Henry Lunn Operating as a business under the trade name v. style of City Bobcat Services, 2016 SKPC 096

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 096 Date: March 31, 2016 File: 155/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Henry Lunn Operating as a business under the trade name and style of City Bobcat Services - and - Sean Phillips Henry Lunn Self represented Nathan Phillips For the Defendant JUDGMENT P.

DEMONG, J Introduction [ 1 ] Henry Lunn has brought action seeking to recover monies which he says are due and owing for goods and services that he supplied to the defendant Sean Phillips while Sean was constructing his house. His claim alleges that he provided the goods and services and submitted invoices but that Sean refused to pay the invoices for the goods and services provided.

[ 2 ] Sean’s defence denies each and every allegation set forth in the claim. It specifically denies the extent and amount of materials and services provided. It denies that Sean requested and/or received all of the goods and services alleged. It denies the price of the goods and services alleged. It alleges that the goods and services provided under the contract were defective. It alleges negligent performance of the contract. It claims setoff for the cost of completing the defective work, and challenges the plaintiff’s right to claim interest under the contract. [ 3 ] Pleadings in this court are rudimentary.

In the result, a trial judge’s initial sense as to how an action will unfold at trial, is limited. There is no specific provision in The Small Claims Act, 1997, allowing for a demand for particulars, nor do the parties participate in pre- trial oral questioning. As a result, the essence of any given claim or a defence is not fully understood by one party or the other until the case has gone in, and the trial is concluded. This lack of clarity affects the Court’s perception of how to provide direction to self- represented litigants when that direction is required for the orderly progress of the trial.

Many of these problems could be alleviated, or at least dealt with at Case Management or pre-trial hearings, if the parties recognize the importance, at least in so far as this case is concerned, of drafting a defence to the claim that speaks directly to the essence of the plaintiff’s claim, and articulates the substance of the defence which will be proffered at trial. [ 4 ] At first glance, any experienced judge or lawyer would regard this action as a battle over the nature, quality, and extent of the goods and services actually provided under a contract and a counterclaim (the defendant uses the term setoff) for correcting alleged deficiencies. [ 5 ] However, the true nature of the defendant’s position was not made known to the court until it was set forth in his brief of law, which was filed ten days after the trial had concluded. [ 6 ] The defendant led evidence to the effect that Sean sought to build his house as cost effectively as possible.

Where possible, he did much of the work himself, and relied on close friends and family to assist with much of the labour component and again where possible, the provision of materials on a purely ‘costs of materials’ basis only. This had been described in court as a ‘friends and family discount’.

The suggestion is that Sean’s close family and friends do this in recognition that, in exchange, Sean would extend his own free labour, and arguably materials at cost to these individuals as, and when, his assistance was sought on projects that they undertake. [ 7 ] The true substance of Sean’s defence appears to be twofold.

First, because Henry Lunn was a friend and a family member, he knew or ought to have known, and in fact did, recognize this close familial connection, and offered to do much of the work for free or at cost, and to supply the materials for free or at cost, and would not seek payment for those labourers and the use of the machinery that he had to employ in the provision of those construction services. [ 8 ] Second, the defendant seeks to have the court conclude that throughout the construction process, while some of the work that Henry did was subject to an express contract in which the prices for some goods and services were agreed to between the parties, any other work that Henry did, and any other goods that Henry supplied, were not expressly requested by Sean, or if they were, there was no agreement as to the price that would be charged for those goods and services. [ 9 ] He argues that as a result, because the parties were not ad idem regarding an essential term of the contract - the price to be paid - there is no enforceable contract for the provision of these additional goods and services.

Ergo , Henry’s claim for payment must be predicated on an assessment of a fair and reasonable price to be paid, on a restitutionary quantum meruit basis. [ 10 ] It is therefore urged upon the court that while it may be unfortunate for Henry, he cannot claim for the vast majority of the goods and services that were provided because this Court, in accordance with the recent decision of Mr.

Justice Zuk, of our Court of Queen’s Bench, in Hope v Parkdale No. 498 (Rural Municipality) , 2015 SKQB 194 , 2015 CarswellSask 443 , lacks jurisdiction to provide relief in the nature of restitutionary quantum meruit because it is an equitable remedy and equitable remedies are the exclusive province of The Court of Queen’s Bench.Simply put, Sean alleges that the plaintiff is barred from claiming a substantial portion of his debt because this court lacks jurisdiction to make any award for his loss. Any monies due and owing do not technically arise from a debt, but rather from an unjust enrichment.

[ 11 ] The problem, which I alluded to earlier, is that if the true nature of Sean’s defence was articulated with greater precision in his pleadings, then, pursuant to

section 11 of the Act, I could have ordered the matter to be transferred to the Court of Queen’s Bench, either by consent of the parties, or, on my own direction, if I were satisfied that the defence involved a matter to which this Act does not apply. In that event, the Court of Queen’s Bench, with its equitable jurisdiction, could have resolved the dispute in question, and provided the necessary remedy.

If the true nature of the defence had been plead, I could have, before or during trial, given instruction to the parties on the correct methodology to be employed in assessing and quantifying Henry’s loss on a quantum meruit basis, something that neither the plaintiff, nor the defendant appear to have considered. [ 12 ] In the instant circumstances, the defendant is represented by counsel. There is a disparity between counsel’s understanding of the law, and the understanding of the law possessed by the plaintiff.

Regardless of that disparity, I am of the view that each are required to plead and present their respective positions in good faith based on their respective abilities. If, as the defendant now contends, the essence of his defence is that certain goods and services were intended to be advanced on a ‘cost only’ basis, that is to say, advanced to him, to some extent, gratuitously; and if the alternative defence is that this court has no jurisdiction in relation to some or most of this matter, then that should have been plead.

It is the duty of a party pleading to state the case he or she intends to put forward so that the opposite party may know what is required to be met. In order for a Court to adjudicate in a timely and just manner, the issues to be tried must be clearly defined, and therefore, the pleadings must make a full and frank disclosure of all matters which the respective parties rely on to support their claims and defences. [See Generally the commentary and analysis set forth in 27 C.E,D, (West. 3 rd ) at p.113-77].

In the instant circumstance, the defendant took no steps prior to, or during, or even after trial, to amend its pleadings to allege that some of the services were intended to be provided for free; or that the goods and services were provided under a mistake of law or fact and therefore this Court lacks jurisdiction. I will speak to that matter in due course. Nevertheless, the failure of each party to identify and anticipate the manner in which each should have identified and quantified the losses causes difficulty for this Court. Issues [ 13 ] There are a number of issues which must be determined. They are:

i) What is the nature and extent of the goods and services that Henry provided to Sean during the construction of Sean’s house? ii) Were the goods and services provided in a good and workmanlike manner, or were there deficiencies that had to be corrected? iii) What was the nature of the agreement for the provision of these goods and services?

Was a contract entered into and, if so, was there, at any time, an understanding that certain of these goods and services would be provided at a reduced cost or for free? iv) Were the parties in agreement as to the price that would be charged for the goods and services provided? If there was no consensus on this point does the agreement to provide these goods and services fail because the parties were not ad idem on an essential term of the contract?

v) If the agreement fails because there was not consensus on the price to be charged, is Henry entitled to charge a fair and reasonable price for those goods and services under the law of restitutionary quantum meruit ?

Does this Court have the jurisdiction to make an award of damages for this type of equitable relief? vi) If there was an agreement to provide the goods and services and these were in fact provided, is Henry entitled to recover damages on the basis of contractual quantum meruit ? vii) What evidence should be advanced to support a claim for damages in the context of a claim for contractual quantum meruit ? Has Henry proven his damages?

If he has not and if I conclude that he was, in good faith, mistaken as to the manner in which those damages had to be quantified, am I at liberty to call for additional evidence from each of the parties on this essential component of the action?

viii) Is Henry entitled to interest on any monies that he is awarded, other than on the basis of a Prejudgment Interest Act calculation? ix) What, if any, other relief is available to the parties, either pursuant to the claim or the counterclaim? Evidence and Analysis [ 14 ] This case turns, to a great extent, on the credibility of the parties. I would note that in arrangements such as these, where there is no express written agreement covering the multitude of goods and services advanced, and the manner in which the contract is to be performed, credibility of the parties is very much in issue.

In assessing the evidence, I have considered the witnesses’ ability and opportunity to observe the events, their level of experience relating to any technical matters in issue, the firmness of their respective memories, their willingness to allow concessions where recollection may be faulty, and their willingness to address the questions put to them directly, rather than any attempt to qualify or spin their answers. I have considered whether or not the testimony seems unreasonable or unlikely or has been tainted by their ability to observe other witnesses testify and thereby temper their evidence.

I have done so in the context of attempting to determine which version of the events, is, as has been described in Bradshaw v Stenner , 2010 BCSC 1398 at para 187 ‘ the most consistent with the preponderance of probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions’. [ 15 ] Henry Lunn carries on business under the trade name of City Bobcat Services. He started that business in 1978.

He had been in the business of excavating land and drilling support piles (piles are deep holes which are drilled into the ground and then filled with concrete and re-bar to provide structural support for a building), for both residential and commercial properties for the better part of 38 years. He says that he has extensive experience in running a variety of different kinds of machinery and equipment, including caterpillars, tractors, mini-excavators, and bobcats. He is familiar with the manner in which concrete and re-bar are laid into the piles that are drilled.

He says that he is familiar with what is required, and the precision that is required, in the placement of piles. He is of the view that good workmanship demands that before the piles are drilled, a surveyor, or someone with much experience, should be retained to lay out, with precision, the location of the pins beneath which the piles are to be drilled. He concedes that while he could probably do this, his advice to anyone, and his specific advice to Sean, was that the pins should be laid out by an expert. The relevance of this information will soon become apparent.

Henry says that when he is asked to provide practical assistance to anyone that he is working for, he stands ready and willing to share his 38 years of experience. [ 16 ] Henry was cross-examined at great length on the manner in which he provided goods and services for the defendant. He stood fast as to the propriety in which he and his crew did their work and the hours that were incurred in the process of providing that work.

Where the manner in which he did his work is at odds with defence counsel’s suggestion of lack of good workmanship, or where the number of hours required to do the work were impugned - suggestions which were not credibly supported by any defence witness - I prefer Henry’s testimony. Where the manner in which Henry did his work is impugned by Sean, himself. I prefer Henry’s evidence. Sean Phillips, by his own admission, has no real experience in excavating a hole, sloping land, drilling piles, or the placement of pins in order to identify where piles should be placed.

He is a social worker by profession and he has only a limited understanding of these matters, gleaned, in part, by working on a sidewalk crew for a short period of time, and by helping his uncles when they were building their houses or cottages. [ 17 ] I found Henry to be a very credible witness. He frankly conceded some limitations in his memory which I do not find to be important. The work that he did in this action is no different than hundreds of other jobs that he would have done in the past. His failure to recall, with precision, some nominal aspects of this job is, in my view, insignificant.

Henry presented at court as a reliable and hardworking individual - someone who has amassed a significant degree of experience and who is more than willing to offer advice to those in need as and when it is needed, particularly when that advice assists the timely completion of a construction project in which he participates. [ 18 ] Henry says that in or about May of 2014, he received a call from Sean Phillips requesting that he quote a price to drill a number of piles for the home that Sean was building in Regina. His recollection is that Sean contacted him first.

When presented with a suggestion that Sean’s mother Dianne contacted him first, he thought not, but he could not be sure, but she may have. He indicated to Sean that he would be prepared to undertake the job and agreed to a price of $2.00 per vertical foot drilled per pile. Shortly thereafter, he received the engineering specifications for the home which were sent to him by e-mail from Sean with a short note that said ‘Thank you

so much for your help’. [ 19 ] Henry says that shortly thereafter, he received another call from Sean, who advised him that he had hired a contractor to excavate the basement at a cost of $6,500.00, but that ‘the contractor had bailed’. He says that Sean then invited him to attend at the site and consider quoting on the job. Henry did so and advised Sean that he could excavate the basement for $2,500.00. Sean agreed to that price. There was no specific price quoted for removal of the excavated dirt from the hole that was excavated, or from the piles that were drilled.

These, Henry says, would obviously be in addition because the standard rate for drilling only is $2.00 per foot. [ 20 ] Henry says that he attended at the premises with his workers and equipment on June 17, 2014, and excavated the basement. After finishing the work and while Sean was present, Henry says that he pointed out to Sean that the north side of his property was higher than the south, and that, in the event of rain, and to avoid any great accumulation of water into the excavation site, he should talk to his neighbour to see if they might run a hose from their eave spout to redirect rain.

I accept that he had this conversation. His comments were prescient. In the ensuing days, Regina had significant rainfall, and the excavated hole filled with water to a significant extent. This is confirmed by a photograph taken of the excavation on June 18. This water accumulation delayed work on the project for a period of time. A further photograph taken July 1 of 2014 clearly shows that the excavation still held water and the ground was extremely muddy.

It shows that the sides of the excavation had fallen in to a significant degree. [ 21 ] In consequence, Henry says that he had his employees attend on site to remediate the excavation. He says that on July 5, one of his labourers came out to dig away the accumulated mud with a bobcat, haul it away, and lay down and compact dry dirt. From shop to shop, the labourer says that he charged four hours of time. This would include attending at the shop to get equipment, attend on site, remove the mud and haul it away, and then return to the shop and clean up some of the equipment.

Henry says that he then re-attended the job site on July 6 and finished carving out the slumped-in banks of the excavation, a process that took about 45 minutes. [ 22 ] Sean denies that any work was ever done on July 5. He says that he was at the site on the 5 th of July and no work was done. He insists, rather, that all of the clean-up work was done by Henry on the 6 th day of July and only took about 45 minutes. In support of this he points to a series of photographs of the excavation taken by Diane, Sean’s mom, on July 6.

These photographs show a bobcat in operation and an excavator on site, together with what looks to be a pile of dryish looking soil about four to five feet high and perhaps eight to ten feet across at its base. Sean invites the Court to infer that the pile of soil represents only the 45 minutes of work that was done by Henry on the 6 th day of July, and incorporates any or all of the accumulated wet mud that had been on the bottom of the excavation site. [ 23 ] Sean did not say when he attended to the work site on July 5 or how long he stayed.

He does concede that when he attended the site on July 5 it looked similar to, but somewhat drier, than what is identified in the photograph taken July 1. As indicated, that photograph shows a lot of mud, and a lot of caving in of the sides of the excavation. If, as Sean suggests, all of this was taken out on July 6, then I would have thought that the pile of dirt seen in the photographs taken on July 6 would have more of the appearance of mud than what is shown, which appears to be more like large clumps of dryish dirt. Certainly, to the eye, it is not sloppy mud.

When comparing the evidence on this point, I prefer the evidence of Henry and his labourer who says that he did work at the job site on July 5. If not, where did the mud go? I note that Diane’s evidence as to what occurred on July 6 is the same as Henry’s. She speaks of him carving and squaring the banks, not removing mud and soil from the bottom of the excavation. [ 24 ] Defence counsel spent considerable time suggesting that a period of four hours to do the work on July 5 is wholly unreasonable.

He takes issue with the amount of time that it would take to drive to and from Henry’s shop, which is located across town. He takes issue with the amount of time that it takes to remove the dirt in question. He takes issue with whether Sean should be charged anything during a fifteen minute break that the labourer may have taken for coffee.

He takes issue with the fact that the labourer may have decided to round his hours up to four hours for the work rather than charging for the precise number of minutes charged. [ 25 ] The labourer was allowed to look to his log book to ascertain the number of hours that he worked on this aspect of the job. He had recorded four hours.

Defence counsel asked for a multi-day adjournment and a direction from the Court that this person’s log book be given to counsel so that counsel could engage in a comprehensive analysis of all other jobs that this labourer may have undertaken in the past and the prices charged for other jobs unrelated to this project, ostensibly to then cross-examine this labourer on his comparative hours recorded on each of those jobs. I declined the request. It was, in my view, a fishing expedition on matters collateral to this action which would have required a multi-week adjournment of the trial.

[ 26 ] The evidence before me was that the ground into which a pile is to be drilled must be dry to prevent the accumulation of moisture in that pile. That evidence was uncontroverted. I conclude that this work was done on July 5, and that it was necessarily incidental to the performance of the remainder of the agreement which was to drill piles.

It was necessitated in part because of the extensive rains that had occurred, Sean’s failure to take timely and comprehensive steps to prevent more water entering the dig by seeking the assistance of his neighbours, and by Sean’s nominal attempts to pump the water out of the hole within a reasonable time frame. I do agree with the defendant that the hours recorded may have been rounded up and that they may have reflected time taken for a coffee break.

On the evidence before me I am satisfied that three, and not four hours, would have been the actual number of hours worked. [ 27 ] Henry’s next job was to drill the piles precisely where the pins would have been laid out in accordance with the engineer’s specifications. Henry says that while onsite, he had asked Sean who was going to lay out the pins, and that Sean asked Henry if he would do it. Henry declined, indicating that he had other jobs to do. When Henry asked who would be doing it, Sean replied that his uncle Francis would do it instead.

Sean indicated that Francis is a labourer on a construction crew, and not an expert in surveying, but it is something that he knows Francis had done before. Henry says that he recommended a surveyor, because of the precision that was needed for this important piece of work. [ 28 ] Sean says that he did not engage a surveyor, but instead, laid out the pins for the piles by assisting his uncle Francis. His friend, a dentist by trade, also assisted. Sean was quick to point out that he relied on his uncle’s experience in this endeavour. Sean merely took instructions from his uncle as the pins were placed.

In cross-examination, Sean indicated that he had no actual knowledge that Francis had ever undertaken this kind of project before. On re-examination, he inclined to the view that Francis had probably done this on at least one other occasion. [ 29 ] The placement of these pins became a central issue in this trial. It forms the basis of one of the defendant’s counterclaims. The allegation is that some of the piles were drilled at a location different than what was called for in the engineering specs.

The defendant alleges that Henry’s crew had incorrectly drilled the piles because, during the course of their work, they had either run over or moved certain coverings which had been placed on top of the pins, and instead of replacing them to their correct location, simply drilled in the wrong locations. [ 30 ] Henry absolutely denies this, as does the labourer who actually drilled the piles. Henry indicated that when the piles had been drilled, he asked Sean to explain why some of the pins were in the wrong location, and that Sean said that he and his uncle had measured them wrong.

On cross-examination Sean was asked about this conversation. Sean did not deny that the conversation occurred, he simply could not recall the conversation. I am satisfied that the conversation took place. [ 31 ] Michael Sietz was the labourer on Henry’s crew who actually drilled the piles. He has been drilling piles for the better part of 17 years. Drilling is what he does, almost exclusively. He says that he takes great pride in drilling precisely over the pins that are laid down. He says that he recognizes the importance of placing the drill directly over the pin when he drills.

A mistake has significant ramifications to the supporting structure of the home. When moving his equipment in the excavation, he places wooden circles over the pins so that the placement of those pins are not disturbed if he drives over them with his machinery. In that way, the pins always remain in place. [ 32 ] Mr. Sietz struck me as a dedicated worker, well familiar with his single function on a work site. I believe him when he says that he did not drill at a location other than where a pin was located, and that he drilled directly over top of each of the pins that were laid out.

The issue comes down to this: some piles were drilled at a location different than what was identified in the engineering specifications, which resulted in Sean incurring approximately $168.00 to $252.00 in additional labour to correct this problem. Did the problem arise because Mr. Sietz mistakenly drilled at a wrong location, or did this arise because Sean and his uncle Francis and his friend, a dentist, marked the locations wrong?

This additional cost constitutes one of the nominal counterclaims advanced by Sean. [ 33 ] As I weigh the evidence, I am satisfied that, more likely than not, the pins were laid out wrong. Sean was inexperienced in this very precise aspect of building a house. Had his uncle Francis given evidence, and explained how he did the work, and his level of experience in doing so, it might have affected my conclusion. He was not called to testify. Defence counsel knew or ought to have known that this issue was central to his defence and counterclaim.

Upon recognizing this deficiency in the evidence, defence counsel sought a multi-week adjournment so that Francis could testify on this point. When asked why he was not available, counsel suggested that it was unreasonable to have Francis available because he was on holidays, and should not have his vacation fall apart by having to be available for the trial. I declined to adjourn this trial, which had been set down many months earlier. Parties are expected to have their witnesses available for the trial. Henry had his available. I do not believe that Francis’ presence at trial, to explain his

part in this job, was outside of the reasonable contemplation of the defendant. His evidence, in my view, would have been reasonably anticipated in order to prove the counterclaim that was being advanced. I am satisfied that the additional work that had to be done by the defendant was not due to an error made by Henry or his employee. The counterclaim for correcting this problem fails.

[ 34 ] The date set to drill the piles was July 8. When Henry attended to the work site on that date, he says that he noted that Sean had not made arrangements for the on-site provision of the concrete and the re-bar to be poured, and placed into the piles. Because of the still wet condition of the ground, he indicated that the piles should be poured immediately after having been drilled to avoid leaching. Henry says that he had a conversation with Sean, at which time Sean asked him if he could provide these materials.

Henry indicated that while he was caught by surprise, he would have to see if he had re-bar available at his shop, and if not, he would have to get it at Ardell Steel. As well, he would have to order the concrete separately. Henry says that he was able to obtain these materials on short notice and, on July 8, drilled and poured 23 piles, constituting those piles required for the house, but not the garage. The question as to whether Sean was expected to pay for the cost of pouring the concrete and laying the re-bar, and the cost of these materials are contested by the defendant.

I will deal with that argument shortly. Suffice it to say, I believe Henry when he says that he was taken entirely by surprise that Sean had not made arrangements to provide for the concrete and re-bar. I believe him when he says that at that time, and only at that time, did Sean ask him to provide this further service. I will deal with Sean’s evidence on this point shortly. [ 35 ] Henry says that on August 20 he returned to the work site and backfilled the basement and dug the garage pad and slopped the property to allow for proper drainage to the street.

He says that on September 2 he drilled and poured 12 more piles for the garage. He says that he was asked to re-attend the work site on September 6 to do additional work on the garage.

Because of the differential height between the garage and the house, he had been asked to excavate the interior of the garage space, to bring down the level of the ground, He says that on September 26, the last day of his work, he brought in a number of tons of clay and gravel to backfill the garage. [ 36 ] Defence counsel cross-examined Henry at length as to the manner in which each of these other jobs was done, the propriety of employing the type of equipment that was used, and the number of hours that each of these respective jobs would take to perform.

Other than the allegation that the piles were drilled in the wrong place, the defendant called no witnesses at all to challenge that the work was done in a deficient manner, or that the work which was performed and the hours put in to do the job were unreasonable. At the conclusion of this cross-examination, I was satisfied that the evidence offered by Henry and his labourers was credible and reasonable. I prefer the evidence of Henry and his labourers on these points rather than the simple assertions of impropriety suggested by defence counsel, unsupported, as they were, by any evidence whatsoever.

I would also note that soon after cross-examination was completed the defendant withdrew a number of the counterclaims that he had asserted by way of setoff. These related to an assertion that the backfilling and grading of the property caused damage to the defendant’s home, and that Sean lost revenue as a result of a delay in renting a basement suite.

I would also note that even if I had found deficiencies to exist, the defendant has led no evidence whatsoever to show that he suffered a loss, nor has he led any evidence whatsoever as to what the cost of repairing those alleged deficiencies might be. [ 37 ] Henry maintained that each time he did work on the project, he did so at the express instruction of Sean, and did so because each stage of the work was necessarily incidental to the varying requests that Sean made of him over the course of the project.

He concedes that with the exception of the original agreement to drill piles at the rate of $2.00 per foot, and the original quote to dig the excavation hole for the house at a cost of $2,500.00, there were no express discussions relating to the price of each of the other goods and services that he had been requested to provide and/or which became necessarily incidental because of issues that arose on the work site. I believe him. Sean was working as his own general contractor. I have no hesitation in concluding that Sean would have sought this work from Henry as and when Henry says.

I will discuss Sean’s evidence or lack thereof, on this point, shortly. [ 38 ] At the conclusion of his work Henry submitted three pages of invoices dated respectively, September 1, 2014, September 26, 2014 and October 15, 2014. [ 39 ] The September 1, 2014 invoice identifies the following work: June 17 - Excavate basement - $2,500.00 - 6 hours, 2 trucks @ 90/hour each - $1,080.00 July 8 - 23 piles 12 inches x 20 feet drilled with concrete, steel and labour. Clean up tailings. - $300 /pile - $6,900.00 August 20 - backfill basement and dig garage pad. - N.C.

September 2 - 12 piles, 12 inches x 20 feet drilled with concrete steel and labour $300/pile - - $ 3,600.00

September 6 - 3 hours mini excavation @ 100/hr - $ 300.00 -5 hours bobcat& truck @ 120/hour - $ 600.00 Subtotal - $14,980.00 GST $ 749.00 Total - $15,729.00 [40] The invoice dated September 26, 2014 identifies the following work: September 26 - 3 hours bobcat @ 100/hour backfill garage and [?] down front yard - $300.00 - 18.06 tons # 8 base @ 22/ M.T. - $397.32 Subtotal - $697.32 GST - $ 4.87 Total - $732.19 [41] The invoice dated October 15, 2014 indicates: 4 hours of bobcat @ 100/hr - $400.00 Job done July 5/14 banks had fallen in due to rain.

Subtotal - $400.00 GST - $ 20.00 Total - $420.00 [42] At the bottom of each invoice under the clause ‘special instructions’ a note is made which reads ‘2% Interest Per Month on alloverdue accounts’. I will deal with the question of Henry’s entitlement to charge interest now. In the vast majority of cases which comebefore this court dealing with goods and service providers, a claim is advanced against the customer which includes a claim for interest,based on that provider’s unilateral decision to add a note to the bottom of its invoice advising the client that interest will be charged at aspecified rate.

The Court is then advised that the ‘interest term’ is contractual. It is not. Our Court of Appeal has pointed out that ‘it iswell established that the mere inclusion of an interest provision in an invoice for goods sold does not obligate the purchaser to payinterest unless he or she agreed to pay the same’. [See Prince Albert Co-operative Association Ltd. v Rybka, 2006 SKCA 136 atparagraph 16]. In the instant circumstances there is no evidence whatsoever that the parties entered into an agreement in relation to thepayment of interest.

Nor is there any evidence that a part payment on the invoice had been made, in which case I could arguably infersuch an agreement. As a result, I am of the view that Henry’s claim for interest in the amount stated must fail. His entitlement toprejudgment interest is a decidedly different matter. If he is successful in whole or in part, the law entitles him to both request and obtainprejudgment interest on any award made to him. [43] That stated, I will continue. Henry says that he forwarded two of his invoices, the first two referred to above, to Sean on or aboutSeptember 30.

Sean refused to pay, and following Henry’s further review of the work that had been performed, he says that he hadoverlooked the work that had been done on July 5. He then prepared a further invoice for that work, and hence the date of that invoice -October 15. His demand for full payment in the sum of $16,881.19 and interest went unheeded and he then filed a lien on the propertyand left for holidays in Florida.

I am satisfied that Henry provided each of the goods and services listed on his several invoices, andexpended the number of hours set out therein, subject to my deduction of one hour on the invoice dated October 15. I also conclude thatthe goods and services were provided in a good and workmanlike manner. As such, I also conclude that the defendant’s counterclaim asit relates an allegation that Henry or his crew were negligent in drilling the piles in a wrong location, fails. [44] Diane Phillips was one of only two witnesses called by the defendant. Diane is Sean’s mother.

She indicated to the Court that itwas she, and not Sean, who first contacted Henry about doing work for Sean. She states that at some time prior to her telephone call toHenry, she had met Laura Desautels, who is Henry’s daughter. She says that she struck up a conversation with Laura and mentioned that

Sean was building his own house, whereupon Laura indicated that her father was in the construction business. [ 45 ] Diane said that Laura then gave her Henry’s e-mail, presumably so that Diane could contact him and discuss his willingness to do some work on the project. Diane indicates that she phoned Henry and, in the course of that phone call, indicated to Henry that Laura was her son’s sister-in-law. Diane says that on the strength of that assertion, Henry indicated to her that ‘because we are family’, he would give Sean a break.

Drilling the piles would be $2.00 per foot and Henry would provide the re-bar and concrete at cost. Diane did not elaborate on the length of that phone call nor did she provide the Court with any written memorandum of that conversation. It is clear to me that on this initial contact, Henry would not have had the engineering specs available to him to assess the full nature and extent of this project. Diane offered no evidence as to what she thought ‘re-bar and concrete at cost’ might mean. Diane offered no details as to how often she had met Laura.

It is clear that Diane had never met Henry before. [ 46 ] Diane indicated to the Court that most of the work that was done on the house was done with the assistance of Sean’s immediate family and friends, for free or at cost. She helped out, as did Sean’s sister Leanne. Nathan, Sean’s brother and legal counsel at trial, helped out, as did Sean’s father, Mervin Phillips. In addition, three of Sean’s uncles: Francis, Thomas, and Arthur helped, as did Sean’s friend, Wallace Truong. Defence counsel has referred to this arrangement as the ‘family and friend’s discount’.

In support of this proposed family and friend arrangement, Diane indicated that Henry and Sean were friendly during the course of Henry’s participation on the build. In support of this she proffered a series of photographs that she had taken at the work site. In passing I would point out that Diane took literally hundreds and hundreds of photographs of the work site over time. She likes taking photographs. [ 47 ] The first photograph shown to the Court was a picture of Sean with his arm around Henry’s shoulder. Sean is smiling. Henry’s face could be described as a smile, but not quite so obvious as Sean.

The second set of photographs relate to pictures of Laura’s toddler being led to an excavator by the hand by Henry, and then a series of pictures of the toddler in the excavator. These pictures were taken on July 6, 2014. These photos were ostensibly tendered to the Court to show just how close the parties had become. Diane invited the Court to conclude that the latter set of photos showed an excited child happy to sit in the excavator.

She invites the court to conclude that the photographs are evidence of a tight familial bond between the parties - a day of family fun and participation. [ 48 ] The suggestion that Henry had originally agreed to provide and install re-bar and concrete at cost was not plead, nor was the claim that Henry had agreed to provide Sean a reduced rate for the goods and services that he provided. These suggestions were never presented to Henry in cross-examination. This has implications in relation to the weight that I attach to this evidence in the context of the rule in Brown v Dunne which I will discuss shortly.

As Diane’s evidence relating to a close friend and family discount was being presented, I noted Henry’s demeanour. To suggest that he was taken aback by this revelation would be an understatement. Astounded would be a better term. [ 49 ] In cross-examination, Henry sought to understand the nature of the familial relationship which Diane alleged. After considerable difficulty, it was explained to the Court. It goes like this: Diane has three sons, Nathan, Sean and Ryan. Ryan is a lawyer living in Calgary. Ryan is married to a woman named Jessica. Jessica’s natural mother Mrs.

Huber was remarried to a man named Louis, so Louis is Sean’s brother’s wife’s step-father. Louis is also the father of Chris Desautels. Chris Desaultels is married to Laura, and Laura is Henry’s daughter. Under no circumstances can it be said that, according to lines of affinity, Laura was Sean’s sister-in-law. [ 50 ] I am satisfied that the exact nature of this familial relationship only became apparent to Henry at trial. Armed with this new found information, Henry cross-examined Diane as to her purpose in asking him to be photographed with Sean, or with his grandson on the 6 th of July.

He wanted to know if it was all part of a pre-arranged plan to use them, after the fact, to justify an allegation that he was so closely connected to the Phillips that he would offer free labour and the free use of his machinery. Henry challenged her on whether or not his grandson looked happy at the prospect of entering the excavator and invited her to acknowledge that he was in fact frightened and wary of the prospect. He asked if these photographs were taken on the direction and request of Diane. Diane’s evidence on this point and on other points were less than compelling.

There was a noticeable tremor in her voice when she gave her evidence. She had a tendency not to answer questions directly, and had to be directed by the Court on several occasions to do so. She invited the Court to make its own conclusions as to what the photographs of the toddler purport to represent. They do not show a toddler skipping or running happily to the excavator in question. They show a toddler being pulled along by his grandfather. They do not, in my view, show a happy little child smiling and enjoying himself in the excavator.

In my respectful view, they show a child who looks tentative, with his arm half-raised in a sort of wave to a third party, and with a look on his face best described as timorous. The child certainly does not look like he is outright enjoying himself. I do not consider that these photographs, of the many hundreds that were taken, are any evidence, let alone compelling evidence, of a close familial and friendly relationship between the parties. Rather, I accept them as requests by Sean’s mom to have Henry insert himself into a few of the many photographs that Diane took over the course of the build, over time.

[ 51 ] Sean was the only other witness called by the defence. I would note in passing that when the trial commenced, defence counsel was very clear in his desire for an order excluding witnesses, and that order was made. Clearly, defence counsel understood the purpose of that type of order. It provides the trier of fact with some assurance that witnesses in attendance at trial do not have the benefit of bolstering or tailoring their evidence by observing the direct and cross-examination of any other witness that might be called.

I am also satisfied that counsel knows, or should certainly ought to know, that if a witness has the opportunity to observe those other witnesses, the Court may well attach less weight to the testimony being proffered. In the instant circumstances, defence counsel chose to call Diane first, thereby ensuring that Sean had the opportunity to observe her on the stand and to listen to her direct evidence and her cross- examination. When her evidence was complete, defence counsel indicated that Sean would be the next witness, and that he required a five minute break.

When the Court inquired as to the purpose of the break, counsel indicated that it was for the express purpose of conversing with his client in relation to evidence. I granted the adjournment, but I was hesitant to do so. Defence counsel insisted. [ 52 ] There is no question that a defendant is entitled to sit in the courtroom throughout his trial.

Where, however, the defendant intends to testify, and where there has been an order for exclusion of witnesses, and particularly where credibility plays an essential role in the trial, as it does in this case, most counsel would present their client to give his evidence first. In doing so, it obviates the risk that the exclusion order seeks to protect against. It ensures, to a great extent, that the court will not incline to the view that the defendant has attempted to bolster or tailor his testimony by listening to the direct examination and cross-examination of his witnesses.

When, as in the instant circumstances, this is not done, and counsel then seeks an adjournment for the express purpose of privately discussing the evidence with his client, the Court becomes more concerned yet. [ 53 ] Sean’s testimony was to the effect that he was attempting to build his own house as inexpensively as possible, and in so doing, relied on his friends, immediate family, and uncles to assist from time to time.

Because each of them assisted one another, the time and energy and materials and equipment that they use are offered for free or at cost, it being recognized that each of them may call on another for assistance. Sean indicated that he has provided services in this way to those uncles and friends and immediate family members in the past and they did likewise on this project. Sean acknowledges that he has no particular expertise in building homes other than that acquired assisting his uncles who have been construction labourers for a long time.

He indicated that prior to working full time as a social worker, he held a series of small jobs - in retail, and working on a construction crew as a general labourer laying sidewalks. [ 54 ] Sean indicated that he had never met Henry before contacting him in late May of 2014. He asserts that on that occasion, Henry indicated to him that Henry would charge $2.00 per foot drilled and that he would provide the concrete and re-bar at his cost. He says that he was aware that the cost of removing excess dirt from the job site would cost extra. Shortly thereafter, Sean sent Henry the engineering specs for the job.

Sean acknowledges that he may have, at most, met Laura Desautels once, at his brother’s wedding. He cannot commit to how close a relationship Laura and his mother Diane has. I note that Diane never mentioned how close her relationship was to Laura, either. [ 55 ] Sean acknowledges that he did in fact expressly ask for some, but not all, of the work that Henry did. He also indicated that, based on the familial and friendly relationship referred to above, he expected not a regular rate, but a special rate - something at least for Henry’s time.

There is no evidence before the Court whatsoever that Sean’s understanding in this regard was ever communicated to Henry. There is no evidence whatsoever that Henry was ever advised that close friends and immediate family were providing their services for free. [ 56 ] Sean’s credibility is an issue. He presented well under direct examination but during cross-examination he often became argumentative and often attempted to qualify his answers or evade the specific question put to him.

The Court was obligated on a number of occasions to direct Sean to listen carefully to the question and answer the question put to him, and not to argue with Henry. In addition, I noted a distinct difference in the confidence and clarity of the answers Sean gave in direct examination as opposed to cross- examination.

When presented with the suggestion that perhaps it was he who had laid out the pins wrong, and that he had in fact stated as much to Henry, he was quick to point out that it was his uncle Francis who placed the pins and not him, and that he ‘could not recall’ acknowledging to Henry that he and his uncle Francis had laid them out wrong. When presented with the discussion regarding the lack of re-bar and concrete on site, he vacillated between suggesting that he told Henry that he would order it himself, and later suggested that for all he knew, the re-bar was already on site.

His evidence on this point rings hollow. He testified that he went to the site every day. The site is a small residential dig. It would, in my mind, be impossible not to note that re-bar was not on the site. [ 57 ] Sometimes a court is influenced not only by what was said between the parties, but also that which is left unsaid. I heard Henry relate the discussion he had with Sean on the day the piles were to be poured. It sounded very much like a man who was frustrated that Sean had failed to remain organized on this project. What I did not hear, was Sean’s version of this conversation in any significant way.

If, in fact, there was no concrete or re-bar lined up, and your contractor is questioning you on this very point, one would expect some significant discussion in this regard. Instead, Sean simply stated that he could not recall if Henry asked him to order the concrete. He couldn’t recall who was going to pour the concrete. He was asked why he didn’t order the re-bar, and as noted, above, his response was that ‘I could not verify that you didn’t have the re-bar on site’.

[ 58 ] Taken as a whole, Sean presented as extra-ordinarily accommodating on direct examination, but, on cross-examination, he was far less accommodating, and more argumentative and uncertain. [ 59 ] So what was the nature of the agreement entered into between the parties? Henry contends that he was retained originally to drill piles by Sean, a person who he had never met before. They agreed on a price and Sean then sought further work, requesting that Henry excavate the basement. Each of these prices were agreed to. As the work proceeded, additional work was required and Henry agreed to do the work.

Sometimes, as in the case of cleaning out the mud on July 5, the work was necessarily incidental to performing the contract, and in other cases, it was specifically requested by Sean. The working relationship was friendly and Henry fully expected to be paid for the goods and services he provided. He never discussed any ‘special rate’ for any of the work done, nor was that ever discussed with him. [ 60 ] Sean contends that Henry was part of a closely knit group of family and friends who always exchange their labour for free.

Based on a rather tenuous line of affinity, Henry came within that group, and as such Sean expected both a reduced rate for the goods and services provided, and especially, the provision of concrete and re-bar at cost. [ 61 ] It may be that one or the other may be right. I am bound, however, to place all of the evidence on the balance, and determine which version, more likely than not, is the correct one. For the reasons which follow, I accept Henry’s understanding of the agreement. Objectively viewed, it presents as far more reasonable than what Sean proposes.

The court must look at the evidence on an objective basis, not on the subjective beliefs held by one party and not disclosed to the other.

There was no evidence whatsoever presented to the court, other than a suggested oral promise of concrete and re-bar at cost, that Henry ever agreed to offer his goods and services at a reduced rate. [ 62 ] I also found Henry and his labourers to be credible, and Henry’s description of the relationship and the arrangements made surrounding the work performed is, when objectively viewed, more consistent with the preponderance of probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions. Henry had quoted a fair price at first instance.

Later, he provided a much fairer price for the excavation than had the earlier party who had ‘bailed on Sean’. He offered practical advice to Sean as and when he felt it necessary or when it was asked for. Sean appreciated the work, and had an experienced and helpful contractor which he subsequently employed to do other work as the work progressed.

The parties knew, or ought to have known that Sean would pay for this work, but, as this Court sees so very often in these types of cases, the parties lacked the (legalistic) common sense to direct their minds to a price for each and every good or service provided. [ 63 ] Comparatively speaking, I found Diane’s evidence difficult to accept.

I have a difficult time believing that over the space of a short phone call, and on a simple assertion of affinity, Henry would, over the phone, to a person he had never met, undertake to offer up what is in essence free labour, free use of his machinery, and the free services of his employees, particularly when he had no idea, at that time, of the scope of the job. I find it difficult to believe that Diane ever explained Sean’s very tenuous line of affinity to Henry. [ 64 ] I find that I must place little weight on Sean’s repetition of Diane’s evidence on this point.

Sean had the opportunity throughout Diane’s evidence to listen to it. He even went so far as to have his lawyer demand a five minute break to discuss his evidence privately.

As previously indicated, the defendant is free to sit throughout his entire trial, but if he wishes to avoid the risk that a Court may infer that he is bolstering or tailoring his evidence to conform to that of others, he should, realistically, take the stand first, and avoid that inference. [ 65 ] In addition, I take note of the number of times that I had to direct Sean to answer the questions put to him directly, and the speed at which his demeanour would change from friendly and accommodating to hostile and difficult towards Henry when asked a difficult question.

I am always concerned when, on points directly relevant to the very issues raised in a defence or counterclaim, a witness starts to rely on the phrase ‘I can’t recall’. It is certainly appropriate to use that phrase, because sometimes people can’t recall. It is somewhat different when a defendant asserts deficient work and then can’t recall whether or not he actually had a conversation as to the cause of that deficient work. [ 66 ] I also note that Laura Desautels was never called as a witness for the defendant. She appears to be the central figure which

connects the line of affinity relied upon by the defendant. If the defendant seeks to assert this familial bond, her evidence on that point -the nature and extent of her relationship with Sean and his family - would arguably have assisted the defendant. I recognize of course thatLaura was on Henry’s witness list, but he does not carry the burden of proving the defendant’s case, the defendant does. There is noquestion that Laura was subpoenaed by the defendant. She showed up in Court pursuant to that subpoena, but was not called.

While it istempting to conclude that her evidence would have been adverse to the defendant’s case because she was not called, I think the bestconclusion that I can make on this point is simply that her evidence would not, in any way, have assisted the defendant. [67] I am also concerned about the defendant’s failure to specifically refer to this alleged arrangement in his pleadings. It is one thingto plead in a manner which simply denies the existence of a contract and puts the plaintiff to the strict proof thereof. It is quite another toattend at trial and attempt to assert what is, in essence, a gift.

And this is the meat of the defendant’s case at trial: that Henry offered upfree labour, and a deal on any goods that might be supplied. [68] My other concern on this point extends to the manner in which this line of defence was presented, or rather, not presented. I havecarefully reviewed the evidence in this matter and I note that at no point did defence counsel ever cross-examine Henry on this essentialissue: that Henry orally agreed to provide the concrete and re-bar at cost because of his familial relationship to the defendant.

Thisevidence was first brought up after Henry closed his case and Diane was called. In my view, I should take note of the rule in Brown vDunne (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) , which, as Sherstobitoff J.A. noted in Hamm v Metz , 2002 SKCA 11 (pagenumber 11) , at paragraph 22, is a time honoured rule grounded on common sense and fairness to a witness.

He noted that therule is not absolute, but is described by the Court of Appeal in R v Paris, 1000 CanLII 17031 (DN CA) as follows: [22] Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party thenleads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration inassessing the credibility of that witness and the contradictory evidence offered by the opposing party.... [69] I do take note of this rule in my assessment of the credibility of Sean and Diane. [70] Finally, as I weigh the evidence submitted on behalf of the defendant in this case, I repeat that what he is alleging is that Henrywas prepared to reduce the amount of money he would charge because of a friendly and familial relationship - that he would, in effect,make a gift of his labourer’s time, his time, the use of his equipment, and any mark-up he may charge for the provision of supplies. [71] The Supreme Court of Canada has confirmed (See Pecore v Pecore, 2007 SCC 17 that there is no presumption of a giftexcept in so far as it relates to a parent and a minor dependant child.

The line of affinity described by the defendant in this case clearlydoes not come within those confines. It is therefore incumbent on the defendant to prove, on a balance of probabilities that Henryintended to deliver up some of the goods and services for free.

A bare assertion, without more, by each of Diane and Sean, that Henrytold them he would do so, combined with a couple of photographs, is not, when I consider all of the above, sufficiently convincing andcogent to persuade me that Henry either offered or intended to advance, for free, some of his labour, his worker’s labour, his equipmentand potential mark up on product supplied for this job. In the result, I find that the agreement entered into between the parties was acontract of an ongoing nature to provide goods and services.

I further find that there was never an understanding that any of the goodsand services would be provided either at a reduced cost or for free. [72] It is clear to me that, with the exception of the cost of excavating the hole in question, and the cost of drilling the piles, there wasno agreement between the parties regarding the prices to be charged for the additional goods and services rendered. Defence counselsuggests that because the parties were never ad idem on this point, there was no meeting of the minds on what is an essential term of thecontract.

As a result, he asserts that the contract should fail for lack of certainty. He then argues that since there was no contract, anywork performed by Henry was provided to Sean by mistake. If the work was provided by mistake, then Henry’s only remedy would beto seek equitable relief in the nature of restitutionary quantum meruit.

He concludes by suggesting that because this Court lacks thejurisdiction to award equitable relief in the nature of restitutionary quantum meruit, any claim for other than the cost of drilling the pilesand digging the excavation (where a price was agreed upon) must be dismissed. [73] With respect, I disagree.

There will certainly be situations where a court will conclude that a contract fails for lack of certainty ofterms, including an agreement on price, but different considerations apply where, as in the present case, a judge concludes that there wasan agreement for the provision of goods and services and those goods and services were actually provided. In situations such as this,different legal considerations come into play, and a Court must determine whether or not payment should be made on the basis ofcontractual quantum meruit.

[74] Contractual quantum meruit is, as Madame Justice Smith of our Court of Appeal states in CH2M Hill Energy Canada Ltd. vConsumers’ Cooperative Refineries Ltd., 2010 SKCA 75 at paragraph 24, ‘a principle of contract construction, orinterpretation, to the effect that, where parties to a valid contract have agreed for the provision of goods or services, clearly intended to bepaid for, but have failed to provide the terms of remuneration, then they may be presumed to have intended a reasonable price and, onthat basis, a contractual term to pay a reasonable price may be implied’.

The concept is clearly explained by G.H.L. Fridman, The Law of Contract 4th ed. ( Ontario: Carswell, 1990 at pp. 12 -13, which was referred to by Madame Justice Smith in her decision at paragraph 23: A complication or confusion arises from the fact that there is a contractual quantum meruit, as well as a restitutionary quantum meruit.

Insome circumstances, where, for example, there is a contract between the parties but they have not agreed upon a price for goods andservices to be delivered or rendered by one party to the other, the court must award money to the unpaid party on the basis of areasonable amount for the goods and services.

This is a liability which arises from a truly contractual relationship, and the situationbetween the parties is founded upon the concept of contract as it has been expounded earlier...... [75] As I have stated, I am satisfied that the parties entered into an agreement for the provision of the goods and services that wereprovided. While Sean may have assumed that he was to receive a deal on some aspects of that agreement, I have concluded that thissupposition is unreasonable and does not in any way form part of the agreement that the parties entered into.

I have concluded that Seandid, in fact, request Henry’s assistance as each stage of the work progressed. I have concluded that the defendant has failed to prove thatany of the work performed by Henry was deficient. Even if I had concluded otherwise, there is absolutely no evidence before me, otherthan the matter of the piles, that if there were deficiencies, Sean suffered any loss whatsoever. Nor was there any evidence presentedwhatsoever identifying the cost of correcting those alleged deficiencies.

I have concluded that the parties failed to agree on the price tobe paid for certain goods and services and so, it falls upon the court to imply into the contract a term that the parties anticipated that areasonable price would be paid for those additional goods and services provided. Having come to this conclusion, I reject the defendant’sassertion that this court lacks jurisdiction to determine the matters before it. The principles of contractual quantum meruit apply, not theprinciples of restitutionary quantum meruit. [76] In Saskatchewan Government Insurance v John Medynski 2012 SKQB 157 Mr.

Justice Smith of our Court of Queen’sBench reviewed the authorities in relation to the various methodologies which the courts have employed in calculating a reasonableprice. At paragraph 94 of his decision, citing Deglman v Brunet Estate, (SCC), [1954] SCR 725 he noted that ourSupreme Court calculated the fair value by determining what the unjustly enriched party would have to pay on a purely business basis toobtain the goods and services that were provided. Mr. Justice Smith noted that there were other factors that other courts have consideredwhich include the following:

a) What is customary in the industry?

b) What is the cost to the claimant providing the service?

c) What is the value placed on the service by the recipient?

d) What was the contract price?

f) What had the recipient previously paid for the same services? [77] As I review the evidence on the question of damages, I note that Henry attempted to prove his damages by identifying the workthat he did, and by filing his invoices in support of that work. These invoices identify, with some precision, the hours worked, themachinery used and the goods provided. At first glance, it is tempting to accept Henry’s invoices, and the amounts set forth therein, asreasonable on their face. I say this because I have found Henry to be a credible man with extensive experience in the business ofexcavation.

He has 38 years of experience doing this work. Who better to believe when attempting to identify a fair price? Certainly hequoted what Sean found to be a fair price for drilling the piles, and in fact, significantly undercut the price that Sean would otherwisehave paid for the other contractor who had ‘bailed on him’.

[78] With the greatest of respect to Henry, however, I do not think that this evidence is sufficient. I believe that the methodology thathe employed in proving his damages is incomplete. I am not called upon to conclude that he is entitled to be paid the actual amounts setforth in the invoice. I am being called upon to determine if the prices set out in that invoice are fair and reasonable. I conclude that Henrywas mistaken as to the methodology to be employed to prove his damages, in light of how the evidence has unfolded and my findings offact.

In fairness to him, he is not a lawyer and I am satisfied that his failure to provide the evidence necessary was unintentional andbased on his unfamiliarity with the law. I am satisfied that he did not know that he would be called upon to employ a methodology forthe calculation of damages that accords to the principles of contractual quantum meruit. Similarly, I can come to no otherconclusion but that the defendant had also failed to put his mind to this concept.

It was not brought up in his pleadings and not discussedat trial. [79] How should a court respond to a self-represented plaintiff’s failure to properly identify and employ the correct methodology inassessing damages? What should be done when, as in the present situation, I am satisfied that the damages to which the plaintiff aremore accurately described as substantial rather than nominal?

Does the court’s approach change when, as in the present case, it appearsthat both the plaintiff and the defendant may have been confused in relation to the methodology to be utilized? [80] In the instant circumstances I believe I have no choice but to re-open the trial in order to allow each of the parties to presentevidence as to what constitutes a fair and reasonable price for the goods and services provided. [81] In so doing, I have reviewed the decision of Mr. Justice Dufour of our Court of Queen’s Bench in Vanston v Scott, 2014 SKQB64 .

I have also looked to Section 22(3) of The Small Claims Act, 1997 which states that ‘in a judgment, a judge may make anyorder that the judge considers appropriate’. I am cognisant that the case law indicates that, while a judge has a wide discretion to re-opena trial to hear new evidence, it should be used sparingly and with the greatest of care so as to prevent fraud and/or abuse of the court’sprocess, or actual prejudice to one of the parties.

I am re-opening the trial for the very limited purpose of seeking further evidence as to areasonable price on only those goods and services where the parties did not agree. I am not re-opening it for the purposes ofreconsidering any of the matters upon which I have already adjudicated. I see no actual prejudice flowing to either party. The defendantwould, if the evidence on quantification of damages had been addressed at trial, likely have called evidence in reply. He did not incur anycost at the earlier trial which has been thrown away.

I am re-opening the trial because I am concerned that I may have overlooked myobligation as a judge to give proper direction to the plaintiff, and my obligation to decide this matter on its merits, rather than ontechnical procedural grounds. [82] I say this in the context of the decision of Madame Justice Wilkinson in Syniuk v Kornberger, 2013 SKQB 404 . In thatappeal of a small claims decision, the plaintiff had provided very little in the way of proving his damages and had, in fact, utilized thewrong methodology in his assessment of the damages.

Madame Justice Wilkinson concluded that it was wrong for the lower court judgeto attempt to undertake his own assessment of the damages. She decided, rather, and in reliance on the decision of Martin v Goldfarb,(1998) (ON CA) that if a judge inclines to the view that, due to the shoddy proffer of evidence, it is impossible toassess damages, then only nominal damages should be awarded.

If, however, the plaintiff’s loss is substantial and if the significance ofthe loss suffered outweighs the failure to adduce evidence, then an adjournment ought to be offered to afford the plaintiff the opportunityto tender further evidence. [83] The guidance offered by Madame Justice Wilkinson thoughtfully directs this Court to recognize its obligation to focus onsubstance rather than procedure.

In the instant circumstances, I am satisfied that the loss to the plaintiff is substantial, and that the losssuffered outweighs the failure to adduce evidence. [84] I should have, but did not turn my mind to the Syniuk decision by the close of trial.

It seems to me that in light of this Court’sobjective to provide timely, cost-effective and efficient disposition of claims, and to prefer substance over procedure, and my conclusionthat Henry, in good faith, did not understand the manner in which he should have proven his damages, I should re-open the trial for thelimited purpose of providing evidence to assist the Court in assessing a reasonable price for those additional goods and services provided,but for which no price was agreed upon.

This, particularly where the alternative might be to deny the plaintiff the right to adduceevidence of his loss, have him proceed to appeal that decision and then have the matter, as per the decision in Syniuk, remitted back tothis Court for that very same purpose. [85] To that end I direct a further hearing on this matter to deal only with the question of what might constitute a reasonable price foreach of those goods and services set forth in Henry’s invoice, other than the price of excavating the basement, and drilling the piles. Eachof the parties are free to lead evidence on these matters.

[ 86 ] Each of the parties are directed to file, with the Court Clerk, in duplicate, a list and copies of those documents that they seek to rely on, and a list of those witnesses they intend to call in support of their respective positions regarding calculation of a fair and reasonable price for the following goods and services:

a) the hourly rate charged for the use of a bobcat on a residential construction site;

b) the cost of employing the use of two trucks for 6 hours on an hourly basis;

c) the hourly rate charged for mini-excavation;

d) the hourly rate for the combination of bobcat services and a truck standing by;

e) the cost of obtaining and delivering 18.06 metric tonnes of #8 base;

f) the typical price or range of prices that would be charged for the pouring of concrete and placement of re-bar in 35 twenty foot deep, 12 inch diameter, piles; or alternatively;

g) the labour cost of pouring concrete and placing re-bar in 35 twenty foot, 12 inch diameter piles; and

h) the amount of concrete and re-bar that would be used for the purpose identified in

g) above and;

i) the cost of obtaining the concrete and re-bar referred to above, delivered on site; and

j) the typical mark-up that a contractor would apply for the concrete and re-bar mentioned above. [ 87 ] I direct that these materials shall be filed with the court clerk, by each party, on or before 4 p.m., May 13, 2016.

Each of the parties are at liberty thereafter, to attend upon the court clerk to collect the other party’s materials. [ 88 ] I direct that thereafter the clerk contact each of the parties to obtain a suitable date or dates for a further hearing on this matter. [ 89 ] At first glance, it would appear to the Court that the proper methodology in calculating a reasonable price should be as set forth by the Supreme Court of Canada in Deglman , referred to at paragraph 79 of this decision, and which is ‘determining what would have to be paid on a purely business basis’ which seems to this Court to be similar to ‘what is customary in the industry’.

The parties are however free to employ whatever methodology set forth in Mr. Justice Smith’s decision in Medynski they choose, all of which are identified at paragraph 79 of this decision. [ 90 ] I would also advise both parties with respect to the use of experts. A determination of what is a fair and reasonable price for these goods and services rests with the trier of fact and not an expert. It is for the judge to decide this ultimate issue, and therefore it is not

necessary to call an expert to give his or her opinion as to what might be a fair and reasonable price to be paid. Simply put, the information required by the Court can be introduced through the evidence of people familiar with what is customary in the industry. This is not expert evidence. [ 91 ] There are four other matters that need to be addressed. First, Henry had sought, in his claim, damages equivalent to the monies that he says he spent in placing a lien on Sean’s property. The amount sought presumably dealt with the costs incurred through the use of a solicitor.

Henry did not take any steps to proceed further once the lien had been placed and Sean seeks, in his counterclaim the cost of lapsing the lien. I must reject Henry’s claim and accept Sean’s. Henry’s claim is in the nature of seeking solicitor fees, something which I cannot award. In addition, by not taking any further steps on the lien, it was proper for Sean to take steps have it lapsed. In essence, it was Henry’s lack of diligence which resulted in this loss and in the result, he is the author of his own misfortune and I would deny the claim.

Comparatively speaking, Sean’s claim for the cost of lapsing the lien does not include any solicitor’s fees, only the actual out of pocket costs that he incurred. In addition, he did so because Henry did not take any further action, and, as it turns out, there was no legal obligation to pay the invoices presented to him. As I have stated throughout, the amount of money that Sean must pay is not necessarily that which is set out in the invoices, but rather a fair and reasonable price to be determined.

At the end of the day this may prove to be the same thing, but I conclude that Sean should succeed in respect of his counterclaim on this issue. It is a cost reasonably incurred to protect his interests in response to an action taken by Henry, who did not follow through with the lien process. [ 92 ] Second, I have found that Sean is liable for some payment on certain portions of the contract. These amounts equate to $2,500.00 for the cost of excavating the basement, and $1,400.00 for drilling the piles ($2.00 per foot times 20 feet times 35 piles).

I have found that Sean is partially successful on his counterclaim, but only as it relates to lapsing the lien which is assessed at $50.73. It is the direction of the Court that no formal judgment for these amounts shall be entered until such time as the entire damages assessment is made by this Court. [ 93 ] Third, while each of the parties to this dispute will receive a copy of this partial decision, I am not, at this time, prepared to send it to publication. I make this decision for two reasons. First, it may well be that before this matter returns to trial, the matter may be settled.

Settlement regularly occurs in this court between the close of trial and the Court’s endorsement of its final written decision. Were that to occur, then I would be functus, and it would serve little purpose to publish only a portion of a decision. Second, as a matter of convenience to the Court, and to any person reading a published decision, it is far more practical to publish a decision once all the evidence has been heard, and all of the matters have been determined. P. Demong, J