T&W Excavating v. Broderick, 2023 NSSM 55

Small Claims Court OF NOVA SCOTIA Citation: T&W Excavating v. Broderick , 2023 NSSM 55 Date: 20231013 Docket: 523653 Registry: Digby Between: Troy Weaver operating as T & W Excavating Claimant v. Diane Broderick Defendant Adjudicator: Sarah A. Shiels Heard: September 12, 2023 (trial heard by telephone) Counsel: Hugh Robichaud for the Claimant Regan Murphy for the Defendant By the Court: [ 1 ] On March 25, 2022, the Claimant, Troy Weaver operating as T & W Excavating, filed a Notice of Action with the Supreme Court of Nova Scotia.

The Statement of Claim included various claims pursuant to the Builders’ Lien Act and stated that the Claimant had caused to be registered a Claim of Lien at the Lawrencetown Registry of Deeds on the 29 th day of December, 2021. [ 2 ] A Notice of Defence was filed on May 20, 2022, by the Defendant, Diana Broderick. The Claimant subsequently elected to have the matter transferred to the Small Claims Court of Nova Scotia on May 11, 2023.

The Defendant did not file a counterclaim. [ 3 ] The matter was heard by telephone on September 12, 2023. [ 4 ] In light of the claims relating to the Builder’s Lien Act , the parties were given opportunity to comment on the jurisdiction of the Small Claims Court to hear the matter at the outset of the hearing. Counsel for the Claimant confirmed that the Claimant was only seeking a ruling on whether the Claimant was entitled to payment of the sum of $8,808.79 and the Claimant’s costs in the proceeding, and not on any other claims listed in its pleadings.

Counsel for the Defendant confirmed that it had no objection to proceeding on this basis, notwithstanding the fact that the lien continued to be filed and set against the Defendant’s property. [ 5 ] Accordingly, a trial limited to the Claimant’s monetary claim and request for costs proceeded with the consent of the parties. [ 6 ] During or around the summer of 2021, the Claimant was retained by the Defendant to perform excavation and landscaping work at the Defendant’s property in Smith’s Cove, Nova Scotia. The Claimant verbally agreed to perform the work for $3,500 and this offer was accepted by the Defendant.

The scope of the work was to include construction of a wall on the west and back sides of the house and the addition of a drainage system. Materials were to be provided or paid for by the Defendant. [ 7 ] There was no written quote or agreement to confirm the pricing or the scope of work to be performed. [ 8 ] Mr. Weaver testified that after the work started, the Claimant was asked to do extra work including levelling the front, fixing

the front driveway, installing a fire pit, placing clear stone in specific areas, putting a set of stairs in, building a pad on the east side, and removing stumps for trees. The Claimant did not object to the additional work but informed the Defendant it would be extra. Mr. Weaver testified that the Defendant’s husband, Emil Janse, told him to proceed and that the client seemed to be happy. [ 9 ] On November 9, 2021, Mr. Weaver informed Mr. Janse that the bill was $8,808.00 including all work to date, material, labour, etc. Mr.

Janse promptly requested a detailed invoice with specification of materials, hours, etc. Mr. Weaver acknowledged that $500.00 had already been advanced. [ 10 ] The Defendant consulted an accountant, who indicated that a detailed audit was warranted, as the amount had more than doubled from the initial quote of $3,500.00. [ 11 ] The Claimant tendered into evidence an invoice dated November 8, 2021 and four pages of supporting documents.

The supporting documents detail which days were worked by the Claimant and its labourers but they do not include receipts or invoices for expenses and do not explain how the Claimant arrived at the sum of $1,996.82 for the cost of materials. [ 12 ] For its part, the Defendant tendered into evidence a copy of the Claimant’s invoice, a redacted copy of the accountant’s letter, photographs of the property in question with work in various stages of completion, a record of text messages between Mr. Weaver and Mr. Janse, and a record maintained by the Defendant of dates the Claimant’s employees worked at the property.

Ms. Weaver acknowledged that five loads of gravel were delivered, but said that the amount charged for this gravel should have been $1,625.00. On cross-examination, Mr. Janse agreed that nine loads of gravel had been provided, but stated he had paid for four of the loads. He noted that the materials tendered by the Claimant listed clear stone as a type of material, but did not say how many. [ 13 ] The Defendant also provided a copy of a quote to remove the “existing failing retaining wall” and to install a new retaining wall.

The amount quoted to remove the existing material was $1,600.00.00 (plus HST). [ 14 ] There was conflicting evidence as to when the work occurred at the property and what work in particular was done. For example, Mr. Weaver was adamant that trees and stumps had been removed, while Mr. Janse protested that no such work had occurred, as Ms. Broderick had refused to allow any trees to be cut down. [ 15 ] By all accounts, the work that was originally agreed to was not fully completed. Neither party provided an independent valuation of the work done. [ 16 ] Counsel for the Claimant argued that Ms.

Broderick had been unjustly enriched by the Claimant and that the Claimant, Mr. Weaver, did as he was instructed. [ 17 ] As provided in Wacky's Carpet & Floor Centre v. Maritime Project Management Inc ., 2006 NSSM 4 , at page 13 equitable remedies such as unjust enrichment, quantum meruit, and set off are within the scope of the Small Claims Court authority provided it is a monetary award being sought under a contract or a quasi contract, or where there is a special contractual relationship arising. [ 18 ] As cited in Sheehan v.

Samuelson , 2023 NSSM 27 at para 60 , the Nova Scotia Court of Appeal in Canada (Attorney General) v. Geophysical Services Incorporated , 2022 NSCA 41 provides that at the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain. Something must have been given by the plaintiff and received and retained by the defendant without juristic reason.

Canadian law permits recovery when the plaintiff can establish an enrichment or benefit of the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment. [ 19 ] I accept that the Claimant followed the Defendant’s instructions in the sense that the Defendant asked the Claimant to complete landscaping work at the property and requested some additional work, but it is also clear that the Claimant did not keep to the agreed-upon budget or timeframe.

Excluding materials and HST, the bill for the incomplete work was $5,663.00, which was approximately 40% over budget. Work that was supposed to be completed in 5-6 days extended over several months and still wasn’t finished. [ 20 ] As noted by counsel for Ms. Broderick, the Claimant bears the burden of proving the Defendant was unjustly enriched. In the absence of any evidence of the value of the partially completed landscaping work, I find there has been no unjust enrichment of Ms. Broderick by the Claimant with respect to the services provided. [ 21 ] However, there was also no evidence that Ms.

Broderick objected to the purchase or delivery of construction materials to her property at the time when the work was being performed. The materials delivered to her property were incorporated in the landscaping efforts or remained at the property. I consider the delivery of landscaping materials for work requested by Ms. Broderick to be a benefit retained by the Defendant. [ 22 ] I prefer the evidence of Ms. Broderick and Mr.

Janse with respect to the value of materials purchased and I am prepared to order that the Defendant pay for five loads of gravel at a rate of $325.00 per load, less the credit of $500.00 already paid. [ 23 ] No counterclaim was filed and the Defendant is not seeking reimbursement of the $500.00 paid to the Claimant. [ 24 ] It is hereby ordered that the Claimant is entitled to Judgment against the Defendant in the amount of $1,125.00 Each party shall be responsible for their respective costs. [ 25 ] If an Order is required, it should be prepared by counsel for the Claimant, with the form consented to by counsel for the Defendant, and sent to the Court for signature.

Sarah A. Shiels, Small Claims Court Adjudicator