AYE Services Ltd. - v. -, 2015 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 030 Date: February 27, 2015 File: 32/14 Location: Moose Jaw _____________________________________________________________________________ Between: AYE Services Ltd. - and - Jill Christine Leduchowski Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] The plaintiff claims for the sum of $8,268.64 representing labour and materials supplied by the plaintiff at the request of the defendant in October and November 2012, with respect to renovation work and improvements made to the defendant’s house in Drinkwater, Saskatchewan. The plaintiff also claims interest at the rate of 2% per month on all overdue monies from November 15, 2012 to the date of judgment.

[ 2 ] The plaintiff argues there was a verbal contract with the defendant that the plaintiff would supply tin to the roof of the defendant’s house and carry out some repair work with respect to a leaking portion of the roof and damaged ceiling. The plaintiff says the defendant agreed to pay the plaintiff on the basis of the plaintiff’s usual hourly rates. All material costs were in addition to the hourly rate cost. At the conclusion of the work, the plaintiff presented the defendant with an invoice showing $10,268.64 owing.

The defendant paid $2,000.00 and $8,268.64 remains unpaid. [ 3 ] The plaintiff states that the defendant asked him to do additional work which involved lifting the entire roof, altering the slope of the kitchen ceiling and then reinforcing the attachment of the kitchen to the rest of the house. Again the plaintiff says he agreed to do this extra work at the same hourly rate plus the cost of materials. The defendant also requested additional work which involved tear down of the existing kitchen ceiling and joists, for which the defendant promised to pay.

At no time did the plaintiff disclose nor did the defendant ask the plaintiff’s hourly rate. [ 4 ] The defendant agrees she had a contract with the plaintiff but states the original contract was for $3,500.00 total for all work to be done. At the conclusion of the trial the defendant admitted that her friend Richard agreed to a total of $5,500.00, due to the extra work and that she agreed to this amount. The defendant also states that she has since obtained two quotes from other contractors, both of which are substantially less than the plaintiff’s claim.

The defendant says there was no agreement as to interest and there was no discussion with respect to payment. THE EVIDENCE [ 5 ] The plaintiff called three witnesses: John Wipf, Jennifer Charbonneau and himself. John Wipf testified that the plaintiff received a call from the defendant with respect to this matter and he went with the plaintiff to the defendant’s residence at Drinkwater in October 2012. He and Jonathan Wipf reviewed the measurements which appeared to be incorrect. As a result, they remeasured for the work that would have to be done.

It was observed the roof over the kitchen was very spongy and the wood was rotten and there were serious problems. This witness heard Jonathan Wipf, the plaintiff, advise the defendant that an overall quote was not possible as the plaintiffs needed to see what the problems were and that they would bill their usual hourly rate. He acknowledged that there was no discussion as to what the hourly rates were. Mr.

Wipf says they were given the go ahead to commence the project and removed the shingles and looked into the attic and found the insulation was wet. [ 6 ] Richard Piechotta, a friend of the defendant, was present and prepared to assist the plaintiffs as time was of the essence given the time of year and the problems with the leaking roof. The ceiling had to be removed and some of the rafters rebuilt. At that point the defendant and Richard (with the defendant’s approval) decided on a vaulted ceiling which creates a more spacious and aesthetically pleasing look.

The Wipfs apparently advised that this would cost more money and were assured by Richard that money was not a problem for the defendant. As a result of Richard’s go ahead, they proceeded. [ 7 ] Mr. Wipf said that any major changes or extra work was always discussed with the defendant or with the defendant’s friend Richard and each time they got the go ahead to proceed. [ 8 ] In the kitchen area the plaintiff had to take off the rafters and cupboards and put up the vaulted ceiling and build up the walls to meet the new roof. The defendant indicated she was very satisfied with this work. Mr.

Wipf said the work is not difficult but it is very time consuming. There is lots of cutting and angles and measuring that needs to be done. Mr. Wipf heard the defendant say she was getting a loan which had been approved for this work and that the money was coming. At no time did he ever get the impression that the work was unsatisfactory or that the cost was unacceptable. [ 9 ] Mr. Wipf said they had a very good relationship with the defendant and Richard and they usually ate their noon meal together, and that it was all very pleasant. [ 10 ] On cross-examination Mr.

Wipf was asked about the number of hours he worked and in particular Exhibit P-3, which was the plaintiff’s record of the hours on this project. Mr. Wipf said the hours were recorded every day by himself and handed to his boss, Jonathan Wipf.

[ 11 ] Jennifer Charbonneau helps the plaintiff with some of the paperwork in the office of the plaintiff company. Ms. Charbonneau says that she was concerned that only $2,000.00 had been paid on this invoice and that there were no payment arrangements with the defendant. Ms. Charbonneau referred to a text that the defendant sent in late November stating she was not satisfied with the work and that she had talked to other contractors who would have been much cheaper. As well the text went on to say that the defendant would decide how much she would pay the plaintiff.

As a result of this, the plaintiff did put a lien on the defendant’s property at Drinkwater, Saskatchewan. [ 12 ] Jonathan Wipf, owner of the plaintiff company, testified that he was contacted by the Arm River Colony with respect to the work that the defendant needed done. Also, the defendant’s friend Richard called inquiring if the plaintiff did roofing. The plaintiff was busy with other work at the time but Richard made several calls.

Shortly thereafter the plaintiff went to the defendant’s house at Drinkwater, measured the house for metal siding and advised that the measurements by the Arm River Colony were wrong. Mr. Wipf admitted that neither he nor John Wipf were journeyman carpenters. [ 13 ] A couple of days later, Richard advised that the kitchen roof was leaking and that it was urgent that something be done. The plaintiff came out on the Monday and said for $3,000.00 they would put steel or metal on the whole house. This would take three or four days.

At this time the defendant indicated the kitchen was much more important and agreed that the work would be confined to the kitchen roof. The defendant asked how much it would cost and the plaintiff said he did not know as there could be many problems once they got started. The plaintiff was adamant that he told the defendant he would charge by the hour. The defendant mentioned that she was getting a settlement and it would be more than $18,000.00.

The plaintiff replied that it would be much less and as a result, the next day the plaintiff met with Richard who showed him the problem areas and the plans were made to do the work. The work involved ripping off the shingles and the roof, and supplying new plywood, new rafters and new insulation. The plaintiff kept track of his hours. [ 14 ] The next day the plaintiff was told that the defendant wanted the roof lifted to have a vaulted ceiling. The plaintiff said this was more work and more cost and the defendant agreed.

The plaintiff had to return some lumber, namely 2 X 6s the plaintiff had bought and replace them with 2 X 8s. The plaintiff removed the siding and continued work. The next day the defendant indicated that she wanted the porch expanded and the plaintiff agreed again saying it would be an extra cost. Richard advised them that money was no problem. [ 15 ] At one point the defendant indicated that she would have the kitchen ceiling ripped down. However, the plaintiff came the next day and nothing was done, so the plaintiff took down the ceiling and reinforced the rafters.

The plaintiff says that by the end of the week the defendant said she was very pleased with the work. Again Richard said money was no problem. [ 16 ] At the end of the week Richard asked the plaintiff how much the cost was so far. The plaintiff told Richard he would figure it out and on the Friday he met with the defendant and advised that the total was $5,788.40. The defendant said this was more than reasonable and that she was just waiting for the settlement and that she was more than pleased with the plaintiff’s work. [ 17 ] The plaintiff returned back to the house for three more days to finish the work.

The plaintiff emphasized in his testimony the good relationship he had with the defendant and Richard for the first portion of this contract and work. Again he said they had good conversations, they enjoyed eating the noon meal together which the defendant often supplied and that the defendant told him many times she was pleased with the work and telling her friends about his good work. [ 18 ] Some time went by and there was no payment on the plaintiff’s account. The plaintiff texted the defendant about this and there was no response.

Finally there was a response from the defendant which basically said the bill was too much and the work was not satisfactory and other contractors would have been cheaper. [ 19 ] On cross-examination Mr. Wipf agreed that there was no exact hourly rate stated. Mr. Wipf denies the defendant’s suggestion that his hours are inflated and that many days he did not come until 11:00 and left at 2:00. He reiterated that he sat around the table and discussed with the defendant what needed to be done and always made it clear that the cost would be extra.

The plaintiff denied any damage of the metal around the bottom portion of the kitchen. The plaintiff acknowledged that the photo of the wall (Exhibit D-2) was not level but indicated that was a foundation problem and not something he had been asked to correct. The plaintiff concluded his case.

[ 20 ] The plaintiff filed three exhibits and these went in by consent; Exhibit P-1 was the account for $9,779.66, P-2 the account for $10,268.64 and P-3 was a statement of the hours worked. [ 21 ] The defendant’s first witness was Krista Hewitt. Ms. Hewitt says she lived with the defendant in the fall of 2012 and was there when these renovations were done.

She says that the plaintiff was not there full days, that he took many breaks and that they always left early. [ 22 ] Richard Piechotta is a friend of the defendant and had contacted, on the defendant’s behalf, the Arm River Colony with respect to putting metal on the house. Mr. Joe Hoffer from the Colony indicated that the plaintiffs Jonathan Wipf and John Wipf had left the Colony and were doing this type of work. He said that there was a quote from the Arm River Colony that it would cost $3,500.00 to put metal on the kitchen area and $5,500.00 for the entire house.

He agreed he was present with the plaintiff for at least the first week of the work. He recalled on one occasion once the roof had been taken off, the plaintiff said the rafters were sagging and that new wood would be the best way to go for new rafters. Richard agreed even though he had some used rafters. Richard did not recall any discussion about an increased price. Richard agreed that the kitchen roof was sagging and that it had to be replaced and that the defendant had requested a vaulted ceiling. Richard also agreed that the metal was put on and the drywalling and insulation was done okay.

He said the defendant had to show the plaintiff how to put the drywall on the kitchen ceiling. [ 23 ] Richard said that all went well on the project and he was there about 10 days. He does recall the plaintiff discussing with Richard about the basement but there was no work done in that regard. Richard agreed the house is old. Richard said that he recalled the plaintiff not showing up for days as the plaintiff was at a funeral out of the country. Richard recalled the plaintiff remeasuring everything and reordering the metal from Arm River Colony.

Richard acknowledged the plaintiff did some extras but again he recalls little discussion about price. The initial quote he does recall was for $3,500.00 for the kitchen roof and porch. He does recall the plaintiff saying that the amount was now $5,500.00 to do the extra work that the defendant requested. When Richard left the project he does recall the plaintiff saying that the cost to date was $5,500.00 and that Richard told the defendant this and she did not object. [ 24 ] The final witness was the defendant Jill Leduchowski.

She says that she had purchased some metal from the Arm River Colony and then found out that the roof over the kitchen in particular was in bad shape and needed work done on it right away given that it was late October. She admits that Richard assisted with the negotiating with the plaintiff and actually did most of the negotiating. She didn’t think she was even present when prices were discussed. She indicates that she was applying for a loan to do renovations on the entire house. She agreed that there were extras done.

She was of the opinion that the plaintiff’s hours were inaccurate and that he was not there the entire time indicated. She was adamant that there was no discussion of an hourly rate and no way she would have agreed to an hourly rate. She advised that subsequent to this work being done, she obtained two estimates from other contractors. She took the plaintiff’s bill (Exhibit P-1) to two contractors, namely Wescan Builders and a Ryan Dusener (Exhibits D-3 and D-4) and these quotes came in close to the $3,500.00 mark.

The defendant admits she did not tell the plaintiff that she was dissatisfied with any of the work and she did not give the plaintiff an opportunity to inspect or remedy any defects. [ 25 ] When pressed by the Court, she acknowledged that she had likely agreed through Richard to the increased price of $5,500.00. ANALYSIS [ 26 ] This situation is described by Judge Agnew in his case Bernie Sprung v Cathy Ceh , 2011 SKPC 135 , where at paragraph 1 , he describes the issues in this case, as follows: The parties in this case presumably had a contract. They certainly thought they did; they acted as though they did.

The plaintiff did some renovation work for the defendant, at her request; the defendant paid the plaintiff for some of his work. That much is clear. What the terms of this contract were, however, is not at all clear. Furthermore, while some of the terms of the contract seem clear to each of the parties, their clear visions do not coincide with each other. The task at hand is to determine what exactly the contract was between the parties, to what extent it was carried out, to what extent it was paid, and how the latter two factors balance out. [ 27 ] According to the author G.H.

Treitel who wrote The Law of Contract , a contract:

... is an agreement giving rise to legally enforceable obligations binding the parties to it. The factor which distinguishes contractual obligations from other legal obligations is that they are based on the agreement of the contracting parties. [ 28 ] This case is the classic type of situation we see in Small Claims Court. The parties have a verbal agreement. The homeowner is eager to have the work done and is pleased to find someone who will do it right away. The contractor is willing to do the work. It is his business. The work is done often with changes or additions along the way.

Often no payment has been made, not even for supplies. The contractor presents the bill and expects payment immediately. The homeowner by this time is surprised at the cost and is sure that it should not have cost that much because she or he would never have proceeded with the work. Often defects in workmanship are alleged. That is close to the case here. The defendant wanted to put metal siding on her entire house. She had the Arm River Colony metal division measure her house. One of the people there suggested that the plaintiff who had left the Colony could do the work.

I find there is agreement that the plaintiff told the defendant he could put metal on the kitchen area for $3,500.00 total and on the entire house for $5,500.00. The defendant then found that the kitchen ceiling was leaking and there were serious problems with the roof area that required immediate fixing. The plaintiff agreed to have a look at it, recommend a course of action and agreed to do the work. The plaintiff said that he could not quote a total cost for such a project due to the uncertainty as to what was involved once the shingles from the kitchen roof area were removed.

The plaintiff told the defendant he would do it on an hourly rate. The plaintiff did not disclose the hourly rate. [ 29 ] I find that the extra work that was done by the plaintiff including a vaulted ceiling, new rafters, insulation and kitchen ceiling. Some extra material was required and obviously extra time. The defendant, on her own admission, left most of the negotiating or wheeling and dealing to her friend Richard. Richard was present for the first 10 days of the project and assisted the plaintiff in some of the work. Richard agreed that the plaintiff had performed the work in a satisfactory manner.

When Richard asked the plaintiff what the defendant owed the plaintiff after approximately 10 days, the plaintiff said $5,500.00. Richard says he told the defendant this and I conclude from both Richard’s evidence and that of the defendant that the defendant agreed to this amount. [ 30 ] There was insufficient evidence for me to conclude that the defendant agreed to pay the plaintiff for the last four days on an hourly rate. The most I can conclude on the evidence before me is the defendant agreed to pay $5,500.00 for the total work.

There does not seem to be any issue with respect to the cost of materials being over and above the $5,500.00 amount. [ 31 ] Therefore, in

summary, I do not accept the plaintiff’s evidence that the defendant agreed to pay him at the hourly rate of $50.00 per hour and his helper at $30.00 per hour. Similarly there was no agreement by the defendant to pay 2% per month interest. The plaintiff admits that he did not discuss this with the defendant or receive her agreement. He thought she would understand that this is normal. Therefore, the defendant shall pay to the plaintiff the sum of $5,500.00 less the $2,000.00 paid plus the cost of supplies in the amount of $1,364.24, for a total of $4,864.24.

I am not including any GST on the $5,500.00 as there was no evidence that GST would be charged separately. Again, the plaintiff did not make this clear to the defendant and therefore I take that the $5,500.00 has the GST already included in it. What people want when they are getting a price for work is the total cost. There will be pre-judgment interest from November 15, 2012 to the date of this judgment. The judgment rate of interest applies thereafter. The plaintiff shall have his costs in the amount of $100.00. The parties appeared to be communicating in a constructive manner near the end of the trial.

I was encouraged that each party expressed their regrets that the matter had come to Court and stated it was never their intention to handle it in that way and they looked forward to concluding this matter. Therefore I encourage the plaintiff to extend to the defendant reasonable payment terms over time for the $5,069.46 that I have found owing. [ 32 ] Dated at the City of Moose Jaw in the Province of Saskatchewan this 27 th day of February, 2015. M. Gordon, J