Abstract Construction Ltd. - v. -, 2016 SKPC 077

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 077 Date: June 1, 2016 File: SC 51/15 Location: Regina _____________________________________________________________________________ Between: Abstract Construction Ltd. - and - Patricia Wagman Patricia Hopf For the Plaintiff Breeanna Mussell For the Defendant JUDGMENT P.

DEMONG, J Introduction [ 1 ] The plaintiff, which I will refer to as ‘Abstract’ in these proceedings, brings this action to recover monies which it says are due and owing to it for goods and services provided to the defendant arising from a basement renovation contract entered into between the parties on May 27, 2013. [ 2 ] The defendant, who I will refer to as `Patricia` in these proceedings, has refused to pay for the goods and services provided.

She says that the work was done in such an utterly deficient manner, and so contrary to the engineer`s requirements that she was deprived of what was, in essence, the entire benefit of the agreement. She says that in addition, Abstract, through its principal Bradley Andrews

‘Brad’, demanded payment as a pre-condition to remedying any deficiencies, something which she says was contrary to the terms of the agreement. Finally, she says that his abrasive manner, his temper, his use of profanity and his use of threats, when considered in light of the significant deficiencies and his attempt to unilaterally amend the terms of the agreement, constituted a breach of the agreement, thereby allowing her to treat the contract at an end and to retain another contractor to remedy the deficiencies. [ 3 ] Abstract denies that Brad acted in an abrasive manner or that he used profanity or threats.

It concedes that there were some deficiencies and says that it stood ready, willing, and able to remedy the deficiencies, but that Patricia refused to let it remedy those deficiencies, and as a result, it says that Patricia has repudiated the agreement. In light of that repudiation, Abstract asserts that it is entitled to accept that repudiation and seek recovery of monies for the goods and services it provided under the agreement. [ 4 ] For her part, Patricia says that she had to incur costs well in excess of the amount that Abstract is seeking to recover in order to remedy the deficiencies.

She is not counterclaiming for any excess, but seeks to set off, to the extent of Abstract`s claim, those expenditures that she incurred. Evidence [ 5 ] Patricia owns a home in Regina. In the latter part of 2011 and following a significant period of rain, she was concerned about the integrity of her basement foundation and the potential need for repairs to be done to foreclose the possibility of future flooding. She contacted an engineer by the name of Dimitrios (‘Jim’) Markatos. Jim is a professional engineer who works for, and is a part owner of, a company called DKM Engineering Ltd.

Jim attended on her property and inspected it in or about early November of 2011. [ 6 ] In a report to Patricia dated November 12, 2011, Jim noted several problems or potential problems and provided her with a detailed list of those repairs which he felt were required. He suggested, among other things: (

a) excavation around the perimeter of the walls down to the bottom of the footing; (

b) cleaning of the exterior of the foundation walls; (

c) application of a waterproofing membrane on the exterior of the foundation walls; (

d) the further application of a dimpled foundation membrane over the waterproofing membrane to protect the first membrane against damage; (

e) installation of new weeping tile; (

f) application of specific types of material to fill the excavation after completion; (

g) back sloping of 5% away from the foundation walls to ensure proper drainage and avoidance of pooling; (

h) removal of all or a portion of the concrete driveway and the front steps to effect the excavation referred to above; (

i) interior bracing along the west basement foundation wall in accordance with blueprints attached to the report; (

j) installation of a sump pit and sump pump; and (

k) installation of a solid pipe to run from the weeping tile to the sump pit. [ 7 ] Patricia did not attend to these repairs immediately, but on or about May 1 st of 2013, and in the course of a discussion with a third party, Patricia was advised that Brad did basement repair work. Brad is the principal owner of Abstract. Patricia expressed some interest in speaking to Brad and the third party subsequently arranged to have Brad attend at her home to provide a quote for the repair of her basement.

By coincidence, Brad happened to live just a few houses away. [ 8 ] Brad attended Patricia’s home and inspected the property on or about May 27, 2013. Patricia indicated that she gave him a copy of the November, 2011 engineering report at that time. Brad denies this. He says that he was aware that she had a report but that she did not give him a copy of it on his first attendance at the property. For the reasons that follow, where Brad`s evidence conflicts with

Patricia, I prefer the evidence of Patricia. Following Brad`s inspection the parties exchanged contact information and later that evening Brad sent Patricia an e-mail. That e-mail reads: Scope of work: Basement repair -will supply and install bracing on the south wall -will dig all walls, supply and install rubber membrane, weeping tile and sump pump -will remove and replace all concrete at driveway (bucket wide) -will remove and replace step with treated lumber and steal [sic] stringers -will slope grading @ house Cost - $16,500.00 Tax (5%) $825.00 TOTAL COST - $17,325.00 *** payment upon engineers OK [ 9 ] In reply, and on the same date Patricia e-mailed back stating: ‘Thank you Brad.

Schedule the work June/July’. [ 10 ] Brad indicated at trial that he purposely quotes a cheaper price than others within the profession. My understanding of his evidence at trial is that he does this because if one person on a block requires repairs to a leaking basement, chances are that the neighbours will have the same potential problem as they are located in the same general area. Word of mouth will, presumably, attract further business. [ 11 ] The parties to this dispute both agree that this exchange of e-mails constituted an offer and acceptance and formed in part, the basis of their contract.

Patricia is of the view that because the offer includes substantially all of the repairs that had been set out in the November, 2011 engineer’s report, and because she had given Brad a copy of the report prior to his preparation of his quote, and because Abstract`s quote specifically confirmed that payment would only occur upon ‘engineer’s OK’; then the work would be done in accordance with the recommendations set forth in the report. [ 12 ] I agree.

Having found that Brad received a copy of the engineering report prior to tendering a quote, and having concluded that his suggested repairs mirrored the recommendations set out in the report, I conclude that the agreement between the parties anticipated that the work would be performed in accordance with the recommendations set out in that report. [ 13 ] As an aside, astute readers of this decision will note that the November report suggested bracing of the west interior wall, and the quote provided by Brad referred to bracing of the south interior wall.

Since no issue was taken at trial as to which wall was eventually braced, I have assumed that one or the other made a typographical error and that the correct wall was braced. [ 14 ] Work commenced on June 29 and was complete on July 4. Brad indicated at trial that the job took four days and was done by a crew (including himself) of eight people. In total therefore, the job required the equivalent of 32 man days of labour- four days x’s eight men. [ 15 ] Brad says that he then patiently waited for payment.

He says that in his experience an engineer will come to inspect the work within two days of completion but that this did not occur. In the ensuing days and weeks Brad says that he attempted on a number of occasions to contact Patricia to obtain payment but that she did not respond to his emails, or phone calls or answer her door bell. Eventually, on September 1 st , after concluding that Patricia was trying to avoid him, he sent an e-mail which reads as follows:

I have made several attempts to contact you via telephone and person to arrange for payment (completion of the work item quoted below). You have avoided contact and neglected to return voice mails. I require a return call no later than end of day Monday Sept. 2nd. I have left a business card and voice mail with contact info ... If I do not hear back from you I will be forced to take legal action which could include a property lien and credit bureau inquiry.

The job has been completed as well as an engineer’s report, therefore payment is NOW due in full as per the agreement below. [ 16 ] Patricia did not give detailed evidence at trial as to why she did not contact Brad immediately after the job was done. She did indicate that she was not happy with the job that had been done, nor had she been impressed with Brad’s general demeanour. By example, while a portion of the driveway had been removed, that portion had not subsequently been replaced, as the contract had called for. In addition, Brad had not installed a sump pump, as the contract called for.

Patricia advised the court that when she broached this topic with Brad, he simply indicated to her that she should buy one herself. She says she felt unnerved. First, this was Abstract’s responsibility under the contract, and second, she would have no idea whatsoever as to what kind of sump pump to buy.

She was also concerned that Brad had not bothered to obtain a permit from the city to do this work, nor had he bothered, as a precondition to doing this work, to contact SaskEnergy to properly locate and identify the underground power lines which were attached to the home. [ 17 ] Patricia says that she attempted to contact her engineer, Jim, to do an inspection of the work but that he was on holidays for the entire month of August. In addition, she had certain family matters to attend to. Upon Jim’s return she attempted to have all of the parties attend for an inspection on September 7 th , but that fell through.

Eventually the inspection was set for September 28 th . [ 18 ] The inspection did not go well. Jim noted that there was no sump pump. He noted that the sump pit was not perforated as his earlier specifications had required. The bracing had not properly been bolted to the floor joists. One of the seven braces that were required were missing. One of the braces was set too far apart from the other braces. There was no grout applied behind any of the braces that had been installed. The wooden blocking behind the braces were put in wrong. There was no solid pipe leading from the weeping tile to the sump pit.

Brad had failed to apply any dimpled membrane whatsoever around the exterior of the basement foundation wall which meant the entire exterior work would have to be redone. In addition, of course, Abstract had not finished the concrete driveway after having a portion of it removed. [ 19 ] Simply put, there was not a single aspect of the job that Brad had done which met the specifications of the engineer’s report. In addition, Brad had not replaced the driveway as he said he would do pursuant to the contract. [ 20 ] The inspection and what occurred at the inspection is particularly important to this lawsuit.

What occurred on that date is relevant in assessing the credibility of the parties and in ascertaining Patricia’s motivation in deciding not to allow Abstract the opportunity to remedy the deficiencies identified by the engineer. [ 21 ] On direct examination Brad stated that the inspection did not go well. He did not go into great detail, but he acknowledged that he had in fact “failed in a few things”. He asserts that he had not received the engineer’s November, 2011 report until his attendance at the inspection.

Rather, he says that he did the work in a manner which he feels most engineers would approve of, and which have been approved in the past. Simply put, he says that most engineer’s reports are almost all the same, and therefore, the work that he did was based, not on the November, 2011 engineer’s report, but rather on what he assumed would be in that report. In my view, these are trite answers. He had the report, and he could have, but apparently chose, not to read it or to follow it.

The court can certainly see why Patricia had concerns. [ 22 ] When confronted with the nature and the extent of the deficiencies, he says that while the meeting `did not go well` he was prepared to remedy the deficiencies, but that he advised Patricia that he needed some money down in order to continue the work. He says that Patricia declined because she advised him she had no money to pay for the work. Patricia maintains that she said no such thing.

Following the meeting there was no agreement between the parties as to whether or not Brad would remedy the deficiencies, or even be allowed to remedy the deficiencies. [ 23 ] In cross-examination Brad indicated that while the meeting did not go well, he had not expressed anger at that meeting, nor had he used profanity. When asked whether he had threatened the engineer and indicated to him that - ‘he should not be surprised if, when he

left, his car windows were broken’ - Brad stated that ‘he could not recall that, no.’ [ 24 ] Had Patricia and Jim not testified at this trial, I would have been left with the impression, as presented by Brad’s evidence, and his demeanour, that the meeting in question was rather business-like; frustrating, but cordial - three no-nonsense adults trying to agree on a means of resolving an impasse. According to Patricia and Jim, it was nothing of the sort. [ 25 ] Patricia is a single woman of advanced years. While I was not advised of her age, she is white-haired and looks to be in her mid- sixties or older.

Certainly she took no objection when, in final argument I described her as ‘of advanced years’. I was impressed with the manner in which she gave her evidence. She presented in a matter of fact manner. She did not, in my opinion, exaggerate or distort her evidence. She did not try to qualify her evidence. None of her evidence was shaken in cross-examination. She answered opposing counsel’s questions directly and in an even handed manner. [ 26 ] Patricia’s version of the inspection meeting on the 28 th of September is decidedly different than Brad’s.

She conceded that Brad had agreed to remedy all of the deficiencies, but she says that he demanded the entirety of his contract price as a pre-condition to doing that additional work. She says that she was not prepared to do so because the contract stipulated that no payment would be made until the engineer had approved the work. She says that her position on this matter, and the number of deficiencies noted by the engineer caused Brad to enter into a profanity laced tirade. She says that he was swearing, and angry and had threatened Jim in the manner I have just alluded to.

She says that by the time Brad had left, she had come to the almost certain conclusion that she would never allow him back into her home. She was concerned about his temper, and the fact that so much of the work had not been completed in accordance with the original engineer`s report.

The latter was made manifestly clear when she received Jim`s inspection report on or about October 15 of 2013, with an explanation of those deficiencies I have noted in paragraph 17 above. [ 27 ] Patricia says that her concerns about Brad became manifestly more certain when, following this meeting, Brad continued to attempt to contact her to demand payment in full. She says that he was so insistent that she had to, eventually, arrange for a ‘call block’ on her phone. The final straw, she says, occurred on October 31 st when she was travelling on the bus that morning.

She says that Brad had followed her onto the bus which was filled with students on their way to school. She says that Brad sat down beside her and again demanded his money, threatened to place a lien on her property, and threatened to place a sign on her property advertising to the world at large that she would not pay her bills. She advised him that she was not going to pay, after which one of them, or the other, suggested that Brad should get a lawyer.

Patricia says that Brad then got up, and from the front of the bus, and in front of all of the students yelled out ‘this bitch owes me twenty thousand dollars’, and then he walked off the bus. [ 28 ] Patricia advised the court that she was so concerned for her safety that she reported the incident to the police. In support to this assertion she provided the court with a copy of the police report file number. Brad denies that the bus incident occurred in the manner Patricia said it did.

He conceded that he followed her onto the bus on the day in question, and sat down beside her, but that his request for payment was cordial. [ 29 ] I would note in passing that Abstract’s counsel did not ask a single question in cross-examination as to Patricia`s recollection of the events on September 28 th or October 31 st . Her evidence on this point simply went unchallenged. [ 30 ] Patricia called Jim to give evidence both as to his inspection and his recollection of the inspection meeting on September 28 th . For the most part, Jim’s recollection of the meeting mirrors Patricia’s.

While he cannot specifically recall Jim threatening to smash his car windows, he does recall that Brad threatened that he would never use Jim’s professional services ever again. He described Brad as ‘very’ upset. He confirms that Brad was swearing. He observed Brad smash his fist into a garbage can. He advised the court that he felt so stressed that he had to physically try to calm himself down because his heart was racing so fast. [ 31 ] Jim presented at court as a professional. When advised that his role as an expert was to objectively assist the court without favouring either party, I felt he did so.

He did not overstate the nature of the deficiencies. He did not, in my mind, overstate Brad’s behaviour at the September 28 th meeting. I am of the opinion that he related precisely what he saw, what he heard and how he felt. [ 32 ] I note again, in passing, that Abstract’s counsel did not ask a single question in cross-examination as to Jim’s recollection of the events on September 28 th . His evidence on this point also went in unchallenged.

[ 33 ] Upon comparing the competing versions of the September 28 th meeting, I have no hesitation in accepting the version presented by Patricia and confirmed, for the most part, by Jim. Patricia’s actions following the event - installing call block and reporting the bus incident to the police - seems reasonable from an objective perspective. In addition, Jim does not have any ‘skin in the game’ in this dispute. He is not owed any money. I see no reason why he might attempt to tailor or fabricate evidence. He was a third party observing the interaction between Patricia and Brad.

Each of Patricia and Jim are believable. Brad, I conclude, is not. [ 34 ] I can come to no other conclusion but that when Brad gave his evidence on these points he did not tell me the truth. I believe that he misrepresented how the meeting went when he said that he was not angry, and that he did not swear. Because I have found, more likely than not that, he did in fact do these things, I also accept Patricia’s version of the bus incident.

I see no reason to believe that he would not display the same anger and use of profanity on this second occasion if he was willing to act in that manner on an earlier occasion. [ 35 ] I indicated earlier that where Brad and Patricia`s evidence conflicts, I prefer Patricia`s evidence. When a witness takes the stand and misrepresents his evidence on certain matters, particularly on a matter that the witness no doubt thinks would adversely impact on his claim, it forces a judge to scrutinize his evidence all the more carefully. It taints the remainder of his evidence.

When that evidence is contrary to the evidence of other witnesses, including relatively objective third party witnesses, it is far easier for a judge to weigh each party’s evidence in the balance and find one party wanting. [ 36 ] I am left to conclude that Abstract was going to do a job on the cheap in the hope that it would be accepted. With due respect to Brad, this haphazard approach seems consistent with the performance of the entire contract. No sump pump was provided. The driveway wasn’t replaced. The bracing was deficient.

The dimple membrane was not attached to the exterior basement walls. [ 37 ] With respect, this approach is also consistent with the manner in which Brad gave some of his evidence. An example is called for. When Brad was giving his evidence, he was asked to opine on the costs that would be incurred to remedy the deficiencies that Jim identified. He felt that it would cost between $2,000.00 and $2,500.00 in total, which would include one day to perhaps one and one half day’s labour.

I found this passing opinion to be less than compelling. [ 38 ] Let me explain, Patricia eventually retained another contractor to remedy some of the deficiencies. That invoice came to a little over $30,000.00 taxes included. That contractor looks to have charged about twice as much as Abstract. But from that invoice I can identify some individual charges for the type of work done. The purchase price for a brace is $200.00. Installation is extra.

The purchase price of a dimpled membrane to go around the exterior of the foundation wall equates to $1,500.00 - a little less than what Jim said that product would cost. A sump pump would be required. According to the evidence before the court a sump pump would cost about $230.00. Abstract would presumably have to purchase concrete to replace the driveway. In total, it would appear that the cost for goods alone would approach $2,000.00.

Brad`s quick opinion on the cost of remedying the deficiencies only allows for at best $500.00 for all of the labour that Abstract would have to pay for. [ 39 ] Setting aside for a moment the time that would have to be allotted for the bracing and sump pit and driveway remediation, that would leave scant time for the much larger dig out around the house. Again, an explanation is necessary. [ 40 ] It was made clear to me that a ‘digout’ is a significant work project. Using a mechanical mini-excavator, a trench is dug all the way around the perimeter of a home.

This trench must be deep enough to see the foundation footings upon which the basement walls are set. Once done, weeping tile is laid down. All of the exterior basement walls must be scrubbed clean. A rubber membrane is applied to the wall with a sealant. Then, another membrane known as ‘dimple’ is applied over the rubber membrane to protect it from damage.

Then progressive layers of gravel and clay are inserted back into the trench and back sloped away from the home for proper drainage. [ 41 ] Patricia was charged a line item cost of $200.00 per hour for 134 hours of work ($26,800.00) to do this portion of the remedial work by the contractor that she hired to do the repairs. Even if they do charge twice as much as Abstract, Brad would have me believe that Abstract could have done that dig out work for the equivalent of $500.00 or less. I note in passing that Abstract did not take any issue with the cost of the remedial work that was done.

I am to conclude, based on Brad`s passing opinion, that Abstract could have done this remedial labour work for about 2% to 4% of the cost that was charged to Patricia by her other contractor. I find this extraordinarily difficult to believe and I am left with the impression that Brad was either opining on the fly or purposely understating the true amount of work that the remediation would require.

Findings of Fact [ 42 ] I find Patricia and Jim to be credible witnesses who fairly and objectively explained to the court their involvement in the proceedings which have led to this lawsuit.

I find that Brad is prepared to misrepresent his testimony when he feels it suits his purpose, and to offer up off-the-cuff opinions when it comes to the costs of remedying the deficiencies that arose. [ 43 ] I find that Abstract had (in this case) a stated practice of attempting to undercut the competition by charging less for its services. [ 44 ] I find that Abstract knew about the Engineer’s report that had been prepared in November of 2011 and knew or ought to have known that it was required to comply with the specific recommendations set forth therein.

I find that they did not do so, and that in the result there were significant, time consuming and relatively expensive remedies that were required. [ 45 ] I find that Patricia was relatively dilatory in attempting to obtain a date for the engineer`s inspection, but that some of the delay was attributable to immediate family concerns and to the unavailability of the engineer. [ 46 ] I find that Patricia was most unhappy with Abstract`s work when it was being done, and that she was frustrated and upset in the manner in which Abstract did (and did not) do its job. [ 47 ] I find that on the September 28 th inspection date Brad displayed a blatant disrespect for Patricia, and had what might be best described as a profanity laced temper tantrum, with some exhibition of violence and the use of threats.

This distasteful demeanour extended at least until October 31 st of 2013 when he accosted Patricia on the bus. [ 48 ] I find that Abstract was never offered the opportunity to remedy the significant deficiencies that existed, and was not offered that opportunity because of; its failure to follow through on a number of its basic obligations under the contract; its failure to comply with those specific recommendations that it knew about or ought to have known about; its demand, contrary to the terms of the contract, that it be paid for the work it had already done before completing the deficiencies and; its principal and operating mind conducted himself in a manner that caused Patricia to reasonably conclude that she would not feel safe if Abstract`s employees returned back to her home, nor would she be able to feel that she could trust and rely on Abstract to remedy the deficiencies in a good and workmanlike manner. [ 49 ] I find that while Abstract did some work on the project that provided some utility for the homeowner, such as tearing down the front porch and cutting away a portion of the concrete driveway, its failure to refinish the concrete driveway, supply a sump pump and otherwise follow the specific recommendations of the engineer, all of which resulted in a very significant expense to Patricia, cannot be considered to constitute substantial completion of the renovation contract.

In my view, a very significant amount of work would have to be redone in order to do the job in accordance with the engineer’s recommendations. Discussion of the Issues [ 50 ] Abstract invites this court to conclude that either under the auspices of the Consumer Protection and Business Practices Act, 2013, c. C-30.2 or alternatively, under the common law, a contractor has an unqualified right to be afforded a reasonable opportunity to remedy deficiencies that arise as a result of its faulty workmanship, and that in the alternative, the court should imply a term in the contract that entitles Abstract to do so.

Patricia disagrees. She says that there is no such right, at least not in Saskatchewan. [ 51 ] Abstract says that because it was not afforded that right, Patricia repudiated the contract. As a result, Abstract is entitled to accept that repudiation as a breach of contract and sue for the work that it provided.

Patricia again disagrees and says that, at least in the instant circumstances, when all of the facts are looked at objectively and in their entirety, she is entitled to treat the contract as at an end, and take reasonable steps to mitigate her loss by retaining another contractor to remedy the deficiencies and either sue for the cost of those repairs (which she did not do), or alternatively, to set off against Abstract’s invoice those monies that she had to expend to correct the

deficiencies. [52] I am not satisfied that the Act referred to above grants to a contractor the right to remedy deficiencies for the services that it hasprovided under a contract. Abstract, however, says that:

i) it provided products and services under this contract; ii) because it provided products, it is a ‘seller’ as that term is defined under the Act: iii) because Patricia bought these products and services, she is a ‘consumer’ as that term is defined in the Act ; iv) since abstract has provided products and services combined, it is entitled to the remediable provisions set out in the Act (now found insection 28) and is entitled to ‘within a reasonable period, make good the breach free of charge to the consumer ... ’;

v) Patricia has failed to allow Abstract to do so and so she is not allowed to decline to pay for those products and services; vi) therefore, Abstract is entitled to claim for the monies due and owing to it. [53] In my view, two decisions of the Court of Queen`s Bench are a complete answer to this argument. It is clear from the evidencethat Patricia has not taken any issue with the quality or the performance of the products that she received. Her issue is with the deficientservices that were provided.

The question that arises is this: Do the remedial provision of the Act apply to services that are provided by aseller to a consumer? [54] This question was considered by Mr. Justice Smith in Neufeldt (Acme Painting & Decorating) v Executive Home Builder`s Ltd.,1999 SKQB 57 .

His position, articulated at paragraph 6 of the decision makes it clear that while there may be some caseswhich fall under the protection of the Act, where, for instance, the quality of both products and services are in issue, the Act may apply.But if issue is taken only with the services, the remedial provisions of the Act do not apply. [55] Mr. Justice Whitmore (now of the Court of Appeal) came to the same conclusion when, sitting at Queen`s Bench, he renderedhis decision in Howie v Donovan-Brisbois 2008 SKQB 228 . That case dealt with a party’s entitlement to sue for a defectiveroof.

He concluded that the roof itself was not defective. The manner of installation was. Since, he concluded, the Act deals withproducts and not services, no remedy was available under the Act. [56] I am satisfied that the facts and the reasoning in the two cases cited above are apposite to the instant circumstances.

Abstractcannot, based on the facts before me, rely on the Act to demand the right to remedy deficiencies which deal with services only. [57] Abstract’s second argument is that if the Act does not provide for a statutory right to remedy deficiencies, the common law does,irrespective of the lack of an express contractual term. In support of that assertion it points to a couple of cases decided by this provincialcourt which assert (without Queen’s Bench or Appellate Court authority) that there is a general right of a contractor to correctdeficiencies.

It asserts that I should, on the basis of comity, follow that reasoning. [58] In addition, it points to a number of decisions in a number of provincial jurisdictions which generally hold the same to be true.These cases all appear to find authority for this general proposition upon a review of the decision in Obad v Ontario Housing Corp.[1981] OJ (Ont HC), particularly that court’s comments at paragraph 47 and 48: With reference to the counterclaim or claim of set-off for damages arising from non-completion of the work, the effect of the defendant,Ducharme, telling the plaintiff to “get off the job” was to revoke the plaintiff’s license to continue working there.

Furthermore, in apractical way, engaging other persons to do the work of the plaintiff, effectively prevented the plaintiff from completing his contract.The defendant Ducharme, having thus prevented completion cannot obtain damages for failure of the plaintiff to complete.

With respect to the claim for damages resting on expenditures to correct the plaintiff’s work, it would seem that, although the defendant,Ducharme, is entitled to have a set-off for defective work, its obligation to mitigate its damages would require that it allow the plaintiffto continue, having in mind the reasonable probability that the plaintiff would correct its own work in order to obtain payment of the

price. On that basis the defendant, Ducharme, is not entitled to have damages based on its own costs of correction. Alternatively, theplaintiff was obliged to correct its defective work and the defendant Ducharme, having prevented the plaintiff from fulfilling thatobligation, cannot have damages in the ordinary way based on its having undertaken itself to carry out such corrections. [59] To my knowledge, the judge in that decision did not refer to any legal authority for the proposition offered.

In any event, I readthat case as constituting a decision in which the facts as found indicated that the contractor had a license to continue performance underthe contract because the contract was ongoing and payment was to be made by installment. The work had not been progressing at afavourable rate (due in part to other subcontractors on the work site) and there were deficiencies in some of the plaintiff’s work whichthey intended to correct before the contract was completed in its entirety.

When the owner refused to allow the plaintiff to continue withthe work and correct the deficiencies, the court found that the owner’s conduct, characterized as repudiation of the agreement,constituted a breach of an implied term of the contract that it would permit the plaintiff to continue performance. [60] Subsequent cases across many jurisdictions have, however, used the two paragraphs cited above as general authority for the legalproposition that, as stated in Wiebe v Braun, 2011 MBQB 157 at paragraph 32: It is accepted law that an owner is entitled to set off the costs of remedying deficiencies under a construction contract.

The contractor hasthe corresponding right to have the occasion to remedy any defects in the work himself... [Emphasis added is mine]. [61] My concern, however, is that Mr. Justice Armstrong of our Saskatchewan Court of Queen’s Bench in Birkic v Harlos, (SKQB) takes the opposite view. In that case the contractor argued that he could not be held liable for the cost of makinggood deficiencies unless he is first called upon to correct the defects. He had also argued that he can only be called upon to remedydefects which became apparent within one year of his completing the work. At paragraph 12, Mr.

Justice Armstrong stated: He is wrong on both matters. A contractor’s right to be notified of defects in work and be given the opportunity to correct such defectsarises only by contract and not under the common law. Here there is no such contractual requirement. ... [62] Abstract also invites me to conclude that the decision of our Court of Appeal in Webster v McIntosh (1927), 22 Sask LR 7 (CA)stands or the proposition that the common law does demand that a contractor be afforded the right to correct deficiencies and thatarguably Mr. Justice Armstrong overlooked that decision.

With respect, I have read that case and in my view it does not stand for theproposition advanced by Abstract. [63] In that case, the contract between the parties contained no provision for repairs to be done by the contractor after notice of thedeficiencies was given. The court in that case simply concluded that the plaintiff was given notice and the opportunity to correct thedefects and the plaintiff upon concluding that the deficiencies were at best nominal, chose not to take the owner up on its offer to let himrepair.

The concluding passage of the court, which reads: I think he had all the notice and the opportunity to repair properly which he could have claimed even if his contract had made expressprovision for such notice … This does not, in my view stand for the proposition that all contractors have the common law right to repair deficiencies. [64] Abstract has presented a number of decisions which, apparently based on Obad, appear to stand for a general proposition that thecommon law grants a contractor the right to remedy deficiencies in its work.

This proposition is contrary to the opinion expressed by ourCourt of Queen’s Bench. Notwithstanding the rules of comity which apply to decisions made by my fellow judges; and notwithstanding anumber of decisions outside of this jurisdiction which run contrary to our Saskatchewan Queen’s Bench, I am bound by decisions of TheCourt of Queen’s Bench for Saskatchewan and I would conclude that the common law, in Saskatchewan, does not grant a contractor thecommon law right to be afforded the opportunity to remedy deficiencies.

[65] That said, two other issues arise, and which must be addressed. The first deals with whether or not in the instant circumstances,the court should, in order to give effect to the presumed intentions of the parties, imply a term into the contract which would obligatePatricia to allow Abstract to remedy its deficiencies. The second speaks to mitigation, and whether or not Patricia’s failure to allowAbstract to remedy the deficiencies was unreasonable. [66] Abstract points to the fact that the contract between the parties is sparse.

It speaks to the job to be performed, and it speaks to theprovision of payment which is ‘upon engineer’s okay’. Abstract says that implicit in this latter provision is the recognition that Abstractcannot be paid until the engineer is satisfied that the work meets the requirements of the engineer’s report. I do believe that the contractclearly anticipates that an inspection must be done.

Abstract says that if an inspection must be done, and if the engineer does not okay thework performed, then if Patricia does not allow Abstract to remedy the deficiencies and then chooses not to correct those deficiencies,Abstract is unable to get paid for its work. Theoretically, if there was one single minor deficiency, Patricia would not have to payanything. Presumably, this could not be the true intentions of the parties and therefore, absent an implied term that Abstract is entitled toremedy the deficiencies, the contract would be patently unreasonable. [67] I agree with Abstract with certain reservations.

There is no question that, as noted by Professor Fridman in his text The Law of Contracts in Canada, 5th ed, (Toronto: Thomson Carswell, 2006) at pages 465,479 and 480 ‘there are circumstances in which a court isentitled to conclude that everything that is agreed by the parties is not contained in the written document or documents, or the oralstatements of the parties that appear to make up the contract. Some additional term or terms must be implied’.

There are certain groundsfor implying a term, one of which is where the implication of the term ‘is required in order to give effect to what has been called “thereasonable expectations of the parties”. [68] That stated, and as noted by Le Dain J in Canadian Pacific Hotels Ltd. v. Bank of Montreal, (SCC), [1987] 1SCR 711, in ascertaining the appropriate formulation of that implied term: What is important ... is a focus on the intentions of the actual parties. A court, when dealing with terms implied in fact, must be carefulnot to slide into determining the intentions of reasonable parties.

This is why the implication of the term must have a certain degree ofobviousness to it ... [69] Abstract would, no doubt, seek to have incorporated into the agreement, an implied term that Abstract would have the absoluteright, regardless of the circumstances, to remedy any deficiency arising from the goods and services that it provided. I think that thisformulation is overly broad. The formulation must focus on the actual intentions of both parties. I do not think that Patricia would offerup such a full and complete and unqualified right without some type of limitation on that right.

Similarly, I do not think that Abstractwould have accepted the reverse ... that is to say, a right that extends only to the barest of opportunities to remedy deficiencies, say,deficiencies which have a total value of less than one dollar. [70] I have no doubt, that in order to give business efficacy to the agreement, the actual parties would have agreed to a term of thecontract which granted Abstract the right to remedy deficiencies subject to a reasonable consideration of all of the prevailingcircumstances existing at and around the time that the deficiencies were identified.

This has an air of obviousness to it. Abstract’s rightwould be subject to circumstances which would make it unreasonable to extend that right. [71] With that implied term in mind I repeat all of the concerns that Patricia had. Abstract never bothered to get a work permit fromthe city or advise Patricia of her need to obtain one. She was told by Brad, in no uncertain terms that instead of Abstract providing asump pump, she should get it herself. When Abstract had completed the job, it left undone the repair of the concrete driveway.

When thedeficiencies were identified there was not a single component of the job that had met the standards set forth in the engineer’s report.Contrary to Brad’s bald assertions to the contrary, the cost of the remedial work would prove to be very significant. When Brad wasmade aware of the breadth of these deficiencies he went into a profanity laced rant, lost his temper, smashed his fist into a garbage canand made threats of personal property damage among others, all of which taken together reduced a grown man (Jim) to such a state thathe had to step back to control his heart rate.

Brad then declined to remedy the deficiencies until he was paid his contract price. Whileadmittedly he cooled down sufficiently to subsequently send a letter to apologize and ask to be allowed to remedy the deficiencies, whenhe heard no further word from Patricia he took it upon himself to follow her onto her bus, again demand full payment and when it wasnot forthcoming swear at her and imply to a crowd of school kids that she was reneging on a debt. [72] As I have stated, Patricia is of advanced years. She lives alone. She relied on a contractor who made promises but failed todeliver in any meaningful way.

Had she afforded Abstract the right to remedy the deficiencies, she would have to put up with a mancoming and going into her home who had shown himself not only to have done significantly deficient work, but who was intemperate,profane, threatening and vindictive. With due respect, under these circumstances, I find that it was not unreasonable for Patricia to refuse

to let Abstract into her home for a second time to remedy the deficiencies. [73] I now turn to the issue of mitigation. It is arguable that the proper

interpretation to be applied to the several cases that counsel hasprovided to me on the ‘common law right to remedy’ issue should be considered - not in terms of whether an absolute common law rightexists to allow a contractor to remedy defective work - but rather, whether or not in law, a refusal by an owner to allow a contractor to doso constitutes unreasonable mitigation efforts which, if found to exist, precludes the owner from offsetting her cost of remedying thosedeficiencies against the contractor’s account for services rendered.

With due respect to the various courts outside of Saskatchewan, Ithink that it is this principle which is key to many of the decisions arrived at. [74] However, for the same reasons that I referred to in paragraphs 71 and 72 above, I do not think that Patricia’s failure to allowAbstract to remedy the deficiencies, having regard to all of the extant circumstances was, in the context of mitigation, unreasonable. Theoriginal deficiencies resulted in a significant cost to repair, notwithstanding the opinion of Brad. The work performed was not, asAbstract suggests, substantially complete.

Abstract displayed a degree of nonchalance in performing (and in not performing) the work itwas required to do. Its continued presence in Patricia’s home, was, in Patricia’s subjective mind (which I find objectively justifiable) avery worrisome situation. [75] Patricia was entitled to retain another contractor in an effort to remedy the deficiencies in question. A contract to carry out workimplies a condition that the work shall be done in a good and workmanlike manner and that the workmen employed in the work must bepossessed of the ordinary amount of skill possessed by those exercising that particular trade.

Work which does not meet the requirementsof the specifications contained in a contract, or which, in the absence of such specifications is not of reasonable workmanlike quality isnot proper compliance and constitutes a breach. (See generally: Mack v Stuike (1963) (SK KB), 43 DLR (2d) 763(Sask QB) and Halsbury’s Laws of England, Vol. 3, 3rd Ed. ( London: Butterworths, 1953, at 435 paragraph 818.) The test to be appliedis not one of satisfaction guaranteed; perfection is not the test to be applied; minor deviations from contractual specifications may still beconsidered good and workmanlike. (See: Al Vogel Construction Ltd v Forbes, (SKQB). [76] I am satisfied that the work performed was not of good and workmanlike quality and as such Patricia was within her rights tohave the deficiencies remedied.

The cost was significantly more than what was charged by Abstract, but I think it is now a ratheraccepted statement of law that an owner is entitled to damages measured by the cost of making good the defects and omissions of heroriginal contractor, and, as has been stated on many occasions in one form or another, a court should be slow to countenance any attemptby the party in default to make serious objection to apparently reasonable methods which are used by a party who has been wronged. Inany event, in the instant circumstances, the invoice of Patricia’s subsequent contractor was tendered into evidence.

No objection wastaken as to the reasonableness of the amounts that had been paid by her to repair the deficiencies. [77] It was open to Patricia to treat the contract as in breach, and if she so chose, to sue to recover the cost or repair, or alternatively, toset off those costs of repair against any monies claimed by Abstract to the extent of that liability. In the instant circumstances she choseset-off. Because the amounts she spent to repair exceed the amounts claimed by Abstract, Abstract has no further claim, and its action isdismissed. [78] Patricia has been successful in the defence of this action.

She is entitled to her costs which she has identified as only the costsincurred by her expert witness Jim, in the amount of $1,455.05. This relates to his cost of attendance at court to listen to the respectiveparties on the issue of defective work, and his viva voce opinion on the same issue. I find his hourly rate and time spent to be reasonable.Patricia shall have judgment against Abstract for her costs in the sum of $1,455.05. P. Demong, J