Ginette Tournier Plaintiff (Defendant by Counterclaim) - v. -, 2017 SKPC 044

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 044 Date: May 08, 2017 File: SC#319 of 2016 Location: Saskatoon _____________________________________________________________________________ Between: Ginette Tournier Plaintiff (Defendant by Counterclaim) - and - Jake Hildebrandt operating as Triple H Contracting Defendant (Plaintiff by Counterclaim) G. Tournier Self-represented K.H. Saganski For the Defendant ______________________________________________________________________________ JUDGMENT Q.D.

AGNEW , J ______________________________________________________________________________ [ 1 ] The plaintiff and her husband, Ken Kasahoff, wanted to build a log cabin. They contracted with the defendant, a carpenter, for his assistance. As is often the case, the discussion was general and although some terms were specifically agreed to, others were not. It is those other terms which have the parties before the Court. The plaintiff alleges that the defendant overcharged; the defendant

alleges that he is still owed money by the plaintiff. [ 2 ] There are additional allegations which were either not pursued at trial or are not made out in the evidence. These include: the plaintiff’s allegation that the defendant’s work was not of satisfactory quality; the plaintiff’s allegation that she was defamed by the defendant; the defendant’s allegation that the plaintiff “fabricated” invoices and thus caused him stress, etc.

I find that the evidence simply does not support any of these allegations, and accordingly I dismiss them all without further discussion. [ 3 ] Furthermore, both sides have alleged bad faith on the part of the other, and each has asked for relief from this Court as a result. However, the evidence does not convince me of bad faith on anyone’s part; rather, this is a situation seen all too often in this Court, of a contract casually negotiated and entered into, which eventually went wrong in unforeseen ways, resulting in a spiral of acrimony and hard feelings.

Such a result is unfortunate, but does not constitute bad faith. [ 4 ] The plaintiff’s claims are that the defendant overstated the hours worked by himself and others on his behalf, and accordingly (as he was being paid by the hour) overcharged the plaintiff; that the defendant charged the plaintiff for the supply of equipment that was to have been included in the defendant’s hourly cost; that the plaintiff had to pay for other equipment which the defendant was to have supplied at his own expense; and that the defendant did not work on the roof and windows as quickly as the plaintiff required, and that this delay cost her more favourable mortgage terms. [ 5 ] The defendant’s counterclaim is for unpaid hours of work, the use of a generator, the supply of fuel for a Genie lift, and rental of safety equipment. [ 6 ] I will address each of these allegations in turn, after an overview of the facts as I find them.

Facts [ 7 ] The plaintiff and her husband wished to build a log house. They contracted with a third party for the house, and the crew to assemble it. However, the assembly was simply of the log structure; a great deal of additional work was required, including windows and doors, roof, interior work, etc. The plaintiff’s original plan was for much of this work to be done by Mr. Kasahoff; however, the plaintiff and her husband wished to hire the defendant, a carpenter, to work on the project as well.

The parties agreed that the defendant would work as a carpenter on the project at a rate of $50.00 per hour, or $90.00 per hour when the defendant brought a second person to assist. There was no discussion of who would supply tools or other equipment, who would supply materials, who would be responsible for arranging other trades, and similar issues. [ 8 ] On a balance of probabilities, I find that when the defendant was hired, he was hired on the basis that he would perform carpentry work under the direction of Mr. Kasahoff.

The parties expected that the defendant would be capable of performing his tasks without actual supervision by Mr. Kasahoff, as indeed he did, but Mr. Kasahoff was to be the person who directed the overall construction. Mr. Kasahoff was responsible for hiring other trades (principally plumbing and electrical), coordinating the work, and arranging and paying for materials. [ 9 ] Unfortunately, as matters unfolded Mr. Kasahoff was unable to do very much due to unforeseen medical issues.

This led to the defendant being called upon to do more than was in the contemplation of the parties when he was hired; however, what he was called upon to do was only more of the same, not anything of a substantially different nature than the parties had originally intended. [ 10 ] As time went on, the plaintiff became increasingly concerned about getting the building closed up, by completion of the roof and installation of the windows. I am satisfied that eventually, even if not as early as she claimed, she made her concerns known to the defendant.

The plaintiff had an obvious interest in this issue, since this was a defined stage in her mortgage advances, and she was running out of money: she needed the building to reach that stage in order to obtain further funding from her mortgagee. I therefore think that her recollection is likely clearer than the defendant’s. It is not clear from the evidence, however, just when she communicated this to the defendant, or with what degree of urgency.

[ 11 ] Matters became more and more acrimonious between Mr. Kasahoff and the defendant, until the final parting of ways in late September or early October. The plaintiff and Mr. Kasahoff were very unhappy about the progress of the building, and indicated to the defendant that they were not going to pay him any more money - it is not clear to me whether this was no more at all, or no more until some future point was reached in the construction. As the defendant had an invoice outstanding and was being told that he was expected to continue to work without being paid, he left the job.

He took most of his tools and equipment with him, and did not do any further work for the plaintiff or her husband. [ 12 ] The plaintiff and her husband came to believe that the defendant had overcharged them for hours of work. I suspect that as time went on, their animosity increased and they came to believe that he should also have been responsible for paying for other items at their cabin, including particularly the Genie lift.

For his part, as the acrimony between the parties increased after the defendant left the worksite for the last time, the defendant seems to have decided that he should charge the plaintiff for a variety of matters which had not previously been an issue. Plaintiff ’s claims Overstated hours [ 13 ] The plaintiff’s claim that the defendant overstated his hours is based on a few salient facts. [ 14 ] She says that she had to press the defendant to provide a breakdown of hours, rather than simply a

summary; he says that he provided the breakdown monthly, as soon as she had asked for it. He says that he kept a log of his hours, although this was never produced at trial. [ 15 ] The plaintiff says that there are a number of days in the invoice details when the defendant charged for two men, but the timesheet for the second man does not show him working on those dates.

The defendant says that there were several different men that he used, and the times in issue were when he used one or another of the others. [ 16 ] The plaintiff also stated that she attended the site often, and would sometimes find that neither the defendant nor any worker of his were there; some of these were presumably dates when the defendant, in his invoices, claimed he was working on the site. The defendant says that there were times when he was away from the site but properly charging for his hours, as for example when he needed to pick something up for the job.

Interestingly, one of the examples the defendant used was that if he showed up at the jobsite and found that he had forgotten a particular tool, he would drive home to get it, and would charge the plaintiff for that time. He avoided answering the allegation that he charged for driving home for lunch, driving for coffee, etc. Neither of these issues were pursued in cross- examination, and I therefore have no information as to how much, if any, time was charged to the plaintiff improperly.

As the defendant’s invoices and attached details show, he charged for the time he spent driving to get supplies for the job; he says that this was at the request of Mr. Kasahoff, which I accept. [ 17 ] Based on all of the above, I find that the plaintiff has not made out this aspect of her claim. Charging for equipment [ 18 ] The plaintiff alleges that the defendant charged her for equipment that he was supposed to provide as part of his hourly rate.

In his first invoice, dated March 4, 2014, the defendant charged for use of a Bobcat, tool trailer and generator, as separate entries from the labour charges; occasionally thereafter there is a charge for Bobcat usage but otherwise nothing but hours of labour through the invoice of October 4, 2014. Nothing appears about any other equipment until the invoice of May 18, 2015, which in my view was clearly created by the defendant in response to the plaintiff’s allegations against him.

[ 19 ] The plaintiff throughout regularly paid the invoices: this includes those which show, in the detailed listing which she insisted upon, a charge for Bobcat usage. Although the calculation is a bit confusing, since the defendant charged for Bobcat usage at the same rate as for two men’s labour and sometimes mixes them in calculating totals, Bobcat usage is clearly set out in the details which the plaintiff received. The defendant says that this charge was discussed and agreed to at the outset of the relationship; the fact that the ongoing charges were set out and paid tends to support his claim.

I do not accept the plaintiff’s contention with respect to the Bobcat charges. [ 20 ] With respect to the charges for the tool trailer and the generator, these only appear in the invoice for March 4, 2014; that is, the very first invoice. Again, the plaintiff paid that invoice without demur or question. On a balance of probabilities, I find that she has not proven that this was an improper charge. Other equipment [ 21 ] This heading, as I understand the plaintiff’s claim, relates to the rental of the Genie lift.

A lift was rented, and stayed at the jobsite for a number of months, including after the defendant left the project. The cost of that lift was paid by the plaintiff; she asserts that it was to have been supplied by the defendant, and that thus she is entitled to repayment of the rental cost. The defendant states that Mr. Kasahoff asked him to arrange for its delivery, but that the defendant was not responsible for its rental.

The lift was apparently used by everyone involved from time to time on the project, including electrical and plumbing tradespeople - it was not simply used by the defendant and his assistants. [ 22 ] The plaintiff attempted to introduce into evidence a letter purportedly from the lessor of the Genie, specifying the writer’s understanding of who was to be responsible.

Given that this question is central to this aspect of the claim, and the writer was not available for cross-examination, I was not prepared to allow such hearsay evidence. [ 23 ] It makes more sense to me that the plaintiff and her husband would be responsible for the Genie rental. Although much was made at trial of who was the “general contractor”, I am satisfied that the defendant was hired to provide skilled labour, with personal tools. The notion that his hourly rate would include him providing a lift for the use of all persons on the worksite seems highly unlikely.

The evidence shows that the lift was charged for by the month: given that the defendant did not know how much work he might charge for in a month, it is improbable that he would agree to pay a substantial fixed charge monthly out of it. Indeed, the Genie rental would have consumed, depending on the month, between approximately 15% and 50% of the defendant’s total bill each month. Furthermore, it appears that the lift remained on the jobsite after the defendant left, which would be unlikely if he was paying for its rental. [ 24 ] I do not find this aspect of the plaintiff’s claim to have been made out.

Roof and windows [ 25 ] The plaintiff alleges that she continuously reminded the defendant that she needed the roof and windows completed in order to obtain her mortgage advance, and that his failure to do so in a timely manner resulted in the cancellation of her mortgage, and the necessity for her to obtain a new mortgage at a substantially higher interest rate. [ 26 ] The defendant denies that the plaintiff was after him to complete the roof and windows. [ 27 ] I am unable to decide which of these versions is accurate.

I accept that the plaintiff raised this issue with the defendant, but I am not able to determine from the evidence when she did so, or whether or not she communicated the urgency of it to him and the potential consequences. I am unable to determine whether the plaintiff or her husband at any time expressly directed the defendant to focus on that work, or that he refused or neglected to follow such direction.

[ 28 ] Although this means that the plaintiff has not proven this aspect of her claim, I would dismiss it in any event as the evidence does not disclose damages sufficiently for me to give her judgment even if I accepted her statements on this issue entirely. There is simply no evidence of what amount the plaintiff has lost as a result of having to obtain a new mortgage. I do not know the principal amount of either mortgage, or the payment terms. I do not know if the amortization periods are the same. All I have is the plaintiff’s statement that her interest rate is a specified amount higher.

Even were I so inclined, therefore, I have no basis for determining the amount of the plaintiff’s damages. [ 29 ] I am additionally troubled by the fact that, according to the construction mortgage document filed by the plaintiff (P-1), it appears that the mortgage had in fact been taken out and registered, and an initial advance made against it: the document shows that the roof and windows (amongst other things) had to be completed for the plaintiff to receive the second advance.

Although I recognize that generally a mortgagee retains the power to refuse to advance funds, there is simply too little evidence here of what exactly went on with respect to the original mortgage and the apparent subsequent mortgage for me to find my way to awarding the plaintiff any damages regarding this aspect of the claim. Defendant ’s claims [ 30 ] As noted above, the defendant has counterclaimed for unpaid hours of work, the use of a generator, cost of fuel supplied for the Genie lift, and rental by the plaintiff of the defendant’s safety equipment.

I do not find any of these claims to be made out in the evidence. With respect particularly to the latter three, they appear to have been dreamt up by the defendant in response to the ongoing claims by the plaintiff after the termination of the work relationship, and not because at the time of the work he actually considered her to be responsible for them. I will address each in turn. Unpaid hours [ 31 ] The defendant alleges that his last two invoices, dated September 30, 2014 and October 4, 2014, remain partially unpaid.

They total $4,059.00, against which the defendant credits the plaintiff with a payment of $2,500.00 in 2015. This is all contained in exhibit D-9, a confused document which consists of a number of hand-written notes made in different colours, with apparently different pens, and presumably at different times. The defendant testified that this document was sent to the plaintiff in November, 2014, yet it has a note on it purportedly dated May 4, 2015. These discrepancies were never explained by the defendant, nor were the contents of this exhibit ever put to the plaintiff.

I am not inclined to give it any weight as evidence, nor am I inclined to accept the defendant’s allegation that he is still owed money for his labour. It may be true, but it remains unproven. [ 32 ] Separate from that conclusion, were I to give this claim by the defendant any credence, I would also consider whether to offset against it the questions about the defendant charging the plaintiff for time spent going to retrieve forgotten tools, and the possibilities that he charged her for going for coffee breaks and lunch.

The credibility of the defendant’s evidence regarding his hours is such that I consider the most reasonable outcome to be to dismiss this claim for additional hours. Generator [ 33 ] The defendant charged the plaintiff for the use of a generator for five days in his first account, for the period of January and February, 2014. The charge for the generator itself is not broken out. There is then no further charge for this until the invoice rendered by the defendant May 18, 2015, when he claims for five months’ rental at $300.00 per month.

There is no evidence that this amount was agreed upon, or that the generator was provided at the plaintiff’s request. There is no explanation as to why, if the generator was being rented for five months, its charge was not included in the monthly invoices being provided to the plaintiff and paid monthly by her. I find that this claim has not been proven. Fuel for Genie lift

[ 34 ] The defendant alleges that over the course of several months, he supplied fuel from time to time to operate the lift, as the plaintiff or Mr. Kasahoff did not do so and various workers, including the defendant himself, needed to use the lift. He was surprisingly precise about his claim, specifying 202 litres of fuel at an average price of $1.05/l. It does not appear that he actually kept any records of the fuel purchases, either as to volume or price: the defendant appears to have recreated the numbers in May, 2015 from his recollection.

There is no suggestion in the evidence that he was asked to supply fuel, or that the plaintiff agreed to pay for it, or was even aware that the defendant was doing so. I do not find there to be any validity to this claim proven in the evidence, nor any evidentiary basis on which I could determine an appropriate amount even if I were convinced that the claim was proper.

Rental of safety equipment [ 35 ] This claim rests on the dubious argument that: (1) the defendant left his safety equipment on site (for working on the roof); (2) the roof was eventually completed; (3) the workers must have used safety equipment; thus (4) they must have used the defendant’s safety equipment and he should therefore be paid for them using it. [ 36 ] Another way of analyzing this claim would be to say that the defendant abandoned this equipment at the jobsite, has no idea whether it was ever used or not, and now wants to claim that this constitutes a “rental” of that equipment. [ 37 ] I am more inclined to the latter phrasing. [ 38 ] The plaintiff asserts that no one used the defendant’s equipment, and in fact she produced receipts for purchase of similar equipment herself.

The defendant has simply not produced any evidence in support of this aspect of his counterclaim, and I therefore dismiss it. Conclusion [ 39 ] As indicated at the outset, there were various claims raised by the parties, whether in their pleadings or at trial, which I have not dealt with at length herein. For some of those, there is simply no evidence whatsoever - this includes the defendant’s counterclaim for wear and tear on his equipment, and both sides’ claims for travel costs.

For others, this Court has no jurisdiction - this includes the claim for legal fees in the original Claim by the plaintiff, and the plaintiff’s allegations that the defendant defamed both herself and her husband. I would note that with respect to the claims which have jurisdictional problems, there is equally no evidence to support them. [ 40 ] Accordingly, I dismiss both the claim and the counterclaim. In light of that result, there will be no costs to either party.

I would not be inclined to grant costs in any event, given that both sides in their pleadings made extravagant claims of fraudulent documents, harassing conduct and slanderous statements, none of which were in any way supported by the evidence: to the extent that it would have been within my power to punish such claims in costs, I would have done so.

_____________________ Q.D. Agnew, J