Advantage Roofing Ltd. - v. -, 2015 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 046 Date: March 27, 2015 File: SC#31 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Advantage Roofing Ltd. - and - Karen Tomasson Self For the Plaintiff Justin Luddington For the Defendant _____________________________________________________________________________ JUDGMENT B.M. SINGER , J _____________________________________________________________________________ Introduction [ 1 ] The Defendant, Karen Tomasson, hired Advantage Roofing Ltd., to re-roof her house. The home was over 100 years old and

had a very steep sloping roof. The Plaintiff company was recommended as a specialist in this type of roof. The Plaintiff presented a quote on August 1, 2012 and on the basis of its acceptance, the work was completed on September 11, 2012. The quote is the entire contract between the parties. [ 2 ] The Defendant was, however, very unhappy with the work that was done, alleging some work was not completed and some completed but was done improperly. At trial, the Plaintiff agreed that there were, what he referred to as “deficiencies”, but suggests these would be easily fixed.

He had sent the same crew that did the work, back to fix the deficiencies, but the Defendant would not allow them to do so. [ 3 ] Several issues arose at trial, these include: 1)

interpretation of the original contract; 2) what were the “deficiencies”, were they easily repaired, or did the job have to be redone; and 3) what are the parties’ remedies. Facts [ 4 ] The work was done by the Plaintiff’s crew but, according to the Defendant, it became immediately apparent that it was done in a sloppy, hurried manner that was not only unsightly but if not repaired or replaced, would have caused leaking and damage to the home. [ 5 ] The Defendant testified about and showed various pictures of numerous nailing problems with the shingles.

Nails were not nailed flush, some cutting the shingle because they were nailed at an angle. Others were nailed right through the shingles. Some nails were not nailed on the nailing line and many were nailed into no underlaying sheathing as the old wood underneath had cracked away or was driven away by the nailing above. All of these problems affected the integrity and waterproofing of the shingles. [ 6 ] The Defendant also showed pictures of shingles that were cut improperly, improperly installed flashing and drip edges and damaged eaves troughs.

The roof on the porch area showed a dip that the Plaintiff’s crew had attempted to fix by laying extra underlay but which required re-sheathing under the underlay and shingles. [ 7 ] The Defendant also complained that the contract called for complete felt underlay and that this was not done. The Defendant filed information from the shingle manufacturer indicating that such underlay was “strongly recommended” on steep sloped roofs. [ 8 ] The Plaintiff admits that there were problems with the work, but that those “deficiencies” could be easily repaired.

He had sent the same crew back to effect repairs of the “deficiencies” but the Defendants had not allowed them to do so. He admits that the Defendants asked him to review the problems and to supervise the repairs, but that he was too busy to do so. Position of the Parties [ 9 ] The Plaintiff says he did the work and should be paid. He says that the Defendants were obligated to allow him to repair any deficiencies and that their failure to do so amounted to a failure to mitigate their damages.

[ 10 ] The Defendant says that they hired the Plaintiff because of his expertise in this type of work. However, his crew did a sloppy and unworkmanlike job, that would have resulted in leakage and was unsightly. The Plaintiff’s attempt at the roof repair was inadequate and the Defendant could not trust that crew, without the Plaintiff being present, to adequately fix the problems the crew had caused. Indeed, others who examined the workmanship, concluded that there was no easy fix and that the roof would have to be completely redone. Decision [ 11 ] In this case the Plaintiff, through its manager and expert, Mr.

Tim Hopkins, basically agreed that after his workmen first completed the job there were many things done improperly, incompletely, sloppily and defectively. While he claims to be an expert in repairing roofs, he never attended the site as requested by the Defendant to view the lack of adequate workmanship. Yet, after reviewing the pictures and complaints of the owner he claims that all of the defects could be remedied in a day’s work by his crew. [ 12 ] I do not accept this.

Some of the defects would require repairs to the wood under the shingles, the nailing caused the older wood in the roof to split and/or fall away. Some of the repairs would require replacement of shingles. The manufacturer’s specifications require nails to be driven straight so nail heads are flush and not cutting into the shingle surface, however it is clear that many are either driven right through the shingle, or at an angle and many others, which appear properly nailed but are nailed in the wrong place. The Plaintiff suggests that these defects can be repaired by tarring over the cuts in the shingles.

However, the biggest problem, the lack of underlay, would result in much of the roofing material needed to be replaced. [ 13 ] The Plaintiff says in his opinion, with this slope of roofing, underlay is not necessary. The manufacturer’s specifications clearly state that underlay is “strongly recommended . . . with one ply asphalt saturated felt (or equivalent)”.

He says that it is in his discretion whether to follow this advice or not as the quote agreed upon said in part “includes IKO storm shield ice & water; eave and valley protection, full felt coverage , new drip edge, new roof vents and plumbing flashing (where required)”. [ 14 ] It is not clear whether the words “(where required)” apply to full felt coverage or not. I am not prepared to accept that it does, or that the parties intended it to do so.

If it was in the roofer’s discretion to use less than “full felt coverage” it was clearly incumbent upon him to get the owner’s permission to deviate from the “strongly recommended” procedure of the manufacturer. [ 15 ] All in all, this was a sloppy job, done without full regard for the manufacturer’s advice. [ 16 ] The owners complained and asked the “expert” of the company, Mr. Tim Hopkins, to attend to review the problems and fix them. He did not. He did send the same crew that caused the problems out to repair the defects.

The owners refused to allow them to do so, as they were the workers who had done such a bad job. [ 17 ] Ordinarily, the owners in a case such as this should allow the roofer an opportunity to correct the poor workmanship. However, in this case, I have concluded that they do not. First, the owners heard and relied upon the expertise of the Plaintiff in re- roofing their specialized roof. In particular, they relied upon the expertise of Mr. Hopkins. However, Mr. Hopkins never attended to review their complaints in spite of the specific requests of the owners.

Secondly, it would be asking a bit much to rely upon the ability of the same workers who caused the problem, to fix it, without some oversight by Mr. Hopkins. Lastly the problems were of such a major nature that the fixes attempted by the crew, before being ordered off the job, were totally inadequate. Their attempt to fix the dip in the porch roof by putting further layers of underlay when it required new sheathing, was but one example of their continued incompetence. [ 18 ] In this case, the Plaintiff is suing to have his bill paid.

However, the Defendant has proven to my satisfaction that the defects in workmanship have to be repaired. They say that to repair the job, would require a complete new re-shingling job. On the evidence I heard I agree.

[ 19 ] The Plaintiff’s claim is therefore dismissed. He is not entitled to be paid for the work he did, as it will all have to be redone. The Defendant’s counterclaim is also dismissed. They are in the same position they were before. They still need proper re-shingling of their roof. However, the Defendants will have their costs in the amount of $200.00. Conclusion [ 20 ] The Plaintiff’s claim is dismissed with costs to the Defendant in the amount of $200.00. The counterclaim is also dismissed without costs. ________________ B.M. Singer, J