Noreen Walker - v. -, 2011 SKPC 160

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 160 Date: October 24, 2011 File: 169/10 Location: Yorkton _____________________________________________________________________________ Between: Noreen Walker - and - Ryan Terry Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT R. GREEN , J _____________________________________________________________________________ I. OVERVIEW [ 1 ] Noreen Walker is building a house in the Rural Municipality of Orkney, northwest of Yorkton.

In connection with that construction project, she contracted with Ryan Terry in the late summer or early fall of 2009. At that time, Mr. Terry was the owner of Terry’s Plumbing and Heating in Veregin. As a result, Mr. Terry did work at Ms. Walker’s house and, sometime in the fall of 2009, completed the so-called ABS, or drainage, rough in. During the fall of 2009, Ms. Walker paid Mr. Terry $12,600.00 for: (1) three fixtures, a furnace, an air conditioner unit and coil and an air exchanger unit; and (2) services from Mr. Terry related to doing the rough

in at her house. [ 2 ] The three fixtures were delivered to the home, but, unfortunately, were not large enough to work in the size of house being built. Mr. Terry said this was because of a mistake made by his wholesaler. Ms. Walker still has these fixtures. Regarding the rough in, Ms. Walker claims her payment of $12,600.00 was to cover both the ABS and the heating rough in. Mr. Terry claims the rough in covered by this payment was only the ABS rough in. [ 3 ] In total, Ms. Walker’s claim, as set out in her summons, is for $20,000.00: (1) $6,200.00 for an engineering report she claims was required after Mr.

Terry failed to finish what he agreed to do; (2) $7,200.00 for the cost of labour to complete the rough in for ABS and heating after Mr. Terry left the job; (3) $12,000.00 to complete the rest of the contract with Mr. Terry; and (4) $4,000.00 for the mis- sized appliances she received and was left with. She abandons the excess over $20,000.00 given the jurisdiction of this Court. [ 4 ] Mr. Terry acknowledges that he owes Ms. Walker some repayment from the $12,600.00 he received from her.

He says that the cost of the labour and materials for the ABS rough in he did should be valued at $4,500.00 and that the fixtures he delivered to her were valued at $5,500.00. As a result, he submits that he owes Ms. Walker $2,600.00, after a set off of $10,000.00 is applied. [ 5 ] Given these divergent positions, how much does Mr. Terry owe Ms. Walker? II. MS. WALKER ’S EVIDENCE [ 6 ] Ms. Walker filed a quotation by Mr. Terry given to the general contractor of the project, James Hodgson (Exhibit P-1). While the quotation is undated, she said it was signed by herself and Mr. Terry on September 8, 2009.

The quotation reads:

(1) Rough In Contractor to supply and install all ABS pipe and fittings.

(2) Heating Contractor to supply and install RHEEM furnace and appropriate duct package.

(3) Air Conditioning Contractor to supply and install 3 ton condensing unit, coil and up to 25 feet of line set.

(4) Air Exchanger Contractor to supply and install VANEE heat recovery unit and appropriate ducts to accommodate three bathrooms, one laundry room and one kitchen.

(5) Gas Line Contractor to supply and install gas line from meter to furnace, water heater and future.

(6) Water Heater/Softener and Water Lines Contractor to supply and install RANAI tankless water heater, 30 grain water softener, fixture shut-off valves and also to supply and install all appropriate water lines.

(7) Fixtures Homeowner to supply kitchen sink, dishwasher, vanity sinks/taps, toilets, tub/shower/valve, shower/valve and jet tub/taps.

(8) Permits Contractor is responsible for all gas permits and plumbing inspections. $24,000.00 Subtotal

$1,200.00 GST $25,200.00 Total (Contractor to receive 50% progress payment upon completion of rough in, and contractor to receive 40% upon completion of mechanical. Contractor to receive 10% upon completion of fixtures.) “Noreen Walker” “Ryan Terry” (Home owner’s signature) (Contractor’s signature) [ 7 ] In many places, I found the evidence of Ms. Walker to be disjointed and difficult to follow. She presented an invoice from Terry’s Plumbing and Heating in the amount of $12,600.00, which was dated August 21, 2009. This invoice contained the description: “50% deposit on plumbing plus heating” (Exhibit P-2).

She paid this with cheque #232, but said she later stopped payment on this cheque. She also presented an invoice from Terry’s Plumbing and Heating dated September 9, 2009 in the amount of $3,000.00, which contains the words “deposit for ABS rough in” (Exhibit P-4). That invoice is marked “paid by cheque #237”. I gather from her evidence that she also stopped payment on this cheque. Ms. Walker then presented the final invoice from Mr. Terry (Exhibit P-3), which she said was dated November 9, 2009, although the shorthand date written at the top by Mr. Terry would appear to state September 9, 2009.

It was that invoice which was close in time to her payment of $12,600.00 to Mr. Terry, $3,000.00 by bank draft and $9,600.00 in cash. That invoice contains the description: “Deposit for plumbing and heating received, one furnace, one HRV unit, one condensing unit, and one coil, ABS rough in (move stack to be completed) ” [emphasis added]. [ 8 ] Ms. Walker said Mr. Terry initially worked on the rough in, and then asked for 50% of the contract total, which was $12,600.00. She said she paid this on September 11, 2009, by cheque, but then stopped payment. She then spoke with Mr.

Terry and agreed to pay him $12,600.00 for the provision of the furnace, the air conditioner unit and coil and the air exchanger unit and, in her view, completion of both the ABS and heating rough in. She said there was an inspection on the house on December 16, 2009, and she then told Mr. Terry to come back and complete the rough in. She claims he did not. [ 9 ] Ms. Walker said that she had Mr. Terry come, again, to the house in October 2010, and, on that day he agreed to do the rest of the rough in if he was paid more money.

Although she could not recall exactly, she thought she agreed to pay him $3,000.00 for the additional work. She claimed that Mr. Terry never did the additional work required by their agreement, and as a result, she hired James Apps of Yorkton, a person from Yorkton who did plumbing and heating work. She said Mr. Apps completed the rough in for the plumbing and the heating. She then tendered a series of invoices, apparently provided by Mr. Apps, from Weber’s Building Centre in Yorkton (Exhibit P-5). She said she had no idea what the total of these invoices were. Nor could Mr.

Apps say, when he testified, what the value of the work (labour and materials) he did for Ms. Walker was. [ 10 ] In addition to the work done by Mr. Apps, Ms. Walker said that she had personally completed the duct work, or heating rough in, on the main floor. She estimated this work to be worth $3,600.00 (60 hours at $60.00 per hour). [ 11 ] Ms. Walker said she had an engineering report done by a man in Saskatoon named Nichols. She said she paid him $6,200.00, and, further, that she showed the engineering report he produced to Mr. Apps.

She did not tender a copy of the report at trial as she said it was “in storage”. Nor did she present an invoice for the report, or any other details about its contents. Mr. Apps said that he had seen an engineer’s plans for this house. [ 12 ] Mr. Apps said he was contracted by Ms. Walker to do work on this house. When he first attended to the house, he said the drainage system was roughed in but nothing else had been done (i.e. the heating rough in had not been done). He said the water line was dug in under the floor, but that this was unacceptable to the R.M. of Orkney.

As a result, he jack hammered the floor and the R.M. came in and put in a proper line. On the date of trial, Mr. Apps said the rough in was now completed, and the house was ready to be drywalled. He did not do the heating rough in on the main floor. [ 13 ] Regarding the current value of the fixtures supplied by Mr. Terry, Mr. Apps said that he believed this was an 80,000 BTU furnace, but was not sure whether it was 92% efficient or 96% efficient. If it was the former, he thought its market value would be $1,200.00 and if the latter, $1,800.00.

Regarding the air conditioning unit and coil, he thought this would be valued between $1,200.00 and $1,250.00. Regarding the air exchanger, he thought this would be valued at $800.00.

III. MR. TERRY ’S EVIDENCE [ 14 ] Mr. Terry testified that he did the ABS rough in for Ms. Walker, and the agreement was that, once that rough in was completed, he would get a cheque for 50% of the contract value. He said there was a requirement that a plumbing inspector inspect the ABS rough in, and this was done in August 2009. He said that Ms. Walker had complaints about the work he had done, and wanted a stack moved. He did this, and the inspector came back and passed it. [ 15 ] Mr. Terry said that Ms.

Walker initially gave him a cheque for $12,600.00, which he was unable to cash as she had stopped payment on it. He had no idea what concerns she had. He then phoned James Hodgson, the general contractor, and learned that Ms. Walker had fired Mr. Hodgson, the framer, and Mr. Terry, and was going to sue each of them. He then contacted Ms. Walker, and she said before she would give him the $12,600.00, she wanted the fixtures purchased and dropped off.

He said the invoice upon which she made payment (Exhibit P-3) signified their agreement regarding the provision of fixtures and the completion of the ABS rough in. [ 16 ] Mr. Terry said Ms. Walker gave him the $12,600.00, and it was agreed that he would come back and work on the heating rough in and the water lines, and would conclude the contract (which was initially valued at a total of $25,200.00). When he returned to Ms. Walker’s house, the weather had turned colder and he and his co-worker needed help to work with the tin for the ducts. He said he contacted Ms.

Walker, told her this, and that she yelled at him. He said she never subsequently allowed him back on the property. He said the work that he and his co-worker did on the ABS rough in was worth a total of $4,500.00, between materials and labour. He said the cost of the fixtures he provided to Ms. Walker was $5,500.00. He had no idea what the fixtures were worth at the date of trial. [ 17 ] Mr. Terry denied ever installing the water line, that Mr. Apps later found to be deficient and which the R.M. of Orkney claimed was not installed properly. Mr.

Apps, in his evidence, had no idea who had installed that water line. While Mr. Terry admitted that he was not a licenced plumber, he said he had a licenced plumber working with him at this work site. This co-worker was Mike Bolger, who was initially named as a defendant in this claim, but who had the claim against him dismissed by this Court on July 11, 2011. Mr. Terry, further, said that Terry’s Plumbing and Heating was a properly licenced business. IV. ANALYSIS: HOW MUCH MONEY DOES MR. TERRY OWE TO MS. WALKER ? [ 18 ] Regarding the labour and materials Mr. Terry expended in doing the ABS rough in, I accept Mr.

Terry’s evidence that these should properly be valued at $4,500.00. While Mr. Apps estimated the value of the ABS rough in to be $2,400.00, I note that the invoice provided by Mr. Terry to Ms. Walker on September 9, 2009 referred to a deposit for the ABS rough in of $3,000.00. That in my mind lends credibility to Mr. Terry’s claim about the value of the work and materials he expended in doing the ABS rough in, as the total cost of the work would have been greater than the deposit. As Mr. Apps’ estimate was below the deposit sought by Mr. Terry for the ABS rough in and as Mr.

Apps was not present to see any of the work done by Mr. Terry and Mr. Bolger, I view the best evidence on this issue to be the figure of $4,500.00 provided by Mr. Terry. [ 19 ] Mr. Terry is also, in my view, entitled to set off from the amount he otherwise owes Ms. Walker a fair value of the fixtures he delivered to her. However, given that it was through no fault of Ms. Walker that Mr.

Terry delivered the wrong sized fixtures, and given that it may be a challenge for her to sell these fixtures at anything but a discounted price, I view the proper measure of the value of these fixtures to be the current market value, as estimated by Mr. Apps. In doing so, I note that Mr. Terry had no idea what the current market value of these fixtures was, nor did he: (1) itemize this on the invoice that refers to the fixtures (Exhibit P-3); or (2) take any action between the fall of 2009 and the fall of 2010 to rectify the mistake made by his wholesaler. [ 20 ] Taking the mid-range of Mr.

Apps’ estimates of the current market value of these fixtures - $1,500.00 for the furnace, $1,225.00 for the air conditioner unit and coil, and $800.00 for the air exchanger unit - that produces a total of $3,525.00. [ 21 ] As a result, I find that Mr. Terry is entitled to a set off of $4,500.00 for the labour and materials employed in installing the ABS rough in and $3,525.00 for the three fixtures he delivered, for a total set off of $7,025.00. [ 22 ] A plaintiff shoulders the burden of proving her claim on a balance of probabilities. Here, I am not satisfied on a balance of

[ 22 ] A plaintiff shoulders the burden of proving her claim on a balance of probabilities. Here, I am not satisfied on a balance of probabilities that Mr. Terry was negligent in the work that he did for Ms. Walker, which I find was the ABS rough in. Nor, given Mr. Terry’s denial of this, am I satisfied that Mr. Terry installed the water pipe, which was later found to be faulty by the R.M. of Orkney. I further accept Mr. Terry’s evidence that, in effect, this contract was brought to an end by Ms. Walker in the fall of 2010 and that, at that point, Ms. Walker would no longer allow him back on the property.

At the least, it is in my view as probable as Ms. Walker’s account that Mr. Terry walked off the job at this point and refused to return. Nor am I satisfied that Mr. Terry agreed to complete the ABS and heating rough in for $12,600.00. The invoice (Exhibit P-3) clearly indicates this amount is to cover: (1) the provision of three fixtures; and (2) the ABS rough in, including moving a stack, albeit Mr. Terry expended less than this amount in providing these items and services. [ 23 ] In total, I am not satisfied that Mr. Terry should be responsible for compensating Ms.

Walker for the cost of completing the remainder of the work initially set out in the quotation to Mr. Hodgson: whether done by Mr. Apps or Ms. Walker. That is because I am satisfied that Ms. Walker unilaterally brought the contract with Mr. Terry to an end in the fall of 2010, before he could complete the remainder of the work. For the same reason, I am not satisfied that Mr. Terry should be liable for the cost of an engineering report, if in fact Ms. Walker had presented proper proof of this report, which I am not satisfied she did. [ 24 ] Ms. Walker paid $12,600.00 to Mr. Terry in the fall of 2009.

As calculated above, Mr. Terry is entitled to set off from this amount the sum of $7,025.00, leaving a difference of $5,575.00. As a result, Ms. Walker shall have judgment from Mr. Terry for $5,575.00, together with interest on that amount under The Prejudgment Interest Act from November 9, 2009 (when Ms. Walker claims the money was paid) and the cost of issuing this claim ($100.00). R. Green, J