Anita L. Fuller Plaintiff - v. -, 2023 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2023 SKPC 54 Date: November 24, 2023 File : SC 281[2021] Location: Saskatoon _____________________________________________________________________________ Between: Anita L. Fuller Plaintiff - and - Regine Gerow-Scissons, Scott Scissons, 101182112 Saskatchewan Ltd. o/a Western Modular Homes and Western Renovations; and Brunner's Construction

(2011) Ltd. Defendants Appearing: A. Fuller on her own behalf Plaintiff N. Stooshinoff, K.C. for Brunner's Construction

(2011) Ltd. Defendant R. Gerow-Scissons & S. Scissons on their own behalf and for 101182112 Defendant Saskatchewan Ltd. o/a Western Modular Homes and Western Renovations TRIAL DECISION D. SCOTT , J

Introduction [ 1 ] The plaintiff Anita L. Fuller is the registered owner of and resides at 1009 Temperance Street in Saskatoon, Saskatchewan. [ 2 ] At the relevant times, the defendants Regine Gerow-Scissons and Scott Scissons (the Scissons) owned 1011 Temperance Street, Saskatoon, the property next door to Ms. Fuller’s. Their pleadings admit the allegation that Scott Scissons owned the businesses Western Modular Homes and Western Renovations, operating under the incorporated entity 101182112 Saskatchewan Ltd. [ 3 ] The defendant company, Brunner’s Construction

(2011) Ltd. (Brunner), carries on the business of water and sewer contracting in relation to new commercial builds as well as rehabilitation and repair of existing infrastructure. [ 4 ] In 2019, the Scissons built a garage suite on their property at 1011 Temperance Street. Brunner was hired by the Scissons to excavate for the purpose of connecting the suite to the City of Saskatoon’s water and sewer lines. On September 25, 2019, Brunner dug two substantial holes, one in the boulevard and the other on the road in front of the Scissons’ property. The water and sewer connections were made. During the work, Ms.

Fuller felt her house shake as Brunner’s equipment removed the asphalt on the street and dug the holes. On that same day, a Stop Work Order was issued by the City. On October 16, 2019, Brunner returned to the site to fill the holes and compact the dirt after the Order was lifted. [ 5 ] Ms. Fuller states that cracks inside her house began to appear shortly after September 25, 2019 and enlarged after October 16, 2019. She alleges the cracks were caused by Brunner’s excavation and compaction work.

She also questioned whether the defendants possessed the necessary permits or approvals to conduct the work and complained that she was not given advance notice of Brunner’s work. Ms. Fuller claims damages in the amount of $29,500.00 for the repair of the cracks and related expenses. [ 6 ] The defendant, Brunner, replied that all work it performed was in strict compliance with construction standards and denies that its actions caused damage to Ms. Fuller’s property.

Alternatively, Brunner’s position is that if it complied with the City of Saskatoon’s specifications and authorizations, it is entitled to the same statutory immunity as the City. [ 7 ] The defendants, the Scissons, denied the plaintiff’s allegations. Further, they submit that no cause of action is alleged against their named corporation or businesses. [ 8 ] All defendants alleged the plaintiff’s claim was statute-barred pursuant to The Limitations Act , SS 2004, c L-16.1 [ The Limitations Act ].

Summary of Evidence Plaintiff’s case [ 9 ] Anita Fuller , is retired after having worked for 30 years in quality assurance management in the brewing industry. She has owned her home at 1009 Temperance Street for 22 years. Ms. Fuller described it as a two-storey character home which was built in 1927 or 1928. She stated she has maintained it in good condition and had renovations completed from time to time. [ 10 ] Next door to Ms. Fuller’s home, to the east, was the former residence of the Scissons, at 1011 Temperance Street.

Photographs of the street view of the two houses were admitted as Exhibits D-1 and D-2. [ 11 ] In 2019, the Scissons, built a garage suite in their yard which required a connection or tie into the City’s water and sewer. [ 12 ] According to Ms. Fuller, on September 24, 2019, no-parking signs were posted on trees on the block where she resides. No

notice was provided to her as to the reason. [ 13 ] On September 25, 2019, at approximately 9:15 a.m., Ms. Fuller heard a loud boom and felt her house shake. She observed a bucket excavator on the road in front of 1011 Temperance Street. [ 14 ] According to Ms. Fuller, the excavator was hammering at the asphalt. She went out and asked the operator to stop. She was told by the operator, known to her only as Kevin, that he worked for Brunner and was digging a hole for the installation of a water connection. She testified that she told the operator that she could expect cracking in her house.

He responded that it was an old house. [ 15 ] Ms. Fuller contacted Douglas Tompson, who owns the property at 1015 Temperance Street, which is located on the east side of 1011 Temperance Street. Mr. Tompson had engaged in previous litigation with the Scissons. [ 16 ] Ms. Fuller testified that two holes were dug by Brunner – one on the street in front of 1011 Temperance but closer to the west side of their property and within 6 cm of the edge of her property. A second hole was dug on the boulevard in front of their houses approximately 40 feet from the edge of her house. [ 17 ] Ms.

Fuller became aware that a Stop Work Order was issued by the City of Saskatoon on September 25, 2019, during the excavation. As a result of the Order, barricades were placed around the holes. [ 18 ] A series of exterior photographs taken by Ms. Fuller on September 25, 2019, were tendered as Exhibit P-4. Photo 1 is of Brunner’s truck. Photo 2 is of the equipment used to dig up the road. Photo 3 is of a pile of dirt from the hole which remained on the road until October 16, 2019. Photos 4 and 5 are of the hole in the road with a barrier or trench box around it. Photo 5 also shows the bucket portion of the backhoe.

Photo 6 shows another view of the hole with the trench box. Photo 7 shows the two holes, one on the road and the other on the boulevard with damage to tree roots. Photo 8 shows the hole on the boulevard and tree roots. Photo 9 is a similar view. Photo 10 shows the tie into the garage suite. Photo 12 is of the tie into the garage suite taken from Ms. Fuller’s upstairs window. No photo marked 11 was filed. [ 19 ] Ms. Fuller also submitted a USB containing a video and audio recording of the work being done on October 16, 2019. The defendants could not access any video footage, only the audio.

Therefore, because the video footage was not disclosed, it was not admitted into evidence. The audio recording was played in court and marked as Exhibit P-3. [ 20 ] A series of interior photographs of Ms. Fuller’s home, taken by Ms. Fuller on October 16, 2019 were submitted as Exhibit P- 5. Photo 13 is of the southwest bedroom across from the bathroom showing cracks close to the south wall on the ceiling. She testified that the crack originated from the top of the window frame and travelled across and circled back to the closet across the room from the outside wall.

Photo 14 is of the northwest bedroom, which had been painted by Ms. Fuller’s brother in July 2019. The photo shows some stressing in the paint and an actual crack from the adjoining bathroom. It matches a crack coming through the wall in the bathroom close to the ceiling. Photo 15 is of the south, street facing living room. Ms. Fuller testified there is a crack on the stippled ceiling from the corner across the room. Photos 16 and 17 are of the bathroom located in the north middle of the house up from the stairs. The crack was from the westerly most wall of the bathroom and curved through the bedroom wall.

Photo 18 is also of the bathroom. Photo 19 is of the dining room showing a crack on the ceiling. Photos 20, 21, and 22 are of cracks in the south, middle bedroom showing a crack on the ceiling. [ 21 ] According to Ms. Fuller, the cracks did not appear all at once. The first time she noticed a crack was in the bathroom on or about September 29, 2019. [ 22 ] At the time of trial, the cracks had not yet been repaired although Ms.

Fuller had received a number of quotes for that repair, including from CertaPro Painters dated November 22, 2021 [Exhibit P-6]; Darron’s Drywall & Renovations [Exhibit P-7]; Assured Restorations [Exhibit P-8]; and Handyman [Exhibit P-22]. Ms. Fuller sought damages based upon the average of the quotes submitted. [ 23 ] Ms. Fuller testified that the fireplace in the home has a brick face with a thick wood mantel. It was originally an electric fireplace but a number of years ago, she had it converted to gas burning, vented through the wall.

It is located on the wall of the house closest to where the excavation took place. Ms. Fuller did not notice the cracks until a couple of weeks after October 16, 2019. A photo of the fireplace taken by a defendant witness was admitted as Exhibit P-9.

[ 24 ] A quote was provided by City Masonry [Exhibit P-10] for fixing large cracks creating gaps on either side of the fireplace where it meets the wall, from the top of the mantel to the floor. A quote from Ace Masonry [Exhibit P-11] was also provided for repairing the fireplace. [ 25 ] Ms. Fuller claimed damages for the removal and storage of her furniture while repairs were being completed and provided two quotes (Two Small Men with Big Hearts, Exhibit P-15; The Container Guy, Exhibit P-16).

She claimed damages for the cost of accommodation while the work was being done, providing three quotes (Premiere Suites, Exhibit P-12; RhodeHouse, Exhibit P-13; Obasa Six Three, Exhibit P-14). And, she claimed for the cost of cleaning after the work was completed, providing five quotes (McIvor Power Vac, Exhibit P-17; Dun-Rite Vac, Exhibit P-18; Cir Vac, Exhibit P-19; Handy Housewives, Exhibit P-20; Tidy House, Exhibit P- 21). [ 26 ] Ms.

Fuller testified that her house had some small cracks prior to the events on September 25, 2019 and October 16, 2019, but she is not making a claim for the repair of those cracks. [ 27 ] In cross-examination, Ms. Fuller acknowledged that the water line from the garage suite to the street was 1.5 metres from the property line between her property and the Scissons’ property. [ 28 ] Ms. Fuller stated she was not against the garage suite per se , describing it as a beautiful structure.

Rather, she was concerned that it was built without the necessary consultation of the neighborhood which she said was required. [ 29 ] She became aware that on September 25, 2019, a Stop Work Order was issued by Roger Bradley in the Building Standards department of the City of Saskatoon and was then reversed on October 16, 2019 after a revised plan was approved. She understood that the original plan was to connect the garage suite to the water and sewer on the existing buildings on the east side of the Scissons’ property.

The Stop Work Order was imposed because the plan changed to connect the garage suite on the west side of the property, closest to Ms. Fuller’s property, without revised drawings. [ 30 ] Ms. Fuller alleged that Brunner did what she referred to as “unpermitted work” which caused damage to her house. She acknowledged that she was informed by Kara Fagnou of the City of Saskatoon, that Brunner complied with City requirements, but Ms. Fuller stated that was only after the project was completed. [ 31 ] Ms.

Fuller admitted that she had told Kevin, the operator of the excavating equipment, on September 25, 2019 that she would be on the lookout for cracks in the walls and ceilings of her house. She agreed that Kevin told her cracks do not usually occur but that it might happen with an old house such as hers. [ 32 ] Ms. Fuller testified that, between 2015 and 2019, her brothers had patched and painted cracks on two occasions. In July 2019, her brother and sister-in-law had repainted the northeast bedroom where there had been small cracks. Yet, that was one of the rooms that was damaged again.

She admitted that was the room that she could prove had no cracks and no damage before September 25, 2019. She acknowledged that she could not prove the same for the other rooms. [ 33 ] Ms. Fuller admitted that she started looking for cracks in her house after the work on September 25 and October 16. [ 34 ] Ms. Fuller acknowledged that in her letter to the City dated September 30, 2019 [Exhibit P-1], she complained of a number of things, including that there was the lack of a permit; no-parking signs were posted without explanation; drinking water advisories were not distributed about possible contamination.

She also complained about the hole dug in the asphalt; the height of the dirt pile; that mud would be tracked all over the boulevard; and the “cavalier way” in which the neighbours initiated the project. [ 35 ] Ms. Fuller acknowledged a letter from her to Brunner and the City dated October 15, 2019 [Exhibit D-4], addressed only “To All Whom This Letter Concerns” putting forward a series of questions she wanted answered. It is apparent that she was aware that work, including the filling of the holes, would be resuming the next day.

[ 36 ] Ms. Fuller acknowledged that, in response to her claim to the City, she received a letter dated November 1, 2019 [Exhibit D-3] from Mr. Agrey at the City Solicitor’s office stating in part: …we have received a report from the Transportation and Utilities Department and have completed a review of this matter. With regard to vibration levels and standards, the probability of building damage due to vibration is very small and is rarely high enough to be the direct cause of damage.

Buildings usually have residual strains as a result of uneven soil movement due to higher and lower water tables, wood shrinkage and expansion, moisture and temperature differences, poor maintenance, and past renovations or repairs, etc. … [ 37 ] I note that I cannot accept this hearsay evidence for the truth of it, only that it was provided to Ms. Fuller. [ 38 ] Ms. Fuller acknowledged that she had no vibrational measurements of the excavation or compaction. [ 39 ] According to Ms.

Fuller, she never received a Construction Notice [Exhibit D-5] and map alerting residents that a new connection or modification to an existing connection on the block was scheduled to be completed on September 25 by Brunner nor was she provided a list of things to do to prepare. [ 40 ] Regarding the repairs, Ms. Fuller acknowledged that the contractor from Assured Restoration’s estimate was for stripping off the plaster. She clarified that she would be satisfied with filling in the cracks and painting. [ 41 ] Douglas Tompson has resided at 1015 Temperance Street, Saskatoon since 2004.

His home borders the east side of 1011 Temperance Street. [ 42 ] As context, it was apparent from the evidence that there was a contentious history between Mr. Tompson and the Scissons that had resulted in litigation not directly related to these proceedings. [ 43 ] Mr. Tompson testified that on September 24, 2019, no-parking signs were posted on his street. However, he received no notice of the work that was to be done the next day. [ 44 ] On September 25, 2019, he testified he could feel vibrations in his house from Brunner’s excavation. The glass was rattling in the china cabinet.

His house sustained no damage however. [ 45 ] Mr. Tompson attested to a number of photographs that he had taken of the street, the excavation and barricade, marked as Exhibits P-23, P-26, and P-27. [ 46 ] On September 25, 2019, Mr. Tompson sent an email to Roger Bradley at the City of Saskatoon raising concerns about Brunner’s work as it was taking place [Exhibit P-24].

He testified that he had sent an email to Alan Rankine, at the City Solicitor’s Office, on September 26, 2019, commending the workmanship of Brunner but raising a concern about the work proceeding without the proper approval [Exhibit P-25]. [ 47 ] Mr. Tompson confirmed that in July 2019, he had helped move furniture from Ms. Fuller’s house onto the deck so that painting could be done in her home. [ 48 ] Mr. Tompson observed work being done on Temperance Street on March 16, 2022 where a backhoe was used for excavation and a compactor rather than a backhoe was used to fill the hole. No vibration was felt.

A drinking water advisory notice was placed in his mailbox in relation to this work. I note that this incident is not related in any way to the matters in this proceeding and there is no context for the nature of that work.

[ 49 ] In cross-examination, Mr. Tompson acknowledged that he understood the water connection from the Scissons’ property was originally to be located between his house and the Scissons’ house but that it was relocated to the west side of the Scissons’ property between their house and Ms. Fuller’s. [ 50 ] He knew of no complaints from the neighbours following the work on September 25, 2019 – only those from him and Ms. Fuller. [ 51 ] Mr. Tompson testified that he was in Ms. Fuller’s home in June 2019 to help her move furniture and again in October 2019 to fix the thermostat.

At that time, he noticed the cracks on the walls in the stairwell but was not looking for them. Ms. Fuller had pointed out other cracks to him. When shown photographs of the cracks, he could not identify the cracks or the rooms in which they were located. [ 52 ] He acknowledged that Ms. Fuller told him of the cracking in her house a couple of days after September 25, 2019. He advised her to document everything. [ 53 ] Cory Zubrowski was put forward by Ms. Fuller as an expert witness. He is a senior geotechnical engineer with P. Machibroda Engineering Ltd. His curriculum vitae was marked as Exhibit P-30.

He specializes in the soil sciences and has worked in that capacity for 21 years. He is registered as a professional engineer in Saskatchewan and Alberta and has worked in Manitoba and Ontario as well. As team lead, he does both technical and management work. [ 54 ] Mr. Zubrowski works on projects involving the movement of soil. He testified that to an extent he understands the field of vibration but most of his projects do not have a vibrational component. He is involved in testing shear wave velocity or the vibrations travelling through the soil which is indicative of soil density.

He felt comfortable answering questions related to excavation and compaction activities. [ 55 ] He explained that his expertise in foundation design involves determining the interaction between foundations and soil structure in which they are placed. He acknowledged that he did not have expertise in analysis of damage caused by vibration, although he needs to be cognizant of the effects of vibration in his work and the ability to quantify it. [ 56 ] Mr. Zubrowski stated that vibration is essentially a wave and it will respond differently to the environment through which it is passing.

He can offer general opinions in that regard. Although he has not measured vibration, he knows that sensors attach to the structure in question and as the vibration source impacts it, it picks up the level of vibration. The vibration is measured by a monitoring box. There are published acceptable tolerances to which they refer as a guideline. [ 57 ] Mr. Zubrowski did not know of any vibrational analysis experts, as that is a narrow area of study. He did not claim to have expertise as a vibrologist. He could offer an opinion but could not establish cause and effect. [ 58 ] Based upon Mr.

Zubrowski’s testimony during the qualifications voir dire , I declined to qualify him as an expert with respect to vibrational impact or vibrational causes of damage. He was allowed to testify about the factors to be considered when assessing preventative measures for managing vibrations in soil and the impact of those measures on surrounding structures in particular projects. His evidence provided in the voir dire was applied to the trial proper. [ 59 ] According to Mr. Zubrowski, the use of certain types of equipment is a factor in assessing what preventative measures need to be taken in relation to vibrations.

Considerations include the nature of the soil and the person operating the equipment. Other factors include the distance to the structures as well as the size and nature of the structures. [ 60 ] As a soil specialist, he testified about the importance of proper compaction so that the soil settles properly. When soil is replaced, it must be done in thin layers, packed well and then repeated. Mr. Zubrowski was shown what appeared to be a City of Saskatoon specification entitled “Earthworks Subgrade Compaction” dated 2016-01-12 [Exhibit P-32]. In particular, the document

referenced equipment and process requirements. Mr. Zubrowski was able to say that the compaction process reflected in the specification conformed to the process expected in his work. [ 61 ] He testified that vibration-sensing equipment on a structure at a site or modelling done by software would be the only definitive ways to measure the impact of or damage caused by vibrations. [ 62 ] In cross-examination, Mr. Zubrowski acknowledged that he has never testified as an expert in engineering related matters or regarding the impact of vibrations.

He stated that when there is a potential issue due to construction, mitigative measures will be suggested. He has no familiarity with vibrations caused by sound, such as buses. He could not say whether air or soil vibrations caused damage. [ 63 ] Lee Fuller is the brother of the plaintiff Anita Fuller. He attained a Bachelor of Commerce from the University of Saskatchewan, as well as certificates in real property assessment and administrative justice.

He was employed by Canadian Housing and Mortgage Corporation and the City of Saskatoon before retiring and has since been a member of an administrative tribunal. [ 64 ] As a homeowner, he has done considerable home improvement work, including painting, finishing carpentry, basement development, and routine maintenance. [ 65 ] In July 2019, Mr. Fuller helped Anita Fuller paint the north-east second floor bedroom and the wall that connects it to the bathroom of her home. [ 66 ] The room was emptied prior to painting by moving the furniture to another part of the house.

He painted all walls but could not recall whether he painted the ceiling. He described himself as a meticulous painter. He fixed the cracks and repaired the walls, primed the patches, and applied a couple of coats of paint. He stated the condition of the walls and ceiling was in good shape after his work was completed. [ 67 ] Since September 25, 2019 and October 16, 2019, Mr. Fuller has observed cracking along the top portion of the wall between the bedroom and the bathroom. [ 68 ] Because Mr. Fuller had been at Ms. Fuller’s house regularly, he was able to describe it as well-cared for. He was aware that Ms.

Fuller had replaced shingles, reinsulated and sided the exterior, and installed a new furnace and hot water tank. [ 69 ] In cross-examination, he acknowledged that when he painted at Ms. Fuller’s in July 2019, that he had to patch cracks in the plaster. He believed the inside walls in Ms. Fuller’s home was lath and plaster construction but was unsure without opening the walls to confirm. Most of the cracks that he patched were on the walls, but he could not say whether there were any on the ceiling. He did not recall how many cracks he had patched. Neither could he say what caused the cracks. [ 70 ] Mr.

Fuller could not recall his costs for doing the painting. He may have worked for three or four partial days. He reiterated that he is very meticulous and that it takes time to do a good job. The patching was done by applying a spackling compound on the cracks. He painted the walls and possibly the trim. He primed the walls first, sanded the cracks so they were smooth, then primed and painted with finish paint. Normal precautions were taken to clean the dust using a shop vac. [ 71 ] Roger Bradley has been employed as a building inspection manager for the City of Saskatoon for 12 years.

In that capacity he is responsible for overseeing the inspection program for all building permits, both residential and commercial. He is a professional engineer by training and holds a Class 3 building officials’ licence issued by the Province of Saskatchewan. [ 72 ] The residential program is governed by a mandatory City Council policy. Builders are issued permits and are subject to inspection at certain stages of the construction. Once a permit is issued, it is transferred to Mr. Bradley’s

section for the inspections to ensure compliance with approved plans. A City bylaw determines when inspections will be done.

[ 73 ] Mr. Bradley testified that a Building and Development Permit 3427/18 [Exhibit P-33] signed by Kara Fagnou, Director of Building Standards, was issued December 5, 2018 for a garden and garage suite at 1011 Temperance Street. This exhibit was redacted as it was obtained by Ms. Fuller under The Freedom of Information and Protection of Privacy Act , SS 1990-91, c F-22.01 . The permit was based upon an engineer’s drawing [Exhibit P-34] from Arrow Engineering in relation to the “Scissons garage suite”.

The drawing was received by the City of Saskatoon on November 8 but it was unclear in which year. [ 74 ] According to Mr. Bradley, the plans originally indicated that the water and sewer connection was intended to be from the suite to a cleanout and then hooked up to the existing house water main on the east side of the Scissons’ property. [ 75 ] Mr. Bradley was the lead official on this project because of the contentious history between the Scissons and some of the neighbours.

However, he could not recall how it was brought to his attention that Brunner’s work did not conform to the original engineer’s drawing. [ 76 ] Mr. Bradley testified that on September 25, 2019, he issued a Stop Work Order [Exhibit P-36] to the registered owner of 1011 Temperance Street, to Western Renovations, and to Brunner because construction had continued beyond what had been authorized by the building permit. Work was ordered to be stopped until the revised drawing was submitted. [ 77 ] On October 10, 2019, a revised drawing [Exhibit P-35] from Arrow Engineering was received and subsequently approved.

This plan showed the water and sewer connection coming from the west side of the garage suite down the west side of the Scissons’ property and directly to the City infrastructure. As a result, the Stop Work Order was lifted on October 16, 2019. [ 78 ] Mr.

Bradley testified that his office sent a letter [Exhibit P-36] to Brunner, to the registered owner of 1011 Temperance Street, and to Western Renovations dated October 17, 2019 advising that the Stop Work Order was lifted and work could resume. [ 79 ] A service connection report [Exhibit P-37] was completed by the City’s inspector on October 21, 2019, in relation to the connection by Brunner of the Scissons’ garage suite. The report indicates that the installed services met the City’s specifications. [ 80 ] Mr. Bradley acknowledged receiving the emailed letter from Ms.

Fuller dated September 30, 2019 [Exhibit P-1] raising concerns about the work and advising of damage to her home. He could not recall being able to open the attached photos of the cracks. [ 81 ] In cross-examination, Mr. Bradley acknowledged that his department did not deal with water and sewer connections but that another City employee would oversee that part of the work. [ 82 ] The Stop Work Order he issued indicated that he wanted a drawing consistent with the work that was being performed and that was signed and sealed by an engineer.

There was no problem with the revised plan so he approved it immediately upon receiving the new drawing. [ 83 ] Mr. Bradley confirmed that by issuing a Stop Work Order, he did not revoke the original permit. He confirmed that a permit was in place at all times during which Brunner did the work. The Stop Work Order simply halted the work temporarily. Upon receiving further information, Brunner was authorized to resume work. [ 84 ] Kara Fagnou , who testified by Webex, is the director of Building Standards, in the Community Services Department, for the City of Saskatoon, having held that position for 7 years.

She has a professional engineer designation. Her department works indirectly with the water and sewer connections desk. In that capacity, Ms. Fagnou administers the plumbing permit program. Her department also coordinates the reviews of other departments involved in the construction process. Their role is to circulate, not to evaluate, information. When all approvals from the supporting departments are in place, then Ms.

Fagnou’s department issues the building permit. [ 85 ] She testified that on December 5, 2018, a building permit was issued to Scott Scissons granting approval for the construction of a garage suite at 1011 Temperance Street. A utility plan for the garage suite was required for the issuing of the permit. She acknowledged her signature on the permit [Exhibit P-33].

[ 86 ] Ms. Fagnou confirmed that the first blueprint allowed for the excavation on the east side of the Scissons’ property. The drawing, done by Arrow Engineering [Exhibit P-34] and received November 8, 2018, showed the services would be connected to the house. [ 87 ] She confirmed that on September 25, 2019, Mr. Bradley, who reports directly to her, issued the Stop Work Order [Exhibit P- 36] for a contravention related to plumbing at 1011 Temperance Street. Ms. Fagnou understood that the work being done was not in accordance with the approved set of drawings.

The ordered remedy was to stop the work until new drawings were submitted and approved. It is the homeowner’s responsibility to obtain an approved drawing. [ 88 ] According to Ms. Fagnou, a revised drawing [Exhibit P-35] was submitted October 10, 2019, showing the water and sewer system connected to the existing services within the City of Saskatoon right-of-way. The revised drawing was signed by Mr. Bradley and approved for review by Building Standards. [ 89 ] Ms. Fagnou confirmed that the building permit issued to Mr. Scissons was never revoked. [ 90 ] Ms.

Fagnou acknowledged receiving an email with attachments [Exhibit P-39] from Ms. Fuller dated October 9, 2019 addressed to several City officials and raising a number of concerns regarding the work done on September 25, 2019. [ 91 ] Ms. Fagnou responded to Ms. Fuller by email [Exhibit P-40] on October 16, 2019, advising that revised engineer drawings detailing the water and sewer connections were approved by the City and met the minimum requirements outlined within City bylaws and regulations. She also confirmed the approved drawings did not show any encroachment onto Ms. Fuller’s property.

She referenced a conversation earlier in the month with Ms. Fuller confirming that the contractor and owner are responsible for all work completed on their property, including repairing neighbouring property damage should it occur. She advised Ms. Fuller that in most situations the contractor and client work with neighbours throughout the construction process. Given that the relationship between Ms. Fuller and the Scissons was not positive, Ms. Fagnou advised Ms. Fuller to submit a legal claim to the City. [ 92 ] Ms. Fagnou testified that the purpose of the October 16 email was to assure Ms.

Fuller that the work that was proceeding had been reviewed and all approvals were in place, as well as to provide her with options regarding the damage to her property through the City Solicitor’s office. [ 93 ] The nature of a telephone conversation between Ms. Fagnou and Ms. Fuller on October 2, 2019 had to do with damage that occurred in her property, in particular, cracks within her drywall. I note that this conversation occurred prior to the compaction which took place on October 16. [ 94 ] Ms. Fagnou acknowledged that the Stop Work Order did not address the quality of Brunner’s workmanship at the time.

That would be outside the scope of her office’s authority. [ 95 ] Aaron Reynolds works as a connection desk supervisor for the City of Saskatoon. His office supervises, administers, and inspects the private water and sewer work performed on City infrastructure. [ 96 ] Mr. Reynolds confirmed, based upon a service connection report [Exhibit P-37] completed by an inspector in his office, on October 21, 2019, that new water and sewer service was installed at 1011 Temperance Street. [ 97 ] As background, Mr.

Reynolds explained that through a special City program, a contractor may request approval to use products that might not otherwise be included within the City’s specifications. In this case, Brunner put forward a request to use high- density polyethylene (HDPE) sanitary sewer line through the process of horizontal directional drilling at 1011 Temperance Street. This product is not typically used in residential sewer installation, but Mr. Reynolds championed it as an innovative product.

However, HDPE technology was not approved for water and sewer connection installed under buildings as originally planned in this case. New plans were required.

[ 98 ] According to Mr. Reynolds, the usual practice is for a licensed water and sewer contractor to notify the City of a proposed project so that drinking water advisories are issued, a flush plan is created, and constructions notices are sent out. [ 99 ] In 2019, the practice was for the City to inform residents of upcoming water and sewer work no later than 11:00 a.m. the day prior to the work, by placing construction notices in the mailbox at each affected home. Mr.

Reynolds confirmed that a Construction Notice and map were prepared for delivery to residences on the 1000 block of Temperance Street by 11:00 a.m. on September 24, 2019 [Exhibit D-5]. [ 100 ] He also confirmed that yellow tag drinking water advisories are not required where a hot tap is done, as in this case. He explained that a hot tap involves water service connection to a live pressurized water main without depressurizing the main, using special equipment. The inspector will visibly observe the hot tap performed by the City’s water and wastewater operations group.

A contractor such as Brunner does not actually perform the hot tap. [ 101 ] In this case, a trench was dug by hand from the garage suite to two separate holes dug, one on the street and one on the boulevard. One was for the hot tap connection, as described, and the other for a “curb stop” so that the City could shut off water to the suite if necessary. [ 102 ] According to Mr. Reynolds, there are several methods for removing the asphalt. Once it is removed, a contractor will typically use an excavator or a backhoe for the digging of the hole.

In doing so, the contractor must ensure that they do not strike the water pipe. Hand tools, such as shovels and buckets, are used to clear the dirt around the pipe. A tapping sleeve will be applied to prepare for the tappers’ equipment to be lowered into the hole and applied to the pipe. When the tapping is done, the sanitary sewer is installed and connected, using a variety of different methods. [ 103 ] After the connection is complete, the inspector will do their measurements and drawings for a service connection report. The contractor then begins the process of bedding and backfilling.

Bedding involves gently placing material over the pipe by hand and then tamping the soil. Once bedding is completed at a sufficient depth, then an excavator is used to backfill the material into the hole and compact in lifts, or many, separate levels. Bucket tamping is one form of mechanical compaction that is used. Other equipment that may be used for compaction or refilling the hole, are vibratory tampers, called sheep’s foot rollers or smooth drum rollers. They can all be used for compression of the soil. Finally, non-compressible material is added before the asphalt is applied. [ 104 ] Inspectors from Mr.

Reynolds’ department attend at the service connection work site from time to time. The inspector will measure the connection before backfilling is completed to ensure that standards and specifications for water and sewer installation have been followed. If the contractor has not followed the standards and specifications, the City will ask to have the problem remedied. [ 105 ] Mr. Reynolds testified that the ultimate authority on-site is the inspector from the City and the contractor cannot override the specifications.

He agreed that an inspector could decide that a water line might be too close to a property line and suggest it be changed. [ 106 ] Mr. Reynolds acknowledged an email dated November 4, 2021 [Exhibit D-6], from him to Curtis Brunner confirming that between October 14, 2019 and October 19, 2019 and continuing, Brunner was a licensed water and sewer contractor that performed service connection at 1011 Temperance Street, installing new sewer and water service to the property.

The letter also confirmed that proper notice was given to the City and that the work was inspected according to normal construction. [ 107 ] In cross-examination, Mr. Reynolds stated that he was not aware of any deficiencies in Brunner’s performance of its work at 1011 Temperance Street on September 25, 2019 and October 16, 2019. [ 108 ] Mr. Reynolds was shown photos Exhibits D-1 and D-2, which he said appeared to show a typical asphalt patch over a water and sewer excavation. [ 109 ] Mr. Reynolds testified that water and sewer contractors must be licensed and permitted by the City to engage in this type of work.

At the relevant times, Brunner was properly licensed and approved for the work that it performed.

[ 110 ] Dave Anderchek has been a journeyman carpenter since 1983 and has worked in the construction industry since 1975. He was project manager and site superintendent for a commercial company in the construction of hospitals, schools, renovated major offices and has been self-employed since the 1990s. He has also custom built residential homes and has been involved in home renovations including older homes originally built in the early 1900s. Regarding his work on older homes, he has had extensive experience with lath and plaster walls. He has provided his impartial opinion in the context of legal disputes.

His curriculum vitae was marked as Exhibit P- 38. [ 111 ] Mr. Anderchek was put forward by Ms. Fuller as an expert to provide an opinion regarding the age of cracks on the walls and ceilings in her home. Mr. Anderchek testified that there are ways of determining whether a crack is fresh by observing its colour and ascertaining whether there is paint chipped off where the crack moved. Moisture will affect the colour of the paint. Further, a fresh crack in plaster is usually very fine, while with an aging crack, materials will come loose around the edges and the crack would be larger.

Cracks will become larger over time, due to a house shifting. He acknowledged there is no objective basis upon which to assess the age of cracking and that his opinion would be based upon his experience. [ 112 ] I qualified Mr. Anderchek as an expert to testify regarding the renovation of older homes, such as those built in the early 1900s and, in particular, those using plaster construction. I also qualified him to testify to his observation of the cracks in the walls and ceiling at the plaintiff’s home.

Thirdly, I qualified him to provide an opinion regarding the age, but not the cause of those cracks, and the basis for his opinion. Because of the subjective nature of that opinion, I will attribute to it the weight I consider appropriate. [ 113 ] Mr. Anderchek testified that he inspected Ms. Fuller’s house the first time “last December”, which I take to mean December 2021, and again the Thursday before his testimony, which I take to have been October 6, 2022. [ 114 ] Mr.

Anderchek observed numerous cracks, including on a load-bearing wall above the door, in the living and dining room, on the end wall facing the next-door property. He observed a distinct crack on the ceiling from one end of the living room to the other in the ceiling and near the front living room wall. There were numerous cracks in the ceiling of the dining room. In the front entrance there was substantial cracking by the stairway. The upstairs rounded wall or alcove was “cracked all over”. He stated these looked like “pretty fresh” cracks. There were cracks in the ceiling of the middle bedroom.

He saw no cracking in the drywall in the basement. [ 115 ] Mr. Anderchek could not recall what he had seen in December 2021, stating “that was 8 months ago”. [ 116 ] In cross-examination, Mr. Anderchek testified that he could not recall if there were additional cracks in the walls or ceilings between December 2021 and October 6, 2022. He acknowledged he did not take photographs. [ 117 ] Mr. Anderchek agreed that all lath and plaster homes will eventually crack. There is no way to determine how long a patched crack is going to last. [ 118 ] Mr.

Anderchek was shown a series of 8 photographs [Exhibit D-7 for identification] by counsel for Brunner. He recognized them as having been from Ms. Fuller’s home. [ 119 ] Regarding photo 1, Mr. Anderchek could not identify the age of the crack by looking at a photograph, but because of material being broken off, he first described it as a “recent crack”. He later resiled from that statement. He could not say whether it was a recent crack but acknowledged it appeared to be widening. Regarding photo 2, Mr. Anderchek stated it appeared to be of a crack in plaster but he could not tell the age of it from the photo.

Regarding photos 2, 3, 4 and 5, he believed they were taken in the cornice or alcove. [ 120 ] According to Mr. Anderchek, plaster that has cracked to the base coat will continue cracking even after it has been fixed, although it may take two or three years. As he stated, “houses move”. [ 121 ] Mr. Anderchek also provided evidence of the process he would follow for repairing the cracks in the walls and ceilings. Defendant Brunner’s case

[ 122 ] Curtis Brunner is the president and co-owner, with his wife, of Brunner’s Construction Ltd., which was originally founded by his father 48 years ago and engages in the business of water and sewer contracting. One half of their company is involved in new construction for commercial builders and the other half in rehabilitation and repair. According to Mr. Brunner, there is no training for water and sewer construction. It is something that is learned on the job. [ 123 ] Mr.

Brunner testified that his business has performed hundreds of replacements or installations of water and sewer lines in older neighborhoods. Replacements involve working for the City to replace lead water lines and problematic sewer lines. [ 124 ] Mr. Brunner explained that, typically, when they receive a call from a homeowner or developer asking for water and sewer to be installed, they will contact the City of Saskatoon, book an inspection and a tapping. The City will then issue a notice to all the relevant departments, including traffic, parking, engineering, and public works.

On the day the work begins, Brunner digs a hole in the road, gains access to the water and sewer main, and allows the City employee to tap the water main. Brunner taps the sewer main, installs the pipe and remainder of the connection, does the necessary drilling, fills the holes, and arranges for patching of the asphalt.

Inspectors are on site to ensure Brunner complies with the City’s specifications. [ 125 ] In this case, Brunner was hired by the defendant Scott Scissons in April or May 2019 and was ultimately paid by Western Renovations for the installation of water and sewer lines from a garage suite. [ 126 ] Mr. Brunner confirmed that the initial drawing showed the water and sewer lines running along the east side of the Scissons’ house, but too close to the property line bordering Douglas Tompson’s property. The City requires water and sewer connections to be a minimum of 1.5 metres from a property line.

The change was made to run the lines on the west side of the Scissons’ property, which was wider and bordered that of Ms. Fuller. [ 127 ] Because the Scissons’ backyard was developed, Brunner planned to use the installation method of directional drilling on a horizontal plane from the alley with a slight progressive depth through to the front street. High-density polyethylene pipe was needed, which required special approval from the City, arranged by Mr. Reynolds. Mr. Brunner received an email dated July 9, 2019 [Exhibit D- 13] indicating the process had been approved. [ 128 ] Mr.

Brunner stated that the holes in the yard were hand-dug and filled with shovels. They also dug a hole overtop of the sewer and water main, hooked up to the main, and dug a hole in the boulevard for the water shut off. The excavation and filling were done by backhoe tractors on the city street and the boulevard. [ 129 ] When Brunner commenced the work on September 25, 2019, the building inspector, the tapper, and other City employees were on-site. Two holes had been excavated and the tapping had been completed when, at approximately 2:00 p.m., the work was shut down. Mr.

Brunner was notified by the water and sewer department that they required an engineered drawing for the pipe being installed. Brunner stopped the work and was not allowed to fill the holes, which they fenced and barricaded. [ 130 ] Brunner returned to work at 1011 Temperance Street on October 16, 2019 with the approval of the City sewer and water department, through Mr. Reynolds. After backfilling and compaction, Brunner arranged to finish and prepare the street for pavement. [ 131 ] Mr. Brunner acknowledged that the photographs [Exhibit P-4] were of the excavations.

Photo 4 was of the hole Brunner dug on the street to tie-in to the water and sewer main and the hole on the boulevard. Photos 6 and 7 show Brunner employees and the City inspector and tappers. Photo 10 is of the hand-dug hole next to the garage containing the suite. Photos [Exhibit P-26 and P-27] show the fence surrounding the holes on the street and boulevard. [ 132 ] According to Mr. Brunner, the type of machinery used depends on the nature of the job and the extent of frost in the ground.

For most replacements during the summer months, they use backhoe loaders, with a front-end loader bucket on the front and an excavating bucket on the back. This is what was used in this case. The technique and equipment used for summer replacements is the same. In the winter, heavier equipment is used to dig through the frost. [ 133 ] Mr. Brunner explained the process of filling the hole and compacting the dirt. There are two options typically available to

Brunner for jobs of this size. One uses a vibratory plate tamper and the other uses a backhoe bucket. Brunner has routinely used the backhoe bucket for 48 years. On occasion, the City will require the use of a plate tamper. According to Mr. Brunner, both methods have been proven to achieve the required soil densities.

The digging, replacement and compression in this project was the same as they have done for approximately fifteen other residences on Temperance Street. [ 134 ] The City of Saskatoon specifications for doing water and sewer connections [Exhibit D-8] address primarily the backfilling after the work has been completed. Inspectors are not always on-site to ensure the backfilling has been done correctly, although they are supposed to be. There were also certain specifications requiring the excavation of two holes in the location that they were dug. Mr.

Brunner testified that Brunner complied with the City’s construction specifications. [ 135 ] Mr. Brunner stated his company is not responsible for providing any notices to neighbours about expected work, particularly in residential areas. There was no need for a drinking water advisory because the hot tap procedure being followed does not result in contamination. [ 136 ] From Mr. Brunner’s perspective, Brunner had the authority to do the work on September 25, 2019 and October 16, 2019. [ 137 ] Mr. Brunner testified that he regularly sees the service connection reports, such as Exhibit P-37.

A drawing, with line measurements, is prepared by the City whenever Brunner or other contractors perform a connection. Exhibit P-37 refers to the work done at 1011 Temperance Street by Brunner and states: “Installed services meet the City of Saskatoon specifications” with the “yes” box checked off. [ 138 ] Mr. Brunner acknowledged that he received a complaint from Ms. Fuller expressing concern that their work had affected her house. He did not personally inspect Ms. Fuller’s home. [ 139 ] In cross-examination, Mr.

Brunner clarified that the original plan [Exhibit P-34] was not approved under the special City program because it dealt with the wrong type and size of pipe, as well as the manner for the tie-in. Further, the HDPE pipe was used for both water and sewer pipes in this case, even though the inspector indicated on the revised plan [Exhibit P-35] that PVC pipe would be used. [ 140 ] Mr. Brunner confirmed there was no Stop Work Order in place when Brunner started the work. It was issued later in the day on September 25, 2019. When it was brought to the attention of Brunner, they stopped working.

The Order [Exhibit P-36] signed by Mr. Bradley appeared to be dated October 4, 2019 but Mr. Brunner followed the direction of the inspector. Further, the authorization to resume work was dated October 17, 2019 [Exhibit P-36 attachment] and appeared to erroneously refer to the Stop Work Order as occurring October 16, 2019. This document was signed by Mr. Bradley. [ 141 ] Mr. Brunner acknowledged that his company has established written foreman’s and operator’s responsibilities, dealing with attitude, knowledge, and capabilities. [ 142 ] Mr.

Brunner testified that a backhoe bucket will lower only so fast, regardless of how high it is lifted into the air, due to its hydraulics. It is the hydraulics, and not gravity, that controls the rate at which the bucket descends. No matter how high it is lifted the bucket hits the ground with the same force. [ 143 ] Mr. Brunner confirmed that they would use a wheeled excavator if the ground was frozen. He acknowledged that it was possible his company used a wheeled excavator and a plate compactor the week before the trial at another location. [ 144 ] Mr.

Brunner could not recall receiving a letter [Exhibit D-6] from Mr. Reynolds dated November 4, 2021, in which Mr. Reynolds confirmed that on the week of October 14 to 16, 2019, Brunner was a licensed water and sewer contractor that performed service connection work for 1011 Temperance installing new water and sewer service to the property. The letter stated that proper notice to the City was given and the work was inspected by the city. Mr. Brunner confirmed that his company has been a licensed water and sewer contractor for 48 years and the company’s license was never suspended or been in abeyance.

Neither was it suspended with the Stop Work Order.

[ 145 ] Mr. Brunner did not recall receiving certain communications, including a letter with a photograph of cracks attached, from Ms. Fuller about her concerns. He explained that if it went to his receptionist, he might not have seen it. [ 146 ] Mr. Brunner acknowledged the telephone conversation with Ms. Fuller wherein she complained about the cracks from the excavation, and he responded that cracking will usually show up after compaction. He acknowledged telling her that he would have his insurance company look into it. He did not dispute that she did not hear from him again.

He did not recall responding to her demand letter in September 2021. [ 147 ] Mr. Brunner did not know if the cracks that appeared in Ms. Fuller’s house after September 25, 2019 and October 16, 2019 were the result of Brunner’s excavation and refilling work but he stated that it was possible. He stated that he honestly did not know when or how the cracks occurred. He acknowledged that the excavation and refilling of holes causes vibration. [ 148 ] In re-examination, Mr. Brunner clarified that regardless of the dates on the written Stop Work Order [Exhibit P-36], the only written notice was handed to Mr.

Brunner at the job site on September 25, 2019. There was never a Stop Work Order dated October 16, 2019. [ 149 ] Mr. Brunner was re-called to submit an email [Exhibit D-12] from him to Scott Scissons referencing the requirement for approval from the City for use of HDPE and seeming to indicate that it was Mr. Brunner’s understanding that if approval was granted they would not need engineered drawings. Mr. Brunner also submitted an email from Mr.

Reynolds to him dated July 9, 2019, granting approval for the installation of HDPE pipe as a pilot project [Exhibit D-13]. [ 150 ] Kevin Johnston has been an employee of Brunner since August 15, 2011, first as a labourer installing pipe and currently as a foreman of a crew of six. In that capacity he performs excavation for water and sewer installation. He has been doing approximately five such connections each week for 11 years. Mr. Johnston is trained in equipment operation and holds certificates as a backhoe operator, excavator operator, and in ground disturbance and safe trenching. [ 151 ] Mr.

Johnston was the project manager and operated the equipment that excavated the hole in front of 1011 Temperance Street on September 25, 2019 but was not present on October 16, 2019. He explained that on September 25, he began by removing the asphalt, which did not take long as it was approximately two inches thick. Once the hole was dug, he lowered the cage and his co-workers exposed the mains by digging with shovels. Mr. Johnston then removed further scoops of soil. They prepared the site so that it was ready for the tappers. According to Mr.

Johnston, he was about to start digging on the boulevard when the work was shut down. However, he must be mistaken as the evidence confirms the hole on the boulevard was also dug. [ 152 ] Mr. Johnston recalled having a conversation with Ms. Fuller while he was removing the asphalt. She asked him to try not to cause too much vibration because her house footing was in rough shape or cracked.

He told her that he was just about done with the asphalt so there would not be vibrations or big bangs, but the backfilling process might cause a little more vibration and disturbance of the ground. [ 153 ] As it turned out, Mr. Johnston was not responsible for backfilling and compacting the hole because of the shut down which occurred early afternoon. Another foreman finished the job on October 16. However, Mr. Johnson testified to the method he consistently uses for compacting and backfilling. He lifts a foot of soil, then compacts it with the bucket by raising it a foot or so and pushing down on the dirt.

There are small vibrations. According to Mr. Johnston, it makes no difference how high the bucket is lifted because the hydraulics control its speed when compacting. [ 154 ] Mr. Johnston used a backhoe for the excavation. He has done similar jobs in the Temperance Street area and had never personally received complaints about his excavating or compacting work. [ 155 ] In cross-examination, Mr. Johnston stated the City inspector on September 25, 2019 was Trent Murray. A tapping crew was also present. When he was advised of the Stop Work Order, Mr.

Johnston was told by his office to fence off the hole and not to backfill it. [ 156 ] According to Mr. Johnston, a job package is typically prepared in advance which includes a hazard assessment having regard to the drawings as well as the water mains and connections of the neighbours. Measurements are made at the job site.

[ 157 ] Mr. Johnston explained they work primarily in type 2 soil, which is soil that has been excavated in the past. The type of soil does not affect the type of equipment that is used but does impact the slope of the hole that is dug. [ 158 ] Mr. Johnston testified that he could not recall any of the conversation he had with Ms. Fuller on September 25, 2019, except that he recalled her saying that the footings on her house were in rough shape. [ 159 ] Brent Custer was called by Brunner as an expert witness. He is the owner of Custer Construction Ltd. and has known Mr. Brunner since 1986.

Brunner installed the water and sewer to Mr. Custer’s new home and other locations where Mr. Custer was the general contractor. He is a journeyman carpenter, having obtained the designation in 1983 after four years of school and on-site training. He also earned a degree from the University of Saskatchewan in accounting. A letter stating Mr. Custer’s qualifications was tendered as Exhibit D-9 and a Notice of Expert Witness was marked as Exhibit D-10. [ 160 ] Mr.

Custer testified his training involved all aspects of construction, including concrete, pouring floors, forming walls, framing a house, interior and exterior work, roofing, hanging drywall, and building cabinets, but not electrical or plumbing. [ 161 ] Mr. Custer began working in residential and commercial construction at 16 years age with his father. In the past 20 years, Mr. Custer has done extensive work on older homes in the university neighbourhood of Saskatoon, modernizing existing houses, as well as demolishing and rebuilding new homes in that area.

He works and supervises all aspects of the construction site. He also provides estimates for the cost of renovations. [ 162 ] With regard to cracking of walls and ceilings, Mr. Custer is not qualified as a geotechnical engineer. He has never testified as an expert witness or offered an opinion in court. [ 163 ] Mr. Custer testified that the walls and ceilings in most older homes are made with plaster and wood lath, which is wood slats nailed onto the wall with three coats of plaster. He stated that this form of construction has not been used on new homes in 70 years. According to Mr.

Custer, very few people do plastering now, however, his company does repair work on walls and ceilings of that kind. Mr. Custer estimated that he had worked on 20 homes where he had to repair plaster or plaster and lath walls ─ possibly one house per year. [ 164 ] Mr. Custer stated the basis for his ability to give an opinion regarding the impact of street construction noise on older homes would be his experience. He stated he lives close to road construction and his house was vibrating a lot. I did not allow Mr.

Custer to provide opinion evidence regarding the impact of exterior street construction and water and sewer repair, including sound vibration and impact vibration on older homes. [ 165 ] Based upon Mr. Custer’s extensive practical experience in residential construction and renovation as well as repair of older houses built as far back as the early 1900s, his journeyman designation and education, I found he was qualified to give expert opinion evidence on the following matters: 1.

The repair and/or replacement of interior walls and ceilings of older homes, particularly those constructed using lath and plaster or plaster on walls and ceilings; 2. Some causes of cracking in lath and plaster and plaster walls and ceilings in older homes, including the life cycle of the plaster walls and ceilings; and 3. Construction techniques used in older and modern home construction and comparison of benefits. [ 166 ] Mr. Custer testified that he attended at Ms. Fuller’s home at the request of Mr. Brunner on approximately of March 23, 2022. According to Mr. Custer, Ms.

Fuller’s home was constructed with wood lath and plaster. He provided a series of 12 photographs [Exhibit D-11] of cracks pointed out to him by Ms. Fuller, along with an example of wood plaster lath and his quote for repair. He stated he could not say how old or recent the cracks were. Photo 1 was a sample of plaster and lath construction taken from the internet and not from Ms. Fuller’s home. However, he described how wood lath and plaster construction was done and why it was susceptible to cracking.

[ 167 ] Mr. Custer described the other cracks illustrated in the photographs and explained how he would repair them. Some would have to be notched, filled, patched, and painted while others could be caulked and painted. [ 168 ] According to Mr. Custer, some causes of cracking in plaster walls and ceilings would include the shifting of a house through the winter months; the freeze-thaw cycle causing contraction and expansion of a home; direct impact to the floor or walls; the foundation moving; the quality of the framing; and the passage of time. [ 169 ] Mr.

Custer testified that it appeared to him the fireplace had been previously repaired as some caulking was still stuck to the wall. The crack along the fireplace was approximately ½ inch wide. He measured that the fireplace was 2 inches out of plumb ─ in other words leaning two inches away from the wall. He offered an opinion regarding the cause of that crack but I reserved my decision on whether I would admit it into evidence. While I will consider his observations, I have decided not to take into account his opinion regarding the cause of the crack along the fireplace.

His opinion went beyond the scope of the expertise for which I qualified him. [ 170 ] Mr. Custer testified that repairing plaster is a multi-step, multi-day process. According to Mr. Custer, it would require one or two workers to repair the nine cracks he observed at Ms. Fuller’s home. He would not remove the furniture but would cover it instead. In his report, Mr. Custer stated his cost to repair the cracks at Ms. Fuller’s home would be $4,685.00 plus taxes. [ 171 ] He acknowledged that there is no freeze-thaw cycle between September 25 and October 16.

It was his opinion that if cracks were repaired in the summer, they should not reappear in two months or less. Defendant Scissons’ case [ 172 ] Regene Gerow-Scissons and Scott Scissons chose not to testify on their own behalf or on behalf of their corporation. Neither did they put forward any witnesses. Questions to be decided 1. Is the plaintiff’s claim statute-barred by The Limitations Act ? 2. Has the plaintiff proven on a balance of probabilities that Brunner’s actions were negligent? 3. If so, has the plaintiff proven Brunner’s negligent actions caused the damage to her home? 4.

Is Brunner covered by the same statutory immunity as the City of Saskatoon? 5. Has the plaintiff proven the Scissons or their corporation are liable for the damage to her home? Discussion Limitation issue [ 173 ] All defendants asserted that Ms. Fuller’s claim is barred by The Limitations Act . Sections 5 and 6 provide:

Basic limitation period 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. Discovery of claim 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the inquiry, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved.

Section 18 of the The Limitations Act provides: 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired; or (

b) there is no limitation period that applies to the claim. [ 174 ] Therefore, I must determine when Ms. Fuller’s action was commenced and when the circumstances giving rise to the claim were discovered. [ 175 ] The Small Claims Act, 2016 , SS 2016, c S-50.12 [ The Small Claims Act ], provides that a plaintiff may apply to a clerk of the Court to have a Summons issued by providing the clerk with the details of the person’s claim along with supporting documents.

If the judge is satisfied that the plaintiff may have a valid claim, the judge shall issue a summons directed to the defendant(s): ss. 6 and 7. [ 176 ] On September 23, 2021, Ms. Fuller filed with the Court her Statement of Plaintiff’s Claim and paid the appropriate filing fee. Her claim was accepted and the Summons was signed by this Judge on September 29, 2021. Ms.

Fuller’s claim alleges that the actions or omissions of the defendants caused or contributed to damage to her home on and after September 25, 2019 and again on and after October 16, 2019. [ 177 ] According to Bakaluk v McGregor , 2003 SKQB 386 , 239 Sask R 185 [ Bakaluk ], the appropriate date for determining the commencement of an action in Small Claims Court is the date the claim is filed with the Court and the filing fee is paid. Any further steps, such as the issuing of the Summons, are beyond the control of the plaintiff.

The Court recognized that the process for commencing an action in Small Claims Court differs from that in the Court of King’s Bench. [ 178 ] Several courts have followed this

interpretation of the Small Claims Court process: Champoux v Bakken Holdings Ltd. , 2012 SKPC 14 , 395 Sask R 1 [ Champoux ]; Keck v Balgonie Early Learning Centre Inc ., 2017 SKPC 39 [ Keck ]; Tsang v Realty Executives Saskatoon , 2018 SKPC 30 [ Tsang ]; and Cherkas v Bielecki , 2019 SKPC 8 [ Cherkas ]. [ 179 ] In Metcalfe v 101102382 Saskatchewan Ltd ., 2018 SKCA 84 at paras 40-58 , 428 DLR (4 th ) 670, the Saskatchewan Court of Appeal appeared to cite with approval the cases of Bakaluk , Champoux , Keck , and Tsang : Cherkas para 19 . [ 180 ] In the present case, I find that the critical date is the date on which Ms.

Fuller filed her claim with the Court and paid her fee and not the date on which the Summons was signed by a Judge. Ms. Fuller had done everything that was required of her to commence the action by filing her claim and paying her fees on September 23, 2021.

[181] Ms. Fuller’s claim alleges that she first knew of the damage to her property that appeared to have been caused by the defendantson or after September 25, 2019. [182] Ms. Fuller also explained that she waited until the last minute to bring the action because she had been assured by Mr. Scissonsthat he would make things right although she heard nothing further from him in that regard. He did not testify to dispute this evidence. [183] In all the circumstances, a proceeding was a legally appropriate means to seek a remedy.

In any event, given that the action wascommenced within two years of discovery, there is no need to toll the limitation period in this case: Venture Construction Inc. v Saskatchewan (Ministry of Highways and Infrastructure), 2020 SKCA 39, 447 DLR (4th) 316. [184] I conclude that Ms. Fuller’s claim was commenced within the two-year time limit required by The Limitations Act and is notstatute-barred. Negligence [185] Although not expressly stated, the essence of Ms.

Fuller’s claim is that Brunner was negligent in performing the excavation andrefilling of two holes on the street and boulevard thereby causing damage to her property.

She also alleges Brunner is liable because itdid not provide sufficient notice of its work so that she could mitigate any potential damage. [186] An action in negligence requires the plaintiff to establish (1) that the defendant owed to her a duty of care; (2) that thedefendant’s behaviour breached the requisite standard of care; (3) that the plaintiff sustained damage; and (4) that the damage wascaused, in fact and in law, by the defendant’s breach: Mustapha v Culligan of Canada Ltd., 2008 SCC 27 at para 3, [2008] 2 SCR 114[Mustapha]. [187] It is a defendant’s faulty conduct in breaching the standard of care that must have caused a plaintiff’s loss for there to beliability: Clements v Clements, 2012 SCC 32 at para 6, [2012] 2 SCR 181 [Clements].

Duty of care [188] The Court must consider whether there was a sufficiently close relationship between the defendants and Ms. Fuller such thatthey owed a duty of care to her. That is, were the defendants under a legal obligation to exercise reasonable care toward the plaintiff? [189] I am satisfied that a water and sewer contractor is under a legal obligation to exercise reasonable care to property owners in thevicinity when conducting its business and performing its services so as not to cause damage to property.

Reasonably foreseeable harm toothers’ property in the area could occur from a contractor’s wrongful act. This is so even when excavating on public property in closeproximity to private property. I am satisfied that it is foreseeable that damage could occur if such a contractor were negligent inoperating its equipment: Edwards v Law Society of Upper Canada, 2001 SCC 80, [2001] 3 SCR 562. [190] There are no policy reasons why liability ought to be denied where foreseeable damage is caused to property owners in closeproximity. The duty of care owed by Brunner to Ms. Fuller is not a novel one: Mustapha.

Breach of the standard care [191] A defendant’s conduct is negligent if it creates an objectively unreasonable risk of harm: Mustapha, para 7. The general rule isthat the standard of care in negligence is that of the reasonable person in similar circumstances: Hill v Hamilton-Wentworth RegionalPolice Services Board, 2007 SCC 41 at para 69, [2007] 3 SCR 129. What is reasonable will depend on the facts of each case, includingthe likelihood of a known or foreseeable harm, the gravity of that harm, and the cost to prevent the injury.

The Court may also considerexternal indicators such as custom, industry practice and statutory or regulatory standards: Ryan v Victoria (City), (SCC), [1999] 1 SCR 201.

[192] The standard expected of someone with special knowledge, skill, and experience is not the highest possible degree of skill. Rather it is: … that degree of skill consistent with the function discharged, that is, consistent with the measure of skill displayed by othersreasonably competent in that profession touching matters of like kind. Perfection is not expected; the world of work, not the ideal of thedebating arena, is the standard: Trident Construction v W.L. Wardrop & Assoc.

Ltd. (1979), (MB KB), 1 Man R (2d)268 (Man QB). [193] In assessing the reasonableness of the risk posed by Brunner, the Court must consider the standard to which a skilled water andsewer contractor ought to be held in the performance of its work when connecting private water and sewer service to the publicinfrastructure. The standard is that which would be expected from a reasonable and prudent water and sewer contractor in similarcircumstances. [194] Ms. Fuller submitted that the defendant Brunner breached the standard of care in two ways.

First, she alleged that the equipmentused and the way it was operated were unreasonable to such an extent that the vibrations from the backhoe caused cracks to form in herhome. Second, Ms. Fuller stated the basis or crux of her case is that she was not given notice of the work that was to be done in relationto the water and sewer connection. Because she was not forewarned, she could do nothing proactively to prevent the damage. [195] Much of Ms. Fuller’s case relies on circumstantial evidence.

Therefore, I must consider whether the evidence gives rise toinferences that support a finding of a breach of the standard of care and causation. I must weigh those inferences along with any directevidence to determine whether, on a balance of probabilities, the plaintiff has established a breach. The defendant bears a strategicburden to present evidence to rebut the plaintiff’s case: Metropolitan Toronto Condominium Corp. No. 1100 v A & G Shanks Plumbing& Heating Ltd., 2020 ONCA 67 at para 17 [A & G Shanks]. [196] To summarize Ms.

Fuller’s case, she testified that on September 25, when Brunner was excavating, she was surprised to hear aloud bang and feel her house shake. She had been unaware that work of this type was going to be done in front of her property. It wasundisputed that asphalt was removed from the road and two holes were dug with the use of a backhoe. One of the holes was dugapproximately 6 cm from her property. Within days, she discovered cracks in the walls and ceilings in her house.

She stated that onOctober 16, when Brunner was filling the holes in the street, she heard and observed the backhoe forcefully banging the ground again. Additional cracks in her home occurred after that time. [197] Ms. Fuller offered as evidence, an audio recording she made of the sounds from Brunner’s backhoe on October 16, 2019. Iaccept that the backhoe’s bucket made a considerable noise. However, I am not able to ascertain the actual level of the noise at the timeof the work, as what I heard depended upon its amplification in the courtroom.

Further, an inference cannot be drawn from the recordingthat the equipment was operated improperly or unreasonably or that the noise level would have had an impact on surrounding property. [198] The timing of Ms. Fuller’s observation of the cracks in her house, following so soon after the work was performed onSeptember 25 and October 16, is a relevant circumstance to be considered. Ms. Fuller testified they occurred very shortly after Brunner’sexcavation and backfilling. She provided photographs of the cracks taken on October 16, 2019.

She’d had cracks in the bedroomrepaired and the room painted in July 2019, only a few months prior to Brunner’s work. Yet following the work, cracks had formed inthat room again. I note Mr. Custer’s evidence was that cracks should not appear again within two or three months of having beenrepaired. [199] Mr. Anderchek was called to testify about the age of the cracks and presumably to dispel any suggestion that the cracks hadalready been present at the time the work was done. He purported to be able to provide an opinion as to the age of the cracks heobserved. However, the first time he inspected Ms.

Fuller’s house was in December 2021, some 25 months after Brunner’s work wascompleted, and again on October 6, 2022, approximately 36 months after the work was done. He could not recall the nature or conditionof the cracks he observed in December 2021. Further, he described some he observed on October 6, 2022 as “pretty fresh” or recentcracks. He could not determine the age of the cracks from the photographs. As such, his evidence was not helpful to Ms. Fuller’s case.

On the contrary, his observations on the day before the trial tend to suggest the cracks were relatively new and not arising from work in2019. [200] In assessing whether Brunner’s conduct fell below the standard of care, I must consider the significance of the Stop WorkOrder. During the excavation and connection, the Order directed at Brunner was issued by the City because Brunner’s work did not

conform with the original engineer’s drawings. However, Ms. Fuller’s witnesses stated that the Stop Work Order was to halt work temporarily until new plans were approved. It was not to prevent the work from continuing on the west side of the Scissons’ property or to change the manner in which it was being done. Once the drawings were revised, the Order was lifted and Brunner was able to complete the project as intended. Ms. Fuller’s witnesses made it clear that the Stop Work Order was not a reflection of the nature or quality of Brunner’s work. [ 201 ] Additionally, according to Ms.

Fagnou, the approved revised drawing met the minimum requirements outlined in the bylaws and regulations. Regarding the necessary approval for the work to be performed, I accept that the appropriate approvals were granted by the City to the Scissons and to Brunner for the work to be performed. The necessary permits remained in effect throughout. [ 202 ] Ms. Fuller maintained she did not receive advance notice of Brunner’s work other than no-parking signs posted on the street. According to Mr.

Reynolds, in 2019, the practice was for the City to inform the neighborhood residents of upcoming water and sewer work by 11:00 a.m. the day prior to work being performed, by placing construction notices in mailboxes. Ms. Fuller testified she did not receive such a notice but Exhibit D-6 appeared to establish that the usual process was followed by the City. I find that it was the City’s responsibility, and not Brunner’s or the Scissons’, to give notice of construction to residents. [ 203 ] I accept Mr.

Zubrowski’s testimony that in taking measures to prevent or mitigate the impact of vibrations, consideration should be given to the nature of the soil, the person operating the equipment, the nature of the equipment, the distance to the structures, and the size and nature of the structures. However, given those factors, there was no evidence to suggest what Ms. Fuller might have been able to do to prevent damage to her home had she been aware of the pending work. [ 204 ] Brunner sought to rebut any inference that its work fell below the standard of care or caused damage to Ms. Fuller’s property. I accept Mr.

Brunner’s evidence that Brunner has operated as a licensed water and sewer contractor for 48 years and has extensive experience in water and sewer connections in the City of Saskatoon. [ 205 ] Mr. Brunner described the usual process that is followed when Brunner is hired for a project of this type. According to Mr. Brunner, aside from the directional drilling and the temporary Stop Work Order, that process was followed in this case. I am satisfied that the directional drilling was of no significance to Ms. Fuller’s claim as the trenches were dug by hand. [ 206 ] With respect to this project, I accept Mr.

Brunner’s evidence that the digging, replacement, and compression was the same as they had done for approximately fifteen other residences on Temperance Street without incident. [ 207 ] According to Mr. Brunner, inspectors were present to ensure compliance with the City’s specifications. The City of Saskatoon specifications for Water and Sewer Connections Construction [Exhibit D-8] are clear that a contractor must allow an inspection of its work prior to backfilling to ensure that the work was done properly.

Immediately following the inspection and correction of any defects, the contractor is required to complete the backfilling. The specifications add

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