Marty Sveinbjornson (o/a Sveinbjornson Carpentry) - v. -, 2011 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 071 Date: May 10, 2011 File: 126-10 Location: Yorkton _____________________________________________________________________________ Between: Marty Sveinbjornson (o/a Sveinbjornson Carpentry) - and - Colleen Becker Mr. Sveinbjornson For the Plaintiff Ms. Becker For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. OVERVIEW OF THE EVIDENCE [ 1 ] The plaintiff, Mr.

Sveinbjornson, operates a carpentry business in Yorkton. The defendant, Ms. Becker, resides in Yorkton. Mr. Sveinbjornson claims that Ms. Becker failed to pay a portion of the amount originally agreed on for carpentry services his company provided to her. Ms. Becker disputes that she owes anything to Mr. Sveinbjornson.

[ 2 ] On December 18, 2009, Mr. Sveinbjornson provided an estimate to Ms. Becker of $6,651.00 (plus GST) for work at Ms. Becker’s residence. The work involved installing approximately 24 feet of wood railing complete with metal spindles. The written estimate, filed as Exhibit P-2, further stated that material, hardwood and wood finishing was not included in the estimate price, with each to be either supplied or the responsibility of Ms. Becker. [ 3 ] Mr. Sveinbjornson testified that this estimate formed the basis of the agreement between the parties. Ms.

Becker, on cross- examination, admitted that she had agreed to the work based on the estimate. I am satisfied, on a balance of probabilities, that the estimate filed as Exhibit P-2 forms the basis of the contract between the parties. [ 4 ] A $500.00 deposit was required, and this was paid by Ms. Becker. Further, Mr. Sveinbjornson requested a 50% deposit of the contract amount, which was greater than the 25% deposit stated in the estimate. In April 2010, Ms. Becker paid the 50% deposit of $3,325.00. [ 5 ] Mr.

Sveinbjornson said that work commenced on the project on April 8, 2010, and that all materials were supplied by Ms. Becker. He further said that Ms. Becker, at some point, was short of materials and had to order more. He said, at that point, the job was 95% complete and he provided the final invoice to Ms. Becker, based on the original estimate. He intended to complete the work once the further materials, ordered by Ms. Becker, arrived. However, on May 4, 2010, Ms.

Becker sent him an e-mail stating that the material should arrive in two weeks, but then proceeded to say that she did not agree with the way the railing had been put together and also voiced her displeasure that she thought she had hired Mr. Sveinbjornson personally, and not his “hired help”. [ 6 ] Mr. Sveinbjornson testified that he operated a carpentry company, and had trust in the competency of his employees. Given the number of jobs his company had underway at any given time, it was not possible for him to be on site at all times for each job. He, however, told Ms.

Becker that he would attend personally, when the remaining materials arrived, and complete the project. He then attempted to contact Ms. Becker, repeatedly, but received no response. On July 9, 2010, he sent Ms. Becker a demand letter, but again received no response to this. On August 12, 2010, he commenced this action. [ 7 ] Ms. Becker, while acknowledging that the estimate provided in December of 2009 formed the basis of the agreement between the parties, maintained that she did not owe any money to Mr. Sveinbjornson. This was: (1) because of several concerns she had about the quality of work done by Mr.

Sveinbjornson; (2) because she claimed that Mr. Sveinbjornson agreed that he would personally do the work in question; and (3) because she claimed that Mr. Sveinbjornson agreed that the work would be completed in five days. [ 8 ] Ms. Becker’s concerns over the quality of work done were presented through a series of photographs, marked Exhibits D-1 through D-5. These pictures were taken approximately a month before the trial which was held on May 4, 2011, or, in other words, approximately a year after the work in question was done. Before the pictures were taken, Ms.

Becker had spread white flour over the woodwork to highlight the areas of concern. Both Ms. Becker and her spouse Keith McTaggart testified. Despite an admission by both that they were not carpenters, the concerns they expressed were as follows: 1) Mr.

Sveinbjornson’s employees cut a stair plate in half and then joined the plate together in a way that made it obvious where the joint in the middle was (as pictured in Exhibits D-1 and D-2); 2) that the finishing on the side of one of the boards was not flush against the drywall and that, as a result, a space of a quarter of an inch remained (Exhibit D-3); 3) that there was a visible space between the joinder of the boards or plates which met at the point where the spindles were installed (Exhibit D-4); 4) that there was an over cut on a wooden post that was installed (Exhibit D-5); and 5) that a wooden post was attached and secured by way of being attached to the wall, rather than by having a steel plate installed in the middle of the post, as Ms.

Becker had suggested to Mr. Sveinbjornson. [ 9 ] Ms. Becker also claimed that it would cost her in excess of $1,350.00 to fix the concerns she listed. She said this was based on a verbal estimate by an unidentified carpenter and the further cost of materials.

[ 10 ] Mr. Sveinbjornson responded, regarding the last concern (#5, above), that it was his professional opinion that the wooden post could be best secured to the wall, which he did. He said that he checked the post upon completion and it was secure. I accept his evidence on this. [ 11 ] Mr. Sveinbjornson further said that each of the other four concerns regarding the quality of the work (as listed above) were discussed with Ms. Becker during the project, and he, at that time, gave her an explanation about why the work had been performed as it had been.

Further, in the four hours that was remaining on the project (which constituted 5% of the project) he was prepared to come back and address her concerns. However, he said, there was no response and no further communication from Ms. Becker. [ 12 ] Mr. Sveinbjornson further said that he was present at the work site for a day and a half, and did not recall any promise that the job would be done within five days or that the work would be done exclusively by him.

He said he was prepared to forgo 5% of the value of the project (the unfinished 5% of the work), despite his inability to attend to complete the job, and further said that he was prepared to forgo his claim for an additional fee of $350.00 for preparing and grouting an additional board for the job. II. ANALYSIS [ 13 ] As I have already said, I am satisfied that the estimate, with a total price of $6,651.00 (plus GST), provided by Mr. Sveinbjornson to Ms. Becker on December 18, 2009, forms the basis of the contract between the parties.

The exception is that while the estimate refers to a 25% deposit, the parties subsequently agreed to a 50% deposit, which was paid by Ms. Becker. [ 14 ] Mr. Sveinbjornson provided his evidence in a straightforward and organized fashion. Ms. Becker, on the other hand, presented in a way that I found to be neither straightforward or organized, and in my view her testimony was often hard to follow. Where there is a conflict in the evidence between Mr. Sveinbjornson and Ms. Becker, I accept the evidence of Mr. Sveinbjornson, without hesitation. [ 15 ] I am satisfied, on a balance of probabilities, that Mr.

Sveinbjornson, either personally or through his employees, provided the work agreed on to Ms. Becker. I am not satisfied that Mr. Sveinbjornson ever agreed to work exclusively on the project, given the nature of his business. Nor am I satisfied that Mr. Sveinbjornson agreed to have the job done in five days. Rather, I infer into the agreement between them (Exhibit P-2) that the work was to be completed in a reasonable period of time, which I am satisfied happened, at least to the point when Ms. Becker ceased communication with Mr. Sveinbjornson (at 95% of completion). [ 16 ] I am further satisfied that Mr.

Sveinbjornson, during the course of the job, discussed with Ms. Becker four of the five concerns raised by her at the trial, and was prepared to come back and address each of these concerns, yet Ms. Becker chose not to return his communication. Clearly, Mr. Sveinbjornson cannot be blamed, or held liable in any way, for this. Regarding the wooden post, I am satisfied that Mr. Sveinbjornson exercised proper judgment in attaching this post to the wall rather than placing a metal plate in it. [ 17 ] In total, I am satisfied on a balance of probabilities that Mr. Sveinbjornson is entitled to recover from Ms.

Becker 95% of the quoted price less the amount of the deposit paid by her. The quoted fee, without GST, was $6,651.00. 95% of that fee is $6,318.45. From that fee I have deducted the $3,825.00 that Ms. Becker paid to Mr. Sveinbjornson as a deposit, to produce a sum owing, before GST, of $2,493.45. After adding the GST (6% as of April 2010), the total which Mr. Sveinbjornson will receive judgment for is $2,643.06 . Mr. Sveinbjornson shall also have judgment for the cost of issuing this proceeding, $31.00 , and interest under The Pre- judgment Interest Act from the date of his demand letter on July 9, 2010. R.

Green, J