and I find that the Plaintiffs have proven, on a balance of probabilities, that the following invoices relate to remediation work: • Initial investigation of water leak: 16 Feb 2021 - Sherwood Mechanical Services - $302.40 • Replacement floor and shower tiles: 26 Mar 2021 – Titan Flooring and Interior Design Ltd. - $1388.46 • Replacement floor and shower tiles: 20 Apr 2021 – Titan Flooring and Interior Design Ltd. - $54.60 • HVAC and plumbing including reinstallation of bathtub: 22 Apr 2021 and 8 Jul 2021 – Sherwood Mechanical Services - $2882.25 + $934.50 = $3816.75 adjusted to $3108 [24] • One new glass panel for shower: 11 May 2021 and 21 May 2021 – Oz Shower Doors - $370.00 + $365.00 = $735.00 • Removal and reinstallation of vanity top: 3 Jun 2021 – K & J’s Custom Granite - $1023.74 • Shower rebuild and re-tile, and remove and replace bathroom floor tile: 17 Jun 2021 Alpha Tiles - $6825.00 • Drywall repair and re-painting: 9 Jul 2021 – Raptor Developments – $2367.20 • Replacement of vanity unit, linen cabinet, barn door, shelving, and mouldings - $13156.56 TOTAL: $28,960.96 [ 147 ] I am not satisfied that the Plaintiffs have proven, on a balance of probabilities, the following expenditures relate to remediation of the Defendant’s poor workmanship: • Stress testing: 25 Mar 2021 – Five Star Engineering - $525.00 • Repair staircase handrails: 16 Jul 2021 – FHG Contracting Inc - $4462.50 • Carpet cleaning: 25 Aug 2021 – R & K Carpet Cleaning - $235.83 [ 148 ] The invoice from Korstar Electric dated 4 June 2021 totalling $789.51 includes installation of LED dimmers in the living area, installation of a ceiling fan (location not disclosed on the invoice although there was no evidence that a ceiling fan was installed in the bathroom), installation of pot lights (which were installed to replace the snake light fixture), a dimmer, vanity lights (removed and re- installed during remediation work), and cable boxes.

There is no indication on the invoice what the electrical company was charging for each item of work completed. The defence did not cross-examine on this invoice, and I did not hear any evidence from the electrician who did the work. I have found that the snake light fixture installed by the Defendant did not comply with the scope of what was agreed to. I have accepted the Plaintiffs’ evidence that they dismantled it and replaced it with ceiling pot lights, and that the vanity mirrors were removed and re-installed during remediation. The Defendant charged the Plaintiff $2500 for the snake light fixture.

I am unable to divide the Korstar invoice into its components. I find that reasonable compensation for having to replace the snake light fixture and to deal with

removal and re-installation of the vanity mirrors is $2500, which is what the Defendant charged the Plaintiffs for this fixture. My view is that reasonable compensation would be to deduct the cost of this fixture ($2500) from what was owing to the Defendant ($11,000) since the Plaintiffs did not receive what they bargained for. This compensates the Plaintiffs for having to hire another contractor to install new light fixtures (ie. the ceiling pot lights), and to deal with the vanity mirrors during remediation. The amount the Defendant is owed is, therefore, adjusted downwards to $8500. [ 149 ] In

summary, the Plaintiffs have established, on a balance of probabilities, that they are entitled to damages of $20,460.96 ($28,960.96 minus $8500) arising from the Defendant’s contractual breaches. VI. Conclusion [ 150 ] I award Judgment to the Plaintiffs in the total sum of $20,460.96 plus pre-Judgment interest pursuant to the Judgment Interest Act , RSA 1980, c.

J-1 , as amended from December 22, 2020, until today’s date. [ 151 ] If either party wishes to make any submissions on costs, I will consider brief written submissions no later than January 8, 2024, failing which I will award the Plaintiffs their costs of this action pursuant to Column 2 of the Court of Justice Tariff of Recoverable Costs.

Heard on the 2 nd and 3 rd days of February 2023, the 11 th and 12 th days of April 2023, the 11 th day of May 2023, and the 16 th day of August 2023, with additional written submissions provided by the Plaintiffs on the 8 th day of September 2023, and by the Defendant on the 22 nd day of September 2023. Dated at the City of Edmonton, Alberta, this 8 th day of December 2023. S.L. Corbett A Justice of the Alberta Court of Justice Appearances: Bradley Smith and Devyn Kim for the Plaintiffs Norman Odinga for the Defendant