Jodine Bjola - v. -, 2011 SKPC 93

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 093 Date: June 14, 2011 File: 70/09 Location: Yorkton _____________________________________________________________________________ Between: Jodine Bjola - and - Benmar Holdings Inc. Mr. Wayne Rusnak, Q.C. For the Plaintiff Ms. Kyla Eiffert For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. OVERVIEW OF EVIDENCE Jodine Bjola [ 1 ] Jodine Bjola claims for monies unpaid on a painting contract with the defendant. Ms. Bjola has a full-time job with

SaskPower, and does contract painting outside of her regular job. She is an experienced painter and came to meet Marlene Swan, of the defendant corporation, through her friend Brent Spelay. At the end of February, 2009, Ms. Bjola and Ms. Swan met at an apartment block, owned by the defendant and located on Bradbrooke Drive in Yorkton. She understood that Mr. Spelay was the defendant’s building manager and that he had a long-term relationship with Ms. Swan and her husband Ben, the co-owners of the defendant corporation. [ 2 ] During the meeting, Ms.

Swan outlined the work that was to be done in painting three suites in this apartment block, and asked for a quote from Ms. Bjola. That evening, Ms. Bjola provided a quote to Ms. Swan (Exhibit P-5). That quote provided the cost per room (bedroom, bathroom, living area, kitchen cupboards, white trim/doors) for each of a one bedroom, two bedroom and three bedroom suite. The total price for a one bedroom was $1,250.00, the total for a two bedroom was $1,550.00 and the total for a three bedroom was $1,850.00.

The quote said that labour included in the quote was: sanding, patching, washing, painting two layers, washing the floor, removing the switch plates, removal of all door knobs and siliconing cracks. [ 3 ] Ms. Bjola said that Ms. Swan agreed to the quote, and she started work the next day. Although she told Ms. Swan that she worked for $40.00 an hour, Ms. Swan wanted a quoted cost per suite, which she gave. Ms. Bjola said the painting of ceilings was not included in her quotation, and never came up in their discussions.

She further said that the paint she used was paid for by the defendant, and delivered to her by Mr. Spelay. [ 4 ] In a document marked as part of Exhibit P-6, she presented an invoice regarding suite 18B. This included her quoted fee of $1,550.00 for a two bedroom suite, but also had a further, or extra, labour charge for March 1 of $360.00. This was said to include organizing, decorating, cleaning, assembling, delegating staff and touch ups at this suite. [ 5 ] Ms. Bjola explained that the extra charge was not included in her quotation, nor discussed directly with Ms. Swan.

She said that, in this suite, she found mould on the ceiling and, as a result, had to paint it. She also cleaned out the inside of a vanity and primed and painted that. In addition, she painted an external apartment door of this suite, on both sides, at the direction of Mr. Spelay. She was told suite 18B was to be photographed as the picture suite, and there was a deadline for this to happen. Regarding suite 18B, she was paid $1,550.00 by the defendant, but was not paid the extra charge of $360.00. [ 6 ] Regarding suite 16B, Ms. Bjola charged her quoted rate of $1,250.00.

She said that this suite was completed, except that there were no baseboards yet in the suite. She said she would have done these if they were present, but they were not. She estimated that it would take two hours to paint the baseboards, which at her rate of $40.00 an hour would total $80.00. She was not paid anything by the defendant for her work on this suite. [ 7 ] Regarding suite 14B, she admitted that she did not complete work on this suite, and, as a result, only claims a portion of what was quoted. She said that this was the last suite she was working on, and had, at the time of contracting with Ms.

Swan, told her that she was not available during a weekend in March when this work might have been done. Before she could return to do the work, she discovered that her daughter Jade Bjola and Lance Leray-Houdek, who were also working for the defendant on renovations at the apartment block, had been fired by the Swans and taken off the property. She also learned that Mr. Spelay had resigned his position with the defendant. She then engaged in e-mails with Ben Swan, seeking to be paid in advance for all three suites, before completing her job.

This did not happen and she did not go back. [ 8 ] Regarding suite 14B, she estimated that she did a total of $880.00 worth of work, compared to the $1,250.00 quoted. [ 9 ] On cross-examination, Ms. Bjola said that all her discussions about extras on suite 18B were with Mr. Spelay. She claimed that Mr. Spelay authorized the extra work to be done. Ms. Bjola denied being given or discussing a priority task list (Exhibit D-1) prepared by Ms. Swan. She said that Mr. Spelay had something like this, but she was not involved with the discussion about it. Nor could she recall any discussion with Mr.

Spelay telling her she should overcharge Ms. Swan. She admitted that she was never told by Ms. Swan to take directions from Mr. Spelay, but rather said she assumed that he had the authority to respond and direct on behalf of the defendant corporation, given his long time relationship with the Swans. Larry Tittle

[ 10 ] Mr. Tittle said he became manager of the apartments on Bradbrooke, on behalf of the defendant corporation, on March 1, 2009. He worked at Harvest Meats during the day, and then worked as manager in the evening. He stayed Monday to Friday in Yorkton, and then returned to his home in Wolseley on the weekends. He was not paid wages for being the manager, but was given free rent. [ 11 ] Mr. Tittle said that, on March 1, 2009, Mr. Brent Spelay was still doing general maintenance at the apartments, helping Ben and Marlene Swan to renovate the apartments. He denied giving any supervisory authority to Mr.

Spelay, saying that he changed the computer password on March 2, 2009. [ 12 ] Mr. Tittle said that, sometime in February of that year, he was introduced to Jodine Bjola at a meeting in one of the apartments. He recalled being introduced as the manager of the apartments, taking over for Mr. Spelay. He recalled a discussion, in the presence of Jodine Bjola, of what his duties were, including supervising staff and duties in the office. [ 13 ] On cross-examination, Mr.

Tittle admitted he did not prepare any lists for any of the workers involved in the renovations to follow, nor did he recall giving any directions to Mr. Spelay. Mr. Tittle did not disagree with the suggestion that his job as manager was primarily as a rent collector. Further, he said that Mr. Spelay remained in charge of the renovations, under the direction of Ben and Marlene Swan. When asked whether he gave directions to Mr. Spelay, Mr. Tittle said Mr. Spelay knew what was to be done. Marlene Swan [ 14 ] Ms. Swan said the defendant owns two apartment blocks in Yorkton, at 233 and 243 Bradbrooke Drive.

In the fall of 2009, these apartments were in the process of being renovated so that they could be rented as furnished suites. The manager of these apartments was Mr. Brent Spelay, who at the end of January 2009, gave his notice for the end of that February, for personal reasons. Around February 20, 2009, Ms. Swan said that some deadlines were approaching on the suites, and Mr. Spelay, who was working on the renovations, was not a strong painter and wanted help. [ 15 ] Mr. Spelay suggested to her that Ms. Bjola could help with the painting. Ms. Swan came to Yorkton around February 24 or 25, 2009, and met with Ms.

Bjola. She said they looked at the job site and discussed what was to be done. Ms. Swan asked for a quote from Ms. Bjola, which she then received (Exhibit P-5). She understood that the quote was for painting everything in the suite, and was not interested in an hourly rate, but rather a complete quote for each suite. Ms. Swan said that she was to give instructions to Ms. Bjola. Ms. Bjola started shortly thereafter with the painting. [ 16 ] Ms. Swan said, on February 26, 2009, she was at the apartment, and said that she went up to the suite which Ms. Bjola was painting in. She said she could overhear Mr.

Spelay’s voice saying that Ms. Bjola should overcharge Ms. Swan. She claimed that she heard laughter, and, although Ms. Bjola did not respond, she was certain that Ms. Bjola was in the suite. She was upset about this and contacted her husband. After discussing this situation, apparently based on the quality of work that she believed Ms. Bjola was doing, Ms. Swan and her husband decided to carry on with the painting as planned, but, in her words, said this was a “heads up”. [ 17 ] Ms. Swan said, the next day, she had lunch with Ms. Bjola and Mr. Spelay.

At that time she presented them with a task list for the next six week period (Exhibit D-1). She said this provided the critical path for the renovations to the suites, and she went over it with both individuals. She did not give a copy to them, but told them where the original would be located (in the office). Ms. Swan said that, after she returned to Calgary, she received a telephone conference call from Mr. Spelay and Ms. Bjola. In that conversation, both individuals told her that the deadlines were unrealistic and that further help was needed. [ 18 ] Regarding Ms. Bjola’s claim related to suite 18B, Ms.

Swan said that she had no problem paying the quoted amount of $1,550.00, but had concerns about the $360.00 extra charge. She said that she thought the quote was the entire quote and that there would not be extras claimed. She denied that there was any suggestion that ceilings weren’t included. She claimed she asked for clarification on the extra charge but never received it.

[ 19 ] Regarding Ms. Bjola’s claim for suite 16B, she said she did not pay the amount of $1,250.00 claimed as the suite was not complete. Her concerns were that the kitchen cabinets were not complete, there was only one coat of paint in the bathroom, the paint in the bathroom was not complete and the backboards were not installed and painted. She denied offering to pay any amount regarding this suite, as she wanted Ms. Bjola to finish it. [ 20 ] Regarding Ms. Bjola’s claim for suite 14B, Ms. Swan said the suite was only about half done. She agreed with the figures suggested by Ms.

Bjola for the amount that was completed ($880.00). Although she did not pay her anything for this suite, she said that her intention was to come and meet Ms. Bjola, and then make payment. II. ANALYSIS Suite 18B [ 21 ] Regarding suite 18B, the question is whether Ms. Bjola is entitled to the extra charge of $360.00. Despite what Ms. Swan overheard Mr. Spelay say about overcharging the defendant, apparently with Ms. Bjola present, I do not accept that Ms. Bjola set out to overcharge the defendant.

The question, however, becomes whether she should be compensated for the extra work she did, or whether her original quote obligated her to do that work for the price stated. [ 22 ] In Ms. Bjola’s quote, there is no mention of the potential of any extra charge for such task as painting the ceiling, the vanity or the exterior door. As that quotation formed the contract between Ms. Bjola and the defendant corporation, any variation to the contract required the consent of both parties. Ms. Bjola said the extra work and charges on suite 18B were approved by Mr. Spelay. Ms. Swan denied that Mr.

Spelay had such authority. [ 23 ] I am satisfied, based on the evidence of Mr. Tittle, that Mr. Spelay continued to be in charge of the renovations at this apartment block after March 1, 2009, on behalf of the defendant, and did have this authority. Mr. Tittle did not disagree with the suggestion that his job, as manager after March 1, 2009, was primarily as a rent collector. Further, Mr. Tittle said that Mr. Spelay remained in charge of the renovations, under the direction of Ben and Marlene Swan. When asked whether he gave directions to Mr. Spelay, Mr. Tittle said Mr. Spelay knew what was to be done.

In total, this evidence satisfies me that Mr. Spelay had, and retained, the authority to bind the defendant in changing the original contract respecting suite 18B to include extra tasks and a resulting extra charge. I find Ms. Bjola is entitled to recover the extra charge of $360.00. Suite 16B [ 24 ] Regarding suite 16B, there is obviously conflicting evidence, with Ms. Swan claiming this suite required more than painted baseboards to be finished. Given the further concerns Ms.

Swan raised - the kitchen cabinets were not complete, there was only one coat of paint in the bathroom, the paint in the bathroom was not complete - I am satisfied that a proper deduction from the quoted rate of $1,250.00 for the suite not being completed is $150.00, rather than the $80.00 suggested by Ms. Bjola. That results in $1,100.00 owing on this suite. Suite 14B [ 25 ] Regarding suite 14B, I agree, as do the parties, that $880.00 is fair compensation for the work done by Ms. Bjola. III. CONCLUSION [ 26 ] Ms.

Bjola shall have judgment against the defendant in the amount of $2,340.00 ($360.00 for suite 18B, $1,100.00 for suite 16B and $880.00 for suite 14B), together with interest under The Pre-Judgment Interest Act from March 31, 2009 (as the parties negotiated unsuccessfully for some time about possible completion of the work) and the cost of issuing this claim ($25.00).

R. Green, J