Velocity Contracting Ltd. - v. –, 2014 SKPC 099

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 099 Date: April 30, 2014 File: No. 198 [2013] Location: Judicial Centre of Saskatoon _____________________________________________________________________________ Between: Velocity Contracting Ltd. - and – Carrie Podsednikova and Milan Podsednik D. Struhar The Plaintiff C. Podsednikova and M. Podsednik The Defendants ______________________________________________________________________________ JUDGMENT S. P.

WHELAN , J ______________________________________________________________________________ Introduction [ 1 ] The Plaintiff, represented by the owner, Doug Struhar, sought payment on the balance of a contract for the installation of doors and windows to the home of the Defendants. The Defendants defended and counterclaimed for the amount claimed, maintaining that the Plaintiff had not completed its obligations under the contract as there were a number of outstanding deficiencies concerning both the doors supplied and the installation of the doors and windows.

The Plaintiff acknowledged, with one exception, the correctness of the outstanding deficiencies but maintained that the problems with the doors was attributable to the manufacturer and they had done all that they could to obtain the manufacturer’s cooperation to correct them. The Plaintiff did not accept responsibility for the unfinished nature of the trim around the windows. The Plaintiff also maintained that the remaining deficiencies for which they were responsible were

minor from a repair and cost perspective. The Plaintiff had not corrected these deficiencies as they were waiting upon the cooperation of the manufacturer of the doors, Dorplex Industries Limited (hereinafter referred to as “Dorplex”) before carrying out the remedial work.

Dorplex was not a party but the Defendants produced Alan Hawkins, a former employee of Dorplex who was directly involved in the material exchanges between the Plaintiff and Dorplex and to a lesser extent, the Defendants. [ 2 ] There was a preliminary issue concerning the date of issuance of the Plaintiff’s claim and the limitation period of two years provided for in The Limitations Act . The Defendants first raised this issue in the materials filed with the Court. [ 3 ] Judgment is granted in favour of the Defendants.

The Plaintiff’s action is statute barred pursuant to The Limitations Act as it was commenced more than two years after the last date when a payment was made or the debt was acknowledged by the Defendants. [ 4 ] Additionally and in the alternative, the Plaintiff’s claim is dismissed. The Plaintiff did not fulfill its obligations under the contract with the Defendants and pursuant to The Consumer Protection Act to rectify the problems with respect to product and installation of the doors and windows.

The Defendants were entitled to look to another window and door installer to do the work and the cost of so doing would exceed the Plaintiff’s claim and their counterclaim. Issues and Findings [ 5 ] The findings in this decision have been made in keeping with the civil burden of proof, which is on a balance of probabilities. Often in making findings of fact it is necessary to assess the reliability and credibility of the evidence tendered, including the evidence of witnesses.

In this case the Court’s Simplified Procedure applied and the parties were allowed to augment the filing of their trial statements, pleadings, document lists and documents with the testimony of witnesses. It is common in this Court to receive pleadings which read more like a narrative of events. The Plaintiff failed to file a trial statement and to remedy this, the Plaintiff was asked if he adopted the Statement of Claim to be true and it together with the Defendants’ pleadings were treated as exhibits.

Any findings with respect to the testimony of Alan Hawkins are not binding upon Dorplex, as he no longer represents that corporation and it was not a party to the proceedings. [ 6 ] I found the evidence of the Defendants to be credible and reliable, given that it was internally and externally consistent. Where there was conflict between the testimony of the Defendants and the Plaintiff, I accepted the evidence of the Defendants, unreservedly. Generally, I found the evidence of Mr. Struhar to be unprepared, unclear and at times evasive. Mr.

Struhar did not comply with the disclosure required by the Court which included the filing of a trial statement and disclosure of “all relevant documents which a party may seek to rely upon at trial, or which may be in a party’s possession or control that another party may seek to rely upon at trial”. While he came with his “file” it was either poorly prepared or he deliberately withheld pertinent documents. During the course of the trial he referred to an order form that went to Dorplex, which he produced when asked, and it was missing the second page.

I found the Plaintiff’s evidence unreliable and not credible. [ 7 ] These issues were discussed:

a) Is the Plaintiff’s claim statute barred by the two year limitation period provided in The Limitations Act for debt?

b) Did the Plaintiff fulfill its obligations pursuant to the contract and The Consumer Protection Act with respect to the product supplied and the manner of installation?

c) What if any damages are payable?

a) Is the Plaintiff’s claim statute barred by the two year limitation period provided in The Limitations Act for debt? [ 8 ] The Defendants raised the issue of the Plaintiff’s action being barred by a limitation period.

Section 5 of The Limitations Act provides for a basic limitation period of two years from the day on which the claim is discovered.

Section 6 addresses the discoverability of a claim.

Section 11 provides that an acknowledgement or part payment of a debt by the person against whom a claim is made can cause the two year limitation period to begin running again from the date of the acknowledgement or part payment. However, an acknowledgement must be in writing, signed by the person making it and it must be made before the limitation period has expired. It is not necessary when making such an acknowledgement that the person making it refuses or does not promise to pay the debt.

Section 18 provides that once a limitation period is raised, the burden of proving that the limitation period has not expired rests with the claimant, the Plaintiff in these proceedings.

Section 19 provides that once a limitation period has expired, the claim is barred and may not be

maintained. Sections 5, 6, 11, 18 and 19 are set out in part below and material portions have been underlined: Basic limitation period 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered . Discovery of claim 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved . Acknowledgments and part payments 11(1) If a person acknowledges the existence of a claim for payment of a debt , for the recovery of property, for the enforcement of a charge on property or for relief from enforcement of a charge on property, the act or omission on which the claim is based is deemed to have taken place on the day on which the acknowledgment was made .

(2) For the purposes of subsection (1), an acknowledgment : (

a) subject to subsections (3), (7) and (8), must be in writing and must be signed by the person making it or the person’s agent; and (

b) must be made, before the expiry of the limitation period applicable to the claim , to the claimant, the claimant’s agent, a receiver, a receiver-manager or an official receiver or trustee acting pursuant to the Bankruptcy and Insolvency Act (Canada) .

(3) In the case of a claim for payment of a debt, part payment of the debt by the person against whom the claim is made or by the person’s agent is deemed for the purposes of subsection (1) to be an acknowledgment . (4) Subsection (1) applies to an acknowledgment of the existence of a claim for payment of a debt even though the person making the acknowledgment refuses or does not promise to pay the debt or the balance of the debt still owing. . . . Burden of proof 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired ; or (

b) there is no limitation period that applies to the claim. Proceedings commenced after expiry 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained . [ 9 ] The contract between the parties was entered into on or about August 31, 2010, represented by an invoice from the Plaintiff, signed by the Defendants. The Plaintiff’s work on the contract, apart from the issue of deficiencies, was completed in April 2011.

Payment on the contract was made by cheques: for $4,000.00, dated August 26, 2010 representing the deposit and another and last payment for $10,000.00, dated May 5, 2011, included in the Plaintiff’s Document List. The one and only invoice received by the

Defendants, dated May 6, 2011, was sent to the Defendants, acknowledging payment and a balance owing of $4,914.36. It states at the bottom: “ PAYMENT DUE UPON RECEIPT ”. Based on the foregoing, I find that the limitation period began to run on May 6, 2011, being the date upon which the claim was discoverable by the Plaintiff. [ 10 ] The Statement of Claim was dated and filed with the Court on June 3, 2013.

I reviewed the documents filed with the Court by both the Plaintiff and the Defendants to ascertain if there had been a written, signed acknowledgement of the debt after May 6, 2011 and before the potential date on which the limitation would expire, May 5, 2013. There was nothing filed in evidence which would constitute a part payment or acknowledgement in writing signed by the Defendants or one of them after May 5, 2011. Accordingly, the Plaintiff’s claim is statute barred.

This means that the Plaintiff may not be awarded a claim because he waited too long to pursue this matter. [ 11 ] It is desirable, given the nature of the dispute, that the parties receive a judgment which also addresses the merits of the claim. The remaining findings then are in the alternative to my conclusion that the claim is statute barred.

b) Did the Plaintiff fulfill its obligations pursuant to the contract and The Consumer Protection Act with respect to the product supplied and the manner of installation? [ 12 ] The Defendants contracted with the Plaintiff to supply and install windows and doors to their home. They hired Velocity Contracting Ltd. as it was the recognized contractor for the doors which were manufactured by Dorplex. They chose the Dorplex doors for their quality and other features. Within about 30 days of the work being completed, the Defendants informed the Plaintiff of numerous deficiencies.

There were several meetings between the parties which included a site visit by the Dorplex representative, Alan Hawkins. Some of the deficiencies were addressed but many were not. The Defendants filed a current list of those deficiencies and neither the Plaintiff nor Alan Hawkins took issue with those deficiencies, except that the Plaintiff disputed the need to finish the raw edges on the window trim. [ 13 ] Unfortunately for the Defendants, these deficiencies were not addressed for reasons which were not satisfactorily explained by the Plaintiff or the former Dorplex employee, Alan Hawkins.

Dorplex contracted with the Plaintiff to attend to the deficiencies with respect to the doors. There was talk of ordering and reordering components for repair of the doors and these orders not being filled in a timely fashion or completely and in at least one case, arriving damaged. The Plaintiff and Mr. Hawkins tended to blame the failure to resolve the deficiencies on a problem with communications, but ultimately each expressed frustration with the other. Alan Hawkins appeared to accept that part of the responsibility lay with Dorplex.

In fact he took the unusual step of selecting needed parts and delivering them to the Plaintiff’s place of business personally; however he said that on that occasion, Doug Struhar refused to see him. [ 14 ] Both Mr. Struhar and Mr. Hawkins seemed to be of the view that their respective businesses had done all that they could do in the circumstances. Mr. Struhar informed the Court that the Plaintiff ceased to act as the Dorplex official installer about a year prior to the trial date.

He took the position that it was up to the Defendants to pursue Dorplex to address the deficiencies with the doors and that it was owed the balance of the contract price. [ 15 ] Surprisingly in the Plaintiff’s demand letter dated November 28, 2012, Mr. Struhar was very vague about its role in carrying out the deficiencies work with the doors; suggesting on the one hand that Dorplex was to carry out the deficiency work, and on the other hand that the Plaintiff was to do the work. He did not inform the Defendants that the Plaintiff had severed its contractual relationship with Dorplex.

He wrote in part: After the installation of your door you had indicated that you were experiencing some issues with it. Our office had contacted Dorplex multiple times to have someone assess the situation from the manufacturer. After numerous attempts, Velocity was able to make (sic) arrangements with Dorplex to meet at your residence to make a list of deficiencies. Over the next few months Dorplex had started to send Velocity random parts that were needed for the repair, but Dorplex never made any attempt to go out to site to complete the repairs nor had all the required parts been sent. . . .

Please note that we will do everything that we can to assist you in your claim against Dorplex, however, at this time, this is our only course of action to collect for our services. We do understand your frustration with the situation and hope that Dorplex will step up to the plate to correct your product issues. . . . As we have made every effort to work with the manufacturer to have your product deficiencies remedied. As we have clearly shown your issues are with the manufacturer at this time.

In order to avoid a Small Claims action against you, we demand payment in the sum of $4,914.36 within 14 days of the date of this letter. . .

Mr. Struhar referred to one of the two doors (front and garden) that were included in the deficiency list which he accepted at trial; it is unclear which door he refers to in the letter. It was agreed that the front door should not have left the factory and I found that it should not have been installed. The Plaintiff and Alan Hawkins maintained that the garden door, which had a number of deficiencies, could be repaired with the replacement of a number of separate components. Mr.

Struhar apparently did not retain that list of deficiencies; the only list that he had at trial was the updated list produced by the Defendants in their document list. The letter makes no reference to the deficiencies with respect to the doors and windows for which the Plaintiff accepted responsibility at trial. To state the obvious, Mr. Struhar did not accept responsibility for supplying the Defendants with and installing a wholly unsuitable front door unit nor for supplying the several component parts requiring replacement on the garden door. He purported to pass on that responsibility to the Defendants.

He did not address in this letter the outstanding deficiencies with the windows. [ 16 ] Pertinent portions of The Consumer Protection Act are set out below and the most relevant provisions have been underlined. [ 17 ] The Consumer Protection Act imposes consumer product warranties upon retail sellers in contracts for the supply and installation of consumer products. The windows and doors to be supplied and installed by the Plaintiff under the contract come within the definition of a “consumer product” found at s. 39(e).

The contract comes within the definition of a “sale” and the Plaintiff and Defendants are “consumers” and “retail seller” defined at s. 39(

d) and (

l) respectively. The definition of “sale” includes a transaction in which services are supplied with the consumer product; in this case installation services. Accordingly the statutory warranties found at s. 48 apply; the Plaintiff is deemed by law to have given these warranties to the Defendants. Specifically the Plaintiff is deemed to have warranted pursuant to s. 48(

d) that “the product supplied under the contract is of acceptable quality”. The consumer may, but is not required to seek relief against the manufacturer. Pursuant to s. 52(1) the Act contemplates that the “retail seller” may seek to recover from the manufacturer for any losses under a “sale” which losses may be attributed to a breach of the manufacturer’s statutory warranty.

Section 57 addresses the remedies of the consumer where the breach of the statutory warranty is remedial or of a substantial character.

Section 39(

c) defines a breach of a “substantial character”. Where a breach is of a remedial nature, the party in breach, in this case the Plaintiff has an obligation pursuant to s. 57(1) to make good the breach, and where the party fails to make good the breach within a reasonable time the consumer, the Defendants, is entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs for remedying the breach.

PART III Consumer Products Warranties

INTERPRETATION AND APPLICATION

Interpretation of

Part 39 In this Part: (a) “acceptable quality” means the characteristics and the quality of a consumer product that consumers can reasonably expect the product to have, having regard to all the relevant circumstances of the sale of the product, including: (

i) the description of the product; (ii) its purchase price; and (iii) the express warranties of the retail seller or manufacturer of the product; and includes merchantable quality within the meaning of The Sale of Goods Act; . . . (c) “breach of a substantial character ” means: (

i) that a consumer product, or the level of performance of the retail seller or manufacturer of a consumer product, departs substantially from what consumers can reasonably expect, having regard to all the relevant circumstances of the sale of the product, including : (

A) the description of the product; (

B) its purchase price; (

C) the statutory warranties and express warranties of the retail seller or the manufacturer of the product; or (ii) that a consumer product is totally or substantially unfit for all the usual purposes of such product or for any particular purpose for which, to the knowledge of the retail seller, the product is being bought ; (d) “consumer” means a person who buys a consumer product from a retail seller

. . . (e) “consumer product”: (

i) means any goods ordinarily used for personal, family or household purposes and, without restricting the generality of the foregoing, includes any goods ordinarily used for personal, family or household purposes that are designed to be attached to or installed in any real or personal property , whether or not they are so attached or installed; and . . . (l) “retail seller” means a person who sells consumer products to consumers in the ordinary course of his or her business but, subject to subsection 50(1), does not include a trustee in bankruptcy, receiver, liquidator, sheriff, auctioneer or person acting under an order of a court; (m) “sale” means a transaction in which the retail seller transfers or agrees to transfer the general property in a consumer product to a consumer for a valuable consideration and includes but is not restricted to: (

i) a conditional sale; (ii) a contract of lease or hire; (iii) a transaction under which a consumer product is supplied to a consumer along with services; and any reference in this Part to “buy”, “buying”, “bought”, “sell”, “sold” or “selling” is to be construed accordingly; STATUTORY WARRANTIES Statutory warranties 48 Where a consumer product is sold by a retail seller, the following warranties are deemed to be given by the retail seller to the consumer : (

a) that the retail seller has a right to sell the product; (

b) that: (

i) at the time of delivery to the consumer, the product is and will remain free from any security interest, lien, charge or encumbrance not expressly disclosed or actually known to the consumer before the sale is made; and (ii) the consumer will enjoy quiet possession of the product except to the extent that it may be disturbed by any person entitled to any security interest, lien, charge or encumbrance disclosed or actually known to the consumer before the sale is made; (

c) where the sale of the product is a sale by description, that the product corresponds with the description; (

d) that the product supplied under the contract is of acceptable quality , except that this warranty is deemed not to be given: (

i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or (ii) where the consumer examines the product before the contract is made, respecting defects that examination ought to have revealed; . . . (

g) that the product and all its components are to be durable for a reasonable period, having regard to all the relevant circumstances of the sale, including: (

i) the description and nature of the product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the product normally requires and the manner in which it has been used; (

h) where the product normally requires repairs, that spare parts and repair facilities will be reasonably available for a reasonable period after the date of sale of the product . Retail seller’s rights against manufacturer 52(1) Where a retail seller is sued for a breach of a statutory warranty by a consumer , by a person mentioned in subsection 41(1) or by a person mentioned in

section 64, and the manufacturer of the consumer product is in breach of the same statutory warranty to the consumer or person, the retail seller is entitled, whether or not the retail seller bought the consumer product directly from the manufacturer, to recover from the manufacturer, in the manner described in subsection (2), any losses that:

(

a) the retail seller may suffer as a result of the suit : and (

b) are the responsibility of the manufacturer pursuant to this Part.

(2) A retail seller who intends to recover losses from a manufacturer in accordance with subsection (1), on being served with the documents initiating a suit against the retail seller, shall immediately: (

a) advise the manufacturer that proceedings have been commenced and that the retail seller intends to recover from the manufacturer; and (

b) forward to the manufacturer, by registered mail, a copy of the documents initiating the suit. Remedies for breach of statutory or express warranties 57(1) Where there is a breach by a manufacturer or retail seller of a statutory warranty mentioned in

section 48 or of an express warranty mentioned in

section 45: (

a) and where the breach is remediable and not of a substantial character : (

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

b) and where the breach is of a substantial character or is not remediable, the consumer, at his or her option, may exercise the remedies pursuant to clause (

a) or, subject to subsections (2) and (3), the consumer may: (

i) reject the consumer product; and (ii) if he or she exercises his or her right to reject, he or she is entitled to recover the purchase price from the party in breach and to recover damages for any other losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach.

(2) The consumer shall exercise his or her right to reject the consumer product pursuant to clause (1)(

b) within a reasonable period pursuant to subsection (3), except where the consumer delays the exercise of his or her right to reject because he or she has relied on assurances made by the party in breach or the party’s agent that the breach would be remedied and the breach was not remedied.

(3) For the purposes of subsection (2), regardless of whether the right to reject is being exercised by the consumer or a person mentioned in subsection 41(1), a reasonable period: (

a) runs from the time of delivery of the product to the consumer; and (

b) consists of a period sufficient to permit any testing, trial or examination of the consumer product that may be normally required by consumers of that product and as may be appropriate considering the nature of the product, for the purpose of determining the conformity of the product to the obligations imposed pursuant to this Part on the party in breach. [ 18 ] I found that the windows and doors did not possess the characteristics and quality that consumers can reasonably expect a product to have. The breach of contract between the Plaintiff and Defendants was remedial and not of a substantial character.

This is reflected in part by the Defendants’ willingness to hold back the balance of the contract until the deficiencies were addressed. They were not addressed by the Plaintiff as required by The Consumer Protection Act. The Plaintiff expected the Defendants to pursue the manufacturer to have the deficiencies corrected and it did not intend upon doing the remedial work. [ 19 ] All of the windows were substandard because they were not “paint ready”. The Plaintiff’s witness, Mr.

Lanoi, who performed or supervised the work for the Plaintiff, maintained that they left the windows as they did on the expectation that the rest was up to the painters. The corner trim on each of the windows had raw unfinished edges which required smoothing and rounding and then priming before they possessed the characteristics and quality contemplated by The Consumer Protection Act . Additionally, there were installation problems with several of the casings being “visibly crooked”.

Two dining room windows were ordered “too short” and there was no evidence that the Plaintiff brought this to the Defendants’ attention before installation. The installation did not correct the problem; the shortfall was very visible.

The parties did not agree as to the appropriate remedy for the furnace room window but it was clearly a substandard installation which required action by the Plaintiff. [ 20 ] Of the two door units installed which were manufactured by Dorplex, it was agreed that the front door unit should never have left the factory and on this basis I found fault with the Plaintiff for having installed it in that condition. With respect to the garden door unit, there were several components which were substandard and should have been replaced according to the Plaintiff and the Defendants’

witness Mr. Hawkins. I found that the repair of both door units were remedial in nature. [ 21 ] As the Plaintiff “retail seller” failed to remedy the problems with the windows and doors as it was required to do under s. 57(1) (a), the consumer, the Defendants, would, in the alternative be entitled to recover damages for their loss.

c) What if any damages are payable? [ 22 ] This discussion is in the alternative to the finding that the Plaintiff’s claim was statute barred. The amount owing on the contract was adjusted but not reflected in the contract documents and should be reduced by $500.00 as a header was not required.

Accordingly the amount that is outstanding on the contract is calculated as follows: $17,610.68 (before GST) - 500.00 (adjustment) $ 17,110.68 - 14,000.00 (paid) $ 3,110.68 (plus GST) [ 23 ] The Defendants have been left in an untenable position; the Plaintiff severed its relationship with Dorplex so the Defendants are unable to get the components for the garden door unit or a replacement front door unit through them. They endeavoured to determine their damages under the contract, looking for another retail seller who could obtain and install the Dorplex product.

In the Defendants’ counterclaim they explained that they contacted Dorplex to find an approved installer and they were referred to Home Depot which in turn referred them to the Plaintiff. They further went to a local business that specialized in windows and door installations with a view to obtaining an estimate but it declined to provide an estimate. [ 24 ] In the circumstances, it remains for the Court to determine the damages under the Defendants’ counterclaim, based on an analysis of the cost evidence available.

Several questions were posed by the Court with a view to ascertaining the cost of materials and installation. As a result the following findings were made on a balance of probabilities: i. The front and garden door units require replacement. The Defendants have no option but to accept the garden door as is or replace it altogether with a door manufactured by a business other than Dorplex. ii. The Dorplex costs outlined in #11 of the Plaintiff’s Documents List puts the total cost for the two doors at $7,989.00, before mark-up.

The cost of each unit separately is $4,607.00 for the front door and at least $3,382.00 for the garden door. (The Dorplex invoice was incomplete with respect to the garden door.) The mark-up on the products, according to the Plaintiff was 15% but according to the Defendants’ witness, Alan Hawkins, it was 50%. The Plaintiff’s invoice did not specify the cost of the product and the Court had only the partial product list supplied by Dorplex to the Plaintiff.

I did not accept that the mark-up was 15%; the Plaintiff had this information and failed to substantiate it or convince the Court on a balance of probabilities that the mark-up was 15%. I was inclined to accept the statement of Mr. Hawkins in this regard; he was aware of the Plaintiff’s mark-up on the contract and generally in the industry as a result of his experience. While he was not formally qualified as an expert, he might have been, had the Court foreseen the need for such an application at the outset of his testimony. iii. The labour costs, estimated by the Plaintiff, were low. Mr.

Struhar put the hourly rate for three workers at $60.00 to $70.00 per hour, which I accepted for the sake of this analysis. While he estimated the time required to address the deficiencies to be half a day he also minimized the extent of the deficiencies. Mr. Struhar also testified that the time required initially for the whole job was in the area of 60 to 90 hours. I found the time required to address the deficiencies to be at least 15 hours with three workers. At an hourly rate of $60.00 for three workers, the total labour cost would be approximately $900.00.

[ 25 ] Without further analysis, and again, in the alternative to my finding that the claim was statute barred, I found that the Defendants established on a balance of probabilities that the Plaintiff would not be entitled to further payment as the balance owing to the Plaintiff after adjustment and credit for the amount paid was in the sum of $3,110.68; less than the damages that would have been payable to the Defendants.

The Defendants’ counterclaim was framed to equal the sum claimed by the Plaintiff, hence nothing further would be payable. [ 26 ] The Defendants sought reimbursement of the cost of producing their witness, Alan Hawkins. Given the Simplified Procedure which was applicable to this claim, I found that it was not necessary that this witness be subpoenaed. Further, rather than arrange for him to appear in person, he might have testified by phone. These matters may have been discussed at the case management held, but that was not apparent from the notes on the file.

While this claim has been found in favour of the Defendants on the merits, no costs are awarded. ________________________ S. Whelan, J