Vaters v. White’s Towing & Backhoeing Co. Ltd, 2023 NSSM 7

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Vaters v. White’s Towing & Backhoeing Co. Ltd , 2023 NSSM 7 Date: 20230309 Claim: No. SCP 518471 Registry: Pictou Between: Tanya Ann Vaters and John Robert Vaters Claimant and White’s Towing & Backhoeing Co. Ltd. (see note in decision) Defendant Adjudicator: Raffi A.

Balmanoukian, Adjudicator Heard: January 30, 2023, in New Glasgow, Nova Scotia via Teams Counsel: Tanya Ann Vaters and John Robert Vaters, Claimants, appearing personally, Sid White, company principal, for the Defendant Balmanoukian, Adjudicator: [ 1 ] There are few house problems more distressing than plumbing failures. When they occur, it is not only natural but necessary to seek out their root causes. It is also natural, when one believes a tradesperson has been derelict in their work, to hold them to account. The tradesperson is, equally naturally, often loathe to admit responsibility or liability.

This is such a case. [ 2 ] The subject property is in Springfield Estates, Pictou County; although owned by Mr. Vaters alone, both he and his spouse (who carried most of the litigation effort during the hearing) are claimants; this is properly so given that both claim for damage not only to the property, but to personal effects as well as for reimbursement for their (and their children’

s) labour, and (to this Court’s $100 limit per claimant), general damages. [ 3 ] The original claim was filed against “Sid White (White’s Excavation).” It became apparent to me during the hearing that this was from the Claimant’s RJSC search, which revealed this business name; they also referred to the web/email domain name “whitesexcavation.” While perhaps misleading, nothing turns on this as identifying the correct defendant. Ultimately, I was satisfied that the proper defendant was White’s Backhoeing and Trucking Co.

Ltd., a corporate entity and the enterprise which provided the quote and ultimate receipt, and the entity identified by Mr. White both in his testimony and in his (apparently professionally prepared) statement of defence. I amend the claim accordingly and all references to the defendant are to this body corporate. [ 4 ] In late 2020, the Claimants were required to change their sewage disposal from an on-site septic system to the municipal sewer. The responsibility and expense of this hook up was for their account.

They say that they obtained three quotes (the other two were not in evidence), and the defendant’s quote of $2,019.40 (tax in) was “right in the middle.” The quote provided for decommissioning of the septic system, and “sewer line will be hooked into House. Water line will be piped to the inside of house Owner will be responsible for having it connected to exsisting [sic] lines.” [ 5 ] The work was performed on October 23, 2020. According to Ms. Vaters, the Defendant showed up without notice (in the sense that a specific date had not been assigned), causing her some discomfort and inconvenience.

The owner had also not procured a building permit, although this was rectified (again at some inconvenience) during the course of the project. [ 6 ] In the course of so doing, the Defendant naturally had to dig. This caused inevitable damage to the landscaping – more so than necessary, according to the Claimant (and of significant concern to Ms. Vaters given the proximity to Halloween and the trip hazard for children). In an ensuing conversation, Mr. White offered Mr. Vaters (who has experience with earth-moving machinery) use of one of

his machines the following spring for landscaping purposes. The photographic evidence indeed shows that pre-construction, the Vaters’ front and side lawns were neat and tidy. Afterwards – not so much. [ 7 ] There is no indication that “landscaping,” per se, was part of the contract. That said, it was incumbent upon the Defendant to perform its tasks in a competent fashion, including restricting its landscaping impairment to a reasonable limit.

In other words, while the Claimants were not entitled to have the land put back in its original state, neither was the Defendant entitled to leave an unnecessary “moonscape.” [ 8 ] The Claimant paid the $2019.40 bill, in cash, on November 12, 2020. Notably – and this will play into my findings on liability and responsibility – no mention appears to have been made in writing or orally as to the Defendant’s warranty or his views on the duration of his liability for errors or omissions. Mr. White admitted this was not communicated to the Claimants.

John Vaters further asserts that the invoice put in evidence at the hearing (dated October 23, 2020) was not presented to him – although the quote was – prior to the hearing. Although I have my personal suspicions about how this was accounted for, what is important to this hearing is that the quote dated October 16, 2020 provided for the scope of work (and did not reference any warranty). [ 9 ] On April 21, 2021, Riley Vaters (who testified) discovered sewer leakage on the main floor, which appears to have originated from a toilet backup. It expanded onto the porch. It damaged the associated flooded area.

It also dripped down into the lower floor laundry room. [ 10 ] TNB Plumbing, whom the Claimants engaged to remediate the issue (thinking that the problem originated inside the house), alleged that the Defendant’s work was defective; in particular, a failure to provide adequate and properly compacted fill had caused a pipe to “kink” at a junction point allegedly resulting in a blockage; they also said that a flange was installed upside down and another part (unspecified, but according to John Vaters perhaps a water shut off valve) was missing completely. [ 11 ] TNB’s total of two bills was $1575.45. [ 12 ] There was a second sewer incident on and after April 23, 2021.

This was ultimately resolved after several days when Mr. Vaters “blew out” the line. [1] [ 13 ] Although these were somewhat discrete, I will refer to them collectively as one matter, namely the “sewer event.” [ 14 ] Various phone attempts (according to the Claimant) to contact Mr. White were unsuccessful.

He answered an email on June 25, 2021 with (this is verbatim) “U should of called us to come and repair it wouldn’t of been a problem” and on the same date “we will not be paying anyone else u are on your own thanks.” Predictably, this did not sit well with the Claimants. [ 15 ] The sewer line, with the TNB repairs and subsequent snaking by the Claimant, has worked fine since. [ 16 ] The next aqueous event was on February 18, 2022, a time of apparent heavy rainfall and/or snow melt (over 100 mm rain, plus 3-4 feet of snow on the ground).

A point of entry for a water line (that is, the foundation itself) was found to be leaking heavily; White had installed this line for future use. Upon excavation, it was found that the outside seal around the pipe (if any – its existence is contested) had failed and constituted the source of entry.

The Claimants also asserted – to the Defendant’s denial – that the Defendant had hit the foundation with its excavator during the original work, causing (further) cracks. [ 17 ] Much drama with shop-vacs and generators (the house lost power apparently due to the weather events) ensued; again, photographic evidence of the damage was introduced to me, as well as estimates for remediation and lists of replacement costs for items damaged or destroyed.

They also claim for their time spent, at various and generally modest hourly rates. [ 18 ] The Claimants were ultimately successful in plugging the foundation with a quick-set cement. [ 19 ] I will refer to this water line entry point damages as a ‘second incident,’ or the “water line” event. [ 20 ] Mr. White denied liability; according to the Claimant, this was the first they were apprised of the Defendant’s apparent policy of providing a “two year warranty,” which Mr.

White said was now up (although two years had not passed; as will appear, all other references were to one year and this may have been misspoken or misunderstood). Further, Mr. White asserted (and at the hearing emphasized repeatedly) that he “did not do indoor work” and that inside pipe sealing was the Claimant’s responsibility. To repeat, he admitted at the hearing that he did not tell the Claimants about any (express) warranty. [ 21 ] Mr. White, and his employees who testified, were adamant that the outside wall was sealed (and not hit with the excavator, as Ms.

Vaters insisted); that landscaping and inside work was not included; and that the sewer line was installed properly, and properly compacted with adequate fill – and that any “kink” was either caused during the TNB excavation or – because the slope was still negative and because “[sewage] flows downhill,” not the cause of the backup.

Although the Defendant did not raise the issue of betterment at the hearing, it was pleaded in its defence (which appears to have been drafted by or with the assistance of counsel; if so, a limited-scope engagement which was both proper and advisable). [ 22 ] John Vaters told the Court (in response to questions put by it) that the house is 28 or 30 years old; the upstairs is original; the downstairs, while newer in its finish, was done before he purchased the house 12 or 13 years ago. [ 23 ] Mr.

White testified that, in 25 years in business (more, when combined with “his father before him”), he had installed “thousands” of sewer lines, with a “one year guarantee, that’s it.” [2] He further testified that the soil conditions in October 2020 were “very soupy,” [3] precluding aggressive compacting as doing so would crush the pipe. He was adamant that he did not hit the foundation and that he would have remediated any issues (within his warranty period) if contacted.

He further insisted that the twisted coupling, which he referred to as an “MJ” might have settled but since it was still sloping downhill, was not the cause of any problem. He further testified that he was able partially to backfill the job prior to municipal inspection because the local inspectors “know we do a good job.”

[ 24 ] I note again that he confirmed on cross-examination that he did not specify any warranty at the time of the work. He further emphasized that he “does not do inside work” and that relevant permits are the responsibility of the homeowner. So is landscaping, subject to his offer to provide a machine for Mr. Vaters’ springtime use. [ 25 ] Mr. White speculated that the water line (or its seal to the house) may have been damaged during the TNB excavation – the lines are in proximity, although the water line is below the frostline. [ 26 ] In my view, the resultant issues are: 1.

Responsibility for the landscaping damage; 2. Responsibility for the sewage line “kink” and causation of damage; 3. Responsibility for the water line entrance leak and resultant damage; 4. Interaction of the foregoing with third party remediation and the undisclosed “warranty;’ and 5. Betterment and net damages, together with interest and costs.

The landscaping [ 27 ] There is no indication that landscaping remediation was included in the quotation; indeed, all evidence is to the contrary. [ 28 ] I have no doubt that the Claimants were disappointed in the state in which the property was left; I also have no doubt that the Claimants’ aggravation was exacerbated by the Defendant turning up unexpectedly and in its communication after-the-fact.

And, for clarity, while some disruption is to be expected, the Defendant did not have carte blanche to turn the lawn into no-man’s-land. [ 29 ] That said, the Defendant did offer use of a machine (John Vaters is an experienced operator, to Mr. White’s knowledge) the following spring, and this was not accepted or at least not utilized by the Claimants. I find that if there was any excess damage to the lawn and landscaping for which the Defendant would otherwise been responsible, the Claimants failed to mitigate their damages as a result.

They claim $227.70 for lawn seed, and $50 “straw and pick up for lawn seed.” I disallow these amounts. There is also an unspecified $600 for “dig up front lawn for 3 rd time, seal outside water pipe, replace Drainage material, fill in, reseed, etc.” I will address this separately when dealing with the water line leak.

The sewer line ‘kink’ and the first flood [ 30 ] Effluent may be expected to flow downhill, but it is not expected to take the slalom course. [ 31 ] The evidence satisfies me that although the pipe in question continued to have a negative slope, it was adversely impacted by the kinked coupler shown in evidence, and that this ‘kink’ was caused by the defective installation, gravelling, and backfilling by the Defendant. The extent of the backup and damage may or may not have been exacerbated by the other uninstalled or mis-installed items; certainly it did not help.

I also note that the coupler is also a reducer, taking a 6” pipe down to a 4” pipe and, when combined with this “elbow” effect, would reduce the efficiency by which the effluent would make its way to the sewer. [ 32 ] There was evidence that the graveling was inadequate and perhaps of the wrong size, and combined with the lack of compaction and wet conditions at the time of installation, resulted in the distortion and failure in question. For that, the Defendant is liable with or without its professed warranty. I will discuss damages later.

The water line leak [ 33 ] I come to a different conclusion with respect to the water line site leak. While I do not accept the Defendant’s speculation – one may say “excuses” – that the Claimant was “out of warranty” so to speak and/or that the first excavation may have disturbed the foundation hole, the burden is on the Claimant to prove that the Defendant was derelict in performing its work, and that the damage ensued as a consequence. I find that the Claimants have not done so. [ 34 ] First, it was common ground that the water infiltration was at a time of very heavy precipitation, coupled with ground snow.

While not a “hundred year event,” the evidence was that the rain was heavy with pre-existing ground saturation. It was for the Claimants to prove that a competently performed job (a year and a half prior) would have survived the circumstances. [ 35 ] Second, I accept the evidence of the Defendant’s witnesses on the point that the outside perimeter of the hole was sealed. The Claimants did not observe every step of the construction process, and were not in a position to contradict this testimony.

Given that the evidence further was that plugging the hole ultimately plugged the leak, I cannot accept that there were any foundation impacts that caused other failures. [ 36 ] Third, the Claimants did not seal the interior of the property, even after a prior (minor) leak, and after being on notice that further attention might be desirable. [ 37 ] Fourth, in all of the circumstances and notwithstanding that the Defendant did not make its purported “warranty” known to the Claimants, it is not obliged to “stand behind” its work forever.

While it may have been liable for an ordinary-circumstance failure after a year and a half, when taken in conjunction with the extraordinary weather events I have outlined, I cannot on a balance of probabilities conclude that a failure in these circumstances attracts either contractual or tortious liability on the part of the Defendant. [ 38 ] In doing so, I in no way condone the Defendant’s cavalier attitude towards the events. That is, for good or for bad, a judgment to be made by the marketplace and not by this Court.

[ 39 ] I observed Mr. White in his video testimony. While he may be allowed considerable latitude in being direct and even blunt (especially in an adversarial environment such as this), I found that his protestations that he would take care of any problems brought to his attention in first instance lacked credibility.

I consider him more to be of the “not my circus, not my monkeys” school of thought, and although he has been partially successful in this case, it is more reflective of the specific facts at hand and the burden of proof (in the case of the water line incident) than of his quality of work and willingness to stand behind it. I agree with the Claimants that the Defendant’s overall case theory was to “pass the buck.” Engaging a new contractor rather than calling the Defendant [ 40 ] I add that I consider it reasonable for the Claimants to have engaged a separate contractor for their problems.

First, they hypothesized that the sewer backup was an “inside job,” and not a problem with the sewer line. Second, they were not aware of any express warranty by the Defendant; and third, when they approached the Defendant (albeit after the fact on the sewer issue), his response of “u are on your own” was highly unprofessional to say the least.

When combined with their prior dissatisfaction with the way the Defendant appeared to do the work, and the condition in which he left the property, viewed holistically I cannot blame the Claimant for going elsewhere. [ 41 ] Although I have dismissed the claim with respect to the leak at the water line entrance, I would add that had it been successful I would have no hesitation in finding that it was reasonable not to have engaged the Defendant. By that time, the Claimants were on express notice that the Defendant, in the most categorical terms, had “washed its hands” of the Claimants and their issues.

This is especially so given the urgency and magnitude of the flood at hand. Betterment and Damages [ 42 ] The Claimants have submitted receipts and estimates which, speaking globally, seek to replace the household damage. They also seek compensation for their time spent, repairs incurred, and the nominal jurisdictional limit of $100 each for general damages (ie for loss of enjoyment and nuisance). [ 43 ] I have reviewed the photographic evidence. As noted, the main floor is ‘original’ in the sense that the flooring and other materials are approximately 31-32 years old.

They may fairly be said to be at or near the end of their economic life – in the sense that although you could still “walk on the floor,” it is worn and dated. The Defendant, unlike a replacement-cost insurer, is not responsible to “replace old with new,” but only to compensate the Claimants for the value of what they have lost as a result of its defective work. In law this is known as “betterment,” recognizing that it is impossible to “install a 30 year old floor,” but also recognizing that a new replacement is superior to what it has supplanted.

Put in cash terms, it is the depreciated value of what has been replaced. Since what I have in evidence is replacement value, this needs to be discounted appropriately. [ 44 ] As it turns out, there was no estimate or evidence provided for flooring or trim damage on the main floor. I discuss cleaning and disinfection below. [ 45 ] I did not have any estimates of the effective useful life of “a floor,” per se . I have, however, reviewed the photographs as noted.

Doing the best I can, I reiterate that the main floor was at or near the end of its useful life; allowing that the Claimants had no apparent immediate plans to replace it for safety or even aesthetic purposes, if there had been a claim for flooring damage to the main level I would have allowed that it had 20% remaining utility (in other words, similar new product should be reduced by 80% to allow for betterment). [ 46 ] The only evidence on the lower floor that I had was that it was “newer than the main level” but still at least as old as Mr. Vaters’ ownership.

It appears to be largely of “rec room” fit and finish, by which I also surmise that it may be stretched to a longer life than primary living space. Although I reiterate that I have dismissed the water line entrance claim, I would assess damages at 50% of proven estimated replacement. I apply a similar ratio to the damages caused to the lower level by the sewer events. [ 47 ] There are claims for damages to various chattels – cabinets and children’s toys, mostly.

I will apply a 50% betterment to the replacement estimates I have in evidence. [ 48 ] I will allow the full value of sewer-damaged tiles and wall panels as these would not have the same economic lifespan as flooring or furniture. [ 49 ] I allow the cost of cleaning related to the sewer events, except as noted pertaining to labour. [ 50 ] I allow the TNB bills in full. I do not allow the claim for repayment of the Defendant’s account as this would be double- counting. [ 51 ] I allow the cost of filing and of service.

I also allow the cost of copying. [ 52 ] As noted, I disallow any claim for landscaping given the indeterminate nature by which the Defendant’s actions exceeded reasonability, and given its offer to supply machinery for the spring of 2021 for Mr. Vaters’ use. There is no evidence that the expenditures on seed, etc. were in excess of what they would have spent had the land been left “post dig” in a condition satisfactory to the Vaters. [ 53 ] I have reviewed the time claimed by the Claimants, and the rates. They claim $18.54 per hour Ms. Vaters, and $12.95 for each of the junior Vaters.

John Vaters is “charged out” at $34, with no explanation for this. I surmise this may have been his lost work time, but if so, that is not the proper calculation – it would be what his time on this job would be worth, and accordingly I set it at the same $18.54 Ms. Vaters claims (these rather specific figures were not explained to me, but I find them reasonable). This is with respect to the sewer events.

I do not discount these for ‘betterment’ given that they relate primarily to cleaning and disinfecting. [ 54 ] Gas, trips, cleaning supplies, snake, blown tire, disposed items – the Claimants list $250 which I disallow as lacking

evidence/specificity. The blown tire is too remote to sound in damages. They also claim mileage to provide documentation to the process server, to obtain estimates, to various stores, and to a stationers’. I do not award these as being procedural and not broken down between the claims I have allowed, or disallowed. They also do not satisfy me that they are reasonable and necessary versus, for example, using post or having the process server retrieve documents, or otherwise mitigated expense.

Finally, the $0.61/km rate was not explained nor does it correspond with current governmental standards. [ 55 ] I allow the statutory limit for general damages of $200. I have no doubt this was both a proverbial and literal “s- show” for the Claimants and, having been claimed, is awarded.

The resultant net damages may be summarized as follows: Dollhouse and cabinets: $692.98 x 50% = $346.49 TNB accounts: $1,575.45 Children’s toys $500 x 50% = $250.00 Time/cleaning – two adults, 11 hours each @ $18.54 = $407.88 Time/cleaning – three minors, 11 hours each @ $12.95 = $427.35 Shampooing – one adult, 3 hours @ $18.54 = $55.62 Time/cleaning (2 nd sewer event) – two adults, 8 hours each @ $18.54 = $296.64 Time/cleaning (2 nd sewer event) – three minors, 8 hours each @ $12.95 = $310.80 Shampooing (2 nd sewer event) – 1 adult, 3 hours @ $18.54 = $55.62 Tiles and wall panel - $300.13 Carpet estimate $5,357.92 x .5 = $2,678.96 General damages: $200 Subtotal: $6,904.94 Add: Filing and service: $492.11 Grand total: $7,397.05 [ 56 ] I allow interest on $4,225.98 at the simple rate of 4% from June 25, 2021 (when the Defendant told the Claimants they were “on their own”) to judgment (March 8, 2023 when I completed drafting).

I do not allow prejudgment interest on the flooring estimate as there is no evidence that expense was in fact yet incurred. I also do not allow interest on the filing, service, and copying as these were incurred in late 2022. I calculate this at 622 days x $4,225.98 x 4% = $288.06. If applicable, the per diem to the Order will be $0.46. [ 57 ] As noted, I dismiss the claims related to the water line entry flood. [ 58 ] Judgment against the corporation White’s Backhoeing and Trucking Co. Ltd., accordingly. Balmanoukian, Adj.