Norman Francis v. Eragorn Francis, 2015 SKPC 119

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: September 2, 2015 Citation: 2015 SKPC 119 File: 72/13 Location: Moose Jaw _____________________________________________________________________________ Between: Norman Francis and Eragorn Francis - and - Leslie Lamontagne and Kane Caron o/a K and L Roofing Mr. Ryan Hrechka For the Plaintiffs Self-Represented For the Defendants _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND

[ 1 ] The plaintiffs entered into a contract with the defendants, pursuant to which the defendants were to replace the shingles on the plaintiffs’ roof, and make some other incidental repairs. During the first day on the job the defendants removed shingles from one side of the roof, and substantially replaced those shingles. At the end of the first day, the plaintiffs went up on the roof and determined the defendants’ work was not being done adequately and according to specifications. The following day, the defendants returned to continue work.

The plaintiffs dismissed them and refused to allow them onto the roof to do any further work. The plaintiffs then brought this action seeking damages to remove and replace all of the shingles, and for water damage to the interior of the house that occurred when the roof was exposed. THE EVIDENCE [ 2 ] The only witness called by the plaintiffs was the plaintiff, Eragorn Francis. She testified that she is a licenced home inspector, and has been for about seven years. She has taken a number of courses to obtain this certification. [ 3 ] The plaintiffs had the defendant provide a written quotation for the work.

That work quotation was accepted. The quotation is for $3,850.00 plus GST of $192.50, for a total of $4,042.50. The plaintiffs paid a deposit of 50 percent or $2,020.25, to cover material costs. The balance was payable upon completion of the work. [ 4 ] Within days of these arrangements being made, on or about July 10, 2013, the defendants’ crew arrived to do the work. Ms. Francis said that they wanted some extra vents installed. She said they discussed the placement of the additional vents. She also testified that she wanted to have step flashing used around the chimney. She said she used an Ipad to show Mr.

Caron how to apply the step flashing. He told her at that time that he wouldn’t do it that way. [ 5 ] Ms. Francis testified that after the crew had gone home for the day, she and her husband went onto the roof. She testified that the work was done very poorly and not according to adequate specifications. She said step flashing was not used around the chimney, some of the flashing was nailed to the chimney, and a lot of tar was used. [ 6 ] Ms. Francis stated that the ice and water shield was not installed under the paper. Further that the rhino roof (paper) was installed improperly.

It was not nailed at the proper bullet markings. Further, rhino paper was installed over some old shingles. She complained that there was a gap right at the peak of the roof. She also said that in a number of cases nails were installed below the tar line of the shingles, which is improper and could void the warranty on the shingles. She also complained that the vents were not installed.

As I understand her evidence, she felt the only proper way to install vents, chimney stacks, etc. was to install those items in the roof, and then lay all paper and shingles to and around these obstructions. [ 7 ] It was clearly established through Ms. Francis’ evidence that the defendants arrived at the job site on the second day, and wanted to complete the job. Ms. Francis clearly testified that she felt the defendants’ work was not proper or of an acceptable quality. As a result, she refused to allow them to complete the job.

In fact, she called Moose Jaw City Police to the site, who then directed that the defendants leave her property. [ 8 ] Under cross-examination by Mr. Caron, she agreed that the original written quotation supplied by the defendants states that the defendants are to “reseal both chimneys”. She agreed that she accepted this quotation, and this quotation formed the basis of the contract for the work to be done. She disagreed that this statement necessarily implied using the existing chimney flashing and simply resealing around the chimney.

Rather, she still insisted that the defendants were required to use step flashing. [ 9 ] In cross-examination, Mr. Caron also suggested that the roof decking or roof boards had significant problems due to wearing. Further, he suggested that at the time of doing the work, he recommended that the entire roof be re-sheeted. Ms. Francis did not dispute that this took place. [ 10 ] As part of the plaintiffs’ case, the plaintiff introduced a report prepared by Mr. Gerry Millen of Global Property Inspections in Regina. I will refer to this report more fully in looking at the problems with the roof.

[ 11 ] Mr. Kelly Trier gave evidence for the defendants. He is and was employed by the defendants. He was on this particular job site. He was specifically asked about the problems identified by the plaintiff. He indicated that most of the items identified were not really problems at all. For example, there was a complaint about the rhino roof paper being laid over existing shingles. Mr. Trier explained that they removed all of the old shingles from one side of the house, and then replaced them on the same day. While removing the shingles, they peeled off the top couple of rows on the other side.

At the end of the first day, they tacked a piece of rhino paper over the exposed board and top row of the old shingles in case it rained. They took similar steps to cover other existing boards, using some old shingles. He was adamant and emphatic that all of these old materials would be removed the next day when they concluded the work. [ 12 ] Similarly, Ms. Francis complained that the rhino paper was not laid down to the bottom edge of the roof and the drip edge flashing was not attached. He testified this would all be done the next day, when the work was completed. [ 13 ] Mr.

Trier agreed that it is best if the nails through the rhino paper can be done at the bullet hole markings. He said that sometimes this is not possible, because of gaps in the boards underneath the paper. Obviously, there must be a board immediately beneath the paper in order to attach the paper to the board. He indicated that they recommended that the entire roof be re-sheeted because they felt there were a number of gaps in the boards that should be fixed. Ms. Francis did not agree to re-sheeting the roof.

In this case, when they were laying the rhino paper, sometimes they had to tack that paper at a different spot to meet up with a board beneath the paper. [ 14 ] Mr. Trier also testified that they find it preferable to install plumbing vents and air vents after the paper and the shingles have been laid. All of the plumbing vents and air vents would have been installed the next day prior to conclusion of the work. [ 15 ] Mr. Caron also testified. His evidence confirmed Mr.

Trier’s evidence that a number of these matters were not problems at all, and would have been rectified the next day, had they been allowed to conclude the work. He did agree that there were a number of shingles where a nail had been inserted below the tar line. He also agreed that a small number of shingles had been damaged. He indicated this probably occurred from them walking on the shingles, as they were doing the work on a very hot day. He indicated these were relatively common occurrences, and that they would do a final inspection and repair these minor matters. [ 16 ] He disagreed with Ms.

Francis regarding the step flashing. He indicated that step flashing was not required as the chimney was right at the peak of the roof. He indicated that they normally just reseal around the chimney, and this was specifically provided for in the job quote. [ 17 ] He also showed pictures of the largely completed roof on the one side that they worked on. The job appeared to look quite nice and quite appropriate. ANALYSIS [ 18 ] For the most part, I accept the evidence of Mr. Trier and Mr. Caron, and accept that the work was done in a proper and workmanlike fashion.

I accept this evidence because for the most part, this is corroborated by the Global Property Inspections report. The report states in part: The roof system, in general, on the surface looks good. A close up look showed multiple nail heads showing. [ 19 ] The report did go on to say that nails should not be put through the shingles below the tar line, as these nails will be exposed to water and in time will provide a leak.

[ 20 ] The report indicates that flashing is missing around one sewer vent pipe. It is not clear to me however whether this sewer vent pipe was installed by the defendants, or installed after the defendants were off the job. The report says the flashing around the masonry chimney was improper. [ 21 ] Under the conclusion and recommendations section, the author states: Due to the number of nails exposed and not driven properly, it is my recommendation that the roof shingles be replaced. [ 22 ] Further: It is unlikely the shingles can be removed without damage to the ice and water shield.

Should the ice and water shield be reused all penetrations and/or tears must be sealed with a bituthane based sealant. [ 23 ] While the report recognizes these two specific problems, at no point does the report indicate that the work is not suitable for purpose or is not done in a proper and workmanlike fashion. As a result, in my view, the plaintiffs did not have a lawful basis to terminate the contract or to refuse to allow the defendants to conclude the work.

The plaintiffs’ decision to terminate the contract was both premature and without a lawful foundation. [ 24 ] Some relatively minor problems were identified. In my view, all of these problems could be remedied in damages and by a competent contractor attending to the problems. I don’t know what that would cost, but in my view it should not be overly substantial. In addition, the plaintiffs have received all of the materials installed on their roof for half of the overall contract price.

They should be able to easily remedy these problems for under the total contract price, in which case they have not suffered any damages. [ 25 ] The plaintiffs have advanced additional claims for damages related to water damage to the interior of the home. However, I could not possibly sustain the plaintiffs’ claim for water damage to the interior. The evidence was clear that the water damage occurred a couple of weeks after the contract was terminated and the defendants sent off the job.

The plaintiffs testified that roofing contractors were very busy at the time, and it took a considerable period of time for them to locate another roofer to go in and conclude the job. They did most of the work themselves. The defendants cannot be held liable for water damage because the work was not concluded, when the plaintiffs terminated the contract and refused to allow the defendants to conclude the work. The defendants would have concluded the work on the second day on the job, in which case there would have been no interior water damage.

The interior water damage occurred solely as a result of the plaintiffs refusing to allow the defendants to conclude the work. CONCLUSION [ 26 ] The plaintiffs failed to prove that the work was not done in a good and workmanlike fashion. They have proved only a couple of relatively minor problems that are remedial. They have already been adequately compensated and no further damages can be awarded. Accordingly, the plaintiffs’ claim is dismissed. I would have considered a counterclaim from the defendants for the improper termination of the contract, but no such counterclaim was formally advanced.

Accordingly, this action is dismissed without costs. [ 27 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 2 nd day of September 2015.

D. Kovatch, J