Jack Totter v. Ed Wilkinson, o/a New Age Foundation Plus, 2013 SKPC 203

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 203 Date: December 27, 2013 File: SC#564 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Jack Totter and Ed Wilkinson, o/a New Age Foundation Plus - and - Kathy Mahussier Self-represented For the Plaintiff (Defendant by Counterclaim) Self -represented For the Defendant (Plaintiff by Counterclaim) _____________________________________________________________________________ JUDGMENT D.E. LABACH , J _____________________________________________________________________________ INTRODUCTION

[ 1 ] The Defendant, Kathy Mahussier, contracted with the Plaintiff, Jack Totter and Ed Wilkinson operating as New Age Foundation Plus, to pour a basement foundation and concrete floor for a house that she wanted to move onto a property in the town of Colonsay, Saskatchewan. [ 2 ] The Plaintiff poured the foundation for the Defendant and on July 6, 2011 an existing house was moved onto the lot and set on this new foundation. On or about August 9, 2011, the Plaintiff had a basement floor poured as per the contract. [ 3 ] The total bill for the work done by the Plaintiff was $31,762.50.

The Defendant paid $26,962.50 but she refused to pay the remaining $4,800.00 citing some problems with the Plaintiff’s workmanship and that they thereby breached the contract. [ 4 ] The Plaintiff disputes the Defendant’s claim of faulty workmanship and is claiming for the balance owing under the contract, interest on the outstanding balance and costs. The Defendant has counterclaimed for the costs to repair the alleged faulty workmanship and costs of the counterclaim. FACTS [ 5 ] In January 2011, the Defendant purchased an existing bungalow from a farmer in the Prudhomme district of Saskatchewan.

She purchased the house with the intention of moving it to a lot that she owned in Colonsay. She did not have a home inspector or builder look at the house before she purchased it. She was aware that the home had been built in 1995 on an existing foundation and that the basement was leaking, however she did not ask the vendor whether the house was level or whether he had to shim it on the foundation. [ 6 ] Jack Totter and Ed Wilkinson were partners in New Age Foundations Plus. Their business was making basements out of insulated concrete. They had been running this business since 2004.

Jack Totter did most of the estimating and Ed Wilkinson did most of the hands on work. [ 7 ] The Defendant wanted to put the house on a concrete foundation with a full basement so she obtained some quotes to pour the foundation and the basement. The Plaintiff’s quote was the lowest one she received and they were available to do the work in the time frame that she wanted so she advised them that she would like to hire them to do the work.

After the Defendant told them she wanted them to pour her basement, they made arrangements to attend at the house in the Prudhomme district and take some measurements so they could prepare a contract. On March 15, 2011, they met Lloyd Folk, the Defendant’s then boyfriend, at the house and they measured the length and the width on two sides. They were not able to access the other two sides of the house. [ 8 ] On March 30 th , the Plaintiff and the Defendant signed a contract for the following: - 164 lineal feet of 9' 4" ICF wall - 52 x 30; - Staking foundation is included.

Surveyor’s Certificate is not included; - 20" x 6" footings with 2 - 10mm rebar; - 9' 4" of 6" ICF blocks with 10 mm rebar 16" OC horizontal and vertical; - 3"concrete floor with 6" crushed rock and 6 mil poly included as per National Building Code; - Weeping tile with 6" rock cover and waterproofing membrane; - Concrete pump is included in price; - Window and door bucks are included; - 2 x 8 sill plate to be supplied by the customer. New Age Foundation will install the sill plate.

[ 9 ] The agreed cost of doing this work was $31,762.50 inclusive of GST. This amount was to be paid as follows: - 15% deposit - $4,764.38; - footing and basement walls are completed, waterproofing, weeping tile and crushed rock - $22,198.12; - concrete floor has been placed and finished - $4,800.00 Interest was to accrue at 2% per month (26.81% per annum) on overdue accounts. [ 10 ] The Defendant paid the deposit and Mr. Totter and Mr. Wilkinson attended at the Colonsay property on May 13 th to stake it out for excavation. Even though they staked out the property, they did not dig the hole for the basement.

The Defendant had hired another fellow to dig the basement. [ 11 ] After the basement had been dug, the Plaintiff began setting up and pouring the footings. The next day they returned, stripped the forms and put in the crushed rock. Following that they set up their concrete forms and poured the basement. Then they stripped off the braces and installed the waterproof membrane to grade. Finally, the basement was backfilled. On May 20 th , the Defendant made the second payment agreed to in their contract. [ 12 ] The Defendant wanted to put in a steel support beam that ran the length of the house.

However, the steel fabricators would not make her a steel beam without engineered drawings. She obtained those engineered drawings on May 16 th and ordered the steel beam right around the time the Plaintiff was pouring the foundation. [ 13 ] On June 14 th , Ed Wilkinson attended back to the site and put on the sill plate and a gasket. At this time he cut the pockets for the support beam. [ 14 ] On July 6 th , the steel beam was placed and the Prudhomme house was moved onto the lot and dropped on the new foundation. The Defendant was on site watching this happen.

After the house had been set on the foundation, one of the house movers told her that the house did not fit on the foundation properly. The new basement was apparently three inches longer than the house on one side and the house was not sitting flush on the sill plate. [ 15 ] The Defendant called Lloyd Folk to deal with this problem and he in turn contacted the Plaintiff. She did not speak to either Mr. Totter or Mr. Wilkinson about this problem but left it in the hands of Mr. Folk. After getting this call, Ed Wilkinson immediately came out to the site.

He had a look at the foundation they had poured and at the house. He noticed that the foundation was approximately 3 inches longer than the house and three corners of the house were not sitting flat on the sill plate. [16] Mr. Wilkinson thought that either the old house had come off an uneven basement foundation or a footing had dropped. He was not certain at the time why the foundation was slightly longer than the house at the one end. He contacted Mr. Folk and told him they would get a laser level and shoot the foundation to see if the problem was with the foundation or the house.

He suggested that if they placed the house on the foundation and left it, the house may settle in the corners. If it did not settle then the joists could be shimmed and foam insulation could be sprayed in any cracks. Mr. Folk said that they would try and find someone to have a look at it and get another opinion as to how to fix it. [17] Both Mr. Wilkinson and Mr. Totter re-attended the site with a laser level and shot a transit. It showed that the foundation was level except in one corner where it was out one-quarter of an inch from plumb. This was an acceptable deviation.

They concluded that the house was the problem and that it must have come off a foundation that was not level. They were satisfied that the issue could be

resolved through a shim and some spray foam insulation. [18] The foundation was only three inches longer than the house on one side of the house. The entire foundation was six inches wide so this side of the house was still sitting on three inches of foundation. The problem was not structural, but cosmetic. The Defendant was putting a deck on that side of the house so this would cover up that three inches of foundation that stuck out from the house and would rectify the problem. [19] The Defendant and Mr. Folk could not find anyone to come out and give them an opinion as to how to fix these problems.

Lifting the house up and levelling the foundation was not an option for the Defendant so she and Mr. Folk agreed to let the Plaintiff shim and spray foam the spot where there was a gap. Mr. Folk conveyed this to the Plaintiff. [20] On August 9 th , the Plaintiff levelled the crushed rock in the basement, put 6 mm poly down and hired a subcontractor to pour the basement floor and level it. While they were doing this work, they noticed that the toilet flange was already installed. This was unusual as normally the flange is put in after the concrete is poured.

Since a plumber must have done it, they thought it was okay. At this time too, they gave Mr. Folk a half metre of concrete to pour the deck piles at no cost. [21] On August 15 th , Mr. Totter went back to the house to check the floor. He measured the distance from the floor to the floor joists in a number of spots and was satisfied that the floor was level to within one-half inch of acceptable parameters. [22] On August 26 th Mr. Wilkinson attended to the house to fix the problem with the gap in the one corner of the house. He noticed that the house had settled a bit but there was still a gap.

He shimmed under the floor joists in this area and spray foamed. There was also a small gap in the opposite corner which he shimmed and sprayed as well. [23] After completing these repairs, Mr. Wilkinson called the Defendant and told her that the house was now level. He mentioned to her that the problem was that the steel beam was too high. Later she mentioned this to Mr. Folk and they went to the house and checked this out. There were some shims and spray foaming done and the gaps were plugged. Mr. Folk looked at the beam and in his view, size wise, it was fine.

However, he felt that it was cut into the foundation in the wrong spot and therefore it was in the wrong place. [24] On August 29, 2011, the Plaintiff billed the Defendant for $4,800.00 being the final payment agreed to in the contract and owing now that the basement was completed. Even though the house appeared to be level and any gaps plugged with foam insulation, the Defendant was not happy with how the Plaintiff had fixed these issues and she was concerned about long term problems with the structure of the house.

As a result, she decided to withhold this last payment owing under the contract until she could get an engineer to inspect the work. [25] By October 5, 2011, the Plaintiff had not received payment from the Defendant nor had he heard from her so Mr. Totter mailed out another invoice. On October 14 th , he called the Defendant and asked her if there was a problem. She told him that she wanted to get an engineer or a building inspector to have a look at the basement because she was concerned about the structural integrity of the home. Mr.

Totter did not have a problem with her doing that. [26] Unfortunately, the Defendant was having problems finding an engineer or a building inspector to come out and have a look at things. Mr. Totter called her back on October 25 th to see if she had arranged someone yet and she told him that she had not. [27] On November 13, 2011, the Plaintiff sent the Defendant a demand letter requesting payment of the outstanding $4,800.00 due under the contract plus applicable interest.

The Defendant still did not pay this outstanding amount and consequently on December 6, 2011, the Plaintiff filed a claim against the Defendant. [28] Sometime in January or February, 2012, the Defendant had a home inspection done by Gary Lizotte. In his inspection, he

identified the following problems with the house:

a) the toilet flange in the basement was too high;

b) one of the teleposts in the basement was crooked;

c) the plumbing stack was at an angle;

d) in a 2' by 3' area around the toilet flange the concrete was only two inches thick and not three inches thick;

e) the basement floor was not sloped to the drain;

f) given where the steel support beam was placed, there was not enough clearance for head room at the basement stairs. [29] Based on Mr. Lizotte’s report, the Defendant denied that she owed the Plaintiff any further monies and counter-claimed forthe cost of repairing the problems identified by Mr. Lizotte. ISSUE [30] Both the Plaintiff and Defendant in their respective claim and counterclaim allege that the other breached the contract thatexisted between them and further, both parties only alleged breach of contract by the other in their closing argument to me.

At no timein her written counterclaim or in closing argument did the Defendant claim against the Plaintiff in negligence. The issue in this case then,is as follows: Did either the Plaintiff or the Defendant breach the written contract that existed between them and if so, what is the appropriateremedy? ANALYSIS [31] I am satisfied on the evidence that the Plaintiff and the Defendant entered into a written contract for the pouring of a basementfoundation and a concrete floor. The contract was dated March 20, 2011 and signed by Mr. Totter on behalf of the Plaintiff, New AgeFoundation Plus and by the Defendant, Ms.

Mahussier on March 30, 2011. [32] Among other things, the contract specified the work the Plaintiff was to perform, the total cost of the work and at what stagethe Defendant would make certain payments towards the total cost of the work. There was nothing in the contract as to how the workwas to be carried out. [33] In Maisonneuve v. Burley, 2001 SKQB 407 , [2001] S.J. No. 520 (Sask.Q.B.) Madam Justice Dawson discussed thelaw governing a breach of contract for work and materials. At paragraphs 26 and 27 she said: [26] . . . . The governing law is set forth in Mack v.

Stuike (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask. Q.B.). At page771 of Mack, supra, Balfour, J. quotes from Halsbury’s Law of England, vol. 3, 3d ed., (London: Butterworth’s, 1953) at 435, paragraph818 as follows: . . . A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a conditionthat the work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of theordinary amount of skill possessed by those exercising the particular trade . . . .

[27] As stated in Goldsmith on Canadian Building Contracts (looseleaf; (Rel. 2) 1998) (Toronto: Carswell, 1988) at pages 5-11 through5-12: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications, is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach. Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were preparedby him and are deficient, even if they were approved by the owner.

Whether work, or material supplied, is defective or not is, in eachcase, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as towhat is reasonable where there are none. Where a contract, either expressly or by implication, contains a particular standard for the work to be done, an owner is not entitled toinsist on work of a higher quality.

For example, an owner who contracts for the construction of a bush road is not entitled to insist on astandard of construction applicable to a provincial highway. [34] As such, even though the contract between the Plaintiff and the Defendant was silent on the manner in which the work was tobe performed, there was an implied term in the contract that the work would be carried out in a good and workmanlike manner. If thework was not of reasonable workmanlike quality then that would constitute a breach of the contract. [35] The test for compliance with the workmanlike standard is fitness for purpose.

In other words, is the work and materialreasonably fit for the intended purpose despite minor deviations from the contractual specifications. See Al Vogel Construction Ltd. v.Forbes, (SK KB), [1998] S.J. No. 696 (Sask. Q.B.) at paragaphs 8 - 9; Lawson v. McKay, [2010] S.J. No. 768 (Sask.Q.B.) at paragraph 18. In this case, the purpose for the contract was to pour a basement inclusive of weeping tile, window and doorbucks and install a sill plate for the Defendant upon which she could set an existing home. [36] The facts are clear that the Defendant was her own general contractor on this project.

She hired the Plaintiff to pour abasement. She hired other trades to do the excavation and the plumbing and between her, her friends and her family, they were going todo the remaining work on the home. I am satisfied on the evidence that the Plaintiff completed the work that they were contracted todo. They staked the foundation, poured a basement foundation complete with footings, poured a concrete floor, installed weeping tile,window and door bucks and a sill plate. That is all that they were supposed to do under the contract. [37] The problem was that the Defendant was not happy with the Plaintiff’s work.

But not being happy with something that wasdone and the work not being of workmanlike quality are two different things. The crux of this problem goes back to something thatoccurred shortly after the contract was signed by the parties. Mr. Totter asked the Defendant for drawings for the project so he wouldknow the dimensions of the foundation, where the windows and doors were supposed to go, where to cut the beam pockets and where topour the footings for the teleposts. He and Mr.

Wilkinson had gone out to the old house in Prudhomme and had taken some externalmeasurements for the home so that they could prepare a contract. But these were only rough measurements made for the purpose offiguring out how many lineal feet of wall they would require and to determine a firm cost to put in the contract. These measurementshad nothing to do with where the doors and windows were going, where the support beam was going or where the teleposts were going. Normally Mr.

Totter would receive drawings done by a draftsman or an engineer that had exact measurements detailing these things, buthe would also accept drawings done by the homeowner. However, he always needed a drawing and it was always the homeowner’s orthe general contractor’s responsibility to provide the drawing. [38] The Defendant did not have any drawings when Mr. Totter spoke to her about this. She testified that he never told her thatshe needed drawings. I do not believe her. It would not be possible to dig a basement, pour a foundation and set a support beam into itbefore dropping a house on it without drawings.

The Plaintiff would have no idea where the Defendant wanted this structural beam orthe windows or doors or how she wanted the basement to look without drawings from her. These were decisions that she had to make asthe homeowner/general contractor, not decisions that should or could be made by a sub-trade like the Plaintiff. I am satisfied that Mr.Totter told her that he needed drawings to do the work the Plaintiff was supposed to do, that she knew that Mr. Totter wanted thesedrawings from her and that she would either have to pay to have them professionally done or do them herself.

In this case she did themherself.

[39] Surprisingly, the Defendant had never measured the house in Prudhomme. Instead, she used the measurements that the vendor of the home had given her. When Mr. Totter and Mr. Wilkinson spoke to her about where she wanted the window bucks, she realized that the measurements she had been given by the vendor and the measurements that Mr. Totter and Mr. Wilkinson had were different. Her measurements were 50' x 30' while theirs were 52' x 30'.

She asked them where they got their measurements and they told her that these were the figures they had got when they had measured the old house for the purposes of preparing the contract. [40] As a result of this conversation, she drove out to Prudhomme and measured the old foundation for herself. She found out that the measurements the Plaintiff had were correct. She created a drawing using these new numbers which she, herself, had confirmed. This drawing contained measurements and notes concerning where the windows, doors and the steel beam was to go and what the footprint of the basement was to look like.

She gave Mr. Totter this drawing on May 13 th . The Defendant also wanted to have a steel support beam fabricated and she was advised that she needed engineered drawings for that to occur. So she sent this same drawing to the engineer and it was from that drawing that he prepared his drawing for the steel fabricator. [41] On May 13 th , the Plaintiff was pouring footings for the teleposts in the basement. However, the drawings she had given them did not show where the teleposts were to be located.

The Plaintiff asked her for a copy of the engineered drawings for the support beam but she did not have these drawings yet. She called the engineer and he told her where to put the posts so she hand drew these in on the drawing she had earlier given to the Plaintiff. [42] The Defendant’s decision not to pay the balance of the contract price was initially based on three problems: firstly the fact that the foundation was three inches longer than the house on one side, secondly that the house was not sitting flush on the sill plate and thirdly, that the beam pockets were not cut in the proper place.

Later, after the Plaintiff had started this action, the Defendant had a home inspection done and some further problems were identified. The Defendant blamed these on the Plaintiff and now, not only felt that she did not owe the Plaintiff any further monies, but that they owed her for the cost of repairing the deficiencies. [43] A number of these complaints can be distilled back to the drawing done by the Defendant. If the measurements in the drawing were not correct then there would be problems. And that is what occurred.

Foundation longer than house [44] Unbeknowst to the Defendant, the siding on the one wall of the house was shimmed out to fit the old foundation that it had been sitting on in Prudhomme. When she took her measurements of the old house, the siding was still on that side of the home so her measurements included the shimmed siding. Had the siding remained on the house when it was moved, everything would have been fine. But for some reason it was removed on that side of the house, perhaps for the deck or maybe when the porch was removed.

Once removed though, that side became 3" shorter than the Defendant’s measurements. Unfortunately this never came to light until after the foundation was poured and the house was set on it. Since the Plaintiff built the foundation based on the Defendant’s drawing and measurements, they are not responsible for the fact that the foundation is 3" longer than the house. [45] This problem thankfully did not cause any structural issues for the home. The basement foundation was 6" thick so the house was still sitting on 3"of foundation.

The problem was more cosmetic than anything else but there is evidence that the Defendant was building or was going to build a deck on this side of the house so this cosmetic issue would be satisfactorily rectified if it has not been rectified already. House not sitting flush on foundation [46] I heard considerable evidence on the problem of the home not sitting flush on the sill plate. This problem was not related to the drawing done by the Defendant. The Plaintiff’s view was that the house came off an uneven foundation therefore it was uneven.

The Defendant felt that the top of the basement foundation was not level and that is why the house did not sit flat on it.

[47] In order to prove their point, on November 22, 2011, Mr. Totter went out to the old yard site where the house was lifted off the foundation and he took some pictures of the foundation. It is evident in these pictures that the old floor joists were uneven and the foundation was uneven. He also testified that when they used a laser level to shoot a transit to check their new foundation, it was level everywhere except in one corner where it was 1/4" out of plumb.

This was an acceptable deviation. [48] The Defendant based her position on a chalk line that the house movers had done when they noticed that the house was not sitting flush to the sill plate in three corners. However, a month later, only one corner was not sitting flush on the sill plate so apparently the house had settled. [49] The Defendant also relied on the opinion of Mr. Lizotte, a home inspector she hired in January or February of 2012 to do an inspection. He was qualified as an expert in home inspections.

He explained that his expertise lies in inspecting existing homes for problems with electrical, plumbing, heating, structural integrity and the like. He was quick to point out that he is not a building inspector who would inspect a building as it is being built and ensure that it is up to Code. [50] In my view, the evidence establishes that the old house came off an uneven foundation and as such, it was uneven.

When it was first placed on the new foundation there were gaps in three of the corners where it did not sit flush on the sill plate but this was because the house was uneven, not because the foundation poured by the Plaintiff was uneven. This was confirmed by a laser level. After a time the house settled onto the foundation and there was only a gap remaining in one corner. Mr. Wilkinson attended and fixed this problem by shimming the floor joists and spraying foam insulation in the gap to fill it in. When he did this, it created a gap in the opposite corner which he also shimmed and spray foamed.

This was an acceptable fix and the end result was that the house was level and there were no gaps between the house and the foundation. The Defendant admitted that there are no gaps and her home appears to be level and I accept that it is. [51] I was not persuaded otherwise by Mr. Lizotte’s evidence. Not only was he not a building inspector but he was not present at any point in time when the basement was being poured or when the home was set on the new foundation.

He did not go out to the old yard site and inspect the old foundation to determine if it was level or not and he did not run a laser on the top of the foundation to determine if the foundation poured by the Plaintiff was level. It appears to me that he simply concluded that the foundation was not level because there were shims in two corners. Beam Pockets [52] I am satisfied that the Plaintiff agreed to cut the beam pockets for the structural beam as part of the contract between them. I am also satisfied on the evidence that they cut the beam pockets according to the drawing prepared by the Defendant.

There is no evidence to the contrary. According to the Defendant, she left the pouring of the footings and the cutting of the beam pockets for the structural steel beam in Mr. Folk’s hands. Mr. Folk testified that he thought that the beam pockets were cut in the wrong spot and therefore the beam was in the wrong spot. However, Mr. Folk admitted that he had nothing to do with the measurements as to where to cut the beam pockets or the cutting of the pockets.

He said that he never measured the thickness of the basement walls in the old foundation in Prudhomme and he is not sure if the steel beam that the Defendant had made was wider, deeper or longer than the wooden structural beam that was in the old foundation. I conclude that Mr. Folk’s only basis for saying that the beam pockets were not cut in the right spot was because the stairs would not fit. But this is the result of the beam pockets not being cut properly not the reason why they weren’t cut properly. They weren’t cut properly because the measurements on which they were based were wrong. [53] Mr.

Folk said later in his testimony that in April 2011, he took measurements for the centre beam. He said at that time he measured from the inside wall to the edge of the beam and he passed this information on to the Plaintiff so they could cut the pockets. He said that he never made any arrangements for any drawings.

This testimony about him taking measurements of the centre beam is in direct conflict to what he earlier testified to, that is, that he had nothing to do with any measurements as to where to cut the beam pockets and as such, I am not satisfied that he took any measurements of the centre beam in the old foundation. But even if he did take these measurements, the Plaintiff never did rely on his measurements.

The Plaintiff relied on the drawing that the Defendant gave them and that drawing refers to measurements as to how the beam is to be placed and ergo, where to cut the pockets. [54] I conclude that if the beam pockets were cut in the wrong spot, that is the fault of the Defendant. She provided inaccurate measurements in her drawing. The Plaintiff cut the beam pockets according to her drawing and therefore are not at fault if the beam was

not in the right spot. Toilet Flange too high [55] When the Plaintiff poured the basement on August 9, 2011, he noticed that the toilet flange had been installed. Despite recognizing that this was unusual, they went ahead and poured the basement. In my view, they should have contacted the plumber and/or the Defendant and discussed the situation with them. Had they done that, it seems to me that the logical solution would have been to remove the flange, pour the basement floor and then have the plumber re-install the flange properly.

Instead, they tried to pour the basement floor around the flange and this did not work out. As a result, this pouring of the cement floor around the toilet flange was not of good and workmanlike quality and I find the Plaintiff liable for the cost of removing the old flange and replacing it properly. Crooked Telepost [56] The Plaintiff was only responsible to pour the footings for the teleposts. They were not responsible to obtain and install the teleposts. The Defendant sub-contracted a fellow by the name of Murray Gordon to install the teleposts. Mr. Gordon was not called as a witness in the trial.

As a result, I am left to guess as to whether the one telepost that was crooked was the fault of the Plaintiff or of Mr. Gordon. There was no evidence before me that the footing on which this crooked telepost was sitting was not level. Perhaps Mr. Gordon installed it at an angle in error. In any event, it is not appropriate for me to guess as to why this telepost was crooked and I am not prepared to find that the Plaintiff is liable for the crooked telepost.

Plumbing Stack at an Angle [57] There is no evidence that the Plaintiff was responsible for installing the plumbing stack and as such, I am not prepared to find them liable for this problem. The installation of the stack is the plumber’s responsibility and if it was installed improperly, any fault should lie with the plumber. Thickness of Concrete [58] The Plaintiff admitted that the concrete around the toilet flange was only 2" thick instead of the contracted 3". Both Mr. Totter and Mr.

Wilkinson accepted responsibility for the fact that the concrete in a 2 foot area around the toilet flange was not the agreed to or proper thickness. Therefore, they are liable for this problem. Slope of Basement Floor [59] Mr. Totter and Mr. Wilkinson differed in their testimony on whether they were asked to slope the basement floor to the floor drain. Mr. Totter said that basement floors are poured flat unless the homeowner or the general contractor tells them to do different. In this case, he said that they were never asked to slope the floor to the drain. [60] Mr.

Wilkinson testified that he never checked to see if the basement floor was poured level. He did say that he understood that the floor was to be sloped around the floor drain and they did this.

[61] The Defendant and Mr. Folk both testified that the floor in the basement was not sloped to the drain. The Defendant brought to my attention the

section of the National Building Code that states that a floor surface shall be sloped to accommodate drainage. As a result, I am satisfied that the Plaintiff did not slope the floor to the drain at all. It was not a specific term of the contract but it was an implied term that when they poured the basement floor, it would be up to Code. The National Building Code says that a floor must be sloped and it was not. The Plaintiff is liable for the basement floor not being properly sloped.

Basement Stairs [62] I heard evidence that because the steel support beam was not placed in the right spot, there was not enough clearance for head room for the basement stairs. This meant that the Defendant had to get a set of custom steps made at a significantly higher cost than she had anticipated. [63] However, as per my earlier comments regarding the beam pockets, this problem was the fault of the Defendant. She provided the Plaintiff with the wrong measurements for the beam pockets. This lead to the beam being placed in the wrong spot which in turn led to the problem with the stairs.

The Plaintiff was not the cause of this problem with the stairs. CONCLUSION [64] I am satisfied that the Plaintiff performed the work that they were contracted to perform however they breached the contract by not ensuring that the toilet flange was flush to the basement floor, that the concrete around the toilet flange was not 3" thick and that the floor around the drain was not sloped to the drain. [65] The Plaintiff is entitled to the balance owing under the contract. The Defendant is entitled to reasonable costs to have the aforementioned defects remedied to conform to the requirements of the contract.

The evidence is that it would cost $300.00 to $400.00 to jackhammer out the concrete around the toilet flange, repour it to the proper depth and reset the toilet flange. There is no evidence as to how much it would cost to jackhammer around the drain and repour concrete with a slope to the drain but I am prepared to find that it would be approximately the same cost as to fix the toilet flange. Both areas were approximately the same size, both needed to be jackhammered out and the amount of concrete required to be repoured and the amount of work would be about the same.

Therefore, the Plaintiff’s final bill of $4,800.00 will be reduced by the cost to the Defendant to rectify the defects. I find the reasonable cost to remedy these aforementioned defects to be $400.00 for the toilet flange area and $400.00 for the drain area for a total of $800.00. Thus the Plaintiff will have judgment against the Defendant for $4,000.00. [66] The Plaintiff has also claimed interest on the outstanding balance as at the rate agreed to in the contract. I have given some thought to whether the Plaintiff is entitled to interest and I have concluded that they are.

This was a specific term of the contract agreed to by the Defendant. She could have paid the outstanding balance owing to the Plaintiff and then sued the Plaintiff for the defects in the contract. She chose not to do this. I assume she made this decision because she felt that the total cost to remedy the defects exceeded what she owed the Plaintiff. This ultimately proved not to be the case. The Plaintiff has been out these monies owing to them since the date they issued their final account and have not had the benefit of these monies to date.

Since I have found that there are monies owing, the Plaintiff will be entitled to interest on the amount owing of $4,000.00 at the agreed upon rate in the contract from August 29, 2011 to June 20, 2012, the date the trial was completed. This amount is $864.00. After June 20, 2012 to the date of this judgment, the Plaintiff shall have interest at the prejudgment interest rate as it existed from time to time. I calculate this amount to be $58.24. [67] Finally, since both parties had some success in their claim and counterclaim, each shall be responsible for their own costs. ___________________________________ D.E.

Labach, J