Viktoria Granite v. Marble Ltd., 2010 SKPC 166

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 166 Date: November 26, 2010 File: SC# NB083 of 2009 Location: North Battleford _____________________________________________________________________________ Between: Viktoria Granite and Marble Ltd. - and - Allan Franczuk R. Kirkham Counsel for the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT R.D. JACKSON , J _____________________________________________________________________________ I INTRODUCTION [ 1 ] Prior to the trial commencing Plaintiff’s counsel advised that only paragraphs 5 and 7 were being advanced and that all other

portions of the claim were abandoned accordingly. Paragraphs 5 and 7 are hereinafter repeated: 5. In July, 2009 the Plaintiff had a contract to do work in a kitchen for a customer at 11 - 16 th Avenue, Battleford, Sask. The Defendant performed the work at that location, and in doing the work was grossly negligent in that he took the customer’s silverware and used the customer’s silverware to shim the granite, which led to the granite breaking when the customer removed his silverware, and the cost of redoing the work, including the granite was $2,500.00. 7.

While the Defendant was employed by the Plaintiff, he was provided with the use of a company vehicle which was to be used solely for employment purposes. The truck was a 2005 Ford F150 and the Plaintiff alleges that the Defendant while using the truck for personal use, caused damage to the vehicle with repairs estimated at $2,176.26. [ 2 ] The Plaintiff called Ronald Cyr, President of Viktoria Granite, as well as Shane McCabe, employee of Viktoria Granite.

The Defendant called Blair Hawley, former employee of the Plaintiff company and Kevin Reed, current employer of the Defendant and expert in granite countertop installation and removal. Curiously, the Defendant himself declined to testify. The Court explained that adjudication of fact could only be on sworn evidence and that an adverse inference could be drawn against him regarding his failure to testify on matters within his knowledge. [1] The Defendant however maintained that he was choosing not to give evidence.

II THE LAW [ 3 ] Although not usual, there are circumstances in which employees can be held accountable for their actions to their employer founded in contract and tort.

For contractual liability to accrue to the employee, the onus is on the employer to show that the breach alleged was that of an explicit or implied term clearly made known to the employee that he or she would be responsible for such loss as was occasioned. [2] As far as tort is concerned, mere negligence in the work place does not appear sufficient to warrant action against the employee but rather it must be gross negligence or wilful misconduct which would accrue liability to the employee. [3] III FINDINGS OF FACT [ 4 ] As far as causation of the damages is concerned, the Court is satisfied in both instances i.e. with respect to the damage to the granite and secondly to that of the truck, that the Defendant is responsible.

In the first instance regarding the granite, the Plaintiff submitted photographic evidence to satisfy the Court that the Defendant who had exclusive opportunity to do so, inserted the butter knife into the granite slab utilizing it as a “shim”. Subsequent removal of the butter knife then caused the granite countertop to buckle and crack.

This was the reasonable consequence of such removal given that the butter knife was being utilized as a levelling shim. [ 5 ] As far as the truck is concerned, the Court is satisfied that the damage to the seat and truck bumper were occasioned throughout the period where the Defendant had the sole use of the truck for both business and personal purposes. In both instances, the Court draws an adverse inference to the contrary by the Defendant’s failure to testify on those points where he certainly would have had the knowledge and opportunity to do so. [4] IV APPLICATION OF LAW TO THE FACTS AS FOUND

a) Granite

[ 6 ] The Plaintiff maintains that the Defendant was grossly negligent in his workmanship concerning the installation of the granite countertop at the “Ellis residence”. Specifically, the Defendant used silverware - namely a butter knife, belonging to the homeowner to shim the main granite slab for the countertop. When the homeowner pulled out the knife not knowing or understanding why his knife would be protruding from his newly installed and expensive granite countertop, the granite cracked necessitating that it be replaced, as indicated above. [ 7 ] Both Mr.

Cyr and his employee, Shane McCabe, testified that the proper way to shim or level the granite is to use small wooden cedar pieces which would be cut so as not to be protruding and then be siliconed over to emasculate their presence. The shims would thereby be permanently installed and essentially invisible to the naked eye. Mr. McCabe testified that the Defendant would have known this having accompanied him on numerous installations - “over fifty”. Mr.

Kevin Reed, current employer of the Defendant who owns and operates a granite countertop business also confirmed in cross-examination that silverware would never be used to shim granite - “anyone would and should know better” according to Mr. Reed. [ 8 ] The Court is satisfied that the methodology described here to shim the granite was highly unprofessional to the extent of gross negligence or wilful misconduct on the part of the Defendant. On the evidence before the Court there is no other logical conclusion.

As a result, when the silverware was removed by the homeowner the granite countertop cracked under its own weight necessitating according to the Plaintiff its complete removal and replacement. The Defendant’s witness, Mr. Kevin Reed, testified that in his opinion when a crack of this nature occurs it is not always necessary to actually replace the granite citing some other less expensive remedial measures.

He conceded however in cross-examination that he had never examined the particular granite in question nor had any opportunity otherwise to assess whether or not replacement would have been appropriate in these circumstances.

Accordingly, the Court is satisfied on balance that the Plaintiff’s evidence regarding replacement for this residential contract was the appropriate remedy. [ 9 ] As far as damages are concerned, the Plaintiff testified that the cost of replacement of the granite countertop was “about $2,400.00 - $2,500.00 determined as follows: Granite piece $1,800.00 (labour cost to remove - 2 persons x 10 hours @ $14.00 per hour) 280.00 Travel cost to Edmonton to pick up new granite pieces 200.00 Permit to haul granite 40.00 Labour cost to cut granite (8 hours @ $14.00 per hour) 112.00 Labour cost to install granite (2 persons x 8 hours @ $14.00 per hour) 224.00

TOTAL $2,656.00 [ 10 ] The Plaintiff did not produce employment records to substantiate the time spent nor receipts for any expenditures. Mr. Cyr acknowledged the figures utilized for labour costs and travel expenditures were estimates only. In the circumstances, the Court is prepared to allow the cost of the granite at $1,800.00, the permit for $40.00 and a rounded estimation for overall labour costs and expenses for $500.00 for a total of $2,340.00.

b) Truck Damage [ 11 ] The Plaintiff claims for damages sustained to the company’s leased 2005 Ford F-150 truck which the Defendant had the sole use of. The damage complained of consisted of a hole worn through the top of the driver’s side seat as well as a dent on the bottom of the rear bumper. In Canada Packers v. Kennedy , supra, at para. 15 Batten C.J. states: . . .

The onus is then on the employer who seeks to claim damages against the employee to prove to the satisfaction of the Court firstly, the terms of the contract explicit or implied between them, and secondly, the breach of the terms or terms by the employee and thirdly, the damages occasioned by or as a direct consequence of such breach, in order to obtain judgment against the employee. [5] [ 12 ] In this particular case the Court is not satisfied on the evidence that the employer had a term of contract explicit or implied with the Defendant that any damage occasioned to the vehicle during his use thereof either through work or otherwise, would be his responsibility.

The Plaintiff testified that he in fact did not raise any of these matters with him once he noticed damage to the vehicle because he was under the assumption, rightfully or otherwise, that the Defendant would be purchasing the vehicle from the company on lease expiration. [ 13 ] Accordingly, the Court is not satisfied that the Plaintiff has discharged his onus to prove liability against the Defendant in these circumstances for damages to the company truck.

V CONCLUSION [ 14 ] The Plaintiff shall have judgment against the Defendant in the sum of $2,340.00 plus cost of issuing the claim and service fees, if any. _________________ R.D. Jackson, J

[1] Murray v. City of Saskatoon, (1950) (SK KB), 1 W.W.R. (N.S.) 357 Sask. K.B.; (1951) (SK CA),4 W.W.R. (N.S.) 234 (Sask. C.A.) [2] Canada Packers Inc. V. Kennedy, (1983), (SK KB), 27 Sask. R. 201 (Sask. Q.B.) [3] Douglas v. Kinger, 2008 ONCA 452 , 294 D.L.R. (4th) 267, 90 O.R. (3d) 721 (Ont. C.A.) [4] Murray, supra [5]See also Kleinsasser v. Alexander (SK KB), [1994] 10 W.W.R. 100 (Sask. Q.B.), a similar case on the facts wherethe company truck was damaged by the employee who was found not liable for such damage because no such contractual term wasproven to warrant liability.