Charlene McKay - v. -, 2018 SKPC 77

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 77 Date: December 31, 2018 File: SC# 438 of 2017 Location: Saskatoon _____________________________________________________________________________ Between: Charlene McKay - and - Dale Peters Ms. E. Casselman For the Plaintiff Mr. D. Peters On His Own Behalf _____________________________________________________________________________ JUDGMENT D.C. SCOTT , J _____________________________________________________________________________ Introduction

[ 1 ] The plaintiff Charlene McKay alleges that she and the defendant Dale Peters entered into an oral contract whereby he would provide grass-planting services, in the form of hydroseeding, on the plaintiff’s property for a quoted price of $2,000.00. [ 2 ] Hydroseeding is a sprayed method of seeding grass. It involves the mixing of grass seed with mulch and other products, which adhere to the seed and the ground, as a means of erosion control. [ 3 ] In May 2015, the hydroseeding services were provided. The defendant sent an invoice to the plaintiff for $5,092.50, which he subsequently discounted by $1,400.00.

The plaintiff paid the balance of $3,622.50 to the defendant. [ 4 ] The grass seed did not germinate, so the plaintiff asked the defendant for a refund, which he refused to provide. [ 5 ] According to the plaintiff, the defendant represented to her that the seed was “certified to grow”. Because the seed never did grow, the plaintiff alleges the defendant breached his contract with her. She claims damages in the amount of $3,622.50 which represents a refund of the contract price. [ 6 ] The defendant denies there was a contract between himself and the plaintiff.

According to the defendant, his role was only to coordinate and facilitate the hydroseeding, which was provided by another party, G.E. Environmental Solutions Inc. (“G.E.”). The defendant arranged for the service to be completed, collected payment of $3,622.50 and turned over the entire amount to G.E. The defendant received no monetary compensation for his services. [ 7 ] The Court must determine whether a contract existed between the plaintiff and the defendant. If so, the Court must also determine whether the defendant breached any such contract or made any misrepresentation, which might give rise to damages.

Plaintiff’s Case Charlene McKay [ 8 ] The plaintiff resides on an acreage 18 kilometres west of Saskatoon in the Rural Municipality of Vanscoy. She is employed as a quality assurance specialist for a mining company, which takes her away from her home from time to time. [ 9 ] In 2014, the plaintiff wanted the property surrounding her newly-built home landscaped. The yard needed to be graded, excavated and seeded with grass. [ 10 ] The plaintiff met the defendant in the fall of 2014 through her friend Gregory Zeiler.

The defendant had a bobcat business so the plaintiff hired him to do the landscaping, which was completed in November of that year. [ 11 ] The defendant recommended to the plaintiff that she consider using hydroseeding to plant grass. She was not familiar with the product or process other than having seen it used in ditches alongside the highway. [ 12 ] In spring 2015, the plaintiff contacted the defendant to discuss the seeding. The defendant quoted the price of $2,000.00 for the hydroseeding job, to which the plaintiff agreed.

A large area surrounding the house was to be seeded including behind the house, between the house and the barn and a small patch in front on the trail to the well. The defendant filed an aerial photograph of the plaintiff’s property (Exhibit D1) indicating where on the property the hydroseeding occurred. [ 13 ] The plaintiff understood that the defendant wanted to learn the business and would hire a company that performed this type of work. The arrangements were made between the plaintiff and the defendant over the telephone.

She did not deal directly with the hydroseeding company. [ 14 ] The plaintiff was at home at the time the seeding was done on May 21, 2015. She recalled that a truck arrived at her property with a water gun used to spray a mixture of water, seed and other products, which stuck to the ground.

The plaintiff testified that Gerry Lamontagne drove the truck used for the hydroseeding process, but she did not recall meeting him. [ 15 ] After the seeding was complete, the plaintiff received an invoice from the defendant, along with verbal instructions to water the seeded area. [ 16 ] The invoice from the defendant was issued in the name of “Dale Peters” (Exhibit P1) for the total amount of $5,092.50, broken down as follows: Hydroseeding $4,400.00; Water supplied/truck $450.00 and GST of $242.50. Handwritten on the invoice is “Hydroseeding discounted $1,400.

Pd $3,622.50 cheque #438”. [ 17 ] The plaintiff testified she was shocked by the amount of the bill. As a result, the defendant told her that he had talked to the hydroseeder and arranged for a discount of $1,400.00. The plaintiff was still unhappy with the amount, but nonetheless paid the bill by cheque for $3,622.50 (Exhibit P2). The plaintiff explained that she did so because the seed had been guaranteed and because the defendant was “the friend of a friend”. [ 18 ] The plaintiff recalled being told that the seed would probably grow in six to eight weeks.

She was told it was guaranteed to grow and was hearty enough for sandy soil. However, she did not recall when she was told this or by whom. She acknowledged she did not recall if she told this before or after the work was done. In cross-examination, the plaintiff acknowledged that the seed was represented to her by the defendant “guaranteed to grow” only after the fact. [ 19 ] The plaintiff testified with regard to her watering practices. She watered regularly in the mornings and evenings, using a wand and nozzle and then a sprinkler, which she left in one place for approximately 20 to 35 minutes at a time.

She moved the sprinkler when little puddles of water accumulated on the ground’s surface. Between waterings, the soil would get dry but would take on water quickly. She believed the soil was holding the moisture because of the mulch and pulp mixed with the grass seed. [ 20 ] According to the plaintiff, in May 2015, it had rained a bit but in the following months, it was hot and she had to do more

watering. Unfortunately, the seed did not germinate. In June and July, the plaintiff contacted the defendant by phone and text, and he appeared to be sympathetic that the seed was not growing. [ 21 ] The plaintiff also contacted Gerry Lamontagne, the owner of G.E. According to the plaintiff, Mr.

Lamontagne told her that the hydroseeding was not guaranteed but offered to give her a bag of grass seed. [ 22 ] A number of photographs taken in October 2015 and in 2016 (exhibit P3) were filed by the plaintiff, which she testified demonstrate in October 2015, patches of white pulp remaining on the ground and sparse, patchy growth of plants not resembling grass. [ 23 ] On October 21, 2015, the plaintiff purchased top soil and grass seed, which she spread on the west side of her house between October 28, 2015 and November 2, 2015 as a test patch.

Photographs taken in September 2016 indicate new growth of grass from seeds the plaintiff had planted in 2015. The patch left unseeded by the plaintiff remained sandy and without growth. [ 24 ] The plaintiff agreed that there was a problem with soil erosion and drifting on her property. She acknowledged that she and the defendant had discussed the options of hydroseeding or top soil, and she decided to go with hydroseeding because it was cheaper. However, she believed the defendant was aware that the land was sandy and that there was no top soil.

She testified it was never mentioned to her that because of the sandy soil she should use top soil as well. She assumed that the choice of seed took into account the sandy soil. She thought hydroseeding was an “all in one” process and that nothing else was needed. She believed it would work because it had been used alongside the highway. [ 25 ] The plaintiff candidly acknowledged in her testimony that she did not know why the grass did not grow. She watered it when she was home and did her best with the instructions given to her.

Gregory Zeiler [ 26 ] Gregory Zeiler testified that in May 2015, he was in a personal relationship with the plaintiff and was renting the basement of her home on an acreage on Valley Road. At that time, the plaintiff worked in the mining industry in the north, working one week on and one week off. While she was away at work, he would look after the acreage, the plants, horses, dog, and would clear snow, in lieu of rent. [ 27 ] Mr. Zeiler testified that he was present at the acreage and the plaintiff was at home when the hydroseeding was done.

The area seeded was the yard behind the house, along the east side, north patchy areas and between the house and the garage. [ 28 ] The plaintiff asked Mr. Zeiler to water the seeded area as much as he could, so he soaked the ground every day or every other day for approximately one hour with the watering wand or the hose, in the evenings when she was away. He did not observe signs of the seeds germinating and between May 2015 and November 2015 the seed did not grow. Defendant’s case Dale Peters [ 29 ] The defendant operates the business Dale’s Bobcat Service, assisting clients with levelling dirt.

He met the plaintiff through their mutual friend Gregory Zeiler. His first meeting with the plaintiff was in the fall of 2014, with respect to leveling a pile of dirt to deal with drainage. They also discussed planting grass seed. Given the sandy soil, the defendant suggested using top soil to prevent erosion. He also told her about hydroseeding and suggested that she find out more about it. [ 30 ] The defendant had been aware of hydroseeding for some time having researched it on the internet. He knew that the seed was combined with mulch and a binder to hold the moisture and to keep the seed from blowing away.

He thought about diversifying his business to include this service. [ 31 ] The defendant and plaintiff discussed the possibility of using hydroseeding. He asked her if it was an option she would like to pursue. She agreed to that option rather than the “top soil” option. [ 32 ] The defendant knew of Gerry Lamontagne and his business G.E. Environmental Solutions Inc. When the defendant learned about the plaintiff’s intention to plant grass seed, he thought he could assist by arranging for Mr. Lamontagne to do the work. The defendant told Mr.

Lamontagne about the “harsh sand environment” on the plaintiff’s property. Mr. Lamontange told him he had a hearty seed. The defendant did not inquire how successful the product might be. [ 33 ] The defendant testified that the plaintiff asked him about the cost. Mr. Lamontagne told the defendant it would be “a couple of thousand dollars”, which the defendant then relayed to the plaintiff. The plaintiff agreed to proceed with the hydroseeding. [ 34 ] The defendant testified he told the plaintiff that he was not familiar with the process and that she should do her own research.

The plaintiff told him to proceed with it. [ 35 ] The defendant attempted to make arrangements to have the work done in the fall of 2014, but Mr. Lamontagne’s truck was not available. [ 36 ] Because of the plaintiff’s work schedule, the defendant coordinated the hydroseeder for May 21, 2015 at 11:00 a.m. He arranged for PJay’s Water Supply

(1985) Ltd. (“PJay’s”) to provide 4,000 gallons of water, as the plaintiff’s water system did not have sufficient capacity. The defendant paid PJay’s the amount of $450.00 in cash, at the work site, on May 21, 2015 (Exhibit D3). [ 37 ] The defendant testified that after introducing the plaintiff to Mr. Lamontagne he stepped away so Mr. Lamontagne could tell the plaintiff about the hydroseeding process. [ 38 ] The defendant testified that Mr. Lamontagne and one of his employees did the hydroseeding, which took approximately two

hours. He noticed that some of the product was sprayed onto the house, which the plaintiff and the defendant cleaned. [ 39 ] After the process was finished, the defendant advised the plaintiff to water the seeded area “a lot” because the sandy soil acted like a sieve. The defendant had no further contact with the plaintiff for some time after that day. [ 40 ] The defendant received G.E.’s invoice dated June 5, 2015 for $4,400.00 (Exhibit D2) the amount of which surprised him. The defendant, in turn, issued to the plaintiff an invoice under his own name (Exhibit P1), which reflected Mr.

Lamontagne’s charge in the amount of $4,400.00 for hydroseeding, along with $450.00 for the water from PJay’s and GST. [ 41 ] The plaintiff complained that the defendant’s bill was too high, so the defendant discounted it by $1,400.00, leaving $3,622.50 owing, for which he received payment from the plaintiff on June 24, 2015. Later, when the plaintiff demanded a refund, the defendant refused. [ 42 ] The defendant testified that he received no payment at all for his services. The entire amount of $3,622.50 was turned over to Mr. Lamontagne.

In addition, the defendant had paid $450.00 cash to PJay’s on May 21, 2015, for which he was not reimbursed. [ 43 ] The plaintiff called the defendant about one month later to inform him that the seed was not growing. The defendant contacted Mr. Lamontagne who said that sometimes it takes awhile for the seed to germinate. The defendant conveyed that information to the plaintiff. They waited more than two weeks and again the defendant contacted Mr. Lamontagne. [ 44 ] When the plaintiff called the defendant a third time, he went to look at her property.

According to the defendant, there was some growth, which looked like alfalfa. The bits of green that he saw were leafier than grass and it appeared the mulch was no longer in place. The defendant mentioned this to Mr. Lamontagne who advised that the blend of seed had some alfalfa in it to allow the seed to take root. [ 45 ] The defendant described the spring of 2015 as a drought. He filed rainfall records issued by the City of Saskatoon Water and Sewer Planning Department for 2015 (Exhibit D4). The executive

summary states “Saskatoon had a dry spring in 2015 with only 55 mm of accumulated rainfall between April and June. This is the 5 th lowest spring rainfall since 1900.” [ 46 ] It was the defendant’s opinion that the failure of the seed to grow was the result of the dry season and the sandy soil.

In cross- examination, the defendant expressed the opinion that the grass did not grow because it was insufficiently watered after it was seeded, given that there was no rain. [ 47 ] The defendant acknowledged that he told the plaintiff the “seed was certified” by which he meant if it stayed in place it would grow, according to what Mr. Lamontagne told him. He made no other representations to the plaintiff. [ 48 ] The defendant admitted that the service would not have been provided without his assistance. He considered himself as a friend of the plaintiff, who he wanted to help.

He testified that he simply put the plaintiff and Mr. Lamontagne together, referring to himself as “the monkey in the middle”. However, the defendant acknowledged that he became more involved. The defendant characterized this as a situation where he had an opportunity to help the plaintiff, which turned into a nightmare. Gerry Lamontagne [ 49 ] Mr. Lamontagne is the owner and operator of G.E. Environmental Solutions Inc., which is involved in the business of environmental work, erosion control and hydroseeding.

He explained hydroseeding as a form of erosion control to protect the seed from wind and downpours of rain. A product made with peat moss and fibres is mixed with seed, which adheres to the seed and the ground. It keeps the seed in place and provides protection for two months. [ 50 ] In this case, the seed, water and 24 bales of Terry wood with tack were agitated in a special machine used for application by a sprayer gun with special nozzles. [ 51 ] Mr. Lamontagne testified that the defendant introduced him to the plaintiff on May 21, 2015.

He testified that once he saw the sandy soil conditions he told her the hydroseeding process would not work. He testified that he explained to her that she needed a good irrigation system if the soil was sandy. Alternatively, she would need to “do a lot of watering”, although he did not tell her how much, how often or that she should also use fertilizer. [ 52 ] According to Mr. Lamontagne, the hydroseeding process has a potential for failure, if it is not used on proper soil with proper nutrients. He testified he mentioned this to the plaintiff and the defendant. Mr.

Lamontange recalled that 2015 was a drought year and there were quite a few seeding failures due to the lack of rain. However, in this case, there was time to respray. [ 53 ] Mr. Lamontagne testified that he did not enter into a contract with the plaintiff. He considered the defendant to be his customer, to whom he simply supplied the product. According to Mr. Lamontagne, the defendant came to him indicating he had a client with the need for hydroseeding. [ 54 ] Mr. Lamontagne issued an invoice charged to the defendant for the total amount of $4,400.00. Mr. Lamontagne testified that G.E.

Environmental Solutions Inc. was paid the entire amount of $4,400.00 by the defendant. Issues 1. Did a contract exist between the plaintiff and the defendant? 2. If so, did the defendant breach the contract? Has the plaintiff established on a balance of probabilities the cause of the hydroseeding failure?

3. Did the defendant misrepresent the nature and quality of the hydroseeding process? 4. To what damages, if any, is the plaintiff entitled? Discussion 1 . Was there a contract between the Plaintiff and the Defendant? [ 55 ] The plaintiff alleges that she and the defendant entered into an oral contract for the supply of hydroseeding services.

The defendant acknowledged he arranged for G.E. to provide those services but that he was simply a “go-between” or “middle man”. [ 56 ] “The objective principle of contract law requires not just inward concurrence of intention for the formation of a contract, but an outward manifestation of assent by each party such as to induce reasonable expectation in the other”: Waddams, The Law of Contract , 5 th ed, p 18.

As such, a contract will be formed where the words or conduct by one party manifest a willingness to be bound by another party’s acceptance with consequences attached: Waddams, p 19. [ 57 ] The plaintiff wanted grass planted in an acreage yard. The defendant wanted to get into the hydroseeding business and suggested the plaintiff consider using that process to plant grass on her property.

The defendant discussed with the plaintiff the pros and cons of hydroseeding or using standard grass seed with topsoil. [ 58 ] The defendant offered to arrange for hydroseeding services for the plaintiff for a quoted fee of $2,000.00, to which the plaintiff agreed. The defendant made the arrangements with G.E. to provide the service and took steps to facilitate the proper completion of the project by arranging for PJay’s to provide sufficient water.

This demonstrates the defendant’s assumption of responsibility for ensuring the expected outcome. [ 59 ] G.E. provided the service and issued an invoice to the defendant for its services. Mr. Lamontagne denied that he entered into a contract with the plaintiff. Rather, his role was to supply the product to his customer, the defendant. The plaintiff denied having met or spoken with Mr. Lamontagne at any time, but it is clear that if she did meet him, it was not until May 21, 2015. [ 60 ] The defendant issued an invoice in his own name to the plaintiff once the services were completed.

His invoice simply reflected G.E.’s cost for hydroseeding ($4,400.00) and PJay’s cost for the water ($450.00) and GST. No further mark-up or fee was added to these charges. It is apparent the defendant did not intend to receive compensation for the hydroseeding work. [ 61 ] However, by issuing an invoice under his own name, the defendant intended that the plaintiff pay him for the hydroseeding service. He may have decided not to include an additional fee for his services, but when the plaintiff expressed concern over the amount of the invoice, he discounted it.

The defendant bore the responsibility for the ultimate price and received payment from the plaintiff for the service. [ 62 ] According to Mr. Lamontagne, the defendant paid the entire amount of $4,400.00 to G.E. The defendant also paid $450.00 to PJay’s for the water. The amount the defendant paid exceeded $3,622.50 received from the plaintiff. As such, at the conclusion of the transaction, the defendant was actually out of pocket. He assumed the loss for having discounted the price.

This was a business decision the defendant made. [ 63 ] From the plaintiff’s perspective, she dealt directly with the defendant, who arranged with a third party to provide the hydroseeding service. She expected that the service would result in successfully planted grass. The defendant held himself out as the party to whom she was obligated to pay for that service.

By issuing a bill, it is apparent the defendant contemplated that his bargain with the plaintiff would be enforceable. [ 64 ] A true “middle-man” or “go-between” would have simply provided G.E.’s name to the plaintiff and allowed the two parties to work out a deal. Payment would have been made directly from the plaintiff to G.E. [ 65 ] I am satisfied that the defendant offered to arrange for hydroseeding services for the plaintiff and intended that, once she accepted and the services were provided, she would be obliged to pay him for those services.

In these circumstances, I conclude that there was an oral contract between the plaintiff and the defendant. 2 . Did the defendant breach his contract with the plaintiff? [ 66 ] It is the plaintiff’s position that the defendant breached the contract. There is little dispute that the hydroseeding process failed to produce the desired result. Based upon the photographic evidence and the testimony, I accept that the only growth was small patches of greenery, likely alfalfa. This was not the intended result of the hydroseeding process.

I accept there was a total failure of the process. [ 67 ] What is not so clear is the cause for that failure. Was the product defective? Was it applied incorrectly? Was the sandy soil too inhospitable for grass growth? Did the hot, dry weather prevent the seed from germinating? Was the seed insufficiently watered and cared for? No independent expert evidence was presented upon which the Court could assess the likely cause of the failure. [ 68 ] It was not disputed that the spring of 2015 was particularly dry and that the soil on the plaintiff’s property was sandy. The defendant testified that Mr.

Lamontagne told him he had a hearty seed suitable for those conditions. However, Mr. Lamontagne testified he told the defendant that hydroseeding was not recommended for this type of soil.

[ 69 ] The plaintiff initially chose the hydroseeding process over topsoil, because of its lower cost. However, later in 2015 she put down topsoil and planted grass seed in a test patch, which seemed to germinate successfully by the next season.

While this may indicate that the problem was with the hydroseeding process, there is no accounting for possible differences in moisture and weather after the plaintiff planted the test patch. [ 70 ] I note that although the plaintiff pleaded The Sale of Goods Act , RSS 1978, c S-1, she abandoned her claim in this regard. [ 71 ] In the end, it is just as likely the case that the seeding failure was the result of the sandy soil, the manner of watering or the drought, as it was the type of the seed, products used or method of planting. 3.

Did the defendant misrepresent the effectiveness of the hydroseeding process? [ 72 ] The plaintiff suggested that the defendant misrepresented the quality of the product, stating that the seed was certain to grow. However, she testified she was unsure whether those representations occurred before or after the work was done. If those representations were made after the work was completed, she cannot be said to have relied upon them. [ 73 ] The defendant acknowledged that he told the plaintiff that the seed used was hearty and that it was certain to grow. This was based upon what he had been told by Mr.

Lamontagne and was not expressed to the plaintiff until after the service had been provided. [ 74 ] Mr. Lamontagne testified that he told the plaintiff on May 21, 2015 that the hydroseeding process would not be effective given the nature of the sandy soil. He explained that she needed a good irrigation system or that she would have to do a lot of watering. He testified that he mentioned to the plaintiff and the defendant that the hydroseeding process has a potential for failure if not used on proper soil with appropriate nutrients.

The plaintiff denied she was told this. [ 75 ] The plaintiff’s position is that the defendant misrepresented the appropriateness of hydroseeding for her situation. However, the evidence is unclear whether hydroseeding was inappropriate for this type of soil or for planting in drought-like conditions. Further, the plaintiff was unclear whether representations that the seed was certain to grow were made by the defendant before or after the work was completed.

Therefore, she is unable to establish on a balance of probabilities that she relied on the defendant’s representations in this regard. [ 76 ] Based upon the evidence presented, I cannot conclude that it is more likely than not that the actions or omissions of the defendant caused the hydroseeding failure. Therefore, the plaintiff has not established on a balance of probabilities that the defendant breached his contract with the plaintiff. Neither has she established that representations were made to her, upon which she relied, prior to agreeing to the hydroseeding. 4.

Damages [ 77 ] The plaintiff claimed a refund or repayment of the contract price, being $3,622.50. Restitution may be an appropriate remedy where there has been a substantial breach of the contract: Waddams, The Law of Contract , 5 th ed, pp. 9 and 522. The principle is based upon the notion of an unjust enrichment to the party in breach if they were allowed to retain the benefit received without supplying the agreed service in exchange: Waddams, p 9. [ 78 ] However, I have found the evidence insufficient upon which I can conclude that the defendant breached his contract with the plaintiff.

Therefore, no damages are payable. Conclusion [ 79 ] While I have found that there was an oral contract between the plaintiff and the defendant, the plaintiff has failed to prove on a balance of probabilities that the defendant breached the contract. The evidence is insufficient to establish that the defendant caused the breach of the contract by something he did or failed to do. A number of possible causes for the seed’s failure to germinate were presented.

Further, the plaintiff has not established on a balance of probabilities that the defendant made representations upon which she relied. [ 80 ] Accordingly, the plaintiff has failed to establish her claim which is therefore dismissed. The defendant will have his costs in the amount of $300.00. ________________________​​​​​​​​​​​​​​​​​​ D.C. Scott J