Bryan E. Young - v. -, 2011 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 105 Date: August 2, 2011 File: 2011-7 Location: Melfort _____________________________________________________________________________ Between: Bryan E. Young - and - Melfort Autobody Ltd. Self-Represented For the Plaintiff Mr. G. Carson For the Defendant _____________________________________________________________________________ JUDGMENT B.

MORGAN , J _____________________________________________________________________________ INTRODUCTION: [ 1 ] In June of 2008, the plaintiff and defendant entered into an agreement by which the defendant would sandblast and paint the outside and inside of the plaintiff’s cattle trailer. The plaintiff argues that, when he picked up the trailer in September of 2008, he commented that the work was, in his view, deficient, and he states that the defendant agreed to do remedial work.

The defendant states that, when the trailer was picked up in September of 2008, the plaintiff made only one complaint about the work, which was immediately remedied. This is a very fact based decision on the narrow issue of what the parties agreed to.

[ 2 ] A case of this nature is to be decided on a balance of probabilities. EVIDENCE: Plaintiff [ 3 ] Mr. Young was the sole witness. He explained that he hauls cattle as a part-time job, primarily from September of each year until the following spring. Hence, it was important to him to have the work done during what he referred to as the slow period, basically the months of July and August of each year. Exhibit P-1 at the trial was a written estimate dated June 24, 2008, provided by the defendant to Mr.

Young, which sets out the parameter of the work to be done, including: sandblast and paint outside and inside trailer, outside wheels only, charcoal grey, install safety stripe, box liner on lower one half of trailer. The written estimate cost was $5,500.00 plus taxes. [ 4 ] Mr. Young testified that he washed his trailer and dropped it off at Melfort Autobody soon after that. After keeping in touch with the autobody shop over the summer, he went to pick up the trailer on September 4, 2008.

At that point, he was presented with an invoice (Exhibit P-2) in the same amount as had been previously estimated, which would have been a total cost of $6,050.00. However, for reasons I will address later, there was a $200.00 discount applied to that, making the total amount the plaintiff paid $5,850.00. [ 5 ] The plaintiff stated that he wasn’t happy when he looked over the trailer with Mr. Dyon Mooney, who testified on behalf of the defendant. According to the plaintiff, his concerns were that there were places on the trailer where it wasn’t painted properly, and there were some caulking deficiencies.

He stated that Mr. Mooney agreed with that, and discounted the invoice by $200.00, and gave him six tubes of caulking so that Mr. Young could remedy that perceived deficiency to his liking. The plaintiff testified that the entire agreement reached that day was that Mr. Mooney said not to worry, that if there were any flaws, he would take care of those on behalf of the company.

According to the plaintiff, he wasn’t able to leave his trailer at that time, as his busy season was about to start, so he was not able to have any repainting done until June of 2009. [ 6 ] The plaintiff said he did return the trailer in June of 2009, pursuant to that agreement he said was reached in September of 2008. Throughout the summer of 2009, he stated that he made phone calls to the autobody shop, and those who answered kept telling him that the work hadn’t been done yet. He testified that, in September of 2009, by which point he needed the trailer again, Mr.

Mooney said he hadn’t had time to get to it, so the plaintiff picked the trailer up to use over his upcoming busy season, again being assured by Mr. Mooney that he need not worry about it, and that they agreed that he would bring the trailer back the following year, being June of 2010. [ 7 ] The plaintiff said no further contact was received from the autobody shop, leading to this litigation. [ 8 ] The plaintiff tendered a total of 13 photographs (Exhibit P-3), which he said he took within a three or four month period of September of 2009.

He said that those pictures reflect the condition of the trailer when he picked up the trailer in September of that year, although the things indicated in those photographs were not quite as pronounced as they were in September. [ 9 ] In cross-examination, Mr. Young testified that he had bought the trailer in November of 2002, when it was new, and that the trailer had never been painted prior to Melfort Autobody undertaking the work done in the summer of 2008.

When asked specifically during cross-examination if the photographs (Exhibit P-3) were actually taken in 2011, the plaintiff replied “I do not believe they were”. [ 10 ] When queried as to his use of a pressure washer on the trailer, he testified that he would use a 3,500 pound pressure washer, and that he used a medium setting. He agreed that high pressure would take the paint off. However, he stated he would only use the pressure washer to clean the inside of the trailer once a year, and would generally clean out the inside of his trailer using a pitchfork on a daily basis.

[ 11 ] He acknowledged that he hauled bison and elk, as well as cattle, in that trailer, although he did not agree that elk and bison are harder on the inside of a trailer, due to their propensity to bump up against the trailer, and due to the fact that they have horns, which presumably would mar the interior of the trailer. He acknowledged that there was no rust on the trailer when he picked it up from Melfort Autobody the first time, and that he thought the rust was caused by poor preparation at the time of the painting.

Further, he acknowledged that Melfort Autobody had done all the things they said they would do in the agreement. Defendant [ 12 ] Mr. Mooney acknowledged the content of the initial meeting, and when asked what the condition of that trailer was when he first saw it, indicated that it had normal wear and tear for a six to seven year old cattle trailer. He specifically acknowledged there was rust on it, which he thought was normal. In his view, if the vehicle was washed and scrubbed, 80 percent of the rust would be gone. [ 13 ] Mr.

Mooney, who has over 30 years experience in the autobody industry, testified that a trailer such as the one the plaintiff owned, which is a framed unit with a lot of welds in it, is more susceptible to rusting than a one piece unit, the latter being called a “unibody” trailer. Further, he noted that on this trailer, many of the areas surrounding windows on the trailer, what he referred to as the “lips”, were open, allowing for slush, salt and ice to get into those areas in the winter, exacerbating the rusting problem.

Part of the reason for lining the lower part of the trailer with a box liner, basically a sprayed rubber coating, was to help alleviate any rusting that would occur. [ 14 ] He had a different recollection of what occurred at the time Mr. Young picked up the trailer in September of 2008. He said that the parties went over the vehicle for about 20 minutes when Mr. Young picked it up, and that there were minor complaints, the major one being that caulking wasn’t done properly. The parties agreed on the site, said Mr.

Mooney, to reduce the cost by $200.00, being based on 10 hours labour at $20.00 an hour, and that in addition to that, the autobody supplied a number of tubes of caulking, enough to take care of all the issues that Mr. Young was complaining of. Other than that, Mr. Mooney said, there were no complaints. He testified that the first time he heard any other complaint from Mr. Young was of the workmanship, raised approximately three months after the trailer had been picked up. Mr. Mooney tendered four pictures (Exhibit D-1), showing the trailer at various stages of being sandblasted and prepared for painting.

In his view, there was nothing wrong with any of the work done at the autobody shop. [ 15 ] On the question of his alleged promise to fix the work the next summer, Mr. Mooney categorically denied that. He said there was no complaint about the painting at all when the vehicle was picked up, just a minor complaint respecting the caulking, hence the immediate remedy on the price.

He also stated that if there were problems with the paint at the time the vehicle was picked up, he would not have let it leave the yard at the body shop, being of the view that it would be a lot of additional work to try to do a touch up job after the trailer had been out on the road for a number of months over a winter, with livestock having been in it. He said that Mr. Young had stopped in, said the paint was too light, and Mr. Mooney didn’t think there was any need to do anything beyond what they already had done. In his view, everything was normal.

Specifically, he had determined that it did not need any more paint, and he denied telling the plaintiff that he would look after it later for any other reason than to put him off. He acknowledged that he did say they would look after it, but it was when he took a better look at the trailer in the summer of 2009, he decided there was simply no way he would be able to satisfy Mr.

Young, and he further decided that there was no further work needed to be done to the paint job, as everything he saw showed normal wear and tear. [ 16 ] He testified that in the summer of 2009, when the trailer was brought back to his body shop, it did not look in the shape as it did in the pictures shown in Exhibit P-3. He stated he had seen that trailer himself when it was at the body shop in the summer of 2009, and had seen it, by happenstance, at a restaurant later on in 2009, and he was adamant that there were no problems at either time.

He did state that there was a little bit of rust on the trailer exterior in 2009, but nothing like what is depicted in Exhibit P-3. [ 17 ] When asked how those pictures match with what he thought a trailer three years post-painting would look like, he testified that, for the amount of hauling Mr. Young stated he did, that would be normal wear and tear. [ 18 ] In cross-examination, when asked why he let Mr. Young park the trailer at his lot in the summer of 2009, he said that was because Mr. Young dropped it off and left it there.

He acknowledged that he did say not to worry, we’ll look after you, although it was not abundantly clear during testimony what time frame was being referred to. What Mr. Mooney was adamant about was that the trailer was dropped off because Mr. Young said it needed repairs, and it was equally clear in the evidence that Mr. Mooney thought the original work was quite satisfactory.

[ 19 ] I am satisfied that it was when the trailer was examined again in more detail by Mr. Mooney in the summer of 2009 that he determined there was nothing further that the autobody shop was prepared to do, being of the view that the original work was satisfactory, and any complaints that Mr. Young had dealt with normal wear and tear. Further, Mr. Mooney was quite adamant that rust inside a trailer, especially one that is framed as this one was, with multiple welds and folds, is a common occurrence.

DISCUSSION AND DECISION: [ 20 ] On these facts, I am not satisfied that the plaintiff has established his claim on the requisite balance of probabilities, for a number of reasons. I note the following in particular. [ 21 ] First, the evidence is clear that the autobody shop did what it was contracted to do originally, that being to sandblast, prime, apply the rubberized coating on the lower half of the trailer, and paint the trailer inside and outside. I am satisfied that Mr. Young made no comments respecting deficiencies in the work that was contracted for at that time.

The invoice (Exhibit P-2) shows that the account in the reduced amount of $200.00, was paid, apparently that day, by credit card, which would not be consistent with what a dissatisfied customer would do. I conclude that the deduction in the invoice of $200.00 was done to address all concerns the plaintiff had as to workmanship and quality. [ 22 ] Second, I have concerns about when the photographs shown in Exhibit P-3 were actually taken, leaving aside what it is that those photographs show.

I accept that the plaintiff was not sure of the exact date, as he did give a range of up to three months from September of 2009. However, when he was challenged on the accuracy of that date in cross-examination, with the accusation that he took the photos in 2011, his answer was not credible or reliable. In my view, the only rational answer to such an accusation would have been a complete denial. Allowing some leeway to the estimate does not allow for the possibility of a two year difference. [ 23 ] Third, although Mr.

Young agreed that high pressure washing would take paint off, he did not agree that cleanliness was an issue for animals being transported, and I find his answer that he only cleaned the inside of the trailer with a pressure washer once a year to be somewhat unrealistic. Of further note, when he was asked how many others worked for him, he testified that there was only one individual, and when asked what pressure setting that individual would use, he stated it would probably be the same as the setting Mr. Young used. I cannot accept that Mr.

Young would have any idea what pressure setting an employee of his would use. Further, the fact that he has an employee who he admits uses a pressure washer leaves open the obvious possibility, which Mr. Young seemed to deflect, that his own employee could have been using the pressure washer at various times, to the detriment of the condition of the inside of the trailer. [ 24 ] In looking at all the photographs in Exhibit P-3, it is clear that there are marks on the inside of the trailer, caused by pressure washing. Mr.

Young admitted as much. [ 25 ] In conclusion, I am satisfied that Melfort Autobody did what they had agreed to do, and I am satisfied the work was satisfactory at the time it was completed, with the exception of the caulking, which was remedied to the parties’ mutual agreement prior to the final invoice being paid. On the facts, the plaintiff has failed to establish his case on the necessary balance of probabilities, and I therefore dismiss the claim. [ 26 ] There will be no order as to costs. B. Morgan, J