WILLIAM (BILL) CAMERON Claimant - v. -, 2014 NSSM 41

Claim No: 428224 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Cameron v. O’Brien, 2014 NSSM 41 BETWEEN: WILLIAM (BILL) CAMERON Claimant - and - CHERYL O ’ BRIEN and PAT RYDER Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on July 29, 2014 Decision rendered on August 3, 2014 APPEARANCES For the Claimant self-represented

For the Defendants self-represented BY THE COURT: 1 The Claimant is a wood finisher. In about January 2013, he was contacted by the Defendants who were in the process of building a new home in the Grand Lake area of Nova Scotia. They had elected to use solid wood trim throughout rather than the cheaper and arguably less elegant MDF or other materials available. They wanted all of the woodwork to be stained in a dark colour and lacquered.

Their carpenter suggested that they use someone who specialized in this type of work, and gave them three names, including that of the Claimant. 2 There is no question that a contract was entered into between the Claimant and the Defendants, but there are questions. The first one is: what were the terms of the contract? The second question is: to what extent did the Claimant fulfill his part of the bargain? 3 The contract was not reduced to writing. According to the Claimant, he quoted them on a per-foot price for most of the various types of wood involved, namely baseboards and crown mouldings.

For windows and doors, he says he quoted a flat unit price which included the door trim. When the job was close to completion, he presented an invoice setting out the per-foot or unit prices, multiplied by the number of feet or units that he believed he had completed. The total came to $28,669.50, including HST. This was the first and only sheet of paper exchanged between the parties. The Claimant admits having received $15,000.00 on account, and concedes that there was about $1,000.00 of unfinished work.

He is seeking a total of just over $12,000 from the court. 4 The Defendants recall things differently and dispute the amount. Ms. O ’ Brian testified that she called the Claimant on her cell phone from the Halifax Airport, just as she and Mr. Ryder, were leaving town for a few weeks. She had already spoken to the other two recommended contractors, and was hoping to get a lower quote from the Claimant. She says that she had with her a sheet of paper given to her by her carpenter which had listed upon it all of the measurements for the various types of wood needed to be finished.

She says she listed them off to the Defendant, over the phone, and that he gave her prices. She says that they both calculated the total to be approximately $18,700.00 plus HST. She says that, on that basis, she awarded the contract to the Claimant. She also says she told the Claimant that this was to be a fixed-price contract with no extras, unless specifically agreed. She says that she did not meet the Claimant in person until the day, several weeks later, when he arrived at the property for the first time to begin the work. 5 The Claimant says that he does not remember quoting any price over the phone.

He says that he gave the Defendants the applicable prices when he visited the property on that day in February 2013. 6 Ultimately, the Claimant has to prove the terms of the contract that he is trying to enforce in court. His ability to do so is compromised by the lack of writing. It is to none of the parties ’ credit that there is virtually nothing in writing to substantiate their respective positions. In this day and age, it is easier than ever to note or confirm verbal arrangements via e-mail, text or other means.

It is very unfortunate that there is nothing of the sort in this case. 7 This is not to say that verbal contracts are not enforceable; of course, they are. However, in the event of a dispute it is perilous to leave things up to a third party to try and find the truth with only the imperfect and self-interested memories of those involved to rely on. 8 The problem that I have with the Claimant ’ s version of events is that, if he is to be believed, he was awarded the job before he quoted any prices.

This is entirely at odds with the Defendants ’ evidence, which seems more inherently probable, that they were looking for the best price and only selected the Claimant after being satisfied that he was, in fact, the low bidder. It is highly improbable that they would have had him come to start work without knowing in advance the amount he was proposing to charge. 9 As such, I am willing to accept that the initial telephone call resulted in a provisional quote of $18,700.00 based upon the

quantities anticipated to be involved. This does not end the matter, because it would appear that the actual quantities did not in all cases match the original estimates. According to the Defendants, the original estimate for baseboard was 2,050 linear feet. On his final bill, the Claimant calculated that he had finished 3,600 linear feet of baseboard.

When asked how he came up with that measure, he admitted that he had not measured this himself, but was relying on what the Defendants ’ carpenter had allegedly told him. 10 Neither party produced any witnesses to verify the actual footage of baseboard finished by the Claimant. Since the onus of proof is on the Claimant, I find that he has not proved to my satisfaction that the original estimate of 2,050 feet was wrong. His statement as to what was allegedly told him by a third-party, who was not in court, is hearsay of the most unreliable kind. 11 There was also a discrepancy in the footage of crown moulding.

In this instance, the Claimant testified that he had in fact measured it himself. In the measurements originally given by the Defendants, there are three different kinds of crown moulding (shown there as “ Cove ” ), with different lengths for them. It shows 480 feet of standard, 135 feet of 12-inch, and 285 feet of 3-inch moulding. In his final bill, the Claimant simply put 640 feet of crown moulding.

This is in fact less than the total initially specified by the Defendants, and as such I am not prepared to allow any additional charges. 12 The Claimant pointed out that the Defendants ’ supposed measurements did not include anything for doors, but only doorframes. On the evidence adduced in court, it is simply not possible to calculate what the difference would be, if any. 13 The Claimant in his bill also charged for arches and closet built-ins, which it appears were not part of the original discussion.

The amounts for these total $650.00, and I am prepared to find that this is a legitimate extra. 14 As such, I am prepared to find that the contract amount was $18,700.00, plus $650.00, plus HST of $2,902.50, for a total of $22,252.50. 15 There was also an additional $160.00 for a quantity of wood stain which Ms. O ’ Brian apparently purchased on the account of the Claimant, to do some of the work herself, and this must also be accounted for in the final result. Deficiencies 16 The Claimant candidly admits that there were deficiencies and incomplete work.

Many of the deficiencies can be traced to the fact that the baseboards were finished before being cut and installed in place. It would be expected that there would be nicks, cuts, nail holes etc. requiring some touch up. The Claimant estimated that the unfinished work and deficiencies amounted to no more than $1,000.00. 17 The Defendants differ on this point. They produced an invoice from another contractor, Mike Boyd, who charged them 31 hours at $60.00 per hour for two men to do baseboard and trim work, for a total of $1,860.00.

The Defendants said this was to complete work that was supposed to have been done by the Claimant. I am prepared to accept that this amount is properly chargeable against the original contract amount. 18 I also accept that there are additional deficiencies. The Defendants filed extensive photographic evidence to that effect. Even so, I ’ m not convinced that these deficiencies are serious or that they would take a qualified wood finisher more than a few hours to rectify. I am prepared to allow a further $500.00 for deficiencies.

Final result 19 In the result, the Claimant is entitled to $22,252.50, plus $160.00 for stain, minus $1,860.00 for the other contractor ’ s work,

19 In the result, the Claimant is entitled to $22,252.50, plus $160.00 for stain, minus $1,860.00 for the other contractor ’ s work, minus $500.00 for further deficiencies. The Claimant has already received $15,000.00, with the final result that he is owed $5,052.50. 20 I note that the Claimant ’ s brought a counterclaim in this matter. As I understand the evidence they are only looking to enforce the original contract and be able to complete the work. Technically, this was not a counterclaim but the defence.

As such, I believe their legal position has been fully dealt with in this decision. 21 The Claimant is also entitled to his costs of $193.55 to issue the claim plus $143.75 for the service of same. All of these amounts total $5,389.80. Eric K. Slone, Adjudicator