Carlson v. Harbax Hardware Limited, 2017 NSSM 88

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Carlson v. Harbax Hardware Limited , 2017 NSSM 88 SCC SN No. 463339 BETWEEN: RONALD CARLSON & LAURIE PLANTE CLAIMANTS and HARBAX HARDWARE LIMITED DEFENDANT REASONS FOR DECISION Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. BEFORE : A.

Robert Sampson, Q.C., Adjudicator DATE OF HEARING : Hearing held at Sydney, Nova Scotia on July 12, 2017 DECISION RENDERED : August 9, 2017 APPEARANCES: For the Claimant : Ronald Carlson and Laurie Plante For the Defendant : Frank Gillis, Q.C. BY THE COURT: 1 . This matter was initiated by Notice of Claim dated the 10 th day of May 2017 and filed with the court on the same date. The Defence was filed by Frank Gillis, Q.C., Solicitor, on behalf of the Defendants, dated May 29, 2017 and filed with the court on the same date. 2 . The principal basis for this claim was the allegation by the Claimant(

s) that goods they had purchased did not match the description of what they contracted. The written claim filed states “the reason for the claim is delivery of right size siding, plus labour of removing wrong siding and labour of replacing”. The amount of the claim is $2,253.84. 3 . The Defence essentially says there was no contractual relationship between the parties nor does the Claim identify with any level of certainty what role, if any, the Defendant had as it relates to this claim.

The Defendant further states that the Claimants chose the size of the siding and the responsibility rests with the Claimants to identify any differences between the siding purchased and what was delivered. 4 . At the outset, both Claimants were sworn in. The claim was principally advanced by Ms. Plante. The evidence was that the Claimants resided on Fourchu Road, Gabarus Lake. Their evidence was that in the fall of 2014, the Claimants were planning to carry out

some extensive renovations to their home situate in Gabarus Lake. This was to include the replacement of some windows and the purchase and installation of siding on their home. 5 . Exhibit 1 shows an invoice from Harbax Home Hardware dated December 5, 2014 for the purchase of “14 – d4.5 cove Yellowstone Oakland” siding for the purchase price of $2,253.84, the same amount reflected in the claim presented to the court. The invoice was issued by Harbax Home Hardware, Sterling Mall, 3 Sterling Road, Glace Bay. It is marked paid and the accompanying receipts were tendered with Exhibit 1. 6 .

The Claimants’ evidence is that the boxes of siding were subsequently delivered to their home in Gabarus. The Claimants confirmed that, upon delivery, the boxes were counted and the colour was checked and then the boxes of siding were placed in the basement of their home having regard to the time of year. 7 . The Claimants indicated that upon placing their initial order they had originally planned to put rock siding over a portion of their home but later changed their mind because of the placement of the deck which would have required extra siding.

The Claimants indicated that when they found out that the siding came in two different sizes, and that upon receiving the subsequent order of siding (the details of which will be set forth later), the size (width) of the new siding was, they allege, narrower than the original siding. The Claimants stated that they had originally ordered the siding size in a width of 4.5 inches and that, unbeknown to them until after installation, it was delivered in a 5-inch width.

They indicated that they had not noticed this until it was installed and the subsequent purchase of additional siding, which came in 4.5 inches, showed the discrepancy. Consequently, the Claimants claim that the original siding size was wrong and therefore is seeking that it be replaced. 8 . The Claimants tendered several pictures. Exhibit 2 is what appears to be the lower left-hand corner of the house (doors underneath the deck) and appears to show, at least from this picture, that the lines of the siding on each relevant side of the home do not appear to line up.

The Claimants state that this is as a result of the two different sizes of the siding (4.5-inch v. 5-inch) and that both of them are extremely upset with the visual effect that it now presents. 9 . Exhibit 3 represented a further invoice from Harbax Home Hardware dated November 15, 2016. This invoice appears to be for two boxes of D 4.5 Cove Yellowstone siding. Exhibit 4 was tendered showing the area underneath the deck of the Claimant’s home which is the area which required additional siding.

Exhibit 5 is a photograph of what appears to be the front of the home after the siding had been completely installed on the home. 10 . The Claimants state that upon receipt of the siding purchased in November 2016, it was learned that the siding appeared to be a different size than the original siding purchased. The further evidence of the Claimant, Laurie Plante, was that both she and her partner, Mr. Carlson, learned that the manufacturer no longer made the 5-inch siding and that they had made a number of inquiries at different local suppliers in an effort to obtain additional siding in the 5-inch width.

It would appear that these efforts were made after November 2016 as the evidence of one of the Defendant’s witnesses, as referenced later, recalls having gotten into somewhat of a heated discussion with the Claimant, Mr. Carlson, in late November/early December 2016 over this issue. 11 . On cross-examination, Mr. Gillis inquired as to why there was such a length of time between the date on which the original siding was purchased in late 2014 and new siding ordered in late 2016. The Claimant, Ms.

Plante, explained that she was upset because the Defendant was intending to charge a $175.00 delivery charge which she did not believe was fair and which she was not prepared to pay. 12 . Mr. Gillis presented a duplicate invoice from Harbax Home Hardware dated November 8, 2016 which quoted two boxes of D 4.5 Cove Yellow Stone Oakwood siding. This document also noted a shipping charge of $50.00 each. 13 .

Again, it was later learned from the testimony of the owner of Harbax Home Hardware that this document (Exhibit 6) represented a quote and that ultimately when the two boxes of siding were sold approximately one week later, the quote remained the same but there no delivery charge was invoiced. 14 . Mr. Gillis questioned the Claimants about whether the siding and the boxes were inspected upon delivery and asked whether they took note of the size of the siding at that time. The Claimant, Ms. Plante, indicated she was not present when the siding was delivered as she was at work and Mr.

Carlson received the delivery at their home. Ms. Plante indicated that she had looked after buying the siding.

15 . From the cross-examination, there appeared to be some confusion as to when the initial siding was actually installed. The Claimant, Ms. Plante, on cross-examination indicated that Ross C. Merrill was the contractor who did the initial installation of the siding that had been ordered and received in December 2014. She believed that this work took place in June 2015. She confirmed that Mr. Merrill did not install the second batch of siding “because it was not matching”. Further, on cross-examination, Ms.

Plante indicated that she had gone to Harbax, spoken with a representative and was advised that the 5-inch siding in the color that she had originally ordered/received was no longer available. She further confirmed, “as far as she knew” she understood there had only been one size available in the siding ordered. 16 . Ms. Plante further indicated under cross-examination that a James MacIntosh worked on installing doors, etc., and was not at Harbax when she last purchased siding. 17 . The Claimant made a statement that “the following morning after delivery Mr. Merrill showed her the difference in size”.

There does not appear to be any certainty as to when this statement may have been made by Mr. Merrill. Ms. Plante indicated that she asked him to hold off, and then she went to the Defendant and they confirmed that the new siding was 4.5 and the original was 4.5 (based on the original order) and so everything should be okay. 18 . Ms. Plante indicated that Mr. Merrill said it would cost extra to remove the 5-inch siding that he had previously installed and, as previously noted, Mr. Carlson went to other locations to see if he could secure 5-inch siding.

Again, there was no certainty as to when this conversation occurred. 19 . Under further cross-examination, Ms. Plante indicated that Peter Slaunwhite completed the balance of the siding installation. Ms. Plante indicated, to her knowledge, Mr. Slaunwhite is a contractor who normally builds homes, etc. She indicated that she did not have any invoices relating to the cost or date of this work and confirmed that she had paid the contractors cash for the work. 20 . Through cross-examination there continued to be some confusion as to exactly when Mr. Merrill finished his work. Ms.

Plante repeatedly confirmed that she recalled it being in June 2014, however, at times she appeared to be somewhat uncertain as to the exact dates. There were no supporting invoices for the payment of the contractors submitted to provide any guidance in this regard. 21 . Ms. Plante did recall with certainty that she did pick up additional siding in 2016. Her recollection was that James MacIntosh, once he finished his work, did pick up one box of siding from the Defendant’s business and it was at that point they found out the difference in the size of the siding.

At one point the Claimant alluded to the fact that this may have occurred in June 2015 but she remained uncertain. 22 . Ms. Plante indicated that Mr. MacIntosh was originally supposed to do the siding work but got very busy and then it was too late in the year. She had some recollection of making a trip to Harbax Home Hardware with Mr. MacIntosh possibly in June 2016. 23 . The Claimant Mr. Carlson was asked if he wished to provide any evidence and he indicated that he did not. 24 . The Defence presented Nancy Walsh who was sworn in. She acknowledged that she is married to Jamie Whyte, the owner of Harbax.

Her principal role is Office Manager. She reviewed Exhibit 1 which confirmed the purchase of D 4.5 Cove Yellowstone siding in 2014 and Exhibit 3 which confirmed the purchase of additional siding, Double Cove at 4.5 in November 2016. 25 . Ms. Walsh confirmed she was involved with sales in November 2016. She explained that there were differences in siding sizes from this manufacturer, notably a 4.5-inch and a 5-inch. She indicated that as a rule Harbax only maintained inventory in white siding and everything else was generally a specific/special order.

She recalled the November 2016 sale to the Claimant where she was asked to order some siding similar to what the Claimant had previously purchased. She recalls in November 2016, Ms. Plante was the one who attended the store, accompanied by Jamie MacIntosh, because she specifically recalled that they went out back to check on the size. 26 . A piece of cardboard box was tendered as Exhibit 7 and shown to Ms. Walsh. She indicated this represents the end of each box of siding as it is shipped to them and then re-shipped to a customer. She indicated that on the box is highlighted both the size (D

4.5) and the type of siding and confirmed that would have been the case both with the initial siding order delivered to the Claimant back in 2014 and the subsequent siding boxes purchased (November 2016) and received by the Claimants. 27 . Ms. Walsh indicated that in December 2016 was the first time she became aware of any type of problem relating to the Claimants’ purchase. Mr. Carlson came into their office and explained the problem, although he had never requested that they search for any 5-inch siding nor did he ever speak with her about discontinued products.

She confirmed that the shippers who work for Harbax Home Hardware have been there for a long period of time. Two sample pieces of siding were tendered as Exhibits 8 (green) and 9 (grey). These were presented to show the nature of the siding that was sold and particularly the difference between a 4.5-inch and a 5- inch. She confirmed that it was their building supply manager who had shipped the original siding to the Claimants and that it was highly unlikely that a mistake was made. 28 . Ms. Plante cross-examined Ms. Walsh. Many of the questions Ms. Plante asked Ms.

Walsh she simply could not answer because she had not dealt with her when the initial order (November 2014) had been placed. Ms. Walsh re-confirmed that the building material manager, who has been with their company for many years, was the one who delivered the original siding which was back in November/December 2014. 29 . Ms. Walsh indicated that Mr. Carlson, in December 2016, had come into their office quite upset and using foul language as he felt it was her fault for the alleged difference in siding size which in turn led to him having to be asked to leave the office. Ms.

Walsh indicated that she had called Ms. Plante following this interaction with Mr. Carlson and asked her to not have Mr. Carlson attend at their place of business anymore. She recalled that Ms. Plante was very understanding and indicated that she would speak with Mr. Carlson. 30 . Ms. Walsh indicated that after Mr. Carlson left she did call the representative for the siding manufacturer and was advised that the manufacture of Double 5-inch Cove siding had been discontinued approximately one year prior. 31 . Ms. Walsh indicated that she had been with the business since 1996.

She confirmed they would carry both 4.5- and 5-inch but strictly white. Anything else would be by specific order. 32 . Ms. Walsh was showed Exhibit 2 and asked if she would identify any marks which showed the difference between 4.5- and 5- inch. Ms. Plante showed Ms. Walsh a picture of the house and asked her if she could identify if there was anything wrong or the difference in the siding colors and Ms. Walsh said she could not. 33 . Mr. Whyte, the principal owner of Harbax Home Hardware was sworn in. Upon direct questioning, he confirmed he does not recall receiving any complaint prior to this formal claim.

Upon cross-examination, he confirmed that Ms. Walsh had showed him the last order. He does not recall speaking directly with Ms. Plante at any time nor does he recall ever speaking with her about any delivery charges. He reviewed Exhibit 6 and confirmed it appeared to be a quote. He reviewed Exhibit 3 which he confirmed to be an invoice. 34 . In summation, Frank Gillis advanced the position on behalf of the Defendants that what was originally sold in 2014 was what was delivered.

He confirmed the invoice says 4.5-inch cove siding was sold and that there is no evidence before the court to provide any level of certainty as to what was actually delivered or what was installed on the home. 35 . Mr. Gillis highlighted the fact that there were issues of credibility surrounding the original delivery issue having regard to the fact that it was almost two years later before this so-called “problem” first surfaced. He emphasized that an important issue is when the Claimants likely knew of this problem. The evidence of the Claimant, Ms.

Plante, was that she first became aware in June 2016 but there is no evidence from the owner, Mr. Whyte, that he ever became aware of this problem. Mr. Gillis emphasized to the court that, while appreciating the rules of Small Claims Court are relaxed, there is a minimum level of burden that must be satisfied and that the Claimant has not met that burden in this instance. 36 . Mr. Gillis suggested that most likely there was no mistake made and that based on the evidence advanced there are “too many unanswered questions”. 37 . The Claimant, Ms.

Plante, confirmed she had two professional contractors to deal with the siding. She advanced the position the contractor would never put two different sizes on one wall and the simple reality is that they had originally purchased siding that was to be 4.5 inches wide but the siding they received was 5 inches and then later they could not purchase any more in that size.

38 . She indicated that in 2015 Jamie MacIntosh was supposed to do the work but he simply ran out of time and therefore could not do the siding. She confirmed that they then found Mr. Merrill but had to wait for him and recalls him starting in April (but the year remains unclear). She indicated that Mr. Merrill’s wife had been sick at the time and therefore the work was slow. 39 .

She re-confirmed that when he realized the second batch of siding did not match what was initially purchased and the additional siding could not be obtained, the only way to resolve the problem would be to remove the existing siding and he was not prepared to do that so he left. 40 . Ms. Plante, indicated that the north wall needed to be done and that some siding had to be removed at the doorway because she could not obtain the 5-inch siding and as a result, the back wall was finished in 4.5-inch siding. 41 . Ms. Plante confirmed that she and her partner, Mr.

Carlson, were jewelers by trade and live a life where they are very particular and precise as to finished products. She indicated that it can readily be seen with reference to Exhibit 2 (picture) that the siding lines don’t match up and that this is very troubling for them. For that reason, she is claiming a refund of what they paid for the original siding based on the fact that the wrong size was delivered. DECISION 42 . The principal basis of this claim rests in contract. The Claimant, Ms.

Plante, claims that she had contracted for the purchase of specific goods/materials from the Defendant and that the goods delivered did not meet the description of what was purchased. 43 . It is trite to say that there is an obligation in law on retailers, which is re-confirmed under the Sale of Goods Act, R.S., c. 408, that the items purchased must be of merchantable quality and conform to the description of what was purchased. 44 . Therefore, the onus in this case rests with the Claimants to establish with some level of certainty two essential elements as follows: (

i) That there was a sales contract concluded for goods purchased, the parties to the contract, the description of the goods purchased and the fact that it was paid for; (ii) That there was a breach of a contract. In this instance, sufficient evidence to prove that the goods delivered did not match the description of what was purchased. 45 . As it relates to paragraph 44 (i), the evidence before me appears to be undisputed.

Exhibit 1 clearly shows an invoice tendered by Harbax Home Hardware for the purchase of 14 boxes of D 4.5 Cove Yellowstone Oakland siding and the accompanying receipts confirm that it was paid for and delivered. The invoice itself identifies the purchasing party as “Laury - Blue Gemes”. Assuming this is the Claimant, Laurie Plante, and the shipping addressed noted is the address of the Claimant. Therefore, I am satisfied there was a contract. 46 . With regard to paragraph 44(ii), the evidence before me is far less certain.

Whether a warranty is expressly made or implied, in this instance by a statute such as the Sale of Goods Act , the supplier, in this case the retailer, Harbax Home Hardware, has an obligation to ensure that the goods delivered match the description of the goods purchased.

However, in relying on any warranty of this nature, there exists a corresponding obligation on the purchaser to undertake a reasonable inspection, in a reasonable period of time , not only that the description of the goods received matches what they purchased but equally important that, if not, the retailer has an opportunity to identify whether in fact an error was made and to rectify the situation. 47 . Again, with specific reference to the Sale of Goods Act , I find the following provisions are relevant to this fact situation:

Section 36 – Opportunity to Examine

(1) Where goods are delivered to the buyer that the buyer has not previously examined, the buyer is not deemed to have accepted them unless and until the buyer has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

Section 37 - Deemed Acceptance The buyer is deemed to have accepted the goods when the buyer intimates to the seller that he has accepted them, or when the goods have been delivered to him, and the buyer does not act in relation to them, which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, the buyer retains the goods without intimating to the seller that he has rejected them. 48 . Clearly, both sections 36 and 37 must be read together.

Ultimately, it requires a determination, based on individual facts, as to what reasonable time periods ought to have been under the circumstances. 49 . The facts of this case confirm clearly that the goods were delivered in the fall of 2014 and held in the Claimants’ basement. As such, there would have been ample time for them to have inspected the goods received, even after the actual delivery date, to afford them the opportunity to confirm that the goods conformed with what they had purchased. 50 .

However, the facts further show that it was not until at least in late November/December 2016 that this issue was brought to the attention of the Defendant. I find this period of time is well beyond the “lapse of a reasonable time”, afforded by statute to a buyer to examine goods received and raise an objection if necessary. 51 . While the evidence presented by the Claimant, Ms.

Plante, appears to be unclear at times as to exactly when the installation of the siding commenced (i.e., 2015 or 2016), the dates which are clear are both the original invoice date, December 2014, and the purchase of the second batch of siding (two boxes) in November 2016. That is a span of two years. The evidence appears to be further clear that the Defendant, either through their employee, Ms. Walsh, or the owner Mr. Whyte, were not made aware of any problem until sometime in December 2016 when Mr. Carlson visited at their place of business quite upset. 52 .

Therefore, quite apart from whether the wrong size siding was initially delivered and whether there is sufficient proof for me to make a determination of this issue, I find that the span of two full years far exceeds anything reasonable insofar as the obligation that rests with the Claimants as the purchaser to fulfill their responsibility to identify and advance a claim in relation to the original sale contract. The evidence of the Claimant, Ms. Plante, although she wasn’t personally present, confirmed that Mr.

Carlson, upon delivery of the siding, checked to make sure it was the same type that was ordered, color, etc., however, she doesn’t recall if he specifically checked the size on the box to confirm it matched what was originally purchased. Ms. Plante, in the evidence presented by her and through the questioning of the Defendant, asked whether it was possible that the manufacturer had made a mistake and re-boxed the wrong size siding and that the boxes in which the siding had been packaged may have been marked incorrectly.

There would be no way for a retailer such as Harbax Home Hardware to know this until the goods inside the box were inspected and that would remain the responsibility of the Claimants/Purchaser. 53 . The court appreciates that it is not uncommon when people are carrying out substantial repairs to their homes to begin making purchases of certain goods and materials in advance and holding them until the contractors are able to complete the installation. However, that does not relieve the purchaser from the obligation to complete their inspection of the goods within a reasonable period of time.

In this instance, I completely accept the evidence of the Claimant that they struggled to secure a contractor to complete the siding work and then, either in 2015 or 2016, when the majority of the siding was placed on the home and they had run short because of a change in plans, they purchased additional siding in November 2016, at which time apparently the mismatch of size came to light.

If in fact this is what did occur it is unfortunate for the purchaser, however, again as the Claimant’s evidence confirmed, it was only then they learned that the manufacturer had stopped making the 5-inch siding which supposedly would have matched the original order received. This highlights why the court must recognize some level of obligation on a purchaser to carry out an inspection of goods purchased within a reasonable period of time as the seller, in this instance Harbax Home Hardware, would have absolutely no control over the discontinuance of a manufacturer’s product line over a span of two years. 54 .

Therefore, on the basis of this scenario alone, quite apart from whether in fact the wrong size siding as compared to that which was ordered may have been delivered in December 2014, with the passage of time it would be unfair to hold the retailer responsible.

55 . Apart from the position I have taken above and to the issue of whether the Claimant has satisfied me that the Defendant had breached the original terms of the contract by providing the wrong size siding, I am simply not satisfied on the evidence presented that I am able to make this determination. The evidence of Ms. Walsh appears clear that she recalls when Ms. Plante had attended at their business in November 2016 and her specific recollection was that Mr. James MacIntosh was with her. She recalls him going out back to check on the sizes, however, no mention of any concern was advanced at that time.

That is the time at which they purchased two additional boxes of siding. 56 . From the evidence, I concluded that Mr. Merrill was the contractor who installed the initial siding that was purchased. The evidence remains unclear as to when this work was completed but the surrounding evidence suggests it was in the spring of 2016. The Claimants’ evidence was clear that the discrepancy in the siding size was first brought to their attention by Mr. Merrill.

Therefore, this begs the following question: If, as the Claimants suggest, they became aware of the sizing error once they subsequently purchased additional siding and if, as the Claimants’ evidence suggests, Mr. Merrill finished his

part in the spring of 2016, why was nothing said or done between the spring of 2016 and November 2016 and even in November when additional siding was purchased? 57 . In addition, it was open to the Claimants, who maintain the obligation to prove that an error in the siding sizes did occur, to have any one of three different contractors who were involved with this project come forth and provide evidence confirming that in fact there were two different size sidings in play. Also, it was open for the Claimants to bring in samples of the two different size sidings. None were advanced to the court. 58 .

The evidence of the Claimant advancing the position that the original siding order was incorrect (5-inch), by their own admission, was principally based on what they were being told by the contractors. The exhibits which were tendered to me, notably the picture identified as Exhibit 2, does appear to show that the “siding lines” leading from the side of the house to the front (underneath the deck) do not appear to match up. From the picture, the width of the siding appears to be the same but frankly it is impossible to determine from a picture with any level of certainty.

Equally important, the picture does not allow one to determine whether the start of the installation at the bottom corner on both sides was at the same point. If it was not, this would lead to a mis-match of the abutting lines as well. 59 . Having regard to all of the facts and particularly those relating to the timings in which matters arose between November 2014 and December 2016, I am left wondering whether the Claimants’ problem originates from an installation problem and/or a mis-match of the size of the siding (4.5- v 5-inch).

I simply do not have enough information before me to make a determination with a sufficient level of certainty to award this claim. 60 . However, as noted above, even if there was sufficient evidence to determine conclusively that the original order was in error, I am not satisfied, having regard to the passage of time that the Claimants have fulfilled their responsibility of providing reasonable notice of this possible mistake so as to afford the retailer an opportunity to confirm the same and make any corrections.

The fact that some two years went by from the time of purchase before this alleged problem was first identified and brought forth clearly prejudiced the Defendant, particularly in light of the fact that the manufacturer had stopped producing the 5-inch siding. 61 . This claim is dismissed. DATED this 16 th day of August 2017. ___________________________________ A. ROBERT SAMPSON, Q.C. Adjudicator