Glenn v. Marion Matechuk, 2012 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 021 Date: February 21 , 2012 File: 66/11 Location: Yorkton _____________________________________________________________________________ Between: Glenn and Marion Matechuk - and - Gross Construction Ltd.

Evan Thompson For the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT BRENT KLAUSE, J _____________________________________________________________________________ [ 1 ] The Plaintiffs are suing the Defendant in regard to the installation of a concrete driveway installed by the Defendant at the residence of the Plaintiffs in Yorkton, Saskatchewan in the spring of 2010. [ 2 ] The facts are not in serious dispute.

The Plaintiffs contracted with the Defendant, a locally owned and operated concrete contractor to construct their concrete driveway and associated sidewalks based mostly on their observations of their work in constructing

their neighbour’s driveway. This was an oral agreement with no written contract in existence outlining the standard expected by the Plaintiffs or the product proposed by the Defendant. [ 3 ] The Defendant proceeded to pour the driveway in accordance with his standard business practices. Shortly after the pour, a crack began to appear and settling occurred at the back of the house as well. Additionally there has been some discolouration of the concrete in isolated spots. [ 4 ] The Plaintiff contacted the Defendant to point out the deficiencies. The Defendant offered to cut out the

section in the front of the driveway that had cracked and re-pour that

section but the Plaintiff declined. The Defendant further repaired a backyard portion of concrete where the stairs from the deck had been and the complaint is that the concrete is not of the same colour as the original pour. At the end of the day, the Plaintiff was completely unsatisfied with the work performed by the Defendant and despite an offer by the Defendant to repair or replace a

section of the driveway, the matter was brought to Court. Position of the Plaintiff: [ 5 ] The Plaintiff asserts the following: (

a) that the Defendant failed to perform the work in a workmanlike manner such that it is in breach of its contract with the Plaintiff; (

b) that the Defendant was negligent in that the work fell below the standard expected of a reasonably skilled contracting company; (

c) that the Defendant is liable to the Plaintiffs for a breach of a statutory warranty under The Consumer Protection Act ; (

d) that the Plaintiff is entitled to a quantum of damages; and (

e) that the Plaintiff is entitled to costs under s. 31 of The Small Claims Act . In essence the Plaintiff is stating that the work done by the Defendant was substandard and seeks that the entire driveway be ripped up, carted to the landfill and re-poured by another contractor. This will cost in excess of $25,000.00.

Position of the Defendant: [ 6 ] The Defendant asserts that the work was done in accordance with standardized practice in the Yorkton area, that the work was done to a high standard and that the complaints raised are in the nature of cosmetic as opposed to structural deficits and can be repaired without the complete removal of the existing concrete. The Evidence: [ 7 ] The most material witness called by the Plaintiff was Bruce Peberdy, P.Eng with KGS Group, Consulting Engineers, who I qualified as an expert.

It was his evidence, based on an extensive on-site investigation, that in Yorkton or indeed anywhere in Saskatchewan that the minimum acceptable depth of a concrete pour to withstand our harsh winters and the inevitable heaving that occurs, is four inches of cement poured on a well prepared gravel base which has been properly packed and prepared to receive the concrete. It was his opinion that insufficient concrete was used on this job and that there may well be areas where the minimum four inches did not get laid.

He bases this opinion on his expertise and on-site inspection but admits that it is nearly impossible to ascertain this without ripping up the entire installation and measuring it at several different locations which would of course destroy the entire installation. An obvious other explanation would be that the concrete is deeper in some places where the subsurface has settled which would explain the discrepancies between the amount of concrete delivered and the entire square surface footage of the project.

[ 8 ] I found the evidence of this expert to be informative, unbiased and very helpful. [ 9 ] Photographs were also filed of the installation and they essentially depict the crack which appeared in the driveway very soon after it was poured, the various discolourations of the concrete in certain places, and the settling of the deck area leaving the concrete pour with a gap underneath it. [ 10 ] The Defendant acted for himself and he said that the driveway he poured for the Plaintiff was his usual effort, using the experience he has gained from over 25 years in the business; that this project was treated no differently than any other project; that he supplied more than the minimum four inches of concrete required and that he cut no corners on this installation or indeed any other installation that he has been involved in.

He believes that the cracking problem was as a result of the Plaintiff’s own actions in using his own bobcat to haul earth to the trenched portion of the property. By way of explanation, each lot is serviced by the City of Yorkton with a trench which carries the water and sewer lines from the main street line onto the property owned by the homeowner. This trench is generally several feet deep to allow the ingress of water and the egress of sewage from the property to the city owned and operated lines.

It was the Defendant’s evidence that if he had known where that trench was precisely located he would have made a significant effort to effectively pack that area down but due to the actions of the Plaintiff in tamping and landscaping that area, it was impossible for him to isolate that area. He indicated that his compaction methods were standard and up to the standard accepted by the community in which he has worked for decades. Essentially the Defendant is asserting that if the Plaintiff had not camouflaged that area, the Defendant would have been able to compensate for the settling expected to occur there.

Many homeowners wait a year or more for that area to settle with rainfall and associated winter heaving in an effort to avoid the problem which occurred here. Analysis: [ 11 ] In my opinion, these parties were never at one mind on the project. In effect the Plaintiffs wanted a “Cadillac” of a concrete pour and what they got was a “Chevrolet”. The Plaintiffs obviously have very high expectations of what they needed and wanted for their retirement home in Yorkton but what they received was not up to their high standards.

The driveway in my opinion is still operational, useful and essentially functional for the purposes for which a driveway is commonly used. If the Plaintiffs wanted a higher quality driveway than what was provided, they should have included those exact specifications in a written contract to avoid this kind of misunderstanding.

It is therefore my conclusion that in regard to Issue 1 of the Plaintiff that the Defendant did not perform the work in a workmanlike manner such that it breached its contract with the Plaintiff, there were some deficiencies, but in my view they do not render the entire project unusable for the purpose for which it was constructed. In

summary, I find that there was no breach of contract. [ 12 ] In regard to the issue of damages, it is my opinion as I have previously found that the driveway is substantially usable for the purpose for which it was created. In this regard I find some support for my reasoning in the decision of Jackson, PCJ in the case of McLeod v. Hodgins , 2008 SKPC 124 , where the Defendant had declined to pay the bill of the concrete installation of $5,898.90, claiming that there were a number of deficiencies in the pour and counterclaimed for $15,039.00 for material and labour to replace the concrete floor and driveway.

At paragraph 12 the Court made the following finding: The Court also had the benefit of viewing photographs of the areas complained of. Having done so and having considered all of the evidence on this issue, the Court is not satisfied that the “deficiencies” are beyond what normally would be expected for this nature of project in the circumstances the Plaintiff and his crew had to work within. The Court finds accordingly that the finished product of the driveway and garage floor were substantially as bargained for.

Therefore no reduction in the Plaintiff’s account is warranted in this regard nor obviously is the work deficient to the extent that the project should be redone. [ 13 ] I find further support for this proposition in Maisonneuve and Fogel v. Dennis Burley , 2001 SKQB 407 , a decision of Madam Justice Dawson where at paragraph [43] she had this to say: The plaintiffs heard about Dennis Burley through some local residents. They knew that Burley was not a professional contractor or engineer.

The plaintiffs cannot now claim damages in accordance with the amount it would have cost to have the wall built by a professional contractor in conformity with the specifications and under the constant supervision of an engineer. The damages sought by the plaintiff are the costs to replace the retaining wall with the “best possible” wall, rather than an ordinary wall suitable for the purpose. Further, even if it could be said that the amount claimed is the cost of performance, the cost of performance is not reasonable and exceeds the value of the property.

The amount claimed by the plaintiffs is wholly disproportionate relative to the value of what might be achieved through performance.

[ 14 ] In regard to Issue 2 raised by the Plaintiff, it is my view that the Defendant was not negligent in his compaction methods or pouring methods and that in any event, the Plaintiff in effect helped to create the problem by masking the areas of his property where settling was likely to occur thus making it difficult for the Defendant to attempt to remedy the problem before it even began. [ 15 ] In regard to Issue 3, the applicability of The Consumer Protection Act , I have had the benefit of reading Cash v.

Gross , 2003 SKQB 97 , a decision of McIntyre J. who supported the decision of the trial judge that “the concrete used was a consumer product”, the Defendant was a “retail seller” and the Plaintiff was a “consumer” all within the meaning of The Consumer Protection Act . In that case the trial judge held that s. 48(

g) of The Consumer Protection Act required that the concrete be durable for a reasonable period, that it was not and therefore the breach of warranty was of substantial character and not remediable.

Section 45(1) of The Consumer Protection Act provides as follows: Any promise, representation, affirmation of fact or expression of opinion or any action that reasonably can be interpreted by a consumer as a promise or affirmation relating to the sale or the quality, quantity, condition, performance of efficacy of a consumer product or relating to its use or maintenance is deemed to be an express warranty if it would usually induce a reasonable consumer to buy the product, whether or not the consumer actually relies on the warranty.

Section 45(2) of The Consumer Protection Act provides: Subsection (1) applies to a promise, representation, affirmation of fact or expression of opinion made verbally or in writing directly to a consumer or through advertising by a retail seller or manufacturer, or his or her agent or employee who has actual, ostensible or usual authority to act on his or her behalf.

Section 48 of The Consumer Protection Act provides: (

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. (

e) where the consumer expressly or by implication makes known to the retail seller any particular purpose for which the product is being bought, that the product supplied under the contract is reasonably fit for that purpose, whether or not that is a purpose for which the product is commonly supplied, .............. (

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. In the instant case, no one is complaining about the quality of the concrete delivered nor is Yorkton Concrete, the supplier of the concrete being sued.

Rather it is the quality of the installation that is at issue and for the above reasons, it is my opinion that the quality of the pour and the final finished driveway was not solely dependent on the work provided by the Defendant.

It is my opinion that insofar as The Consumer Protection Act applies, that the product supplied by the Defendant was and remains of acceptable quality, that the product supplied was reasonably fit for that purpose and that the product is reasonably durable for a reasonable period having regard to all the relevant circumstances of the sale. [ 16 ] I therefore am not satisfied on a balance of probabilities that there was any breach of contract

or that the Defendant was negligent or that there was any material breach of The Consumer Protection Act and I dismiss this action. Dated at the City of Yorkton , this 21 st day of February, 2012. Brent Klause, J