Randy Barlow v. Helgason Roofing Ltd., 2010 SKPC 178

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 178 Date: December 21, 2010 File: SC#23 of 2010 Location: Saskatoon _____________________________________________________________________________ Between: Randy Barlow and Helgason Roofing Ltd. - and - Shari McKay Mr. G. Brehon Counsel for the Plaintiffs (Defendants by Counterclaim) Mr. B. Tumback Counsel for the Defendant (Plaintiff by Counterclaim) _____________________________________________________________________________ JUDGMENT Q.D.

AGNEW , J _____________________________________________________________________________ [ 1 ] The Plaintiffs claim against the Defendant for the cost of a roof which the corporate Plaintiff (hereinafter “Helgason”)

installed on the Defendant’s house. The Defendant resists that claim on the basis that the work was improperly done and required that the shingles be stripped from the entire roof and new shingles applied. She counterclaims for the cost of re-roofing. [ 2 ] Throughout the course of the trial there was considerable hearsay from various witnesses, which I have disregarded in making my decision. There were a large number of leading questions which, although not objected to, nonetheless affected the weight which I assigned to the evidence of the witnesses to whom such questions were directed.

Opinions were elicited from witnesses without any attempt being made to have them qualified as experts, and I have accordingly disregarded that evidence as well. [ 3 ] The Defendant contracted with the individual Plaintiff, Randy Barlow, for him to act as a project manager on the construction of her house. He did so pursuant to a written agreement which authorized him to obtain quotes on her behalf but did not authorize him to bind her contractually with third parties. [ 4 ] When it came time to roof the house, Mr. Barlow obtained a quote from only one roofer, namely Helgason. He presented this to the Defendant.

There is disagreement between Mr. Barlow and the Defendant as to whether or not she ever approved that quote. In any event, Helgason proceeded to roof the house. [ 5 ] I find on a balance of probabilities that the Defendant either expressly approved the quote and instructed that Helgason proceed with roofing, or implicitly authorized such work. In this regard, I note particularly that:

a) Mr. Barlow provided Ms. McKay with only one quote;

b) she did not ask about other quotes or express any dissatisfaction with the quote;

c) when she found the Helgason roofers working on her property she did not voice any objection, either to them or to Mr. Barlow;

d) when she spoke with Mr. Barlow several days later about issues with the roof she did not raise any concern about the process whereby Helgason had ended up doing the roofing. [ 6 ] Helgason has established that it had a contract with the Defendant, which it performed and for which it was not paid. However, the amount of that contract and the amount owed to Helgason were never entered in evidence. There is no evidence before me of the amount that is owed to the Plaintiff.

There was no invoice provided nor was there any viva voce evidence to indicate the amount outstanding. [ 7 ] I therefore dismiss Helgason’s claim, as although it has proven liability it has not proven any damages. The evidence is clear that the Plaintiff Mr. Barlow has no cause of action against the Defendant, and I accordingly dismiss his claim as well. [ 8 ] With respect to the Defendant’s counterclaim, she says that there were errors in the work that Helgason did on the roof.

In support of this contention she offers photographs that show various shingles lifting in the wind, shingles which had come off, and “rippling” of the shingles, all of which she attributed to incorrect installation. [ 9 ] There was no expert evidence offered to indicate that there was any difficulty with the workmanship; there was only the opinion of Ms. McKay. This is not evidence. Ryan McClelland, who re-roofed the house at the Defendant’s request, testified that he could not recall problems with the work that he had removed, other than some missing shingles.

He considered the missing shingles to be perfectly normal, and said that it would take less than a bundle of twenty-one shingles and about two hours to replace the missing shingles. [ 10 ] There is therefore no evidence before me to indicate that removing all the shingles from the house and garage and replacing them was necessary. The fact that Ms. McKay had a verbal opinion from a roofer, who was not named, did not provide anything in writing and was apparently not willing to come to court, is of no assistance. While it may be that Ms. McKay honestly believed that this

was required, that does not constitute proof for the purposes of this case. [ 11 ] The claim and counterclaim are both therefore dismissed. There will be no costs to either party. ____________________________ Q.D. Agnew, J