Larry Kitzul - v. -, 2011 SKPC 90

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 090 Date: June 27, 2011 File: 122/10 Location: Yorkton _____________________________________________________________________________ Between: Larry Kitzul - and - Gino Astolfi (o/a G.A. Construction Ltd.) Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT K.

BAZIN , J _____________________________________________________________________________ Facts [ 1 ] This case revolves around the issue of contract and in particular the quality of the plaintiff’s work done for the defendant. [ 2 ] The plaintiff’s action is for nonpayment. There is no issue as to the contract itself, being that the plaintiff was to make

custom kitchen cabinets, for a home that the defendant was building to be sold. The claim is for labour, as although the plaintiff was contracted to build the cabinets, the defendant had paid the cost of the material so the cost of the material is not an issue. [ 3 ] The plaintiff completed the cabinets, and the defendant paid him the $4,927.26 as invoiced. There is no dispute that this was the amount to be billed.

However upon inspection of the cabinets by the defendant he put a stop payment on the cheque. [ 4 ] The plaintiff testified that he was so upset with the stop payment that he never went back to the house, to address any of the concerns of the defendant, and the plaintiff testified that he has no plans to ever go back. [ 5 ] The plaintiff testified on his own behalf and did not call any other witness. His position is simply he had completed most of the work, and there is nothing wrong with his work, so he should be paid.

He did acknowledge there was some additional follow up work needed on the cabinets, but this did not amount to more than $100.00 worth of labour. He also testified that the problem with the spacing of the cabinet doors and drawers was that the walls of the kitchen were not square and this caused the gaps to be the way they are. [ 6 ] The plaintiff also claimed reimbursement for his time doing errands for the defendant. He indicated that he had done about 12 hours extra in relation to these errands.

He is claiming $32.00 per hour in relation to these items, totalling $384.00. [ 7 ] There is no counterclaim by the defendant, but he raises the issue of unfinished work on the cabinets and poor quality as to the cabinet’s doors in defence.

He states that there was no contract for the additional errands. [ 8 ] The defendant testified that the house to which the cabinets were made would be put on the market for around $400,000.00, indicating that people buying the house would expect quality kitchen cabinets. [ 9 ] The defendant indicated that he had been building homes for over 50 years and the tolerance on the spacing of the cabinets is to be one eighth of an inch, and to be uniform across the cabinets. He testified that the spacing on the cabinets was not uniform and ranged from one eighth to three quarters of an inch.

In addition the defendant states that the plaintiff did not finish the cabinets as they are missing the crown moulding trim, at the top to finish them off properly. [ 10 ] The defendant filed ten pictures of the cabinets, entered as Exhibit D2. The pictures show the variances in the gaps, as testified to by the defendant and the missing crown moulding. The defendant’s own estimate was that it would cost him $6,500.00 for new cabinets, and that he is throwing away $6,000.00 of material for the present cabinets, showing a loss of $12,500.00. [ 11 ] The defendant called as an experienced witness Roy Prysliak. Mr.

Prysliak is the owner of Dream Cabinet Ltd. of Yorkton, Saskatchewan. He has 34 years in the cabinet business, and in his testimony he indicated that his company had done the oak work in the Yorkton Provincial Courtroom, where this trial took place and I note is of very high quality. [ 12 ] Mr. Prysliak was very credible and straightforward. He had inspected the cabinets and taken the pictures as Exhibit D2, and explained, as set out in the photographs as well as his quote to repair, the various deficiencies on the work done by the plaintiff.

He had not measured the walls however as to whether they were square. [ 13 ] He testified that an industry standard was one eighth inch spacing, but more importantly is that the spacing all be the same so that when you look at the cabinets you have straight equal spacing so the whole kitchen cabinets have a uniform appearance. [ 14 ] Mr. Prysliak indicated that virtually all the doors need to be replaced as set out in his quote to repair the cabinets. There was also the need to finish the cabinet’s crown moulding and some stain runs that needed to be redone.

[ 15 ] Mr. Prysliak testified in cross-examination that while you can adjust the spacing by adjusting the hinges, he found that the hinges, other than four doors, were at their maximum adjustments and as such could not be adjusted further. This would also not remedy the problem of the large spacing. In the end from his experience one would need 15 new doors and 9 new drawer fronts as set out in his quote. The quote to repair the cabinets to make them acceptable would be $4,320.80. [ 16 ] There appears to be no value in the salvaged doors, but in any event the doors were paid for by the defendant.

Law [ 17 ] The law is that of contract. The parties entered into a valid contract, however the plaintiff breached the contract by improper construction of the cabinets, such that the defendant will have to incur additional costs to have the cabinets completed and repaired. Disposition [ 18 ] As to the plaintiff’s claim to additional fees for his labour related to miscellaneous services, I find no basis in contract. I find that these services done for the defendant were done without expectation of payment.

It is only the stopping of the cheque and the subsequent dispute that gives rise to looking at these matters in hindsight and a request for payment. [ 19 ] I have determined that the plaintiff’s claim for the full cost of his labour of $4,927.26, is not made out, in that the cabinets constructed were not of acceptable quality. I find that whether or not the walls were square would not have effected the spacing on the doors. The cost to repair the cabinets is $4,320.80, and as such the plaintiff is entitled to set this off as against the plaintiff’s claim.

The difference in the amount of $606.46. [ 20 ] The claim has been made out as against the corporation G.A. Construction Ltd., and judgment shall be against the corporation. The claim against Gino Astolfi personally is dismissed, as I am satisfied that it is the corporate defendant that contracted with the plaintiff. [ 21 ] The plaintiff will have prejudgment interest under The Prejudgment Interest Act , from July 30, 2010 to date of judgment. [ 22 ] In light of the mixed success of the matter I make no order as to costs. Dated at the City of Yorkton, in the Province of Saskatchewan this 27 th day of June 2011.

K. Bazin, J