Rutherford Condominium Corporation - v. -, 2015 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 057 Date: April 30, 2015 File: 06/14 Location: Moose Jaw _____________________________________________________________________________ Between: Rutherford Condominium Corporation - and - Adam Knudson o/a Ad ’s Roofing Ms. Lee Spencer, Shareholder and Other Shareholders For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT D.

KOVATCH , J _____________________________________________________________________________ HISTORY OF THESE PROCEEDINGS [ 1 ] I begin by setting forth the brief history of these proceedings as that is somewhat relevant to the judgment which is ultimately being issued. The claim was issued on March 6, 2014. The summons required the defendant to appear for a case management conference on May 20, 2014. On that date, Ms. Spencer and others from the plaintiff corporation appeared, as did the

defendant personally. The case management conference was held by Her Honour Judge Gordon. She completed the standard “case management check list” and report. That report discusses the need for expert evidence and exchange of reports no later than August 31, 2014. It indicates that the matter is being adjourned for trial to October 2, 2014, at 1:30 p.m. [ 2 ] Paragraph 12 of that report reads as follows: Parties endorsement: I have received my information package entitled “Preparing for Trial” and acknowledge the date for trial of Thursday, October 2, 2014 at 1:30 p.m. [ 3 ] This report document is executed by Ms.

Spencer for the plaintiffs and by the defendant, Adam Knudson. [ 4 ] On October 2, 2014, I was to hear the trial. At that time Ms. Spencer and various representatives of the plaintiff were present. The defendant was not present and no one appeared on his behalf. Ms. Spencer advised that one of her key witnesses was not present. She expected that this individual would be present, and had no explanation as to why that individual was not present. She requested that the trial be adjourned. With no one appearing for the defendant, I agreed to that request and adjourned the trial to November 20, 2014 at 1:30.

On October 2, 2014, the clerk of the court wrote to Mr. Knudson. She advised that the trial did not proceed and had been adjourned to November 20, 2014 at 1:30. She further stated: Please be ready to proceed with the trial on that date. If you are not present and/or you are not represented, the trial may proceed in your absence. [ 5 ] On November 20, 2014, the matter again came before me for trial. At that time, the plaintiff and all of its witnesses were present and they were ready to proceed. The defendant was personally present.

He stated that he was not ready to proceed and wanted to have the matter adjourned so that he could consult with a lawyer. I went through the history of the proceedings with him and stated that it was now too late for him to adjourn to consult with a lawyer. I referred him to the case management conference and the report of that conference and that he was obligated to proceed to trial on that date. I advised that I would hear the plaintiff’s case and then would adjourn for a short period of time to allow him to consult counsel and determine if he wanted to present defence evidence.

We did hear the plaintiff’s case, and the matter was then adjourned to December 17, 2014 at 1:30, for the defendant’s evidence. On December 17, 2014, the plaintiffs were again present and no one appeared for the defendant. I heard no further evidence on December 17, and reserved my decision. This is that decision. THE EVIDENCE [ 6 ] The first witness for the plaintiff was Ms. Lee Spencer. She testified that she is the President of the plaintiff condo corporation. She advised that in May 2009, the building had some hail damage to the roof.

The company executed a written agreement with the defendant pursuant to which the defendant agreed to remove old shingles, install felt paper, drip edge, vents, stack flashings, valley metal, and roof brackets. The agreement further provides: Warranty - The contractor shall correct, at contractor’s own expense, any defects in the work due to faulty workmanship pursuant to this contract for a period of five years from the date of full completion.

The owner shall give the contractor written notice of such defects within a reasonable time, and in any event within the warranty period. [ 7 ] In clause 8 of the agreement, it provides: The contractor agrees to undertake all work diligently in a good and workmanlike manner, in accordance with good quality residential standards and practices, and in compliance with any applicable building code, safety code, fire code, and all other authorities having jurisdiction.

[ 8 ] Ms. Spencer testified that in May 2012, water entered two units in the building and the lobby. At first, they felt it likely that the water was coming from a pipe. They called a plumber to do an inspection. The plumber advised that the water was coming from a leak in the roof. His invoice for this inspection was $169.76. The defendant was called. He replaced a number of vents during the summer of 2012, but the water continued to enter the building. On October 21, 2012, the roof was inspected by an insurance agent.

The insurance company then denied coverage because flashings were missing and there were construction defects. [ 9 ] The condo corporation then hired Mr. Barry Webster who did a full inspection and written report. He identified several construction problems and recommended the hiring of a roofing contractor to repair the problems. Dr. Roof was hired and did the roof repairs. R.B. Construction Ltd. was hired to repair the internal water damage. Ms. Spencer entered as exhibits the three invoices that they received from Dr. Roof totalling $3,281.25. She entered as an exhibit the invoice from R.B.

Construction Ltd. in the total amount of $4,567.50. She testified that early in 2013, their insurer required that an inspection be done for mould. I gather that this inspection was required by the insurer before it would agree to renew the insurance policy on the building. The cost of this mould inspection was $787.50. In addition, as mentioned above, the plaintiffs received an invoice for $169.76 from the plumber for his initial inspection. She advised that the plaintiff’s total damages was a total of all of these invoices being $8,806.01. [ 10 ] The defendant, Mr. Knudson, did not cross-examine Ms.

Spencer. [ 11 ] The next witness called was Mr. Barry Webster. He testified that he inspected the roof from above and in the attic. He testified that from the attic, he located three spots where he could see daylight coming through the roof. One was a nail hole and the other two had daylight coming in from around an exhaust chamber. He testified that proper flashings were not installed and sealed around the exhaust pipe. He testified that in the attic, below each of these holes, was a significant amount of wet and soggy insulation.

During his evidence he entered as an exhibit a number of photographs showing what he observed at the time of his inspection. Lastly, he testified that he recommended that the plaintiff corporation retain a roofing contractor to make the appropriate repairs and to remove and replace any saturated insulation. [ 12 ] The last witness called was Mr. Brody Schoffer. He testified that he did the roof repairs. He said that he went on to the roof and removed shingles and paper around the exhaust vents. He used plywood to fill in gaps between the exhaust pipes and the roof.

He then applied a rubber membrane around the exhaust area and ran it up the vents. He replaced shingles and flashings and sealed everything up. ANALYSIS AND CONCLUSION [ 13 ] With no evidence from the defendant, the decision here is obvious. The plaintiff has proved there were a number of problems with the roof as a result of the defendant’s poor workmanship. The defendant warrantied his work, and failed to remedy the defective workmanship. The plaintiff is entitled to damages. [ 14 ] In my view, there is one invoice that the plaintiffs are not entitled to claim as damages against the defendant.

That is the invoice for the mould inspection in the amount of $787.50. It seems to me that this invoice is not one for repairing damage that occurred from the defendant’s workmanship. Rather, this cost was imposed by the plaintiff’s insurers to satisfy themselves, so that they could accept the insurance contract. As a result, it is not properly claimable as damages against the defendant. [ 15 ] The result is that the plaintiff shall have judgment for:

(1) Invoice for plumber for inspection $ 169.76

(2) Invoices from Dr. Roof $3,281.25

(3) Invoice from R.B. Drywall Ltd. $4,567.50 Total $8,018.51

[ 16 ] In addition, the plaintiff shall have the cost of issuing this summons in the amount of $88.00 and cost of the service in the amount of $15.00. [ 17 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 30 th day of April 2015. D. Kovatch, J