Mason v. Michaud, 2020 BCPC 283

Citation: Mason v. Michaud 2020 BCPC 283 Date: 20201217 File No: 43710 Registry: Princeton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS ACT BETWEEN: JACQUELINE MASON CLAIMANT AND: RAY MICHAUD dba ALL PURPOSE ROOFING DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. KOTURBASH Appearing on her own behalf: J. Mason Counsel for the Defendant: P. Varga Place of Hearing: Princeton, B.C. Dates of Hearing: November 14, 15, 2019, October 15, 2020

Date of Judgment: December 17, 2020 Introduction [ 1 ] Ms Mason hired Mr Michaud’s company All Purpose Roofing to shingle her newly-constructed home and garage. Within six months of completion, the roof leaked in a transition area between the garage and house and near a dormer in the garage. [ 2 ] Ms Mason claims that All Purpose Roofing breached an implied term of the contract, that the roof would meet the minimum standard of quality workmanship. She seeks reimbursement for the money paid to All Purpose Roofing and the cost of removing the shingles. [ 3 ] Mr Michaud denies the majority of the claim.

He agrees that the valley where the leak occurred was deficient, but it is an easy and inexpensive repair. The remainder of the roof, according to Mr Michaud, meets reasonable industry standards. Issues 1. What were the terms of the contract? 2. Was the contract breached? 3. If so, what is the remedy? Analysis 1. What were the terms of the contract? [ 4 ] The parties did not enter into a written contract. They had an oral agreement that Mr Michaud’s company would install shingles on Ms Mason’s new house and garage.

They also agreed to the type of shingle and a fixed price. [ 5 ] Parties are always free to identify the terms of their agreement. [ 6 ] As part of the agreement, Mr Michaud agreed to warranty his work; however, the terms of the contract did not specify the manner in which the work would be carried out. In the absence of an express agreement in relation to the manner in which the work is to be carried out, a contract to perform work carries with it an implied condition that the work shall be done in a good and workmanlike manner. [ 7 ] The standard for good and workmanlike compliance is not perfection.

The services may be good and workmanlike despite minor deviations. [ 8 ] In the case in hand, the British Columbia Building Code (“Code”) establishes certain standards for roofing and provides a minimum baseline to be met in order to achieve the standard of workmanlike quality. [ 9 ] In Fall (c.o.b. Advanced Roofing Ltd) v Wollner , [2019] SJ No 424 , Judge Demong describes the interplay between compliance with a building code and the obligation to provide services in a good workmanlike manner.

He states: [50] I am satisfied that compliance with these standards come within the obligation of a contractor to provide services in a good and workmanlike manner. … compliance with the Code is imported into what may constitute the implied condition of good and workmanlike services - is in accordance with the Court of Appeal for Ontario decision in G . Ford Homes Ltd. v Draft Masonry (York) Co.

Ltd. 1983 CarswellOnt 732 (Ont CA) , and its conclusion as set forth in paras 17 and 18: [17] On the facts of this case there must of necessity, be an implied term that the staircase could be and would be installed so as to comply with the Ontario Building Code. There could be no business efficacy to the contract without such a term. It is no contract to have stairs installed that must, by requirements of the law, be taken out for failure to comply with the code. To sanction the installation of such a staircase in contravention of the code would be tantamount to sanctioning an illegal contract.

On the basis of the principle enunciated in the Moorcock case, supra, the term should be implied in the contract that the stairs would comply with the code. [18] Alternatively, or additionally a term should be implied that both the work and the materials will be reasonably fit for the purposes for which they were required. Such a term must be implied unless the circumstances of the contract are such as to exclude any such obligation: see Young & Marten, subpar. No such exclusion appears, from the circumstances of the contract in this case.

The work and materials supplied could not be reasonably fit for the purpose for which they were required unless they complied with the provisions of the Ontario Building Code. [51] While I am not bound by law to follow the decisions of the Ontario Court of Appeal, they are, in law, persuasive.

Were I to conclude that compliance with the Code was unnecessary, this Court would be in the unenviable situation of advising a person who brings action in this Court alleging defective work, that if they hire a trained professional and rely on their expertise in the course of a building repair, then, notwithstanding that the expert did not comply with the Code , they would not only have to pay for that service, but then incur the cost of redoing all of the work to ensure that they themselves are not in violation of the Act .

In addition, if they failed to redo the work, then they may arguably expose themselves to a negligence action or a breach of contract action when, having full knowledge of the deficiency, they fail to advise a subsequent purchaser of this defect. [ 10 ] When a product like new shingles is being installed, a further implied term of the contract is that the product will be installed in a manner consistent with the manufacturer’s specification. 2. Was the contract breached?

[ 11 ] Work that is not of reasonable workmanlike quality is not in compliance with the contract and constitutes a breach of contract. Whether the work is defective or not is in each case a question of fact. [ 12 ] Work that is not consistent with the manufacturer’s specifications can also amount to a breach of contract. Work that voids the manufacturer’s warranty deprives the homeowner of a substantial benefit to the contract. [ 13 ] Ms Mason alleges that installation of her roof failed to meet both the British Columbia Building Code and the shingle manufacturer’s installation specifications.

Mr Michaud on the other hand argues that although his company installed the product differently than either the building code or manufacturer’s specifications, the installation exceeded those minimum standards and Ms Mason has a more superior roof. [ 14 ] I will now address those differences and the alleged deficiencies. Valley construction [ 15 ] Within less than six months the roof leaked in two different locations. One leak was in a transition linking the garage and the house; another leak was located near a dormer in the garage. [ 16 ] There are typically two ways to construct valleys when roofing a house.

The first is an open valley that is created by using metal flashing; the second is a closed valley that is created by installing a synthetic material called ice and water shield, and then covering the area with shingles. The open valley is typically more expensive but when done properly, provides better protection by doing a better job shedding ice, snow and water. Both are acceptable under the British Columbia Building Code. [ 17 ] Both Ms Mason’s and Mr Michaud’s experts agreed that a poorly-constructed roof valley was the cause of the leak in the transition area.

The valley was step-shingled, which is not a recognized means of creating and sealing a valley. The nails fastening the shingles to the sheathing were within two inches of the valley's centre, which is also not acceptable. Nails must be at least six inches away from the centre to avoid corrosion. [ 18 ] Mr Michaud said that because the garage, house and transition were shingled at different times, to be able to do a proper closed valley, he would have had to remove and replace shingles. The cost of doing this would have added at least $450 to the cost of the project.

He said he knew that Ms Mason was on a tight budget and decided to propose an alternative. [ 19 ] According to Mr Michaud, he told Ms Mason that he could construct the valley in a way that would not involve the removal of any shingles or additional costs. He claims that he told her that if he proceeded this way, she and her husband would need to keep the area clear of snow and ice. He said this could be done either by installing heat tape or using a snow rake. [ 20 ] Ms Mason denies this conversation and ever being given the option of choosing between a proper and improper valley.

I accept her evidence. [ 21 ] On things that mattered, I found the truth was only an occasional visitor during Mr Michaud’s testimony. He was evasive and inconsistent in the answers he gave. Where Ms Mason’s evidence differs from his, I accept her evidence.

She was credible and reliable. [ 22 ] Even if I could accept that Ms Mason would have agreed to an upcharge of $450 for a proper valley, I do not accept that she would have, in lieu of paying that amount, agreed to the installation of a valley that did not meet British Columbia Building Code standards and one that would require regular maintenance or unsightly heat tape. Eaves protection [ 23 ] During the installation of shingles, installers must cover the roof with an underlay.

The underlay from the edge of the eaves to several inches past the internal walls of the house is called eaves protection. [ 24 ] The underlay or eaves protection is a layer of protection between the roof deck and the roof shingles. Adding this layer of protection provides a longer-lasting roof by repelling water and providing backup protection in the event of ice or water damage. [ 25 ] The type of underlay used in areas of heavy snowfall is important because of the roof’s vulnerability to heat changes. As the inside of a home heats the roof, snow begins to melt and run down the roof.

It eventually reaches colder parts of the roof, like the eaves, and freezes. This situation can be amplified when the water encounters pre-existing ice on the way down, as often happens on the lower parts of the roof. Eventually ice will accumulate at the bottom and can create ice dams, blocking the water from running off the roof. If the water does not freeze quickly, it can seep under the shingles and cause serious damage.

This is especially common during freeze- thaw cycles, which tend to happen most often in early and late winter when temperatures hover around the freezing point, tipping one way or the other as the sun rises and sets. [ 26 ] Properly installed underlay provides a watertight membrane, collecting any water that gets under the shingles behind the ice dams, so instead of continuing downward and infiltrating into the roof, the water is routed to the roof’s main gutter. [ 27 ] The importance of proper eaves protection cannot be understated.

According to Ms Mason’s expert, Mr Aase, most roof failures are the result of inadequate eaves protection or improper nailing. [ 28 ] Mr Aase was a reliable and credible witness. His qualifications are impressive. Although he was retained by Ms Mason, he did not demonstrate as being an advocate and was careful not to overstate his opinion. Where his evidence differs from that of Mr Michaud, I accept Mr Aase’s evidence. [ 29 ] Although I was also impressed by Mr Michaud’s expert, his level of expertise was not the same, nor was his inspection as detailed and thorough as Mr Aase’s.

Again, wherever their evidence differed, I prefer Mr Aase’s.

[ 30 ] The British Columbia Building Code provides a list of waterproof membranes that can be used for eaves protection. These include a peel and stick membrane like ice and water shield, or two layers of 15-pound organic felt cemented together. [ 31 ] During the roof inspection, Mr Aase said that he discovered that 30-pound felt underlay was used for eaves protection.

This type of underlay is not listed as an approved material for eaves protection. [ 32 ] He said that although the British Columbia Building Code still lists two 15-pound organic felt layers as an approved material, it is rarely if ever used for eave protection or in valleys because synthetic materials like ice and water shield provide far superior protection. [ 33 ] Mr Michaud does not deny using 30-pound felt. In fact, the contract invoice that he gave to Ms Mason states that he used it to the bottom edges and the valleys.

Rather, he claims that 30-pound felt is the industry standard and superior to two layers of 15-pound felt. However, Mr Michaud could not articulate why he believed 30-pound felt was equal to or superior to two layers of 15-pound felt. [ 34 ] Neither Mr Aase nor Mr Michaud’s expert could explain why 30-pound felt was not listed as one of the approved materials, nor could either say whether it was equal to or superior to two 15-pound sheets cemented together. [ 35 ] I am not prepared to accept Mr Michaud’s bald assertion that 30-pound felt is equal to or superior to the ones approved in the Code.

If, as Mr Michaud claims, 30-pound felt is the industry standard and superior, one would expect that it, rather than or in addition to two 15-pound felt sheets cemented together, would have been included by the authors of the Code. It is not and without something more, I am not prepared to accept that its installation meets Code. [ 36 ] Not only did the type of eaves protection used not meet the standards of the British Columbia Building Code, it also failed to meet the manufacturer’s specification.

That specification requires nothing short of a synthetic peel and stick membrane to be used. [ 37 ] By failing to install the shingles according to the British Columbia Building Code and the manufacturer’s specifications, Mr Michaud’s company deprived Ms Mason of substantial benefits of the contact: first, to have a roof that is built for its intended purpose - to keep water out; second, the ability to obtain insurance against future leaks; and third, the ability to retain the manufacturer’s warranty on the shingles.

Slope transition flashing [ 38 ] Slope transition flashing is metal flashing installed to provide a continuous drainage where two slopes meet. According to Mr Aase, the installation of the slope transition flashing on the garage was done incorrectly. He pointed out that the flange was only two inches, which was too short and it was improperly installed, tipping backwards.

He said that with this type of installation the roof over time would likely develop a leak. [ 39 ] Although Mr Aase could not say with certainty what the cause of the second leak in the garage was, he opined that it was likely the result of the improperly installed transition flashing. [ 40 ] Mr Michaud did not refute this claim in any meaningful way and I accept Mr Aase’s evidence on this point. Drip edge [ 41 ] Drip edges are metal sheets usually shaped like an “L,” installed at the edge of the roof, also called drip edge flashing or D- metal.

They serve a vital function by directing water away from the fascia and into the gutter. Drip edge is required by the building code and the manufacturer’s specifications. According to Mr Aase, there were locations on the roof where there was no drip edge. [ 42 ] Although the slope transition flashing and drip edge could be easily repaired, their absence is indicative of the overall quality of the work done. 3.

If the contract was breached, what is the remedy? [ 43 ] Where there has a been a fundamental breach of contract, the party who is contractually affected by the breach is entitled to be placed into the same situation they would have been in had the breach not occurred, insofar as an award of money can assist. [ 44 ] According to Mr Aase, the entire roof would likely have to be removed and replaced. I agree. [ 45 ] Typically when shingles are produced, roofers will use shingles from the same dye lot to ensure colour consistency.

Even if part of the roof could be spared, it is highly unlikely that sufficient shingles from this same dye lot could be found to match the existing shingles. [ 46 ] Furthermore, shingles fade over time and feathering and matching the existing shingles with new ones over such a large area is not realistic. [ 47 ] Mr Aase’s estimate, which was well supported and one that I accept, is that the cost of removal and re-installation would exceed $35,000. [ 48 ] I accept Ms Mason’s evidence that she paid Mr Michaud $34,478 for the project. [ 49 ] Part of the payment was by cheque but most of it was in cash.

Not only is the amount provided by Ms Mason consistent with Mr Aase’s estimate, she also furnished proof of various withdrawals for most of the payments. She also kept copious notes. [ 50 ] In comparison, Mr Michaud could not provide any written proof to refute her claim, like cost of materials, wages paid, etc. In fact, until pressed by the court, he was unwilling to even provide an estimate as to the square footage of the job.

[ 51 ] I also find it incredible that in his trial statement he claimed the total amount of the job was $12,978, yet at trial acknowledged accepting another $8,000 cash for roofing the garage. [ 52 ] Not surprising, Mr Michaud also did not refute the amount Ms Mason claimed she paid him in her complaint to the Better Business Bureau. If she did as he suggests, inflate the cost by over $20,000, one would have expected some mention of that fact.

Conclusion [ 53 ] I am satisfied that there was a fundamental breach of contract by failing to comply with the British Columbia Building Code and the manufacturer’s specifications. Award [ 54 ] Ms Mason has incurred other expenses, like the cost of replacing drywall, insulation, etc. Unfortunately, the cap in small claims court is $35,000 and I am not able to increase the award any further. If I could, I would. [ 55 ] All Purpose Roofing must pay Ms Mason $35,000 in damages, plus filing ($156) and service fees ($100). _________________________________ The Honourable Judge G.

Koturbash Provincial Court of British Columbia