Trinity CCU Inc. v. Song Shan Yang, 2016 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 20 Date: February 24, 2016 File: 183/15 and 248/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Trinity CCU Inc. and Song Shan Yang - and - Larry Mohr and Eric Shiua Trinity CCU Inc. Plaintiff (Defendant by Counterclaim) and Larry Mohr and Eric Shiua Defendants (Plaintiffs by Counterclaim) and Song Shan Yang Defendant by Counterclaim Song Shan Yang For Trinity CCU Inc. and Song Shan Yang Larry Mohr For Larry Mohr and Eric Shiua JUDGMENT P. DEMONG, J

Introduction [ 1 ] Trinity CCU Inc. (Trinity) alleges that it entered into an agreement with Larry Mohr (Larry) and Eric Shiua (Eric), in May of 2013, to provide landscaping goods and services for a residential property in Regina. Trinity says that it worked on the project for a period of time but failed to complete the entirety of the work contemplated under the contract. Trinity alleges that it submitted an invoice for the work that was completed but Larry and Eric refused to pay.

Trinity brings this action, seeking payment for the debt that it says is due and owing. [ 2 ] Larry and Eric have disputed the claim alleging that the plaintiff abandoned the contract. They allege that the work that was done was deficient and not of a good and workmanlike quality. They further allege Trinity abandoned the contract and that much of the work contemplated under the contract remained unfinished.

They dispute the quantum of the debt alleged by Trinity. [ 3 ] At or about the same time that Trinity brought its lawsuit, Larry and Eric commenced action against Trinity, and the owner of Trinity, Song Shan Yang, who is the operating mind and primary shareholder of Trinity. They allege that as a result of the deficient work that was done on their property, and by virtue of the fact that Trinity abandoned the contract, they were put to significant expense to remedy the deficient work and complete the work that Trinity was contracted to do.

They seek damages in negligence and for breach of contract. [ 4 ] Because these two actions arise from the same set of circumstances, the actions were consolidated and tried together. [ 5 ] On a passing note, the original claim brought by Larry and Eric included several pseudonyms for Mr. Yang, because Mr. Yang had adopted various names in his various communications with Larry and Eric. At trial his correct name was made known to the Court and the style of cause in claim 248 of 2015 was amended to reflect Mr. Yang’s actual name - Song Shan Yang.

Evidence [ 6 ] Much of the evidence at trial respecting the contract was undisputed. The parties communicated for the most part by e-mail and all of those e-mails were introduced into evidence with the consent of the parties. [ 7 ] In or about 2013 Larry and Eric purchased a home in Regina. The front sidewalk and the backyard were in a state of significant disrepair. After seeing a Kijiji advertisement, they contacted Mr. Yang who owns and operates Trinity CCU Inc., a landscaping company which Mr. Yang had incorporated when he moved to Regina from Toronto in 2009. [ 8 ] In early May of 2013, Mr.

Yang, met with Larry and Eric and inspected the property. Following a preliminary series of discussions regarding potential landscaping alternatives, Mr. Yang (signing as ‘William Young’) sent Larry a document entitled ‘Estimation Form’. The document stated: “The following is used for estimation only. The final price should be figured out after the project done.” [ 9 ] The Estimation Form then set out the goods and services to be provided, a description of each of those items, the quantity of product to be used, a unit price for the product, and a sub-total for each of the sub-projects.

The total came to $13,296.00. GST on that sum, at 5%, increased the total estimate to $13,960.00.

[ 10 ] There were notations on the estimate form. Notation 2 is significant. It reads: 2. The patio and walkway is firm price. But the cost of garden area is hard to estimate. I don’t know how many day to work and how much to haul away, haul in. I just give $1500 for garden charge. [ 11 ] More e-mails passed between the parties regarding suggested changes to the project. Larry then sent a rather detailed description of what work they would like to have done. That e-mail, dated May 14, 2013, sought an assurance from Mr. Yang that he had insurance in place before he started work on the project.

Larry provided a drawing depicting how they wanted their property to look and broke down the anticipated project: Hi William, Yes, we would like to work with you but we need you to give us a quote and make sure you’re insured with liability and damage insurance before you start work with us. Before you get insurance, please give us your price for below first. We’ve made some changes after meeting some other contractors. Some of them gave us some great ideas, especially for the upper deck. Drawing attached. 1. UPPER DECK: Remove all the olds boards and renovate the upper deck.

Install new pressure treated boards, railing, and build new stairs. In one corner of the deck there should be screening while the rest of the deck should have white railing. The stairs should also be wider, about 8 feet wide. 2. LOWER DECK: Demo the entire lower deck and replace with paving stone patio. The patio stone style we like is Barkman Holland in Natural and Charcoal border. Htt://www.barkmanhardscapes.com/products/details/Holland/ The patio should be about 19ft X 18ft. 3. BACKYARD WALKWAY: We’d like the same style as the patio, Barkman Holland in natural with charcoal border, for the back walkway.

The walkway should extend from the back gateway and garage to the patio. The backyard walkway should be about 34ft 36inches. 4. FRONT WALKWAY: The front walkway should be like Barkman’s Holland in Sierra Grey. The walkway should be flush with the outer edge of the front landing we have at our front door. The front walkway should be about 19ft X 36inches. 5. LANDSCAPING:

a) Garden Behind The Garage – Clean up this area and clear out the old beds. Cover all empty areas using existing rocks from other parts of the yard. There should be enough rocks and landscape fabric to prevent weed growth. About 4 inches.

b) Along The Chain Link Fence In The Back – Clean up and reorganize this area with new fabric underneath, removing all old fabrics, and use existing rocks and brick edging. There should be rocks all along the back of the chain link fence and about 5 ft from it. There should be about 4 inches of rocks to prevent week growth while minding the slope in this area.

c) Rest Of The Backyard – Haul all other rocks, old fabrics and brick edging that you did not use for the back and garden; except for certain areas as represented in drawing. The areas that had the rocks cleared, please prep for grass. Bring in topsoil if you need it.

When you draw up the estimate please be as detailed as possible. Also please let us know when you can start and the time frame in which you can complete the project. If you have any questions, please don’t hesitate to contact us. If you require any measurement, please let us know when you’ll come by so the dogs are not in the yard. [ 12 ] By e-mail, the parties talked about slight variations or revisions to the project dealing mostly with the deck, and on the 23rd of May, 2013, Mr. Yang provided them with a second quote, also identified as an ‘Estimation Form’.

The price was adjusted slightly upward and made provision for building a deck rather than simply removing some of the older boards and applying new decking. The new price inclusive of GST amounted to $14,076.30. [ 13 ] The line item estimate for the garden area remained at $1,500.00. [ 14 ] The parties also discussed payment arrangements. Mr. Yang made it clear to Larry and Eric that this project was, in essence, a lump sum contract and that he would seek full payment for all of the work done once the contract was complete. [ 15 ] Work commenced on June 9, 2013. Work ceased on June 17, 2013. On June 18, 2013 Mr.

Yang attended on the residential property and picked up his tools and left. Larry e-mailed Mr. Yang later that day and asked when Trinity would come back to do further work on the project. Mr. Yang responded on June 19, 2013, asking whether or not Larry and Eric wanted sod or seed for the backyard. There was no reason why Trinity would ask about this. It had earlier been agreed upon. Larry had made it known to Trinity that they were going to seed the lawn and not use sod. On June 19, 2013, Mr. Yang advised them by e-mail “I really can no make money for this. Perhaps I will raise the price for landscaping.

I will figure this out later’. He went on to mention that he would be moving on to another project for a couple of days. He asked for a $6,000.00 advance on the work that had already been completed. It is clear, from a consideration of the viva voce evidence at trial and the e-mails that passed between the parties that there would be some delay in the construction of the deck as a result of a delay in obtaining the necessary permits. It is clear that the parties were uncertain of precisely what would be required to complete that deck.

It is clear that the parties recognized that the cost identified for landscaping the garden area was not clearly agreed to between the parties. [ 16 ] On June 19, 2013 Eric asked Mr. Yang to come and meet with them as soon as he had finished Trinity’s other project. He also invited Mr Yang to bring an invoice for the work performed on the patio. The parties continued to respond by e-mail regarding further completion of the total project on June 20 th and June 21, 2013. On June 24, 2013, Mr.

Yang advised them that his Bobcat had broken down the previous Wednesday and that work would resume on their property when it was fixed. Eric replied, indicating that he still wanted an invoice from Trinity for the work that had been done to date. [ 17 ] On that same date Eric sent another e-mail expressing his disappointment on the landscaping project to date. He made it clear that Trinity had left their back yard in a mess, and indicated that he was not particularly concerned with how busy Trinity might be with other projects, or that Trinity’s material costs have gone up. He simply wanted the job done.

He asked how much it would cost to finish the landscaping and asked that the estimates be provided by the next day. He wrote ‘if you are no longer interested in working on our landscaping because you are too busy, or because you can’t make money, please let us know so that we can make other arrangements’. He received no reply and on the next day again requested an invoice for the work that had been done so far. [ 18 ] Mr. Yang responded on June 26, 2013, giving various reasons for the delay.... it had been muddy and his Bobcat had broken down.

He indicated that this was the first time he had ever had to argue with a customer. He indicated that he had no time to argue and that he had three other estimates to figure out. He wrote, “It’s no problem if you look for another contract [sic] to finish your project. I will remove all the stuff I have left”. [ 19 ] Eric replied by e-mail the next day. He expressed his frustration on a number of points and asked Mr. Yang to answer two questions: “1. Are you going to complete the job as per our discussions? 2.

If you are going to finish your job, when are you going to finish the landscaping and how long will it be until it is finished?” [ 20 ] Mr. Yang replied the following day. He indicated that he felt Eric was too ‘sensitive’. He stated that he was tired and didn’t want to have to read a long letter every day and spoil his mood. He wrote: “I don’t want to continue your project.... I will figure out the price I

have done and remove the stuff in your property.” He wrote that he would give them the deck permit when he received it; that he would take back the railing and the wood; and that they could keep the brick for the sidewalk and he would charge for the material cost. [ 21 ] Eric replied the same day. He sought to have Mr. Yang continue the project and that he felt each of them could work through their respective concerns with better communication. The following day Mr.

Yang made it clear by e-mail that Trinity would not complete the project. [ 22 ] Following this series of e-mails further e-mails passed between the parties discussing the July 9th invoice that Trinity had forwarded for the work that had been completed. It was broken down as follows: Patio $5,472.00 Walkway back yard $ 500.00 Walkway front yard $ 912.00 Plastic edging $ 246.00 Removing old deck $ 600.00 Landscaping $1,000.00 Total, 5% GST included $9,166.50 Remaining brick, taxes in $ 633.82 Total $9,800.32 [ 23 ] The invoice included clarifying notes.

Trinity indicated that it had increased the charge for removing the old deck from $350.00 to $600.00 because it was really hard to remove. For landscaping the backyard, it would charge only the costs incurred, $1,000.00 instead of $1,500.00. This reflects three workers, for 2 full days and four loads of garbage to the landfill. For the backyard sidewalk which had not been bricked in - $500.00. The remaining brick would be left and charged to Larry and Eric.

Trinity indicated that it would charge a re-stock fee for the wood and railings that it had to return, identified at 20% of the cost of the goods, which at trial was indicated to be $316.00. [ 24 ] E-mails continued to pass between the parties. Trinity indicated that it would also charge for the permit to build the deck. It sought $100.00 for the permit and a $100.00 fee for obtaining it. [ 25 ] The e-mails became more rancorous and ultimately, Eric advised Trinity that, on the advice of legal counsel, they would not be paying the invoice.

In response, Trinity unilaterally began to add an interest charge to each successive invoice he sent. The relationship quickly deteriorated. Trinity employed Falcon collections to collect on the debt. Falcon in turn sought payment for the invoices (now approaching in excess of $11,000.00) from each of Larry and Eric, severally, suggesting an indebtedness of about $11,000.00 each . [ 26 ] Larry and Eric tried to resolve the matter through the Better Business Bureau without success.

Trinity would not participate in any meaningful way. [ 27 ] While the e-mail battle progressed, Larry and Eric were forced to retain other contractors to complete the work that had been left undone. This was done in what I consider to be an expeditious fashion. Unfortunately, because the contract had not been completed by

Trinity, the partial work that had been done began to deteriorate. Photographs were tendered into evidence, showing that because the patio and front sidewalk had not been properly bracketed with plastic edging and because soil and sand had not been employed to surround the brickwork, the base of the patio began to erode. The erosion in turn forced the bricks to separate. In addition, much of the labour employed to pull weeds had been in vain. The weeds regrew.

In total, Larry and Eric incurred the following costs to complete, what they thought, should have been the final landscaping project: Francis Landscaping July 31, 2013 redo paving stone walkway and patio $4,432.00 Truck and fuel $ 100.00 Topsoil $ 600.00 Rock around outside of yard $1,200.00 GST $ 316.00 Total $6,648.60 Rockey’s Bobcating Services July 27, 2013 to July 29 2013 Landscaping back yard $ 950.00 Trucking 8 loads out $ 950.00 Labour $ 200.00 Bobcat time $ 522.50 1 load out $ 95.00 Topsoil delivered (25 yards) $1,375.00 Labour $ 250.00 GST $ 222.13 Total $4,564.63 Unfinished Business September 6, 2013 Supply and install materials for Deck $5,971.05 Privacy wall $ 430.39 Total $6,401.44 [ 28 ] In total, Larry and Eric spent $17,614.67 to both correct the deficient work that had been done, and complete what they felt would have been the remainder of the contract.

Issues

[ 29 ] The Court is called upon to address the following issues: 1. Was there a contract between the parties relating to the provision of certain landscaping services? If so what were the essential terms of the contract? 2. Did Trinity abandon the contract? If so, how, in law, are Larry and Eric entitled to respond? 3. Are Larry and Eric entitled to recover, from Trinity, any costs associated with reparation of the deficiencies which they found to exist with the work that had been done? Are they entitled to recover costs which they incurred to complete the contract that they had entered into with Trinity?

If so, how much? 4. Is Trinity entitled to recover any money from Larry and Eric for goods and services provided under the contract? If so, how much? 5. Is Trinity entitled to charge interest on the monies due and owing to him either in the amount set forth in the invoices or at all? 6. Is Song Shan Yang, in his personal capacity, responsible for any or all of the costs incurred by Larry and Eric for reparation and the cost of completing the contract? Analysis [ 30 ] I am satisfied that Trinity did enter into a contract with Larry and Eric.

Trinity offered to provide landscaping services and Larry and Eric accepted the offer. Unfortunately, as happens all too frequently in renovation matters, and contracts for the provision of goods and services, the contract was long on ambition and short on specifics.

While the parties had some idea of what was anticipated to be done under the contract, they were less than clear about precisely how it was to be done, when it was to be completed, and what the ultimate cost would be. [ 31 ] The contract entered into between these parties was based on oral discussions between the parties, clarified (to some extent) by e- mails, and was subject to changes and modifications over time. In the absence of specific terms, it falls upon the Court to attempt to give effect to the contract, and where necessary, imply terms to that contract.

The nature of these implied terms will be dependent on the respective intentions of the parties, those circumstances which generally surrounded the making of the contract and the performance of the parties. The Court must ask itself the following question. What did the parties reasonably intend, as evidenced by their discussions as a whole and based on all of the relevant surrounding circumstances? [ 32 ] In my view, the parties followed what generally occurs in these unfortunate and poorly thought out types of agreements.

They had some clear ideas about what work should be performed and what materials should be provided. This is made manifest by the e-mail sent to Trinity identifying the nature of the work to be done, and the drawings which accompanied the e-mail and the estimate that was subsequently provided. They were both aware that some changes may occur over time and that the price may escalate over time. This is made manifest by Larry and Eric agreeing to allow work to commence having once received the estimate provided by Trinity.

They knew or ought to have known that the price for the garden area component of the agreement was very much a rough estimate, and they quickly knew, or ought to have known, of the several changes that developed in relation to the building of the deck. I am satisfied that the contract contemplated that, as work progressed, (at least with respect to the deck and the garden area) the parties would negotiate in good faith towards providing the work and detail anticipated by Larry and Eric for a fair and reasonable price.

Only if those good faith efforts failed, would the contract come to an end. [ 33 ] I am satisfied, as I have said, that this contract was a lump sum contract, and not divisible. It did however anticipate three distinct areas of work. I will deal with each in turn.

[34] The first area of work deals with the preparation of the property for the placement of the paving stones for the front walkway, theback walkway, and the patio. This was described in the estimate [Exhibit P-3] as a firm price. I am satisfied that all of the partiesrecognized that in exchange for completion of these projects Trinity would be entitled to charge $5,472.00 for the patio, $1,632.00 forthe backyard walkway, $912.00 for the front walkway and $330.00 for plastic edging. [35] The second area of work dealt with the tearing down of the old deck and the building of another.

While the original price quotedwas for $3,560.00 I am satisfied that the many changes and discussions held between the parties made it apparent to each that this pricewould vary over time and would have to be further negotiated. The third area of work was the garden area. It was large. I am absolutelysatisfied that the parties knew that the $1,500.00 price quoted was a very rough estimate and likely to increase as the project wentforward.

My comments on these two items were confirmed at trial when Larry and Eric each conceded that they knew that what theyultimately received from the contractors, that they had to hire for the deck and the garden area could not reasonably have been done forthe roughly estimated price given by Trinity. [36] I have earlier related the circumstances leading up to Trinity’s decision to stop work on the contract. It appears that Trinity had lostinterest in the job. The e-mail trail tendered into Court makes it clear that Trinity had a number of projects on the go. Mr.

Yang hadsuggested that he would perhaps have to amend his earlier estimates for work relating to the garden area. There was little meeting of theminds as it pertained to deck specifications. Trinity’s bobcat had broken down resulting in delay. Mr. Yang grew tired with having totake time out of his otherwise busy days to attend with the several requests for information and progress on this job. He clearly advisedLarry and Eric by e-mail that he was going to discontinue working on the project. This notwithstanding Larry and Eric’s urging him toreconsider and to sit down and try to continue with the project.

I am satisfied that Trinity abandoned the contract and left the workunfinished. In so doing, he left Larry and Eric in a difficult situation. [37] I am satisfied that after having confirmed Trinity’s decision to abandon the contract, Larry and Eric were entitled to treat thatdecision as a repudiation of the agreement, accept the repudiation and thereby terminate the agreement, Thereafter, they were free toengage other contractors to complete the project in an effort to mitigate whatever losses they may have sustained from the repudiation,and, if necessary, sue Trinity in contract for breach of the agreement.

As indicated, they did so. [38] When Trinity abandoned the contract there was much left to be done. In addition, much of the work that had been done by Trinityhad been left in a state of disrepair.

Trinity’s claim for monies due and owing for work and materials performed must be considered inthe context of what steps Larry and Eric took when the contract was abandoned, and how the law responds to situations such as this. [39] The applicable law is summarized by Schroeder J.A of the Ontario Court of Appeal in Bradley v Horner, (ONCA), 1957 Carswell Ont 165, 10 DLR (2d) 446 at paragraph 6: In the view which I take of this case, the plaintiff is not entitled to recover anything from the defendant. The authority which has beenapplied very frequently in the Courts of this Province is the case of Dakin & Co. v.

Lee [1916] 1 K.B. 566. In that case it was held thatwhere a builder has supplied work and labour for the erection or repair of a house under a lump sum contract but has departed from theterms of the contract he is entitled to recover for his services unless (1) the work that he has done has been of no benefit to the owner, (2)the work he has done is entirely different from the work which he was contracted to do, or (3) he has abandoned the work and left itunfinished. .... In Lacroix Bros. & Co. v.

Cook, (SK CA), [1926] 4 D.L.R. 747, 21 S.L.R. 46, the Saskatchewan Courtof Appeal held that a contractor who has failed in the substantial performance of his part of the contract is not entitled to recover paymenteither under the contract or on a quantum merit unless the failure was caused by some act or default of the owner, or unless there isevidence of the owner’s acceptance of the defective work. [Emphasis added is mine] [40] I am of the opinion, based on the somewhat nominal amount of work that was done under the contract, that there was no substantialperformance of the contract.

However, for reasons which will be explained shortly, I find that that Larry and Eric accepted some of thework and some of the materials that were provided by Trinity. As such, this Court is entitled to imply a new contract ... a freshly impliedpromise to pay for some of that work and for some of those materials on a contractual quantum merit basis. [See Tanenbaum v. Wright -Winston Ltd. [1963] 2 (OR) 320 (CA).]

[ 41 ] To summarize issues 1 through 4, I conclude that the parties entered into a lump sum contract for the provision of landscaping services which contemplated three different projects, brickwork, a deck, and landscaping a garden area. Trinity abandoned the contract. Larry and Eric were entitled to accept the repudiation of the contract, and attempt to mitigate their loss and sue for the cost of completing of the contract.

Because Larry and Eric accepted some of the work and materials that were provided by Trinity, by way of implied contract, Trinity is entitled to be paid for that accepted work and those materials on a contractual quantum merit basis ... a reasonable price for some of the work performed and some materials provided. [ 42 ] I now turn to an analysis of the respective costs and corresponding set offs to which each party is entitled. [ 43 ] I have already indicated that Larry and Eric attempted to mitigate their loss in a timely fashion.

They retained Francis Landscaping to complete the front walkway, back walkway and patio. Mr. Francis was called at trial both as the contractor utilized by Larry and Eric and as an expert landscaper, duly qualified to offer expert evidence as to how to properly set a foundation and place paving stones. When he attended at the property he inclined to the view that the front walkway had not been properly sloped to allow for drainage. He noted that the bricks had begun to separate one from the other because plastic edging had not been placed entirely around the paving stones.

Finally he noted that the front walkway did not meet flush with the driveway. There was a one to two inch elevated lip between the two which constituted a tripping hazard. Mr. Francis concluded to the view that the work would have to be ripped out and reconstructed. He did so. He noted that the foundation for the back walkway had been compressed to some extent, but no bricks or plastic edging had been laid down. He re-compressed the foundation and finished that walkway. He noted that some of the plastic edging around the patio had not been properly placed.

He also noted that because the edge of the patio had not been shored up with dirt or sand, the sand base under the patio was eroding, very significantly in some places. This caused the paving stones to heave and separate. He pulled back the paving stones, recompressed the foundation and re-laid the paving stones. [ 44 ] Mr. Yang took issue with the need to do this much repair. As a landscaper with some experience, I also accepted him as an expert qualified to give opinion evidence on the manner in which paving stones should be set and laid.

I am well aware that our Queen’s Bench has expressed concern about credibility and reliability when allowing a contractor who has been paid to do repair work to give expert evidence as to the quality of previous work, and I took that into consideration when listening to the opinions presented by both parties. [ 45 ] Where the opinions of Mr. Francis and Mr. Yang conflict, I prefer the evidence of Mr. Francis. He has some thirty years of experience in the business, including significant repair of work done by others.

He obtained a certificate in Horticulture and Landscaping in 1989 from what was then known as SIAST. He had the opportunity to attend the premises at or about the time that the work was being undertaken by him to observe the diminished state of the work done by Mr. Yang. By comparison, Mr. Yang came by his profession in 2008 when, after working in natural gas sales in the Toronto region, he began employment with a landscaper in the spring of 2008 in that city. With no previous experience, he worked for a small three person company for half of a year doing landscaping work.

Only half of that time, in turn, was spent laying paving stone. With that experience in hand he moved to Regina to start his own business, employing his brother as a labourer on his crew. [ 46 ] I am satisfied that Mr. Francis did not overstate the nature of the problems that he saw. Much of it was due to Mr. Yang’s failure to shore up the work that he did when he abandoned the contract. I am satisfied that the work that he did and the amount that he charged for his services were reasonable under the circumstances in which Larry and Eric found themselves. I do note that Mr.

Francis used the paving stones that had been left at the premises by Trinity. [ 47 ] Had Trinity completed all of the brickwork envisaged under the firm quote that had been provided, it would have been entitled to the amounts set forth in its original quote which would have equated to $5,472.00 for the patio, $1,632.00 for the back sidewalk, $912.00 for the front sidewalk, and $330.00 for plastic edging. That amount would total $8,346.00.

GST on that sum would make the total $8,763.33. [ 48 ] Larry and Eric derived some advantage from this work but they incurred costs to correct the deficiencies and complete the project. They paid Francis landscaping $4,432.00 to complete the brickwork. GST on that sum would make the total $4,653.60. In addition, they had to pay for the bricks which remained on the property at an addition cost of $633.82. In total they expended $5,287.42 to have the work completed.

After setting these two sums off, one against the other, the net value that Larry and Eric obtained for the brickwork, and which is due and owing to Trinity is $3,475.91. [ 49 ] Trinity’s remaining claims relate to the provision of goods and services in relation to the deck and the garden area. I will deal with

[ 49 ] Trinity’s remaining claims relate to the provision of goods and services in relation to the deck and the garden area. I will deal with each in turn. [ 50 ] Trinity originally estimated the cost of removing to the deck to be $350.00. At trial, Mr. Yang claimed $600.00. He based that increased claim on his loss of opportunity to build the deck. In essence, he was arguing that he would take a loss on removing the deck in order to make a profit on building the deck. It must be remembered however, that it was Trinity, and not Larry and Eric, that abandoned the contract.

In my respectful view, Trinity cannot now be heard to argue that he is entitled to a greater amount than he estimated, simply because he could not build the deck. He could have built the deck. Larry and Eric wanted him to build the deck. Trinity chose not to build the deck. I have heard no compelling evidence at trial to suggest that tearing down the deck would have cost more than $350.00. Trinity is allowed the sum of $350.00 plus GST on this sum for a total of $367.50for the tear down.

Larry and Eric obtained the benefit of that additional work. [ 51 ] Trinity claimed for the re-stocking costs of returning the railings and wood that had been purchased to build the deck. This re- stocking charge arose because Trinity chose to abandon the contract. It was a cost that Trinity charged after abandoning the contract. Had Larry and Eric known that it would be charged to them, they say that they would have kept these products and paid Trinity for those goods. Neither Larry nor Eric obtained any benefit for this work.

I am not prepared to allow Trinity to recover this additional cost. [ 52 ] Trinity charged Larry and Eric for the cost of preparing and obtaining the city permit for the deck. The evidence on this point is that while Trinity may have taken some nominal steps to obtain a permit, the permit was actually obtained by the contractors that Larry and Eric hired after Trinity abandoned the contract and sent to Trinity by mistake. I am not prepared to award Trinity any monies for this. [ 53 ] In total, I award Trinity $367.50 for contractual quantum merit for work performed in respect to the deck.

I am not prepared to award Larry and Eric any monies for costs they suggest relate to retaining a contractor to build the deck. It is clear that even read in its best light, there was no meaningful agreement on the amount that Trinity would charge for building the deck in the manner that Larry and Eric ultimately obtained. The parties were simply not ad idem on this aspect of the landscaping contract. As such I do not know whether or not Larry and Eric obtained the deck at a cost that was more expensive or less expensive than what the parties may ultimately have agreed to had Trinity not abandoned the contract.

In light of the certainty almost that the parties would have continued to negotiate in relation to the deck. [ 54 ] The only outstanding matter is Trinity’s claim for the costs incurred in cleaning up and hauling away materials in anticipation of landscaping the garden area. Trinity seeks $1,000.00 for this. It is clear that Larry and Eric would have obtained some benefit from this work. Larry has suggested that much of the work had to be redone because some of the weeds had grown back. Larry suggested that $900.00 is a fair measure for these services.

Neither of the parties identified with precision the amount of time and energy that was devoted to this task. In my view, a reasonable resolution would be to split the difference. I award Trinity $950.00 plus GST for a total of $997.50 for this aspect of its claim. I am not prepared to award Larry and Eric any amount for their counterclaim for completing the landscaping portion of the garden area and I repeat my earlier comments regarding the lack of consensus between the parties as to what this might eventually have cost. There is no question in my mind that the original estimate that was given was rough.

Certainly the parties would have continued to negotiate that sum as and when the full details of the project became known. In fact, Larry and Eric fairly conceded at trial that they would not have expected, in exchange for $1,500.00, the amount of work that was necessary to complete this aspect of the agreement. [ 55 ] In total, after set off of Larry and Eric’s counterclaim, Trinity is entitled to judgment in the sum of $4,840.91. [ 56 ] Two other matters remain. First, Larry and Eric sought to advance their counterclaim not only against Trinity, but Song Shan Yang in his personal capacity.

However, it is clear to me that the parties contemplated a contract between Larry and Eric on the one-hand, and Trinity on the other. Mr. Yang may be the operating mind of the corporate entity Trinity, but, that alone does not make him personally liable for the corporation’s decision to abandon the contract. Absent special circumstances, and I see none in the present case, I am not prepared to lift the corporate veil, and hold Mr. Yang, as either owner or officer or director of Trinity, personally liable for its actions.

It is, in law, a distinct legal entity. [ 57 ] Second, Trinity sought to claim interest on the amount that it felt was due and owing to it. Ultimately, the interest portion of the claim was abandoned by Trinity at trial, for a good reason. The parties did not contract to pay interest on any outstanding indebtedness. Trinity simply decided that in order to force payment, that it would unilaterally impose an interest component into the contract, after the

contract was abandoned, and after Larry and Eric refused to pay. Absent an agreement to pay interest, one party cannot simply impose a new condition on the other party. Even if the claim had not been abandoned it would not have been allowed. [ 58 ] Trinity shall have judgment against Larry and Eric, jointly and severally in the principal sum of $4,840.91, together with prejudgement interest on that sum from July 9, 2013 which this Court identifies to be $101.14 for a total of $4,942.05. [ 59 ] As success has been mixed in these proceedings, the Court declines to award either party the costs of their respective actions. P. Demong, J