Westcor Builders (2003) Inc. - v. -, 2017 SKPC 099

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: December 18, 2017 Citation: 2017 SKPC 099 File: SC 303/16 Location: Regina _____________________________________________________________________________ Between: Westcor Builders

(2003) Inc. - and - Freshair Enterprises Ltd. and Classic Super Seamless Exteriors

(1988) Ltd. Matthew Schmeling For the Plaintiff Nestor Mryglod For the Defendants JUDGMENT P. DEMONG, J Introduction [ 1 ] Westcor Builders

(2003) Inc. (Westcor) brings this action against Freshair Enterprises Ltd. (Freshair) and Classic Superseamless Exteriors

(1988) Ltd. (Classic), to recover the sum of $22,393.55 which it says is owing to it on a contractual quantum meruit basis for labour services it provided to the defendants in relation to the installation of a residential metal roof. It seeks prejudgment interest on that amount and its costs, limited to $100.00. The defendants deny that any money is owing, and Classic has counterclaimed for well in excess of the $30,000.00 monetary jurisdiction of this Court, but it has, as it is obligated to do, limited its claim to $30,000.00 plus prejudgment interest plus $100.00 in costs. [ 2 ] By way of short

summary, Classic entered into a subcontract with a general contractor to provide goods and services for the installation of a metal clad roof on a residential home. Classic then subcontracted the labour component of that subcontract to a third

party for a specified fee, but that subcontractor abandoned the project. Westcor agreed to complete the labour component of the job, but when it completed the job and forwarded its invoices to Freshair, Freshair refused to pay, alleging that the agreement was between Westcor and Classic. The defendants further allege that the work was entirely deficient, and point to the fact that the home owner was so dissatisfied that he removed this roof and installed another.

The defendants further deny that the plaintiff is entitled to payment on a contractual quantum meruit basis and say, rather, that there was an agreement that Westcor would complete the installation for $5,100.00; that it agreed to be held accountable for advances that Classic paid to its first subcontractor for work that had not yet been performed; and, that it would be responsible for property owned by the defendants which was ostensibly damaged by the first subcontractor.

Finally, because Classic was not paid by the general contractor, it claims recovery of the full amount that it would have received under that contract from Westcor, together with unliquidated damages which it says it suffered from an alleged loss of reputation in the business community arising from Westcor’s negligent conduct and breach of contract. [ 3 ] This matter is complicated. The pleadings exceed thirteen pages. Ten witnesses and thirty exhibits were filed at the trial which ran for three days sometimes into the lunch and supper time hours.

It is complicated because the parties call on the Court to interpret an oral agreement that was entered into some four years ago. The parties did not reduce their agreement to writing either in whole or in part nor did they ever attempt to clarify their respective rights and obligations by the simple exchange of email. Almost every aspect of the plaintiff’s claim is disputed. This case is a classic example of a handshake agreement between professionals who have worked together for years, but which goes awry based on unreasonable suppositions and expectations based, in part, on a skewed understanding of the law.

Issues [ 4 ] The Court is called upon to determine the following issues: (

a) Was there an agreement as to the sum to be paid for the installation services, and if not, is Westcor entitled to a fair and reasonable fee for the services it rendered on a contractual quantum meruit basis? (

b) Did Westcor agree, in essence, to step into the shoes of a previous installer and accept responsibility for that earlier installer’s obligations under a subcontract that it had entered into with one of the defendants? (

c) Who did Westcor contract with - Freshair or Classic? (

d) Did the parties agree that the work would be performed to a specific standard and if not, should the Court import an implied term into the contract that the work would be of good and workmanlike quality? (

e) Was Westcor’s work acceptable or were there deficiencies? (

f) What, if any, money is owing to Westcor and from which defendant? (

g) Are the defendants entitled to any award for the damages they have claimed by counterclaim and if so, in what amount? Review of the Evidence, Findings of Fact and Legal Analysis (

a) Was there an agreement as to the sum to be paid for the installation services and if not, is Westcor entitled to a fair and reasonable fee for services that it rendered on a contractual quantum meruit basis? [ 5 ] Some of the evidence is not disputed. Where the evidence conflicts I will explain why I prefer to accept certain evidence as fact over the other. [ 6 ] In or about late 2012 or early 2013, Mr. Galloway decided to build a home in Regina Beach.

To that end he hired Bartlett Construction, (Bartlett), to act as a general contractor, which in turn was responsible to retain a variety of subcontractors to assist in the build. Mr. Galloway wanted a metal roof on his home, and he knew that he wanted 26 gauge, black coloured, ‘snap lock’, seamless metal roofing. [ 7 ] Bartlett put out tenders and provided blueprints [P-1] of the home to potential subcontractors. I accept as fact that the location of the home is ‘tight’ in the sense that there is not a lot of room to manoeuver in and around the property in order to install a roof.

I also accept the fact that the roof is a rather steeply sloped roof of approximately 3000 to 3200 square feet. The roof has four dormers located on it. A dormer is an A-frame extension which runs out from the slope of the roof. The dormers provide a rather elegant visual extension

of the roof which allows for windows to be placed on the roof. I accept as fact that the steepness of the roof, the existence of these dormers, and the tight working conditions all combine to make this roofing job more difficult than a typical roof, and that, on a scale of one to ten, ten being the most difficult type of residential roof to install, this roof would be an eight or a nine. [ 8 ] Nestor Mryglod is the beneficial owner of the two inter-related companies which are the named defendants in this lawsuit. I accept that Freshair devotes itself exclusively to the fabrication of metal siding and roofing.

Freshair operates under the registered trade name ‘Super Seamless of Canada’. Classic, by comparison, devotes its energies to the installation of this metal siding and roofing. [ 9 ] These two companies operate out of a single property, nominally divided into two sides, one for Freshair and one for Classic. I am satisfied that much of Classic’s business operations are performed on the Freshair side, where the main offices are located.

I am also satisfied that Nestor, and his brother Allen, are the primary contacts for persons dealing with these two companies and that each of them devote time and energy to each of these business enterprises. [ 10 ] On behalf of Classic, Nestor Mryglod entered into a written agreement [P-7] with Bartlett on August 6, 2013, to act as subcontractor for the provision of materials and labour to install Mr. Galloway’s roof in exchange for the sum of $33,405.75.

A down payment was made by Bartlett, leaving the sum of $25,054.31 due on completion of the project. [ 11 ] The written agreement is not a comprehensive building contract. It is an ‘estimate proposal’ which was ultimately accepted and executed. It does not specify the time for completion of the project, nor does it identify the manner in which the roof is to be installed. By this I mean to say that there is no reference to the standards which must be complied with by the installer. The agreement does not include a provision by which the parties may resolve disputes by way of a third party arbiter.

I am satisfied that the parties orally agreed that the roof would be completed before winter, and by that I mean that the parties contemplated that it would be complete before the snow fell in November of 2013. [ 12 ] In order to comply with this subcontract, Classic retained the services of a third party labour contractor known as Veritas Construction Ltd. (Veritas), a closely held company beneficially owned by Patrick Elmhurst. I say that Veritas was retained, even though Nestor Mryglod was uncertain as to who had been retained. In his evidence he attempted to inter-mingle the individual and the corporation.

I am satisfied that Veritas was retained, simply because advance payments were made under the agreement on two occasions and on each occasion the cheques were made out to Veritas Construction Ltd. [ 13 ] The agreement with Veritas was partly written and partly oral. Once again, the agreement is not a comprehensive building service contract, but rather, a document entitled ‘Classic Super Seamless Project Completion List’ [D-5]. The document identifies N.L.M. as the project coordinator. I conclude that this refers to Nestor L. Mryglod. It is dated August 10, 2013, but it is not signed by either party.

It identifies the project items to be completed ‘in professional workmanship manner, free of deficiencies’. It does not refer to the date for completion or the fee to be paid for the installation services. [ 14 ] Patrick Elmhurst was not called as a witness by either party and I am left with Nestor Mryglod’s evidence as to when the contract was to be completed and the amount to be paid. I accept his evidence that Veritas agreed to do the installation for $12,000.00 and that the work was to be completed “before the snow fell”. [ 15 ] By all accounts the installation proceeded slowly.

There may be a reason for this. The bulk of the evidence before me suggests that this type of roof requires a four person crew. Allen Mryglod told the Court that Veritas’s crew consisted only of Patrick Elmhurst, his girlfriend, and a hired man. In any event, the underlayment was placed on the roof in August or September, and on or about September 23 rd , Veritas received a progress payment from Classic in the sum of $3,400.00.

There was little or no evidence tendered to explain what work had been done in October, nor was any evidence tendered in relation to what, if any, concerns Classic may have had or made known to Veritas in relation to the slow progress. I say this in light of the evidence of Susan Meyer, Bartlett’s project coordinator, who indicated that she constantly attempted to communicate with Nestor Mryglod regarding completion times so that other subcontractors could get to work, but that her requests for updates went unanswered throughout that fall and then into January, February and early March of 2014. Mr.

Mryglod offered no explanation as to why he failed to keep Bartlett informed as to the status of the roof, other than to explain to the Court that he is an extremely busy man, who puts in between 100 to 120 hours per week. This, of course, is no answer to an allegation that a client is looking for, but not getting, answers.

It does, however, speak to a narrative advanced by Nestor Mryglod which I will explain shortly. [ 16 ] I accept Allen Mryglod’s evidence that on or about November 4 th , Veritas had completed some of the dormer work, and that Allen had, on or about November 5 th , 2013, attended on site to run (cut to size) a sufficient number of roofing panels to complete the roof, together with extras, just in case. I accept that they were laid on the second level – the deck level – of the home. I also accept that

on November 5 th , Mr. Elmhurst sought and was provided with a second progress payment by way of cheque made payable to Veritas Construction Ltd. in the sum of $3,500.00. [ 17 ] I accept that Mr. Elmhurst and his crew abandoned the installation project shortly after receiving this second progress payment, and I accept that, according to Nestor Mryglod, the amount of work performed bore no relation whatsoever to the amount of money advanced. While Mr.

Mryglod suggests that perhaps $750.00 worth of labour had been spent on the project by Veritas prior to abandonment, this strikes me as low, in light of the fact that the underlayment had been placed, some of the dormer work had been done, and the panelling had been cut to size. [ 18 ] I accept that Veritas, more likely than not, failed to show up to work the next day, November 6 th . Nestor testified that Mr.

Elmhurst contacted him that day, expressing concern that he could not do the work safely and would not continue with the job. [ 19 ] Nestor asserts that the day following Veritas’s decision to abandon the contract he just happened to be driving by Westcor’s office and noticed Patrick Elmhurst’s truck parked at that location. He says that very shortly thereafter he phoned Dean Dohms who is and was a project manager for Westcor specializing in metal roofing.

He says that he expressed his indignation that Westcor had ‘stolen’ Patrick Elmhurst from them before this installation had been completed and he demanded to know what Westcor intended to do about it. [ 20 ] What transpired next, and the positions of each of the parties, varies significantly.

Respectfully, the facts upon which the defence and counterclaim are predicated are lacking, and in their place is what I consider to be mostly supposition, innocently made or otherwise, in an effort to insulate the defendants against any claim that Bartlett may have against them arising from Classic’s alleged breach of contract and any losses that the defendants may have incurred by virtue of Veritas’s abandonment of the contract. [ 21 ] Nestor Mryglod has invited this Court to conclude that Westcor essentially undertook to step into the shoes of Veritas to complete the roof installation and thereby, somehow, be subject to all of the potential liabilities of Veritas under its subcontract with Classic, including a willingness to complete the roof installation for the sum of $5,100.00, being the amount remaining due and owing to Veritas had the contract been performed by it; and an acceptance of liability for any panels which were located at the work site and which had been damaged in the winter of 2013-2014.

He invites the Court to conclude that Mr. Dohms accepted Nestor Mryglod’s mantel of ‘project coordinator’ of the subcontract entered into between Classic and Bartlett. He invites the Court to further conclude that Westcor agreed to provide its services, not on the implied contractual standard of good and workmanlike, but rather to a standard of absolute customer satisfaction, because, in Nestor’s words, ‘the customer is always right’.

For reasons which follow, I find that while this latter assertion may be the defendants’ position at trial, it certainly wasn’t their position when the subcontract Classic had with Bartlett began to fray. This position is, what, Ms. Meyer a witness called by the defendants, would call “Nestor’s habit of saying something but doing another”. [ 22 ] I do accept that at some point Nestor contacted Mr. Dohms and expressed his frustration that Westcor had retained Patrick Elmhurst while the project was ongoing, and that this original contact took place sometime in November of 2013.

I am satisfied that there was more than one conversation held between the parties and I am satisfied not only that Allen participated in some of the meetings, which took place in the offices on the nominally Freshair side of the common building and that Mr. Elmhurst attended on at least one occasion. [ 23 ] Mr. Dohms gave much of the plaintiff’s evidence. I found Mr. Dohms to be a credible witness. He fairly conceded trouble with a precise recollection of what transpired and when it transpired. This is something that a Court would expect when dealing with an oral agreement undertaken some four years earlier.

His evidence was not seriously undermined in cross-examination and importantly, he conceded some things in cross-examination even if those things may have adversely impacted what he may have thought were necessary to advance the plaintiff’s case. His character and his willingness to be helpful were commented upon positively by both Susan Meyer and Allen Mryglod, both of whom were defence witnesses. [ 24 ] Mr. Dohms has been with Westcor for 19 years.

He is the manager of the metal cladding division of that company, and he has had a longstanding relationship with both Freshair, from which his company buys products and with Allen Mryglod, who is the personal face of Freshair, and with whom Mr. Dohms would regularly deal. Mr.

Dohms stated that all of his previous dealings were with “Super Seamless of Canada”, the trade name under which Freshair operates, and that he had not been aware that the Mryglod brothers carried on business under another entity known as Classic, until this lawsuit became inevitable. [ 25 ] He stated that in the fall of 2013 he had a conversation with Allen Mryglod about Patrick Elmhurst. He said that Allen had told him that while Mr. Elmhurst had worked with the defendants in the past, they would not have much work for him going forward. In essence, he was vouching for Mr. Elmhurst as a roof installer.

[ 26 ] Mr. Dohms indicated to the Court that Westcor was busy and had a contract in Moose Jaw and so they retained the services of Veritas to work on that project and on others. He stated that at some point in time, either October or November of 2013 he had attended at Super Seamless of Canada to pick up some product and was met by Nestor on the nominally Freshair side of the defendants’ common building. He said that Nestor complained that Mr. Elmhurst had not completed the Regina Beach project and that Westcor had “stole Patrick away”. [ 27 ] Mr.

Dohms asserted that he was not aware of the Regina Beach project until it was brought to his attention by Nestor. He stated that Veritas had been retained on Westcor projects well before this meeting with Nestor. He felt that Nestor had misconstrued the nature of Mr. Elmhurst’s relationship with Westcor in that Mr. Elmhurst was not employed by Westcor in his personal capacity, but rather Mr. Elmhurst’s company, Veritas, was subcontracting as an installer for Westcor. Mr.

Dohms did not feel that this was particularly unusual as subcontracting companies are free to engage with various other subcontractors or general contractors to provide installation services. [ 28 ] Mr. Dohms did, however, recognize the difficult position that the defendants were in, presumably in light of the difficulty that the defendants may have had in retaining another installer on short notice, and because of his longstanding, and because of what he described as an “excellent” relationship with Super Seamless of Canada, he agreed to have Westcor help the defendants out.

He says that at one of their meetings, Nestor quoted a labour price of $12,000.00 and showed him the blueprints of the property. Mr. Dohms says that he felt the amount to be low, but advised Nestor that he would look at the project, but because he was unsure of how much work had been done by Veritas, and because of the steep pitch of the roof and the potential difficulty in accessing the roof, he could not commit to a price. He vehemently denies that he agreed to do the job for $12,000.00 let alone the lesser sum of $5,100.00.

He does concede that because he intended to have Veritas work on the project, he would work with Nestor in an effort to allow the defendants to recoup some of the money that they felt was owing to them by Veritas when Veritas abandoned the project. He indicated, however, that he was ultimately unable to persuade Mr. Elmhurst to enter into any arrangement for any repayment of monies to the defendants. [ 29 ] Mr. Dohms indicated to the Court that he eventually agreed with the defendants to complete the project in the spring of 2014.

He could not place a specific date of that agreement but I am satisfied that it was in or about the end of January, 2014. He says that immediately upon attending at the work site he recognized that the job could not possibly be done for $12,000.00 and that he attended on Allen, again on the Freshair side of the common building, and expressed his concerns about the price the defendants wanted the installation done for. He says that he was, in turn, told by Allen to “just get it done and we will take care of you”. Mr.

Dohms stated to the Court that he felt that this meant that Westcor would get a discount or perhaps free materials in the future in recognition that they were doing the work that needed to be done. [ 30 ] I found Nestor Mryglod to be a quiet, courteous, and respectful witness. That said, there were three things that concerned me with the manner in which he gave evidence. First, Nestor has a habit of refusing to give direct answers to relatively straight forward questions put to him.

I was left with the distinct impression that he frequently sought to give his answers a little spin in a manner that would best fit his understanding of the case and the legal issues involved. Second, it readily became apparent that Nestor’s evidence was, often times, not so much based on what actually may have been said, or what he heard, or what was done, but rather what his supposition was in response to the interactions between the parties.

Third I had been advised by two of the defendant’s own witnesses, that there are two sides to Nestor Mryglod – the personable Nestor who will readily agree to do or say one thing – and then the other Nestor, who will immediately renege. A person who will say one thing and do another. [ 31 ] I will give examples of each of these concerns. One of the central issues in this case deals with the extent of scratching and other damage to the roof once Westcor had completed its installation.

When asked in cross-examination as to whether or not some scratching of a black metal surface was inherent in the installation of this kind of roof, and therefore acceptable as an industry standard particularly because it is a steep angle, he refused to concede the point and suggested that it would be acceptable only if it was not visible to the human eye. He then qualified that to say that it would thereafter only be acceptable if it is acceptable to the customer .

He then stated that properly done there is no need for any scratching … this, notwithstanding that labourers will be wearing boots as they work and they will walk across this type of roof in order to complete it. While I acknowledge that this type of evidence plays into the defendants’ defence and counterclaim, and that they want to convince the Court that the entire roof had to be replaced, is it truthful? Is it an honestly held belief or is he asserting something under oath which runs contrary to what he actually knows and what he actually believes, and what he actually observed?

Is he saying one thing and doing another? [ 32 ] I ask this because the defendants filed a telephone transcription of a conversation that Nestor had with Susan Meyer, Bartlett’s project coordinator [D-5]. I take special note that this is evidence tendered by the defendants as part of their case. I refer to the following passages: [Nestor] … In any roofs that are done, that are specification there is a certain amount of scratching that is acceptable because you can’t get away from it.

[Nestor] … Well, I climbed up there on the scaffolding and the only areas that would be at a concern mainly would be between the dormers which were a difficult thing, cause they had to go over top. [Nestor] … This is metal, this is black, this is a roof that you have to climb over top of, in order to put another panel on. [Nestor] … There is one area that had a few scratches that were significant but the rest of it is fine. Its perfectly acceptable. [Nestor] … Well. Depends on what the degree he thinks that’s there are going to scratching and its nothing we can do about, nothing we can.

But if he thinks every little scratch is going to be replaced then were going to have a real problem because there is no way that’s reasonable. [Nestor] … well it depends on what degree. I will make my proposal but if its any more extreme than that, then he’s being very very unreasonable. It wouldn’t be something that he should even consider that should expect with black roofing. [sic throughout] [ 33 ] It is unclear to me that these statements, previously made, are entirely inconsistent with the evidence he sought to tender at trial.

This negatively affects Nestor’s credibility. [ 34 ] I had spoken of his tendency to tender evidence in the form of supposition rather than fact. I shall give two examples. First, and notwithstanding a repeated attempt by the Court to understand the factual basis upon which Nestor kept referring to Patrick Elmhurst as Westcor’s employee, he could offer none. All of the evidence presented at trial convinces me that Westcor never retained Patrick Elmhurst as an employee, but rather, it retained Veritas Construction Ltd. as a subcontractor to supply labour and services.

While the distinction may be lost on those individuals who do not understand the concept of a corporate veil, I believe that Nestor Mryglod is an astute business man and understands the difference. His assertion that Mr. Elmhurst was an employee was not predicated on any facts whatsoever. It was predicated on a supposition that a corporation which charges by the hour must be an employee. He asserts that in law, one is only an independent subcontractor if one charges based on a particular amount of work done. This is simply wrong in law.

The ‘fact’ that Nestor Mryglod advances is not a fact at all, it is a supposition based on an erroneous understanding of law. I was left with the distinct impression that Nestor’s characterization of Mr. Elmhurst as an employee was done in an effort to invite the Court to conclude that perhaps Westcor was, in some manner, negligently interfering in the defendants’contractual relations by retaining Mr.

Elmhurst as an employee, rather than, as was the case, hiring Veritas as an independent contractor. [ 35 ] Second, Nestor continuously referred to Dean Dohms as the “project coordinator” of the roofing installation as if that was somehow a proven fact. Whatever the scope and role of a project coordinator might be in law, Nestor used this term as if to mean that Mr. Dohms was clothed with full authority to make any and all decisions that might be required in relation to the subcontract entered into between Classic and Bartlett. He says that Mr.

Dohms was the project coordinator because he asserts that is what the onsite installer of a roof is. Presumably, he has characterized Mr. Dohms in this fashion to explain Nestor’s frequent failure or refusal to attend at meetings between Westcor and Bartlett when issues arose during the course of the installation. In my view, there is scant evidence that somehow, Mr. Dohms, or Westcor, effectively accepted an assignment of all of the rights and obligations and liabilities of Classic when it simply agreed to provide installation services on a subcontract basis to Classic. Mr.

Dohm’s simple assertion to the Mryglod brothers that he “would take care of installing the roof” cannot possibly have meant that Classic no longer had any responsibility under its subcontract with Bartlett. This ostensible assignment was never brought to the attention of Bartlett. This supposition of vested and complete authority to either Mr. Dohms or Westcor is, once again, predicated on a supposition rather than fact, and while it may play neatly into the narrative that the defendants advance, there is no factual basis upon which the Court can find this to be factually accurate. Quite the reverse.

The evidence suggests that at all times, each of Mr. Dohms and Susan Meyer were clearly of the other view, constantly seeking to have Nestor attend at meetings in an effort to resolve ongoing disputes as the full nature and extent of what the subcontract between Classic and Bartlett contemplated. [ 36 ] Where the evidence of Nestor Mryglod and Mr. Dohms conflicts, I prefer the evidence of Mr. Dohms. [ 37 ] Nestor says that when he first spoke to Mr. Dohms in November, of 2013, Mr. Dohms agreed that he would try to get Veritas to honour its agreement with the defendants and complete the installation but that Mr.

Dohms was unsuccessful in this respect and then the snow began to fall. On or about November 24 th Nestor received notice from Bartlett that much of the panelling that had previously been run and which was located at the work site, was blowing around. He says that he tried to call Mr. Elmhurst to fix this problem, but Mr. Elmhurst did not respond. On December 4 th , Nestor says that he attended at the work site on December 4 th and moved much of panelling to correct this problem. There is no evidence whatsoever that Nestor requested Westcor to do this for the defendants at any

time. [ 38 ] The next discussion that Nestor had with Mr. Dohms apparently took place somewhere between December 4 th and January 30, 2014. Nestor says that it was at this time that Mr. Dohms undertook to complete the job for $12,000.00 and further agreed to be responsible for the advance payments made to Veritas. A transcript of a January 30 th telephone message was introduced by the defendants [D-11] ostensibly for the purposes of confirming that arrangement, but, with respect, all that transcript confirms is what Mr. Dohms stated was his intention: to assist the defendants in recouping money back from Veritas.

The transcript simply confirms that Mr. Dohms spoke with Patrick that day and that Patrick had promised that they all would sit down and sort this out and figure out “a way to make this work …”. [ 39 ] Nestor said that in or about late February of 2014 they all met at the defendants’ building. Again I am satisfied that the meeting would have been held on the Freshair side of this common building. It was at this meeting that Nestor asserts that after Patrick Elmhurst left in a pique of temper, Mr.

Dohms agreed to complete the installation with Westcor’s own crew when the snow was off the roof and that Westcor would include the use of Patrick Elmhurst for that purpose. Nestor maintains that it was at this time that Mr. Dohms agreed to a price of $12,000.00 less the previous advances to Veritas in the sum of $6,900.00 for a net fee of $5,100.00. Allen Mryglod confirmed that he was at the meeting and that Mr. Dohms had made this agreement. As stated, Mr.

Dohms vehemently denies this. [ 40 ] In support of this assertion as to the contract price, the defendants point to another transcript of a recorded telephone call dated March 20, 2014 [D-14]. I have reviewed this evidence and with respect, the recording does not support the defendants’ position. In that transcript, Nestor asked Dean if he had a chance to talk to Patrick about his account and payment on that. Dean responded that every time he has been with Mr. Elmhurst, there were others around and so he didn’t get a chance to really talk.

He then comments on a potential arrangement whereby Patrick makes a payment of $500.00 to the defendants every pay cheque because “Patrick wants to make it work”.

In response, Nestor asserts that the defendants needed to have this looked after by the end of the month, because legal action might be the alternative, to which Dean replied that legal action is never right, and that Patrick told him that he wanted to get it cleared up. [ 41 ] This transcript does not, in any way, confirm the defendants’ assertion that Westcor had somehow assumed Veritas’ debt to the defendants and thereby agreed to do the installation for the reduced sum of $5,100.00. It does, in my opinion, reinforce Westcor’s simple assertion that Mr.

Dohms had agreed that he would try to mediate the ongoing dispute between Veritas and the defendants and that discussions in that vein were ongoing. [ 42 ] Allen Mryglod gave evidence on behalf of the defendants. Allen is Nestor’s brother and works primarily on the Freshair side of the common building, fabricating metal panelling. He was the primary contact person for Westcor when Westcor purchased products from Freshair over the course of many years. There is no evidence before me to suggest that he has any beneficial ownership in either Freshair or Classic.

He indicated that when he became aware that Veritas was working for Westcor, after it had abandoned the Regina Beach installation project, (and presumably expressed his frustration), Mr. Dohms advised him that no one could control a subcontractor and that Veritas had in fact come to work with Westcor; and that if the defendants could not control their subcontractors, that was not Westcor’s responsibility. [ 43 ] Allen said that Mr. Dohms eventually indicated that he felt sorry for the defendants’ predicament and that he would do what he could for them. Later, he stated that Mr.

Dohms would get Patrick to talk to them. He asserted that in the February, 2014 meeting, Mr. Dohms was advised that the contract was for $12,000.00 and that because Patrick would be working on the project, Dean said that he would make up the shortfall by taking the money back from Patrick. I draw the inference that what Allen meant is that Mr. Dohms would employ Patrick on the job and then, rather than pay him for his services, subtract the equivalent of the $6,900.00 advanced to Veritas by the defendants from the monies otherwise due and owing to Veritas, and consider that money its own.

Allen also stated that Mr. Dohms said that he would “look after the project from start to finish”. [ 44 ] At first instance I found Allen to be a credible witness. In direct examination he presented as knowledgeable and forthright. However, he attempted to cast the defendants in as positive a manner as possible. By example, he stated that “if we make a commitment, we stand by our commitment”. However, the Court heard that the defendants had, at one point in time agreed to correct certain deficiencies in relation to the installation – this following Mr. Galloway’s decision to retain legal counsel.

It is clear from the evidence that certain promises were made by the defendants to correct those deficiencies, but that the defendants did not follow through on that promise. Is this the type of commitment that Allen was referring to? By further example, Nestor asserted at trial that in his mind, the industry standard that relates to the installation of a metal roof is “to the complete satisfaction of the customer”. Yet, it is clear that when Mr. Galloway complained of certain deficiencies, Nestor’s reply, as I referred to earlier, was to conclude that Mr. Galloway was being “very very unreasonable”.

Is it this commitment to customer satisfaction that Allen refers to?

[45] My assessment of Allen’s credibility waned during cross-examination. His demeanour shifted from helpful and cheerful toargumentative and combative. I say this notwithstanding that Mr. Schmeling, who represented Westcor at trial, had a very professional,non-combative, pleasant, and courteous style. When asked the simple question as to whether or not the contract entered into betweenBartlett and Classic identified Classis’s full corporate name, Allen became argumentative. When asked whether or not the meetings withMr. Dohms were on the Freshair side of the common building, he refused to answer until pressed.

When asked if this contract was thelast contract that Classic had ever worked on, he was combative and then asserted that it had worked on two others. When asked whenthese contracts occurred and who they were with (the status of Classic as an ongoing concern is very much in issue in this action), hecould not remember. How is it that he could, without notes, recall the precise words used by Mr.

Dohms in a meeting held three and one-half years earlier, but he could not remember something as simple as the existence of two projects undertaken between 2015 and the dateof trial? [46] Normally, the demeanour of a witness is not a significant factor in my deliberations, but when that demeanour shifts sodramatically in cross-examination, particularly when the questions being put are simple, straightforward, and presented in a pleasant andcourteous fashion, I am left with concerns about the integrity of the evidence being given.

Over all I did not find Allen’s evidencebelievable when it conflicted with that given by Mr. Dohms. For instance, the suggestion that Mr. Dohms indicated that he wouldsomehow subtract Mr. Elmhurst’s pay in satisfaction of part payment for the installation of the roof, flies in the face of the transcriptionreferred to earlier wherein Mr. Dohms had indicated that he would try to get Mr. Elmhurst to pay the defendants $500.00 every twoweeks. The evidence before the Court is that, at most, this installation project should have taken one month to complete.

At best, andaccording to the evidence that the defendants tendered, this would result in the defendants receiving $1,000.00 during the roofinstallation. How could this constitute a recoupment of $6,900.00?

Allen’s evidence on this point was in contradiction to the evidencewhich Nestor filed in support of the defendants’ position of course, Allen had been excluded as a witness when Nestor gave his evidenceand filed the transcriptions I have referred to earlier. [47] After an exhaustive review of the evidence, I am not satisfied that there was a meeting of the minds as to what would be paid forthe services that were rendered – what in law is described as a consensus ad idem. I refuse to believe that Mr.

Dohms, who is anexperienced metal roof installer, would, on behalf of Westcor, agree to install the roof in question for the sum of $5,100.00 - anextraordinary deal by any reasonable

interpretation. Much evidence was adduced at trial that it was a difficult job, and that the labourcomponent of the job alone would likely be between $12,000.00 and $35,000.00 depending on the contractor used. I do not believe thatMr. Dohms would have made this offer, site unseen, without having the opportunity to attend at the location and examine the difficultythe job posed and the amount of work that may, or may not, have been done by the first installer. Mr.

Dohms has sworn that he nevermade such an agreement, and as indicated earlier, where his evidence conflicts with each of Nestor and Allen Mryglod, I prefer his. Ifind his evidence credible, and certainly more consistent with how a reasonably competent business man, in this type of work, wouldbehave.

Simply put, the defendants have failed, on the balance of probabilities to convince me, more likely than not that there was ameeting of the minds that Westcor would complete the installation for the fixed sum of $5,100.00. [48] Even though I accept that, more likely than not, the parties intended that Westcor would receive the sum of $12,000.00 togetherwith some further accommodation on either reduced pricing or free product from the defendants, this does not assist the Court. Thisagreement to agree on a price into the future did not come to fruition.

Clearly the parties have been unable to come to such an agreementas attested to by this expensive and time consuming trial.

This contract is an executed contract, and therefore it is apparent that in theabsence of any agreement on price, the Court is obligated to interpret the contract that was intended. [49] I take note of Lambert J.A.’s comments in Griffin v Martens, (BCCA) admonishing the Court not to attempt toconstruct contractual terms for the parties subject, to his guidance as para 4: “… As long as an agreement is not constructed by the court to the surprise of the parties, or at least one of the parties, the court shouldtry to retain and give effect to the agreement that the parties have created themselves”. [50] It would not come as any surprise to Westcor, because they have expressly plead, that in the absence of any agreement on pricethe Court should resolve this impasse by importing an implied term into the agreement that the parties agreed to a fair and reasonableprice.

As articulated by our Court of Appeal in CH2M Hill Energy Canada Ltd. v Consumers Co-operative Refineries Ltd. 2010 SKCA75, 362 SASK R 104 at para 24: “… Where the parties to a valid contract have agreed for the provision of goods or services, clearly intended to be paid for, but havefailed to provide for the terms of remuneration, then they may be presumed to have intended a reasonable price and, on that basis, acontractual term to pay a reasonable price may be implied”.

[ 51 ] Issue (

a) is answered as follows: there was no meeting of the minds as to what fee would be paid for the installation services, and on that basis, Westcor is entitled to a fair and reasonable fee for those services. (

b) Did Westcor agree, in essence, to step into the shoes of a previous installer and accept responsibility for that earlier installer’s obligations under a subcontract it had entered into with one of the defendants? [ 52 ] I do not accept the defendants’ assertion that Mr. Dohms, on behalf of Westcor, ever agreed to be held accountable for any damage to the panelling that was owned by the defendants and left on site after Veritas abandoned its subcontract with Classic.

There is no competing evidence that Westcor had agreed to take an assignment of Veritas’s rights and obligations under that subcontract, and thereby be held accountable for those losses, which the defendants claim amounted to $6,300.00. In fact, there is no evidence whatsoever that Mr. Dohms even knew that damage had occurred to this panelling before agreeing to provide labour services to the defendant.

If the opposite were the case, I am at a complete loss to understand why, when Bartlett advised Nestor that the panelling was blowing around and being damaged in or about late November, 2013, Nestor would not have immediately contacted Westcor and advised it of that problem and potential risk. The answer is simple. Westcor had not yet even undertaken to complete the installation, let alone be held accountable for these potential losses. [ 53 ] Nor do I accept the defendants’ assertions that Mr.

Dohms, on behalf of Westcor agreed to, for lack of a better phrase, indemnify the defendants for the progress payments that they made to Veritas. As previously indicated, where the evidence of Mr. Dohms and Nestor and Allen Mryglod conflict, I prefer the evidence of Mr. Dohms. I find it most unusual that any company would agree to do so. What possible advantage was Westcor to gain by doing so? I note specifically that Westcor was, at all relevant times, flush with work. I am satisfied that Mr.

Dohms was doing the defendants a favour by helping the defendants out of a difficult situation and not the other way around. The suggestion that Mr. Dohms was doing anything other than what he said he had intended to do – to try to act as good faith arbiter in resolving a dispute between a product manufacturer which had provided good service in the past, and a subcontractor which they sought to use in the future – has not been proven on a balance of probabilities. [ 54 ] Issue (

b) is answered as follows: the defendants have failed to prove on a balance of probabilities that Westcor agreed to indemnify the defendants for any damages that may have been caused to the defendants’ panelling once Veritas had abandoned its original subcontract with Classic. They have failed to prove, on a balance of probabilities that Westcor agreed to recover, or otherwise indemnify the defendants, for any progress payments that the defendants paid to Veritas. (

c) Who did Westcor contract with - Freshair or Classic? [ 55 ] When this action originally commenced, Westcor had named each of Freshair, Classic, Nestor Mryglod and Allen Mryglod as party defendants. This is because of its uncertainty as to who it had contracted with. Following an amendment, Westcor sued only Freshair, which it asserts was the contracting party, and, in the alternative, Classic. The defendants dispute that Freshair was a contracting party and assert that Classic contracted with Westcor for the provision of its services. [ 56 ] Mr.

Dohms stated that at all relevant times, he was operating under the assumption that Westcor had contracted with Super Seamless of Canada, which is the trade name under which Freshair operates. He stated that he had never even been aware that either Nestor or Allen carried on a distinct and separate business known as Classic. He had only ever done business with Super Seamless of Canada, because it was from this entity that Westcor obtained product.

He says that any time he attended on the defendants premises, he dealt with Allen, who was nominally in charge of the fabrication side of the common building, and that his conversations and dealings always occurred in the office on the Freshair side of the building. As this contract was negotiated, all of the meetings were held in the office of the Freshair side of the common building.

When invoices were presented to the defendants for the services provided under this agreement, they were forwarded, as Westcor had always done in the past, to Super Seamless of Canada. [ 57 ] While it is clear that Classic originally contracted with Bartlett to act as its subcontractor, and while I am satisfied the Veritas’s subcontract was with Classic, I heard no evidence that at any time those contracts were shown to Mr. Dohms or to Westcor. Nor did I hear any evidence from the defendants that they did, at any time prior to the formation of the contract, tell Mr.

Dohms or anyone else from Westcor that it was a corporate entity known as Classic Super Seamless Exteriors

(1988) Ltd. that sought Westcor’s services. Both Allen and Nestor indicated that when they received Westcor’s first invoice [P-4], which was sent on or about July 24 th , 2014 they were, respectively, “shocked” and “very surprised” that, among other things, it came to the attention for Super Seamless of Canada. If in fact they were, there is no evidence that they immediately advised Westcor of this apparent mistake as to who Westcor was contracting with.

In between the presentation of this invoice and a second invoice [P-5], rendered on or about April 16 th , 2015, it is clear to me that Westcor continued to do certain touch ups on the roof. It was only on April 25 th , 2015, that they were put on notice that Super Seamless of Canada would not accept the invoices as the contract was, ostensibly, with Classic.

[58] I have no doubt in my mind that at all relevant times Westcor was operating under the assumption that it was contracting withFreshair, carrying on business under the trade name Super Seamless of Canada. It is clear to me that Nestor Mryglod has presented histwo closely held corporations to the public at large in a rather hazy fashion, intermingling both e-mail and letterhead and office spaceinterchangeably in any given situation As I have stated, all of Mr. Dohms interactions with the defendants took place in what thedefendants have asserted were on the nominally Freshair side of the common building.

In addition, many of the e-mails that weregenerated and provided to each of Bartlett and to Mr. Galloway during the currency of this contract were identified as coming from and going to Super Seamless of Canada, and not Classic.

Importantly, a May 8th, 2015, letter [D-20] was sent to Dean Dohms at Westcor onSuper Seamless of Canada letterhead and not Classic letterhead, advising Westcor that: “we had many hours of conversations regardingthis and that you had a contractual obligation and professional courtesy to complete the job ... we are holding your company and youresponsible for your breach of contract and failure to complete the job properly ... we are providing you with 7 days to comply withresolving the matter ... we are very disappointed with your company’s failure to complete the contract” ... [emphasis added].

Preciselywho is the ‘we’ that Nestor is speaking of? Any reasonable person reviewing that letter would, in my view, come to the inevitableconclusion that the ‘we’ is the company that operates under the trade name Super Seamless of Canada and from which the letteroriginates. [59] Section 267(1) of The Business Corporations Act, RSS 1978 c. B-10 reads: A corporation shall set out its name in legible characters in all contracts, invoices, negotiable instruments and orders for goods orservices issued or made on behalf of the corporation.

The reason for this is clear and made manifestly so in consideration of the corporate veil which protects those who seek to use acorporation when conducting business. In Truster v Tri-lux Fine Homes Ltd. (ONCA) that appellate court explainedthe rationale at para 21: [The trial judge] also recognized a principle arising from the case law that persons wishing to benefit from the protection of the corporateveil should not hold themselves out to the public without qualification.

They should identify the name of the company with which theyare associated in a reasonable manner or risk being found personally liable if the circumstances warrant it. ... This principle properlyflows from the fact that incorporation provides corporate officers and shareholders the legal protection thought to be necessary formodern business relations; however, if one expects to benefit from this protection, then others must, at minimum, be informed in areasonable manner that they are dealing with a corporation and not an individual.

In the last analysis, the person who sets up after thefact that they contracted solely on behalf of another bears the onus of establishing that the party with whom they were dealing was awareof the capacity in which they acted; Clow Darling Ltd. V 1013983 Ontario Inc. [1997] O.J. No. 3655 (Gen.

Div.) ... . [60] I well understand that the above-noted case was considered in the context of ascribing the actions of an individual to a specificcorporation, but the rationale is equally applicable to the instant circumstances, wherein Nestor Mryglod sought to argue that Westcorwas dealing with a specific closely held corporate entity over another. Mr. Dohms was dealing with both Nestor and Allen Mryglodwhen discussing this contract. He had only ever dealt with Freshair (Super Seamless of Canada) in the past, and he knew Allen Mryglodto be the personal face of Freshair.

He met with each of Nestor and Allen in the location that Freshair generally had dealt with Westcoron previous contracts. He was not specifically made aware of the company that Nestor Mryglod asserts he was contracting with, and didnot even know that it existed. He and his company were not advised immediately after it submitted its first invoice to Super Seamless ofCanada that it may have been in error. He and the company received correspondence from the very company that they said theycontracted with indicating that Super Seamless of Canada was disappointed with the work that had been performed.

I think that it isentirely reasonable that Westcor was operating under the assumption that it was dealing with Freshair throughout this contract, and theyhave certainly advanced a prima facie case in support of that assertion. Whether Freshair carries the onus of establishing that the partywith whom Westcor was contracting with was or was not, they have led little evidence, if any, to discharge that onus at first instance, orto rebut the prima facie case that Westcor has advanced. [61] Issue (

c) is answered as follows: I find that Westcor was entitled to assume that it had entered into the agreement with Freshair,and if monies are found to be due and owing, I conclude that Freshair and Classic (by virtue of its admission in the pleadings), are jointlyand severally responsible for that obligation. (

d) Did the parties agree that the work would be performed to a specific standard, and if not, should the Court import animplied term into the contract that the work would be of a good and workmanlike quality?

[62] There has been no credible evidence put before the Court that convinces me, more likely than not, that the parties expresslyagreed that the services would be provided to a standard other than that which the law would normally imply in the absence of thatspecific provision. This implied contractual term has been expressed on numerous occasions in this Court, in our Court of Queen’sBench, and throughout the common law jurisdictions in Canada.

In Lawson v McKay, 2010 SKQB 464, 367 Sask R 143 [Lawson]Madame Justice Wilson has recently reiterated the law at para 17 and 18 of her decision: [17] There is an implied term in the contract for the performance of services that the work will be carried out in a “proper andworkmanlike manner”. This legal principle is summarized by Dawson J. in Maisonneuve v. Burley 2001 SKQB 407 , 2001SKQB 407 [2002] 1 W.W.R. 111 (Sask. Q.B.), where she states as follows in paras. 26 and 27: “26 The contract between the plaintiffs and the defendant was a contract to do work and supply materials.

The governing law is setforth in Mack v. Stuike (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask. Q.B.).

At p. 771 of Mack, supra, Balfour J. quotes from Halsbury’s Law of England, vol. 3, 3rd ed. (London: Butterworths, 1953) at 435, para. 818 as follows: … A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a conditionthat the work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of theordinary amount of skill possessed by those exercising the particular trade. … 27 As stated in Goldsmith on Canadian Building Contracts (looseleaf ; (Re. 2) 1998) (Toronto: Carswell, 1988) at pp. 5-11 through5-12: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications, is not of a reasonable and workmanlike quality, is not proper compliance with the contract and constitutes a breach.Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were preparedby him and are deficient, even if they were approved by the owner.

Whether work, or material supplied, is defective or not is, in eachcase, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as towhat is reasonable where there are none”. “Where a contract, either expressly or by implication, contains a particular standard for the work to be done, an owner is not entitled toinsist on work of a higher quality.

For example, an owner who contracts for the construction of a bush road is not entitled to insist on astandard of construction applicable to a provincial highway”. [18] In the matter before me there is no evidence that Mr. McKay instructed Mr. Lawson to perform the installation services in aparticular manner. Thus, in the absence of any specifications, I must determine whether the services rendered by Mr. Lawson were donein a good and workmanlike manner. The test for compliance with the workmanlike standard is fitness for purpose (see: Vogel (Al)Construction Ltd. v. Forbes (1998), (SK QB), 174 Sask.

R. 236, [1998] S.J. No. 696).

The purpose for the contractin the matter before me was to install eavestroughing to provide adequate drainage of water off the roof of the garage and keep waterfrom entering the walls of the garage. [63] The defendants have urged this Court to conclude that this standard of ‘proper and workmanlike’ has an added dimension to theeffect that a roof installation such as this is only proper and workmanlike if the work is ‘acceptable to the customer’- that is to say, thework must be done to the satisfaction of that particular customer, even if that customer is, as I find in the instant case, extraordinarilyparticular in respect of cosmetic deficiencies.

This would mean that Mr. Galloway would be entitled to refuse a roof with anydiscolouration whatsoever, and any scratching whatsoever.

If I thought that Nestor Mryglod believed this, and if he found himself boundby the law in this regard, than I must profess my utter confusion to his earlier assertion to Bartlett’s representative Susan Meyer, which isset forth in paragraph 32 of this decision, where he went on at great length to explain that in any metal roofing installation “there is acertain amount of scratching that is acceptable; that there is going to be scratching and there is nothing we can do about it; that ‘if hethinks every little scratch is going to be replaced then we are going to have a real problem because there is no way that’s reasonable”;and, “that ‘it depends on what degree”. [64] In Lawson, Madame Justice Wilson referred to the decision of Mr.

Justice Scheibel in Vogel (Al) Construction Ltd., but she didnot refer to his precise words, as set forth in para 8 of that decision, which reads:

8 Whether work is defective or not is a question of fact in each case. In order for the plaintiff to meet the terms of the contract, its work must be of a reasonable workmanlike quality. Perfection is not the test to be applied . That is, work and material may be reasonably fit for the intended purpose, despite minor deviations from the contractual specifications. “. . . “ [Emphasis added] [ 65 ] I fully understand the situation that the defendants find themselves in.

Classic entered into a contract with Bartlett to provide goods and services for the installation of a roof which did not specify the standard to which the roof would be installed. Both Bartlett and the owner of the property, Mr. Galloway, became increasingly dissatisfied with Classic when it failed to complete the roof on time. Classic then engaged Westcor to complete the installation, and in so doing, again failed to identify the standard to which that roof would be installed.

Ultimately, Galloway expressed displeasure with certain cosmetic deficiencies and Bartlett felt compelled to replace the entire roof and install it in a manner which Mr. Galloway demanded, ostensibly in a perfectly cosmetically pleasing manner. I do not know if that was or was not the standard that was incorporated into the contract entered into between Bartlett and Mr. Galloway but if it was, then presumably Bartlett had to meet that contractual term. If not, Bartlett was of course free to replace the roof in order to keep a client happy.

When Bartlett demanded to have Classic replace the roof to meet the rather strenuous standards that Mr. Galloway demanded, Classic entertained negotiations, but then, according to Susan Meyer, Classic reneged on its promise to do so and Bartlett refused to pay Classic. Classic then refused to pay Westcor, ostensibly because it did not install the roof to the utter satisfaction of Mr. Galloway. Classic could have, if it chose, sued Bartlett to recover its fee under the subcontract, but I do not know if that has occurred or if it is contemplated.

Regardless, I am satisfied that it was not open to the defendants to demand, in the absence of a specified standard, that Westcor meet or exceed a standard that the defendants have articulated at trial, but which they did not accept in their discussions with Bartlett or Galloway, particularly when that standard is not what is demanded at law in the absence of a written agreement. [ 66 ] Issue (

d) is answered as follows: there was no agreement between the parties that the services were to be provided to a specific standard. To that end, the Court must look to the implied contractual term that the services to be provided must be good and workmanlike - not cosmetically perfect and, despite potentially minor deviations, it must provide those services so that the roof would be fit for its intended purpose.

Was Westcor’s work acceptable or were there deficiencies that did not meet the standard demanded in law? [ 67 ] No evidence has been led at trial tending to show that the roof was deficient in any manner other than an allegation that there were cosmetic deficiencies. Absent some cosmetic deficiencies, it was installed to act in every way as a perfectly adequate roof.

The question for determination is simply this: in the absence of a contractual provision that a metal roof be free of any cosmetic damage, is some cosmetic deficiency to be expected when a roof such as this is installed, and if so, at what point does the metal roof installation industry consider this cosmetic damage to be so out of the ordinary that repairs must be undertaken to meet the test of good and workmanlike? [ 68 ] Normally, in cases such as this, the test of what might constitute a good and workmanlike standard of installation would be determined on the strength of expert evidence as to what the industry standard is.

No matter how hard I tried to elicit that evidence from Nestor Mryglod, who is in the business of fabricating and disseminating painted metal roofing, I was not given a satisfactory answer. His argument, which I do not find particularly compelling, and which I find he has asserted at trial but does not really believe, and which is not in any event the legal standard, is predicated on a comparison between buying a new Mercedes and putting on a roof. One would, he asserted, be entitled to reject a brand new luxury car that had scratches on its body which are discernible to the naked eye.

Therefore the same must be true for a 3000 square foot roof installed at Regina beach. [ 69 ] The problem with this comparison is that unlike a roof that is difficult to access, which has a significant slope, which has other contractors walking on the roof at or about the same time that it is being installed, and which must reasonably be walked on by tradesman wearing work boots, a brand new Mercedes paint job suffers none of these problems or indignities. My limited understanding of car painting anticipates that more likely than not, people do not walk on it as they paint it.

My understanding is that more likely than not the painting is done in a specialized, sanitary location. My understanding is that a Mercedes is often purchased precisely because of its glossy perfectly painted exterior. My understanding is that if defects on that body paint were discernible, the quality of that job would be assessed in accordance with the industry standards applicable to luxury vehicles and not to the standard of installing a metal roof - and vice versa. [ 70 ] While I have stated that normally, evidence of industry standards is given by an expert in that particular field,

section 28.1 of The

Small Claims Act, 1997 , SS 1997, c S-50.11 entitles a judge of this Court to consider and accept evidence if he or she finds it to be credible and trustworthy. Mr. Dohms has been in the business of installing metal roofs for the better part of 19 years. He was on the work site most days. He participated in some of the work, and when called upon, agreed to repair certain portions of the roof that he felt were cosmetically deficient. He was described, as hard working and agreeable to work with by Bartlett’s project coordinator.

He has testified that in his view, the work that was done was of good and workmanlike quality and that if there were any cosmetic deficiencies, these were caused by other tradesmen which were working on the roof during and after completion. He has submitted a number of photographs of the roof [P-2] and upon a review of those photographs I see some discolouration from painting touch ups and some discernible scratching at a certain location. I can also see some very slight hair line scratches and a couple of locations where the metal has dimpled, likely attributable to the weight of a man’s foot on the metal.

The bulk of the discernible problems are between two of the dormers, which would be clearly visible to any person who might be sitting on the upper deck of the home. In total, I see perhaps as many as four roof panels that appear to be cosmetically unpleasing. I do take note of the fact that Mr. Dohms is a manager of the plaintiff, and that his evidence may be somewhat swayed by that fact. [ 71 ] I have also heard the evidence of Nestor Mryglod, but I consider his best evidence to be that which is identified in his recorded conversation with Susan Meyer, in which he has identified problems in the same locations.

While he has also pointed to one other photograph showing some very slight ‘hairline’ scratching at the leading edge of one roof panel, these appear to me to be minor. He did, however, confirm that work had been done on the fascia surrounding the home after the roof had been put on and that this may have caused damage to the roof. He further confirmed that he was unable to say whether or not the cosmetic damage was done by Westcor, or by other contractors working on the roof after it had been completed.

He confirmed in cross-examination that scratching on this kind of roofing job was inherent in the job, but qualified that by suggesting that it would only be acceptable again, if it was acceptable to the customer. I also note that Nestor confirmed that in his view, Mr. Galloway was a ‘particular’ man when it came to the question of what might constitute cosmetic damage. [ 72 ] Susan Meyer and Mr. Galloway testified as to the cosmetic damage. Mr. Galloway stated that there were scratches all over the roof, at a location which might be invisible to a passer-by, but which were visible on a videotape taken by Mr.

Galloway when he attached a camera to a remote controlled mini-helicopter. The videotape was not tendered into evidence. Ms. Meyer spoke to the existence of more significant scratching in and around the fireplace, and near two vents on the roof, and indicated that they were, to her recollection, caused by one of Westcor’s labourers when he chose to change the locations of those vents. I heard no evidence as to the full extent of the damages and I am unable to determine the extent of the damage referred to by Susan.

Nor do I see how they could possibly be significant to anyone if they are only visible by a remote device flying overhead. I do note that Mr. Galloway did not dispute that certain other labourers were stuccoing in and around the dormers after the roof was installed, thereby confirming Mr. Dohm’s assertion that the damage noted between the dormers may have been caused by other workmen. Ms. Meyer did indicate that at some point in time Bartlett and Mr. Galloway and Nestor met to discuss a resolution to this problem and that there was a tentative agreement to replace 20 of the panels.

She maintains, however, that Nestor then back-tracked on this agreement and refused to follow through on the deal.

She expressed what can only be explained as her utter dismay that during the course of this project, Nestor failed and refused to deal with any of Bartlett’s concerns, and that with the exception of a single meeting, refused to attend on site to observe the project as it was progressing or assist in resolving those concerns while ongoing repairs were undertaken by Westcor. [ 73 ] Westcor called Darryl Meyers as an expert to give evidence on industry standards as well as evidence on what a fair and reasonable price should be for the kind of work that was done. I accepted him as an expert to speak to both.

On the former point, he noted that due to the extreme pitch on the roof, and the added complications of the dormers, and the narrow confines of the location, this would be a difficult roof to work on. He concluded that on a roof of this type, it would be nearly impossible to prevent scratching on the metal panels as work was being done. He could not say what amount of scratching would be acceptable. He concluded that if it looked terrible he would either replace some panels or touch-up damaged panels with matching paint. He would not, as Westcor had done, use a felt marker to do some of the touch-ups.

When asked to review the photographs of the roof, he inclined to the view that the problems identified were simply cosmetic and were in his view, insignificant. I was impressed with this expert. He was clearly knowledgeable and, in my view, presented his opinions fairly and objectively. [ 74 ] Doug Trevera was called by the defendants ostensibly to give expert evidence both as to the industry standards demanded when installing metal roofs, but also to speak to what a fair and reasonable price would be for this kind of installation.

I say ‘ostensibly’ because the defendants had not met the required obligation to provide his curriculum vitae, the facts upon which he would base his opinion or a

summary of his opinion. Nevertheless I heard from him having regard to

section 28.1 of the Act . He had actually attended on site at the earlier request of Mr. Galloway and noted that there was some scratching on parts of the roof. He suggested that those panels with deep gouging should be replaced. He did not speak to the number of panels which were deeply gouged. He confirmed that he was aware that after his attendance, Westcor returned to do some further repair and touch-ups. [ 75 ] Blair Hebert was also called by the defendants. It was his company that had been retained to replace the roof when Mr. Galloway had concluded that the roof was deficient.

He spoke to the price that he charged to do those repairs and he discussed the manner in which it was done, which was to replace the entire roof. He confirmed that upon completion Mr. Galloway was satisfied with the results. When asked what he would do if certain panels were scratched, he said he would replace them if they were ‘really really bad’. He indicated that he did in fact see what he described as “quite a few” scratched and painted over panels but did not provide a number. He was not

asked to review the photographs which had been submitted into evidence nor was he asked if he was aware of, or was able to identify an industry standard, as to when a cosmetically displeasing roof might require repair and replacement. [ 76 ] Based on the evidence of Mr. Dohms and the plaintiff’s expert, I am satisfied that Westcor has made out a prima facie case that they provided the services contracted for in what was largely a good and workmanlike manner notwithstanding the existence of some cosmetic scratching and paint touch-ups.

Have the defendants rebutted that prima facie case to show that the work did not meet that standard and that in consequence Westcor should be denied any payment for the services rendered? With the greatest of respect to the defendants’ assertion that the standard to be applied is the complete satisfaction of the customer; and the further assertion that Westcor should be held accountable for further damage caused by other tradesman on the job during and following the project, I reject these submissions and these arguments. Respecting the former, this is not the legal test that the plaintiff is compelled to meet.

With respect to the latter, I see no evidence whatsoever that Westcor undertook to repair any and all damage to the roof that was caused by other trades.

I am satisfied that there were some deficiencies in terms of cosmetic damages between the dormers where the paint touch-ups were undertaken, which are unappealing and which have obvious and discernible scratching or gouging, and which, I conclude, Westcor attempted to repair. [ 77 ] While the evidence is sparse, I am satisfied that it would likely take four replacement panels to correct the deficiencies between the dormers which front the elevated deck of the home.

I refer to this side only because it is clear that these panels are in plain view of those people who may wish to sit on the elevated deck and these panels are, in my view, an eyesore. Mr. Justice Scheibel indicated in Vogel (Al), that “whether work is defective or not is a question of fact in each case”. In my view, the bulk of the evidence in relation to what might constitute a failure to meet the test of good and workmanlike as it relates to cosmetic damage on a metal roof, at least in this particular case, would be two things.

First, a significant discolouration which is plain and obvious to those persons who can not only observe the discolouration, but can observe it from a near location. Secondly, significant scratching which would be akin to a gouge which is plainly visible to those who are close enough to it to observe it and arguably, to react negatively to it in an aesthetic sense. This is something which I believe would be the case for those persons sitting on the elevated deck and facing the dormers in question.

While there is some evidence that this damage was caused by subsequent workmen, I have heard evidence that Westcor came back to do these repairs. Because Westcor seeks compensation for those additional repairs they should have adequately repaired, I am satisfied that these panels, were, more likely than not, within the scope of that subsequent repair and that this repair was deficient. [ 78 ] Issue (

e) is answered as follows: With the exception of four roofing panels which I find to be deficient, the services that Westcor provided were acceptable, having met the test of good and workmanlike. (

e) What, if any amount of money is owing to Westcor and from which defendant? [ 79 ] Much of the time at this trial was given to assessing what a fair and reasonable price would be for the services that were provided. Even though I have found that there was no specific price agreed to, the defendants stand by the assertion that $12,000.00, less the $6,900.00 paid to Veritas before it abandoned the contract is fair and reasonable.

Even if the $6,900.00 is taken out of the equation, the defendants assert that $12,000.00 is a fair and reasonable value for the installation of the roof. [ 80 ] The defendants come to this conclusion by asserting that, as an experienced installer, Classic’s original quote for both goods and services in the sum of $31,815.00 plus GST in the further sum of $1,590.75 was reasonable. The calculations for this quote were provided by Allen Mryglod’s evidence at trial.

He inclined to the view that $10.00 per square foot for the provision of both goods and services was fair, and since the roof was between 3,000 and perhaps 3,200 square feet the final price reflects this calculation. He was of the view that the cost to manufacture the panelling was about $1.50 per square foot and was charged out at $1.90 per square foot. Added to that material cost would be another 25 to 30% for accessories such as screws and the like. Added to that would be underlayment priced at $.80 per square foot. In total, the materials cost would be $9,525.00.

While Allen conceded that this roof was a difficult roof installation, he estimated the labour component would cost about $4.00 per square foot, for a total of $12,000.00, and that the remainder, $10,290.00 would be profit. In Classic’s case, the profit margin would equate to 32%. A 32% mark-up on the labour component would equate to $3,840.00. When this is added to the actual labour component of $12,000.00 the total is $15,840.00.

Divided by 3,000 square feet, this equates to $5.28 per square foot, mark-up included. [ 81 ] Westcor denies that the fee that Classic charged is reasonable in the industry at large, and it urged the Court to conclude that Classic had likely underbid on the installation side of its equation. Mr. Dohms inclined to the view that this job was in the “very difficult” column of metal roof installations, having due regard to the steepness of the slope of the roof, the existence of the four dormers on the roof and the tight location within which to work. Mr.

Dohms suggested that the simplest flat roof in perfect conditions and

location would cost on average about $1.50 per square foot for labour. Add to that the existence of dormers and the additional work dealing with special cuts and so forth, the price would double to $3.00 per square foot. Add to this, the steepness of the roof and another $1.50 would be added per square foot. Add to this the tight confines within which to work and its somewhat remote location and the price would increase yet again.

Add to this a reasonable profit margin and the price increases yet again. [ 82 ] Submitted into evidence is a rather comprehensive calculation of the amount that Westcor says it would have charged if it had originally quoted on this project [D-1]. The total quote would have been $59,429.00 which includes a materials cost of $12,134.00; a labour cost of $28.852.00 and a profit of $18,443.00. Westcor asserted that this quote is fair and reasonable.

With this in mind, it invites the Court to conclude that the amount that it actually charged the defendants, in the sum of $21,327 plus GST in the further sum of $1,066.00 for labour is also fair and reasonable. What Westcor does not include in its analysis, is the amount of labour that Veritas had already provided. Mr. Oslie says that the invoices that were charged are calculated by looking to the number of hours actually expended on the job and adding a 25% mark-up. This does not really assist.

What is lacking is any clear indication of how much of the work was actually done by Veritas before Westcor got to the job. If I were to accept D-1 as fair and reasonable, then the labour component of $28,852.00 would have to be increased by the mark up for profit that is set forth in D-1 which I calculate to be 45%. This would mean that Westcor would, more likely than not, have charged, (profit in) $41,835.40 for the entire installation portion of the job had it originally quoted on the project. This would equate to $13.94 per square foot. Mr.

Dohms gave evidence to the effect that when he attended on site he felt that perhaps as much as one half of the work had been done by Veritas. In that event, the invoices that were presented to the defendants would reflect installation covering 50% of the project, or 1,500 square feet. This would equate to a charge for labour (mark-up included) equal to $14.20 per square foot. [ 83 ] As indicated, I was very impressed with Westcor’s expert. He inclined to the view that this installation project would have been difficult for the reasons previously stated.

He was of the view that it would have taken a four person crew twenty days working eight hours per day to do the installation. He says that he would have charged out the labour at $60.00 per hour which would include his profit margin. His total for labour would have equated to $38,400.00 together with some additional amount for travel to and from the work site. He did not calculate this additional cost for the Court. This rate would work out to $12.80 per square foot before taxes. [ 84 ] Blair Hebert was the individual who eventually replaced the roof at the request of Mr. Galloway.

He was also asked about labour rates and I considered him to be credible and trustworthy. He stated that he eventually charged Mr. Galloway $43,000.00 to take off the old roof and put a new one on. He too inclined to the view that this was a difficult roof, but the Court was advised that in anticipation of his attendance, an entire scaffold had been built to assist in the installation and to ensure that the work could be done without scratching. With the assistance of that scaffo

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