Kerry Skowronski v. Larry Skowronski, 2018 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 036 Date: May 23, 2018 File: SC#25 of 2017 Location: Melfort _____________________________________________________________________________ Between: Kerry Skowronski and Larry Skowronski Plaintiffs - and - Raymond Berger carrying on business as Ray-Aul Construction Defendant Selves For the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT L.W. STANG , J _____________________________________________________________________________ Introduction

[ 1 ] The Plaintiffs hired the Defendant as a professional contractor to do renovations to their home in Nipawin. The contract between the parties contemplated two main areas of work to be completed: renovations to the kitchen and installation of a downstairs bathroom. In mid-May 2017, the Defendant finished his work on the kitchen with the completed installation of new custom kitchen cabinets. The Plaintiffs were not satisfied with the Defendant’s work or with the quality of the new cabinets, including the depth of the upper cabinets.

The parties then mutually abandoned the downstairs bathroom portion of the renovation. Consequently, the Plaintiffs’ claim and the Defendant’s counterclaim pertain only to the kitchen renovations. [ 2 ] The Plaintiffs claim $14,938.16 for partial replacement cost of deficient kitchen cabinets and for plumbing repairs. The Defendant filed a Dispute Note and a Notice of Counterclaim.

The Defendant disputes the Plaintiffs’ entire claim and counterclaims $3,945.90 as the balance owing to him for the kitchen renovation. [ 3 ] With respect to the Plaintiffs’ claim, I must decide if the Plaintiffs have proven, on a balance of probabilities, that:

a) The custom kitchen cabinets supplied by the Defendant were not the correct size or dimensions as required by the contract between the parties; and / or,

b) The Defendant breached the common law implied warranty that the custom kitchen cabinets would be built and installed in a good and workmanlike manner; and / or,

c) The Defendant breached the common law implied warranty that the plumbing work would be done in a good and workmanlike manner. [ 4 ] If the Plaintiffs have proven any of their claims, I must assess the appropriate value of the work that was done by the Defendant and/or the amount, or value of, any damage that is the responsibility of the Defendant. [ 5 ] With respect to the Defendant’s counterclaim, I must decide if the Defendant has proven, on a balance of probabilities, that he fulfilled his obligations under the contract - as pertaining to the “kitchen” portion of the renovation.

If the Defendant proves his claim, I must then assess the value of the goods and services provided and determine if there is an outstanding amount owing to the Defendant. [ 6 ] For reasons set out in subsequent portions of this decision, this is clearly not a situation where both the claim and the counterclaim could succeed and then simply be set off against each other. In other words if the Plaintiffs’ claim is successful, or even partially successful, then the Defendant will not have ‘fully performed’ the terms of the contract which is the foundation of his counterclaim.

The Evidence [ 7 ] During the trial, the Plaintiffs called four witnesses: Kerry Skowronski, Larry Skowronski, Bruce Pihowich, and, Brent Verzonwoski. Via these witnesses, the Plaintiff also tendered seven exhibits consisting of a variety of documents and photographs. The Defendant tendered one exhibit during the testimony of Ms.

Skowronski; and tendered seven additional exhibits during the ‘ defence ’ portion of the trial during which three witnesses were called: Raymond Berger, Shane Harrison, and Terry Sawatsky. [ 8 ] I find that all of the witnesses were quite credible in the sense that they all testified honestly and to best of their recollections; and none of them were intentionally misrepresenting things or trying to be evasive.

I did however find that certain parts of some of the evidence was not sufficiently reliable in the sense that I had concerns about the witness’s ability to properly recall certain things, and whether or not the memory of certain things may be tainted by emotion and/or the passage of time. The vast majority of the evidence presented was factual and informative. There were very few issues for which I have to assess directly conflicting testimony from different witnesses. Consequently, I do not find it necessary to provide a detailed

summary of all the testimony provided by each witness; rather, I have set out my findings of salient facts based on the whole of the evidence but with reference to certain evidence where appropriate and,

where necessary I have resolved relevant conflicts in the evidence. [ 9 ] Notwithstanding my decision not to provide a detailed

summary of all the evidence, I do find it is useful and appropriate to comment briefly on each of the witnesses and their evidence.

a) Ms. Skowronski was the first witness for the Plaintiffs. Together she and her husband are the Plaintiffs. She confirmed that between her and her husband she was the driving force behind the renovation project for their home and she was the principal contact and spokesperson for the couple during discussions with the Defendant.

b) Mr. Skowronski was the second witness for the Plaintiffs. Together he and his wife are the Plaintiffs. His testimony was quite brief and was primarily relevant to a topic where there is in fact a conflict in the evidence provided by Ms. Skowronski and the Defendant.

c) Bruce Pihohwich was the third witness for the Plaintiffs. He was presented by the Plaintiffs as an expert witness and after hearing appropriate evidence from Mr. Pihohwich on that issue I ruled that he was an expert in the area of cabinetry, including the construction and installation of cabinets, and that he could provide opinion evidence on those topics. The purpose of his testimony from the Plaintiffs’ perspective was to support (and hopefully prove) their claim that the Defendant had not constructed the kitchen cabinets according to appropriate industry standards and in particular that the cabinets made by the Defendant were not made according to proper standard dimensions.

d) Brent Verzonwoski was the last witness for the Plaintiffs. Mr. Verzonwoski is a journeyman plumber who operates his own plumbing and heating business. He was the plumber contacted by the Plaintiffs to deal with the plumbing problems that they say were caused by the Defendant. Mr. Verzonwoski attended at the Plaintiffs’ home, provided services, and an invoice to Mr. Skowronski (Exhibit P-2) for those services.

e) Raymond Berger is the Defendant and was the first witness to testify for the defense. He is the owner and operator of a construction business that operates under the name of Ray-Aul Construction and in this capacity he contracted with the Plaintiff to provide certain renovations to their home. His evidence was varied and extensive regarding the contract, the renovation process, and his communications with the Plaintiffs.

f) Shane Harrison was the second witness called by the Defendant. Mr. Harrison is a millwright and has over 30 years of professional experience in the manufacturing of cabinets for use in both residential and commercial settings. Mr. Harrison operates such a manufacturing business in Lloydminster, Alberta and he was contracted by the Defendant to manufacture the “cabinet boxes” that the Defendant needed for his construction of the kitchen cabinets he was making for the Plaintiffs. Additionally, on one occasion in late December 2016 Mr. Harrison was present at the home of the Plaintiffs when Ms.

Skowronski and the Defendant had a conversation about the kitchen cabinets to be made. Mr. Harrison was not qualified as an expert witness for the purpose of providing opinions on relevant matters. Consequently, I have carefully reviewed and assessed his evidence and have given appropriate weight to his evidence. In particular, I observe that Mr. Harrison can and did provide detailed evidence as to his direct knowledge of cabinet manufacturing. I found his evidence in that regard to be informative and helpful.

g) Terry Sawatsky was the last witness called by the Defendant. He is a journeyman plumber who was called by the Defendant to provide some evidence about how a dishwasher drain could be added to another drain. He also provided some evidence as to how much he would charge to plumb in a dishwasher drain. Notably, he did not testify that Mr. Verzonwoski’s bill was unreasonable; nor did he contradict any of Mr. Verzonwoski’s evidence regarding the drain plumbing not complying with the current building code.

Facts [ 10 ] With the exception of two areas of conflicting evidence that are addressed in paragraphs 24 to 34 most of the relevant facts in this matter were uncontested; and consequently I am able to provide a straightforward

summary. [ 11 ] In early 2016, the Plaintiffs had decided to have certain renovations done to their home in Nipawin, Saskatchewan. They were looking to have the kitchen remodeled, including new custom cabinets, and to have a downstairs bathroom installed. During their efforts to find a contractor to do this work, the Defendant’s wife referred them to the Defendant. At that time, she was a client at Ms.

Skowronski’s hairdressing business. [ 12 ] Near the end of February 2016 the Defendant provided the Plaintiffs with a written estimate for work they wanted done [Exhibit D-2]. The total amount of this estimate was too high for the Plaintiffs, in particular because they planned to finance the renovation. Consequently, the estimate was not accepted and no contract was concluded between the parties at that time. [ 13 ] Later on in 2016, the Plaintiffs had further contacts with the Defendant to discuss possibly altering the scope of some of the renovations in order to lower the anticipated cost.

The parties worked together on this and it resulted in the Defendant providing the Plaintiffs with a new written estimate on August 17, 2016 [Exhibit P-1]. This estimate was accepted by the Plaintiffs and thereafter formed the basis of the contract between the parties. The balance of the contract was verbal and was developed and refined on an ad hoc basis between the parties. It is notable that the accepted estimate set out an anticipated total cost for material and labour and included a contingency allocation of an additional 25% of the said total for “ unforseen [ sic ] renovation costs ” .

I interpret this clause to be of benefit to both parties. From the Defendant ’ s perspective, this provides some assurance that additional costs, such as unexpected construction problems would be covered.

From the Plaintiffs ’ point of view, this clause permits them to know the potential maximum to be charged for the renovation project and to obtain financing on that basis. [ 14 ] While it is helpful that the basis of the contract between the parties was in writing it is unfortunate that a more detailed written agreement was not prepared and agreed upon following the Plaintiffs ’ acceptance of the written estimate.

Such a written agreement could have set out many specifics such as expected timelines for completion of certain stages of the project, particulars of how and when payments would be made, and details as to precisely what materials would be used, including such things as the style and dimensions of the kitchen cabinets. [ 15 ] Given the Defendant ’ s workload during the latter part of 2016, he was not able to start working at the Plaintiffs ’ home until January 2017. The Plaintiffs would have liked the work to start much earlier than that but they ultimately agreed to the Defendant starting in the New Year.

The parties also then agreed that the first part of the project to be completed would be the “ kitchen ” portion of the project and that the “ downstairs bathroom ” portion of the project would come later. [ 16 ] When the Defendant was actually ready to start working on the Plaintiff’s renovation he request an advance or down payment of $13,000.00. The Plaintiffs paid this amount to him on or about January 13, 2017. The Defendant started work and continued working on the kitchen portion of the project for approximately two months. He then provided the Plaintiffs with an invoice, dated March 29, 2017.

This invoice [page 2 of Exhibit P-3] requested payment of $12,993.75 in addition to the earlier advance of $13,000.00. Shortly after receiving this invoice, the Plaintiffs paid the amount of $12,993.75 to the Defendant. At that time, they understood that the kitchen portion of the project was nearing completion, as the Defendant only needed to finish painting the cabinets and then finish installing them. [ 17 ] Up to the end of March 2017, the project had proceeding well enough.

There were unexpected issues such as the Defendant encountering cement in and on some of the old lattice boards that had been used in the construction of some of the walls. Additionally, a plumbing problem occurred after the Defendant removed the old counter top and sink. More specifically, a leak resulted in some damage to the lower cabinet boxes. The Defendant also did the plumbing required for the new sink and dishwasher and it was not done pursuant to applicable building codes.

It was later corrected by a plumber hired by the Plaintiffs. [ 18 ] In early April 2017, the Defendant also encountered a very significant problem with the paint he was using to finish the kitchen cabinets. In his evidence, the Defendant informed the court that the cabinets were made with a type of wood that he had not used before and as such, he relied on advice from the paint retailer regarding the appropriate kind of paint to use. Unfortunately, he later learned that there was an unspecified problem with this paint as it was not applying and curing properly.

This resulted in the Defendant having to spend many hours stripping, priming, and repainting cupboard drawers and cupboard ends. He also spent many hours dealing with the paint retailer in an effort to obtain the correct paint needed for these cabinets.

From the Defendant’s evidence, it appears that the paint retailer was prepared to assist in replacing the faulty paint but was not interested in compensating him for the additional time the Defendant spent repainting portions of the cabinets. [ 19 ] In his efforts to ‘deal with’ the paint retailer the Defendant produced an invoice, addressed to the Plaintiffs, for the additional time he spent repainting portions of the cabinets. A photo of this invoice was sent to the Plaintiffs by text message on April 14, 2017; the amount of this invoice was $1801.53 [page 3 of Exhibit P-3].

During the trial the Defendant produced, a copy of this invoice but the date on it was April 17, 2017 and the amount was $1,881.61 [Exhibit D-6]. The Plaintiffs were understandably upset by this invoice. As far as they were concerned, the additional time required to repaint parts of the cabinets was a result of the type of paint chosen by the Defendant. Moreover, if he was given bad advice or bad product by the paint retailer, then that was an issue he needed to pursue with the

paint retailer. On this point, I agree with the Plaintiffs. [ 20 ] In his evidence, the Defendant explained that he never meant for the Plaintiffs to pay this invoice, but rather he wanted to use the existence of the invoice, and presumably the assistance of the Plaintiffs, to put pressure on the paint retailer. I accept the Defendant’s evidence in this regard and I note that this invoice (or equivalent amount) does not appear in any of the subsequent documentation given by him to the Plaintiffs.

Consequently, I find that the Defendant did not include any of this additional work in his actual invoices to the Plaintiffs and this additional work is not the foundation, in whole or in part, of the Defendant’s counterclaim. [ 21 ] Unfortunately, the purpose of this extra invoice [page 3 of Exhibit P-3 and Exhibit D-6] was not well communicated to the Plaintiffs at the time. Instead, it appears that their receipt of this invoice contributed to a deteriorating relationship between the parties.

It is clear from all the evidence that by mid-April, 2017 the Plaintiffs were getting frustrated with delays and the overall amount of time it was taking the Defendant to complete the kitchen portion of the project. The Defendant was also getting frustrated by the problems he was having with the paint and the pressure he was under to get the kitchen finished as soon as possible. [ 22 ] On or about May 12, 2017 the Defendant finished his final installation of the kitchen cabinets and thus, as far as he was concerned, the “ kitchen ” portion of the renovation project was completed.

Consequently, he prepared and delivered a further invoice, dated May 17, 2017 [page 4 of Exhibit P-3] for all his work up to that point. The amount of the invoice was $3,945.90; this was in addition to the $25,993.75 he had already received from the Plaintiffs. The Plaintiffs refused to pay the invoice of May 17, 2017. They were not satisfied with the dimensions of the kitchen cabinets, in particular the depth of the upper cabinets, and they were not satisfied with the overall quality and finish of the cabinets. [ 23 ] On May 25, 2017, the parties met at the Plaintiffs ’ home to discuss matters.

This meeting is discussed in more detail in paragraphs 24 to 29. Following this meeting, the parties were at an impasse and their business relationship essentially ended at that point. I find that both parties on or about the end of May 2017 mutually abandoned the balance of the contract between them, that is to say the basement bathroom portion of the contract. The Plaintiffs took the position that the work was not properly completed and they wanted to Defendant to rebuild the upper cabinets with a greater depth and repair all of the other deficiencies they noted with the finish and quality of the cabinets.

The Defendant took the position that the kitchen was complete and he wanted payment of his invoice dated May 17, 2017. He sent reminder invoices in June and July 2017. On June 22, 2017, he registered a builder ’ s lien for $3,945.90 against the title of the Plaintiffs ’ home. The Kitchen Cabinets [ 24 ] The first area of conflicting evidence that requires resolution pertains to certain comments made by the Defendant to the Plaintiffs on May 25, 2017.

As referred to above, following the installation of the kitchen cabinets in mid May 2017 the parties had a major dispute about the work done and in particular about the kitchen cabinets. Ms. Skowronski had identified a variety of issues that she felt were serious deficiencies in the quality of the kitchen cabinets and central among these was her view that there should have been a greater interior depth in the upper cabinets. In her view, they had been constructed improperly and did not have sufficient depth to store items she wished to store in those cabinets and still be able to properly close the cabinet doors.

As such, she invited the Defendant to attend at their home so that they could discuss these things and try to ‘figure out’ how to resolve matters. The Defendant agree to this meeting and attended at the Plaintiffs’ home on May 25, 2017. [ 25 ] The meeting between the parties on May 25, 2017 was relatively long, lasting approximately two hours. Ms. Skowronski was quite upset and did not refrain from very vocal and forceful language to express her displeasure to the Defendant. Near the end of this meeting, the Defendant said something regarding the alleged problems and deficiencies with the kitchen cabinets.

The Plaintiffs maintain that the Defendant verbally acknowledged that the cabinets were deficient and agreed to correct them. The Defendant disputes this. This issue is important because if the Plaintiffs are correct such a statement by the Defendant would be of considerable assistance in proving their claim. [ 26 ] In her testimony, Ms. Skowronski said: “… Mr. Berger finally did acknowledge that our cabinets were too narrow and he said he would rebuild the new upper boxes to make it right …” In his testimony, Mr.

Skowronski said: “… and then he (the Defendant) hung his head and said ‘ yah you ’ re right the cabinets need to be fixed ’ ... ” And, in his testimony, Mr. Berger indicated that on May 25, 2017, he told the Plaintiffs the following: “… they might look too small, I ’ ll talk to my guys on this and if there is a problem, um, we will fix it; if there is, I ’ ll talk to my guys first. I didn ’ t say they are too small; they might be too small …”

[ 27 ] At first glance, it would appear that Mr. Skowronski’s evidence corroborates that of Ms. Skowronski however, in the circumstances I am not prepared to give any weight or true value to his testimony in this regard. His words and the way he said them in court cause me to have no confidence that he was testifying from his own independent memory on this topic. In my view, he was simply saying what he was expected to say. [ 28 ] My main concern with Ms. Skowronski’s evidence on this issue arises from the subsequent text message conversation that she had with the Defendant.

This text message conversation took place several days after the meeting on May 25, 2017 and the relevant portions were presented in evidence via some of the images contained on the thumb drive marked as exhibit P-4. The first of these messages is from the Defendant in which he asserts that the cabinets were built to “…a standard depth of 12” finish...” Ms. Skowronski responds by trying to convince the Defendant that to be proper the cabinets should have been built with an interior depth of 12 inches. The Defendant does not agree with her and confirms that he is referring to an exterior depth of 12 inches.

It is only later on in the text conversation that Ms. Skowronski ‘reverts’ to the argument that the Defendant had previously admitted that the cabinets in question were not deep enough; and she does so as part of a rant during which she forcefully attacks the Defendant’s integrity. Notwithstanding the fact that Ms. Skowronski mentions the purported admission in the text conversation and in her recent testimony, I am unable to accept her evidence on this point. If the Defendant had indeed clearly acknowledged this problem on May 25, 2017, it makes no sense that Ms.

Skowronski would continue to try to convince him of that in the text messages. It would have made sense if her first response were something like “but you already agreed that you would fix the problem” or “are you going back on what you told us a few days ago”. Her continued effort to try to convince him that the depth dimension was incorrect is inconsistent with an honest belief that he had already agreed with her in that regard. [ 29 ] In assessing this issue, I must also consider the evidence of the Defendant. The key portion of his testimony in this regard is cited above.

In addition, he followed up on the conversation with the text message referred to above essentially confirming, from his point of view, that there was no problem. This makes sense and I find that the text message conversation corroborates the Defendant’s version of what he said on May 25, 2017 regarding this issue. In considering all of the relevant evidence, I have far more confidence in the Defendant’s recollection of what he said.

I prefer and accept his evidence on this issue. [ 30 ] The second area of conflicting evidence pertains to the issue of whether or not there is indeed a “standard” interior depth for upper kitchen cabinets. The Plaintiffs’ expert witness, Mr. Pihohwich, provided evidence about standard sizes, including the depth of upper cabinets. He opined that standard cabinets would be constructed with a depth of 12 inches but he did not confirm that this would result in a standard “interior depth”.

He confirmed that the interior depth would be something less than 12 inches depending on the precise method used by the cabinetmaker to construct the cabinets. It was clear from his evidence that when he builds standard upper kitchen cabinets the interior depth would be slightly more than in the cabinets built by the Defendant; and when specifically asked about the cabinets now in the Plaintiffs’ home, he stated, “I wouldn’t have made them that size.” This is informative but what he did not say in his evidence is more telling.

He did not say that all, or even most, professional cabinetmakers would make them in a way that permits a common precise interior depth. [ 31 ] I would be remiss if I did not mention that I have considered that these kitchen cabinets were being “custom-built” and were not “standard” “off the shelf” items that one can simply purchase from a building centre or a big box store. Custom-built cabinets are, or at least often are, very specifically designed and built to suit the space and the customer. They vary. That is what “custom” means in this context.

The Plaintiffs’ position in this regard is that they contracted for custom-built cabinets but now insist that the cabinets should have had certain “standard” dimensions. I observe that it would be an oxymoron to call them “standard custom cabinets”. [ 32 ] Further to the foregoing, the evidence revealed that there was a meeting between the parties, at the Plaintiffs’ residence, on or about December 19, 2016. At this time, one of the topics discussed was the layout and dimensions of the new cabinets.

The uncontested evidence of the Defendant is that the Plaintiffs did not specify any required depth for the cabinets and that Ms. Skowronski said something to the effect of “…anything is better than what I have now.” In my view, and in the absence of any further specific instructions, this comment by her is indicative of a willingness to give the Defendant some discretion regarding certain aspects of the build, such as dimensions.

I find support for this conclusion in the fact that this was a very small kitchen and in the fact that the Plaintiffs did provide specific instructions as to other aspects of the cabinets such as the type of wood to be used for the doors and the colour of the paint to be used. [ 33 ] I note that Mr. Harrison testified that in his personal experience homeowners rarely, if ever, specifically ask for a certain specified interior depth for their upper cabinets, but contractors do; and it is certainly possible to build such cabinets with whatever specific depth the customer may want.

Thus, it would seem that the Plaintiffs were like most homeowners in this regard. They did not

specifically request that the Defendant provide cabinets with any particular interior depth, but the fact remains that they could have; and they now find themselves in a situation where they should have made that particular request.

In my view the Plaintiffs cannot leave the Defendant with discretion as to the final dimensions and then fault him for building the cabinets with a certain dimension that is slightly less than the “standard” size that they wanted. [ 34 ] I am not convinced by the evidence presented at the trial that there is a certain “ standard ” interior depth for custom- built upper kitchen cabinets. Even if there is such a standard the evidence is insufficient to prove what that dimension is.

Consequently, considering all of the relevant evidence, I find that the Plaintiffs have failed to prove that the upper kitchen cabinets provided by the Defendant were built and finished using any incorrect dimension. [ 35 ] In addition to my finding regarding the dimensions, including the depth, of the cabinets I must also consider the Plaintiffs ’ claim regarding the quality of the cabinets.

In this regard, and for the reasons set out below, I find that the kitchen cabinets were not finished in a good and workmanlike manner. [ 36 ] Firstly, I will address the damage caused to the lower cabinet because of the water leak. In her evidence, Ms. Skowronski confirmed that she told the Defendant that she would “ live with ” the damage caused by the water leak. It would not be visible as it was inside the cabinet and she preferred to accept it rather than incur further delay that would result if she insisted on it being repaired.

The fact that the Plaintiffs were prepared to ‘ live with ’ this damage does not eliminate the fact that this deficiency was not corrected by the Defendant. [ 37 ] There were other problems with the finish and quality of the cabinets and their installation:

a) Some of the handles were not aligned properly;

b) Some of the cabinet doors were not aligned properly;

c) There were some creases or depressions in the wood;

d) There were some texture streaks in the paint such that in some places it looks like it was applied with a brush rather than being sprayed on;

e) There were some noticeable runs in the paint;

f) There were some corners where the paint had chipped off; and,

g) There were some small dents in some of the cabinet doors. [ 38 ] Some of the deficiencies listed above would have been easy to correct, others would take a substantial amount of time and effort.

If there were only one or two of the deficiencies noted above my finding may have been different but it is in considering all of the deficiencies together that I come to the inescapable conclusion that the final quality of these cabinets was below an acceptable standard, and not constructed in a good and workmanlike manner. [ 39 ] I note that the proper use and purpose of new custom kitchen cabinets is not simply to store dishes and other kitchen supplies. They also have an esthetic purpose in that they add to the look and appeal of a nice kitchen. They also normally add considerable value to a home.

This is why people are willing to pay many thousands of dollars for a small set of new custom cabinets. This is also why such cabinets must be finished to a very high degree of quality. The cabinets built and installed by the Defendant for the Plaintiffs look quite nice from a distance, but from the photographs presented in evidence [Exhibit P-4], it is clear that when examined up close the required quality is not there.

There was no expert evidence presented directly on this issue but I find that it is not needed because the absence of the required quality is plain and obvious from the other evidence presented during the trial.

[ 40 ] There was no evidence presented at the trial as to how much it would cost to have the cabinets repaired to a proper standard. It is clear from the evidence that this would take a lot of work but without estimates or actual repair bills to determine this cost it is up to me to assess an appropriate amount of compensation for the Plaintiffs. I find that I am able to do this based on the evidence presented during the trial. Notably, in the accepted estimate [Exhibit P-1] the Plaintiff set out an anticipated cost of $9,250.00 for his labour to build the new kitchen cabinets.

At trial, he confirmed that he charged $50.00 per hour. Thus, he had estimated – and subsequently billed – for 185 hours of work to build the kitchen cabinets. [ 41 ] From the Defendant’s detailed evidence about the amount of work required to properly paint and otherwise finish the cabinets I can conclude that approximately half of these hours (92.5) went into the final prepping and painting of the cabinets.

This is important, because it is clear from the evidence that the only way to rectify the deficiencies referred to above would be to remove all of the cabinet doors, the drawer faces, and the cabinet ends and re-finish them. Of course, the paint now on these items would need to be properly removed first – which would require additional time. The Defendant also provided significant evidence about the time required to remove the flawed paint from a number of the items being painted and as such I am able to conclude that this part of a proper repair would likely require an additional 20 hours of work.

To this, I would also add another 20 hours for the removal and subsequent re- installation of the parts of the cabinets mentioned above. Consequently, a reasonable total number of hours needed to repair and refinish the kitchen cabinets would be 132.5 hours. At $50.00 per hour, this would result in a labour cost of $6,625.00. A contractor effecting the said repairs would need to add GST of $397.50 applicable to the labour cost.

Consequently, I conclude that a reasonable total cost to repair the kitchen cabinets is $7,022.50. [ 42 ] For the kitchen portion of the renovation project the Defendant billed the Plaintiffs a total amount, including GST, of $29, 939.65. I find that if the kitchen cabinets had been completed and finished properly this would have been a reasonable amount and would have been within the parameters of the contract between the parties. If the Plaintiffs had paid this entire amount, they would be entitled to recover the $7,022.50 referred to above. The difference between these two amounts is $22,917.15.

The Plaintiffs have already paid $25,993.75. Consequently, they are entitled to recover the portion of that which exceeds $22,917.15. Therefore, the Plaintiffs are entitled to recover $3,076.60 with respect to the kitchen cabinets. The Plumbing [ 43 ] During the renovation, there was a problem with the kitchen plumbing that resulted in a leak. This leak in turn caused some damage to the cabinet as referred to in paragraph 17. In mid-June 2017, the Plaintiffs noticed another leak under their kitchen sink and they contacted journeyman plumber, Brent Verzonwoski, to attend and repair it. Mr.

Verzonwoski testified that when he attended to repair the leak he observed that the sink and dishwasher drains were not plumbed properly. Specifically, he confirmed the said plumbing did not comply with the current building code. He discussed this with the Plaintiffs who then instructed him to go ahead and re-do the drainage plumbing so that it would comply with the building code. He also repaired the initial leak, which was the result of a faulty valve. He then invoiced the Plaintiffs [Exhibit P-2] for $438.45, which the Plaintiffs paid to him. [ 44 ] The Defendant did not directly dispute the evidence of Mr.

Veronwoski. Rather, he testified that he did not hire a plumber to do the required plumbing work in the kitchen and that he did all such work himself. He also testified that he plumbed the drains the same way as he had found them when he started the project. Unfortunately, this manner of plumbing the drains did not comply with current building codes. I conclude that non-compliance with the applicable building code is a breach of the common law implied warranty that the work be completed in a good and workmanlike manner.

This also applies to the leaky valve which was either installed by the Defendant or if previously installed was accepted and used by the Defendant for the plumbing work done by him. I find that the Plaintiffs’ claim against the Defendant for their cost to repair the sub-par plumbing is appropriate. The amount of $438.45 is reasonable, has been proven, and will be awarded to the Plaintiffs. Conclusion [ 45 ] The Plaintiffs have not proven that the Defendant constructed the upper kitchen cabinets using or resulting in improper or non-standard dimensions.

Consequently, the “depth of the cabinets” aspect of the Plaintiffs’ claim is dismissed. [ 46 ] The Plaintiffs have proven that the kitchen cabinets were generally not of an acceptable quality; and that the total amount they are entitled to recover in this regard is $3,076.60. To this, I add the amount they are entitled to recover for the plumbing issue, $438.45.

This makes a total of $3,515.05. [ 47 ] Having found that the Plaintiffs have proven that the kitchen cabinets were not completed in a good and workmanlike manner and that they are entitled to recover a portion of the amount already paid to the Defendant, I make the corresponding finding that the Defendant has not proven his counter-claim. The Defendant’s counterclaim is dismissed. [ 48 ] As a result, the Plaintiffs are granted judgment in the amount of $3,515.05.

Additionally, I find that the Plaintiffs are entitled to statutory pre-judgment interest on this amount from August 16, 2017 (being the date of service of the Plaintiffs’ Statement of Claim) to May 23, 2018. [ 49 ] As to the issue of costs, I will hear further from the parties. Any resulting order will be made separately but will be incorporated into the final Judgement to be issued by the court. Miscellaneous [ 50 ] In reviewing the record, it is apparent that there has not been consistency in the way the “style of cause” appears on the cover pages of various documents filed.

This is partially, but not entirely, due to one defendant being removed from the action at an early stage of the proceedings. Another concern is that the full names of both Plaintiffs are not used. A further concern is that the description of the remaining Defendant at times seems to suggest that Raymond Berger is different or separate from Ray-Aul Construction. The evidence at trial clearly confirms that Ray-Aul Construction is not a separate legal entity. Rather, it is the trade name used by Raymond Berger.

Consequently, I direct that this Judgment and any subsequent documents filed in this matter be prepared using the following style of cause: Kerry Skowronski and Larry Skowronski Plaintiffs And Raymond Berger carrying on business as Ray-Aul Construction Defendant [ 51 ] Lastly, since I have dismissed his counterclaim the Defendant would be well advised to discharge the builder ’ s lien he registered against the title to the Plaintiffs ’ property as they are at liberty to bring an application in the Court of Queen ’ s Bench to have it vacated. ________________________ L.W. Stang, J