Bernie Sprung - v. -, 2011 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 135 Date: August 25, 2011 File: SC#241 of 2010 Location: Saskatoon _____________________________________________________________________________ Between: Bernie Sprung - and - Cathy Ceh Mr. P. McDougall For the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT Q.D. AGNEW , J _____________________________________________________________________________ [ 1 ] The parties in this case presumably had a contract. They certainly thought they did; they acted as though they did.

The plaintiff did some renovation work for the defendant, at her request; the defendant paid the plaintiff for some of his work. That much is clear. What the terms of this contract were, however, is not at all clear. Furthermore, while some of the terms of the contract seem clear to each of the parties, their clear visions do not coincide with each other. The task at hand is to determine what exactly the contract was between the parties, to what extent it was carried out, to what extent it was paid, and how the latter two factors balance out.

[ 2 ] The defendant, Ms. Ceh, owned a house in Saskatoon. Mr. Sprung, the plaintiff, did renovations. In the summer of 2009, Ms. Ceh asked Mr. Sprung to do some renovations to her house. It is not clear what work Mr. Sprung was to do, how much he was to be paid for it or when it was to be done by. After some time, Mr. Sprung having done some work and Ms. Ceh having paid him some money, she became unhappy and ended the relationship. Mr. Sprung considers that he is owed $3,412.00 for work he did but has not been paid for; Ms.

Ceh considers that he did work that he was not supposed to do and therefore should not be paid for, that some of the work he did that he was supposed to do was poorly done and he therefore should not be paid for, and that some of the work he did was so poorly done that she had to have someone else fix it, or that it caused other problems she had to pay to have fixed, and that he should pay her for that work. [ 3 ] Some of the work that was done was uncontroversial, and I will not deal with it.

There are specific areas of controversy, however, which I will address in turn after providing a brief history of how this unhappy matter came to be. [ 4 ] Ms. Ceh met Mr. Sprung through his wife, who works for the same employer as Ms. Ceh. Mr. Sprung had been, until about 2008, an automotive technician and service manager for a car dealership. He then ceased that line of work and opened a renovation business. In the summer of 2009, Ms. Ceh asked Mr. Sprung to give her a price for doing some work in her house. She knew the house needed work as Mr. Sprung had looked at it, at her request, when she bought it. Ms.

Ceh testified that when she was considering purchasing the house, she had it inspected by a home inspector. Once the inspector found significant issues with the beam supporting the main floor of the house, Ms. Ceh halted the inspection and consulted Mr. Sprung. I never did understand why she did this. When asked, she said that it was because she thought the problem might be “more than we could handle”. I confess that her answer did nothing to dispel my confusion. [ 5 ] In early August 2009, Mr. Sprung gave Ms. Ceh a price for a large variety of work she was interested in having done.

This work included replacement of the water heater, removal of the chimney, partial basement floor, new basement walls, reinforcement of the beam in the basement, plumbing work, adding additional insulation to the exterior of the house, insulating the floor joists, bathroom renovations and some other work. The total amount specified by Mr. Sprung for this work was over $54,000.00. It would be fair to say that Ms. Ceh was shocked by this figure.

It was not clear to me how much she had expected this amount of work to cost, but she certainly did not expect anything close to the amount quoted, nor was she prepared to spend anything approaching that figure. As a result, there were discussions about scaling back the scope of the project, and thus the cost. Those discussions, and the lack of clarity regarding them, form a large part of the problem in this matter. I find that there was at no time an express agreement for a specified amount of work to be done for a specified amount of money. [ 6 ] Ms. Ceh says that Mr.

Sprung was aware that her budget for all of the work was $10,000.00 to $12,000.00. She is of the view that this meant that any work he did, regardless of whether it was part of the original discussion or added later, would not bring the total over $12,000.00. Mr. Sprung did not have any useful evidence to provide on what, if anything, was specifically agreed to for a price. I find that, although there was a general idea of a cost at the beginning, there was no fixed figure that was ever brought specifically to the attention of the parties and agreed upon by them for a specified amount of work. However, Mr.

Sprung submitted invoices to Ms. Ceh which totalled $14,410.04. He says he received $10,500.00 in payments. There remains outstanding $3,910.04. In argument, however, the plaintiff restricted his claim to $3,412.00. [ 7 ] There are a number of issues which have been identified by the parties. I will examine each in turn. Reinforcement of wooden beam in basement [ 8 ] The main support for the ground floor of the house is a wooden beam running the length of the house. Ms. Ceh considered, with Mr.

Sprung’s advice and the advice of the home inspector before his or her retainer was terminated, that the condition of the beam was a serious problem. Mr. Sprung reinforced the beam by placing one or more steel beams under and parallel to it. The reinforcing beams were U-shaped in cross-section, with the opening of the U pointing downward, or away from the wooden beam, and were held up by several teleposts. Some of those teleposts had proper footings of concrete; some did not.

In a separate location, two short teleposts held up a different part of the floor, with similar reinforcing beams holding up the floor above and providing footing for the teleposts themselves. [ 9 ] This method of reinforcing the floor had been discussed by the parties prior to it being installed. After this action was

commenced, Ms. Ceh hired a professional engineer to assess it. His conclusion was that this was not a particularly useful way of reinforcing the floor, that the steel would not assist very much in reinforcing the wooden beam, that the method of installing some of the teleposts was poor, that this was not the type of reinforcement that he would have designed or recommended and that it was not “conventional practice”. He acknowledged that the reinforcing likely provided some support, and that with enough teleposts, the reinforcement would work. [ 10 ] Obviously, it is unfortunate that Ms.

Ceh chose to hire an expert after the work had been done, rather than before. I find that the parties discussed the method of reinforcement prior to the work being done. It may well be that Ms. Ceh placed some reliance on Mr. Sprung in this regard, but she knew or ought to have known that he had no special expertise in this area. Indeed, the fact that she hired an expert after the fact to look into the work, even though there had not been any problems with it, indicates to me that she knew that the design on which she and Mr. Sprung had agreed was questionable.

She agreed to it before it was done, knowing or at least having cause to suspect that it might not have been a proper fix, and the work was done as she had agreed. I find that she has no cause for complaint with respect to Mr. Sprung’s work in this regard. Furthermore, she has not provided any evidence of any repair or cost occasioned by Mr. Sprung’s work in this regard, and accordingly I am not prepared to award her any amount with respect to the account for the engineering inspection and report. [ 11 ] Ms. Ceh also alleges that Mr.

Sprung or his people removed soil which, she says, may affect the structural foundation of the house. I find on a balance of probabilities that Ms. Ceh has not proven that Mr. Sprung or any person under his control or direction removed any soil which adversely affects the structural foundation of the house. [ 12 ] Ms. Ceh has counterclaimed for $19,000.00 from Mr. Sprung based on the report of the structural engineer who she hired to examine the work done by Mr. Sprung on the floor beam. The engineer’s evidence is that proper reinforcement of the beam and related work would cost $4,000.00.

His evidence was also that design and installation of a new concrete wall to remedy the removal of the soil would cost $15,000.00. [ 13 ] With respect to the cost of proper reinforcement of the beam, as indicated above I do not consider this to be Mr. Sprung’s responsibility. The method of reinforcement implemented by Mr. Sprung was discussed by the parties and agreed to by Ms. Ceh, even though she was aware that Mr. Sprung had no special expertise in this area.

She should have hired an engineer before deciding on the reinforcement method, not after; not having done so, however, she cannot be heard to complain because Mr. Sprung did what the parties had agreed he would do. Mr. Sprung did not contract to bring the beam to a certain specification; he contracted to reinforce it in exactly the way that it was in fact done. Ms. Ceh cannot force him to pay for greater reinforcement. [ 14 ] With respect to the cost of a new concrete wall, as indicated above Ms. Ceh has not proven that the removal of the soil which would necessitate such work was Mr. Sprung’s responsibility.

Even if it was, the engineer’s recommendation of a new wall to remedy the problem is premised on the assumption that the concrete foundation for the house is “shallow foundation”. The engineer’s report is explicit that the type of foundation is in fact unknown, and relies on the age of the house as the basis for assuming that this is the type of foundation beneath the house. This assumption, however, remains unproven in the evidence. Even if Mr. Sprung was responsible for the removal of the soil, I would not be prepared to award Ms. Ceh damages based on an unproven assumption such as this.

Insulation - floor joists and attic [ 15 ] Mr. Sprung was to install insulation and vapour barrier between the floor joists in certain locations. He did so, but Ms. Ceh then complained that the insulating value of that insulation was insufficient. Mr. Sprung accordingly removed that insulation and installed thicker insulation. Ms. Ceh had Mr. Sprung place the thinner insulation in the attic, to act as additional insulation there. [ 16 ] Insulating the attic was never part of the contract, so Ms.

Ceh’s counterclaim for the cost of additional insulation there is dismissed, as is her claim for the cost of the extra inspection by Sun Ridge Group to verify it. Permits

[ 17 ] Neither the plaintiff nor any of his sub-trades obtained any permits for the plumbing or gas work performed. The latter refers to the gas-fired hot water heater installed by the plaintiff. There is no evidence that such permits were required, and although I may suspect that they were, I cannot take judicial notice of that. There is also no evidence of any damages or adverse consequences to Ms. Ceh as a result of these permits not being obtained. She is therefore not entitled to any compensation with respect to this aspect of her claim. Government grants [ 18 ] Ms. Ceh alleges that she told Mr.

Sprung that she intended to apply for a variety of government grants relating to her renovations, and that therefore the applicable renovations had to comply with the requirements for those grants. She also says that she left a binder with the applicable information available for him. Mr. Sprung denies knowing that he was supposed to make decisions or choices based on such requirements. [ 19 ] Other than Ms. Ceh’s testimony, the evidence does not disclose this being an issue prior to the present lawsuit. So far as I can determine, Ms. Ceh did not question Mr.

Sprung’s choices regarding the water heater, for example. She raised the issue only with respect to the insulation in the floor joists. This suggests to me that, firstly, she was aware of the requirements, secondly she was monitoring Mr. Sprung’s work for compliance, and thirdly was aware that on at least that occasion he had not acted in compliance with the grant requirements. I do not see how, under those circumstances, she would have expected him to know and apply the grant requirements for the hot water heater. Weighing the evidence, I do not accept that Mr.

Sprung was responsible for ensuring that all applicable renovations met the requirements for whatever grants Ms. Ceh intended to apply for. Plumbing [ 20 ] The parties agree that Mr. Sprung was to install a new hot water heater. There was obviously going to be certain plumbing which would have to be replaced as part of that work. However, Mr. Sprung went beyond the necessary work, and changed the water lines all over the house - to the tub, the toilet, the sink - all of the lines as far as the shut-off valve in each location.

He also ran a new line to the outside tap, and took the tap off as it was then late enough in the year that freezing was an issue. On the evidence, I find that he did this without any authorization from Ms. Ceh. It was not part of the contract, it was not a necessary adjunct to any work which was part of the contract, and he was not entitled to do it without permission. Having done it, he is not entitled to be paid for it. Unfortunately, there is no evidence showing what amount he charged for this additional work. I conclude that a reasonable estimate of this charge is $500.00. In addition, Ms.

Ceh had to have a new outside tap installed, at a cost of $198.14. [ 21 ] Ms. Ceh alleges that the hot water tank installed by Mr. Sprung “is not up to code.” The evidence does not establish whether it is the tank or the installation which is not up to “code”, what that means and what costs might be involved in remedying it. Accordingly I am of the view that Ms. Ceh has not proven this aspect of her claim. [ 22 ] Mr. Sprung also installed a toilet in the bathroom of the house while Ms. Ceh was away. On the evidence, I find that she at no time instructed him to do so.

Rather, he was to obtain prices for toilets and present them to Ms. Ceh for decision. Instead, while she was away he purchased and installed a new toilet. Furthermore, I find that the toilet was installed incorrectly, with it leaking and as a result causing damage to the bathroom floor. Mr. Sprung claims that it was the toilet that Ms. Ceh had installed after his that leaked; she says otherwise. I prefer the evidence of Ms. Ceh in this regard. As a part of that determination, I note that Mr. Sprung acknowledged having installed the new toilet onto an improperly-fitting flange. Ms.

Ceh has proven damages of $472.50 to repair the floor. She has also replaced the toilet, at a cost of $459.00. I have no information as to the cost of the toilet which Mr. Sprung supplied and installed. Ms. Ceh did not contract with Mr. Sprung for a new toilet, and would not therefore be entitled to one from him in damages; however, as it appears that he charged her for the one he installed, she is entitled to recover that cost from him. Ms. Ceh had been considering installing a new toilet, and now has one. I have no information about how much Mr.

Sprung charged her, as compared to the cost of the toilet which she actually installed. As it is, she has paid for two toilets but has only one. I think it reasonable to assume that the price Mr. Sprung charged her for the toilet which ultimately had to be removed is similar to the price she ultimately paid, so I find her damages to be $459.00. Documentation

[ 23 ] Ms. Ceh alleged that she required from Mr. Sprung detailed warranty information on various items installed by him, including the serial numbers, dates installed and warranty documents. She also stated that she required the invoices for certain items, to be able to claim the government grants with respect to them. Mr. Sprung apparently provided some of the warranty information. Neither side provided me with evidence showing what was or was not provided. Ms.

Ceh has not proven any loss or damage with respect to any warranty information not received, nor has she proven any damages with respect to loss of any government grants arising from lack of invoices. Accordingly, I dismiss this aspect of her counterclaim. Heat recovery ventilator (“HRV”) [ 24 ] Part of the contract between the parties was that Mr. Sprung would install an HRV, which he did. Although the evidence is somewhat murky, it appears that two hoods on the exterior of the house should have been installed at least 18 inches above ground, and were not.

The hoods are the covers where air is respectively drawn into and exhausted from the house through the HRV unit. Mr. Sprung’s answer to this defect, when confronted with it on the witness stand, was to say rather glibly that the dirt below the hoods should be scooped away to create the 18 inches of ground clearance. [ 25 ] In observing Mr. Sprung during his testimony, and in particular as he read the portion of the HRV installation guide which specified this clearance, it was clear to me that he had been until that moment completely unaware of this requirement.

Although the evidence is imperfect, it appears that at least one reason the hoods must be that high off the ground is to ensure that debris, snow, etc. do not block them. That being the case, Mr. Sprung’s retort that the problem could be fixed simply by digging the dirt away to create the necessary clearance is hardly adequate.

Several problems are immediately apparent: (1) any such hole will be liable to being filled in over time, by dirt and debris; (2) such holes would be even more susceptible to being filled in by snow; and (3) such holes would be places where water would be trapped against or near the house foundation, rather than draining away from the foundation as is usually considered preferable. There may well be other and more significant problems with the “dig a hole” solution so cavalierly tossed off by Mr. Sprung, but unfortunately Ms.

Ceh did not provide evidence as to either what problems she has in fact encountered, nor what solutions if any she has attempted or at what cost. It is obvious that this error will cause problems to Ms. Ceh, even if non-monetary, such as having to keep clearing out holes which might be dug under the hoods. I award her damages of $1,000.00 in recognition of this. Additions to original work [ 26 ] This category is necessarily somewhat uncertain: as it is not clear what the original contract was, it is difficult to be certain exactly what work was in addition to that contract.

However, there were certain matters which the evidence establishes were done by Mr. Sprung, at the request of Ms. Ceh, which were not part of the contract. These are, in particular, the installation of insulation in the attic, hanging of a curtain rod, installation of certain fittings having to do with the HRV but not apparently essential to its operation nor included in the original scope of the HRV work. These are items which Ms. Ceh specifically testified were additional to the contract. Notwithstanding that, she also testified that she did not expect to be charged for them by Mr. Sprung.

Exactly why she believed she would receive this work for nothing was never made clear to me. As best I could determine, it was based on her belief that since she had (in her view, at least) told Mr. Sprung that her budget was $12,000.00 for the project, any work that was done would be within that amount, whether or not it was part of the original discussion. [ 27 ] This was an error on her part. Although I have found that the “quote” from Mr. Sprung was $10,000.00 to $12,000.00, this was for specified work. I can see no reason why Ms. Ceh would expect additional work to be done without any additional cost.

While it is always open to a contractor to perform additional work without charging their customer, it is not open to the homeowner to demand that, particularly without informing the contractor of this expectation. If Ms. Ceh was expecting work to be done for free, she needed to advise Mr. Sprung of that fact when she asked for the work to be done; he would then have had the option of doing it on that basis or not. Mr. Sprung is entitled to be paid for his additional work, which is included in his claim.

Chimney [ 28 ] The mortar on the bricks of the chimney was deteriorating, and the original contract was for Mr. Sprung to remove the chimney down to the roof line, and cap it. However, when the bricks were removed to that level, it was found that the chimney below the roof line was also unsound. Mr. Sprung testified, and I accept, that he discussed removing the bricks below the roof line with Ms. Ceh, she approved him so doing, and it was done.

[ 29 ] Mr. Sprung also found that the wood of the roof surrounding the chimney opening had rotted, and needed to be replaced. Mr. Sprung testified that he advised Ms. Ceh of this, and she acquiesced. Ms. Ceh denies it, and denies seeing the wood on the ground. I accept Mr. Sprung’s evidence in this regard. From the evidence, it appears that there was material around the yard for some period of time, and I find that the rotted wood was simply left as part of that material, with Ms. Ceh’s attention not brought specifically to it. I also find that Ms.

Ceh was not specifically informed of the need to replace that wood in order to anchor the cap for the chimney opening, nor did she specifically authorize such work. However, as indicated above I find that she was informed of the rotten wood, and the need to replace it would or should have been obvious. Similarly, it would or should have been obvious that this was not within the original scope of the contract and would be an additional cost. Accordingly, I find that Mr.

Sprung was entitled to charge extra for this work. [ 30 ] There is no evidence that the cap placed over the chimney opening was incorrectly installed. There is in any event no evidence that it has caused Ms. Ceh any loss. Betterment [ 31 ] While I recognize that there may be an issue of betterment with respect to various of the matters discussed above, no evidence was provided to me on which I could make any determination of such an issue and I therefore decline so to do. Conclusion [ 32 ] Mr. Sprung is entitled to be compensated for the work he performed but for which he has not been paid.

This is the amount of his claim, namely $3,412.00. Balanced against this must be the amounts which I have found properly owing from him to Ms. Ceh, namely: (

a) extra plumbing work performed without authorization - $500.00 (

b) new outside tap - $198.14 (

c) repair of bathroom floor - $472.50 (

d) toilet - $459.00 (

e) HRV hoods - $1,000.00 [ 33 ] The net result, therefore, is judgment in favour of the plaintiff in the amount of $782.36. He will also have pre-judgment interest on that amount from December 31, 2009, being the date of his last invoice. He will also have $44.00, the cost of issuing his claim. Finally, in the course of the trial I allowed Ms. Ceh to use certain documents which she had obtained after the case management conference and did not disclose to the plaintiff. At the time, I indicated that I might take that matter into account in costs.

I take note of the fact that plaintiff’s counsel was taken by surprise by the documents, which could and should have been disclosed. As it turned out, nothing turned on the documents. I award further costs against Ms. Ceh in the amount of $100.00 in this regard. ______________________ Q.D. Agnew, J