Milburn v. David Canning Heat and Maintenance Limited, 2018 NSSM 36

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Milburn v. David Canning Heat and Maintenance Limited , 2018 NSSM 36 Claim No: SCCH 472569 BETWEEN: NED (EDWARD) MILBURN Claimant/ Defendant by Counterclaim -and – DAVID CANNING HEAT & MAINTENANCE LIMITED Defendant/ Claimant by Counterclaim Ned Milburn – Self Represented. Patrick K. O’Neil represented the Defendant. Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.

DECISION ( 1 ) On November 20, 2017, the Claimant, Ned Kilburn hired the Defendant, which operates under the business name of “DC Heat”. The Defendant is a plumbing contractor operated by Mr. Canning. The Claimant hired the Defendant to clear a blocked sewage line on his property. The line could not be cleared using a snake. It was necessary to locate the line and to enable excavation on the property to clear it. The Defendant’s location of the line was incorrect and as a result, the excavator, G. & R. Kelly, dug in the wrong place. The excavation company billed the Claimant for all of the digging.

The Claimant seeks damages for the portion he claims was unnecessary. The Defendant argues that it did not breach the contract and he was not negligent. He seeks to have the claim dismissed. The Defendant also counterclaims for additional work that was invoiced but not paid.

( 2 ) At the beginning of the hearing, Mr. O’Neil made two motions. The first was to confirm the name of the Defendant was David Canning’s company rather than Mr. Canning in his personal capacity. The second was to correct a typographical error increasing the counterclaim from $610.50 to $670.50. Mr. Milburn raised no objections. The motions are granted. The claim against Mr. Milburn in his personal capacity is dismissed without costs. The name of the corporate Defendant is changed to David Canning Heat & Maintenance Limited. The style of cause is amended as set out herein.

The Evidence ( 3 ) Edward (“Ned”) Milburn testified that he and his wife had lived in the property, 92 Johnstone Avenue (which was formerly known as 78 Johnstone Avenue until the houses were renumbered.) since 2007. They hired the Defendant to clear a block in their sewer line, but they were not successful. They attempted to use a snake which proved unsuccessful. DC Heat employed a Rigid Scout sonde and line locator. It indicated the location of the line on the upper half of the driveway near what he calls the “rock wall”.

In fact, the driveway is bordered with gabion baskets, large box-shaped containers framed with heavy wire mesh, containing large quarried gravel inside them. ( 4 ) The Claimant hired G. & R. Kelly, who dug where the Scout indicated to uncover a large boulder. They returned the next day with a pneumatic hammer and broke up the rock and discovered there was no pipe beneath it. He testified G. & R. Kelly removed 25 feet of retaining wall over a day and a half only to discover the pipe was not there.

He provided a location certificate of the property in evidence and sketched in what he thought was the approximate location of the excavation and the location of the pipe. When the line was discovered, he called Mr. Canning who denied responsibility. ( 5 ) Mr. Milburn tendered into evidence photographs of the property along with the property at 58 Johnstone Avenue, his new residence which he also had excavated. Several invoices were issued by G. & R. Kelly. Mr. Milburn asked for a separate invoice describing the portion he alleges to be unnecessary.

The work is described on the invoice as “Work required to excavate in the wrong location.” The amount attributed is $3591.00 plus HST of $592.65 for a total of $4543.65. Mr. Milburn testified that he is paying that invoice on credit with G. & R. Kelly. In addition, Mr. Milburn provided three landscaping quotes to restore the lawn including the gabion baskets. The lowest quote is $7877.50. ( 6 ) He reviewed the elements of the Statement of Defense. He acknowledged Mr. Canning attempted to locate the blockage with a snake without success.

He declined the suggestion of a more powerful snake considering it unnecessary. He agrees Mr. Canning made no assurances as to the location of the line but he also made no comments as to its possible inaccuracy. He indicated there was no suggestion of digging close to the building until the driveway was removed. Mr. Canning used the Scout twice and both times it pointed to a location beneath the rock. He described Mr. Canning as having great confidence as to its location. ( 7 ) Under cross examination, he confirmed Mr. Canning and his employee attended with a snake. He noted they had pulled up tree roots.

They discussed the option of using a more powerful snake, but Mr. Canning said it might not work. Mr. Milburn concluded the use of a powerful snake was redundant. He confirmed the work at 58 Johnstone Avenue went well without difficulty or disruption of the driveway or rock wall. They discussed the portion of the wall to be dug up. It was estimated to be approximately 9.5 feet deep with a path as wide as the bucket of the excavator. ( 8 ) He reviewed the Scout manual and noted a limitation based on the presence of wires.

There were wires holding the gabion baskets together, but there was not electricity running through them. He acknowledged he did not call the Halifax Water Commission or other representative of the HRM. He spoke with the HWC representative on-site who advised they do not have line location data. ( 9 ) G. & R. Kelly started excavation on November 22, 2017. DC Heat was not on-site when the work began. He does not recall Mr. Canning providing any alternative other than when he mentioned digging close to the house. Ultimately, they dug near there. He initially declined on the ground that Mr.

Canning advised him the line was under the boulder. ( 10 ) Kevin Harvey of G. & R. Kelly brought in the rock breaker. It was not at the recommendation of DC Heat. ( 11 ) Mr. Milburn acknowledged receiving the invoice relating to the “wrong location” two weeks after the work was done. There were no work logs shown. He estimates they spent a full day and a portion of another, approximately a quarter or a half a day. When DC Heat arrived, a portion of the retaining wall had already been excavated. ( 12 ) He was shown the DC Heat invoices in Exhibit 4 which form the basis of the counterclaim.

He acknowledges authorizing the work to bring the snake and camera and that the work was performed. He was not certain that the invoice 2501 was completed adequately. ( 13 ) David Lewis Canning is the owner of DC Heat. He has been a plumber for 41 years. He has used Scouts to locate sewer and

water lines for 15-20 years. He has owned this particular instrument for approximately one year.

(14) He described the process of locating a line. Typically when a blockage is found, the plumber uses a snake. If it does not clear, theplumber sends the camera down to locate the blockage. Once it is located, a larger snake with a “multi-cutter head” is used to break upthe blockage or the pipe is excavated to remove the blockage.

(15) Mr. Canning testified to receiving a phone call from Ned Milburn. Mr. Milburn was seeking a game plan to clear the line. Whenhe was hired, Mr. Canning’s first step was to remove the clean out from the house and snake the line. The auger would not break up theblockage, so they took a reading approximately 15 to 18 feet off the house. Mr. Canning recommended a bigger snake. Mr. Milburn saidhe wanted it excavated.

(16) He described most lines as running straight out to the street. When there are turns in the line, the foot counter on the cameraresets to “0”. Following that, one counts feet out.

(17) Once the location was given by the Scout, the intention was for G. & R. Kelly to excavate the property. He noted Mr. Milburnwas going to lose a portion of his lawn and retaining wall.

(18) When he returned on November 22, G. & R. Kelly was already there. He noted they were close to the rock. He indicated thesounding had come off the rock. He testified he recommended excavation closer to the house. Rather than using the rock breaker, hebelieves three to four scoops from the backhoe or excavator would have hit the pipe. He referred to his vehicle log which showed himon-site for 18 minutes, around the time the boulder was removed. He also spoke to the invoices in evidence. He confirmed invoice 2501was the charge to reconnect the water line.

(19) Under cross examination, Mr. Canning testified that 21 years of his plumbing experience involved working on ships, which aredifferent than working on residences. He has been trained on the use of the Scout using on-line modules supplied by the company.

(20) He described the operation of the Scout relying on sound waves to identify anomalies in the ground. A change of pitch soundswhen an object is located. He disagrees the line was found 25 feet from its actual location. The line runs 15 to 18 feet from thefoundation. There is a distance of 31 feet to the corner of the driveway. The margin of error is usually a foot to a foot and a half.

(21) Mr. Canning testified he volunteered to rescope the line by placing it in front of the boulder. He confirmed the discrepancy is 13to 16 feet.

(22) In redirect evidence, he stated he was there when the line was located and the sewer line was reconnected. He has no idea whatcaused the blockage. The Law

(23) As Mr. O’Neil correctly submitted, this is a claim in breach of contract or negligent misrepresentation. The claim does not ariseout of what Mr. Milburn paid to the Defendant. Both parties agree no payment is being sought for the work with the Scout. On thesefacts, it is properly termed as a claim in negligent misrepresentation.

(24) Mr. O’Neil cites the Nova Scotia Court of Appeal decision in Barrett v. Reynolds (also known as Barrett v.

Gaudet), (1998) 1998NSCA 109 , 170 NSR (2d) 201; 1998 NSCA 2122, where Justice Pugsley stated the following in paras. 137-138: In Queen v Cognos, (SCC), [1993] 1 S.C.R. 87 at 110, lacobucci J. (writing for 5 of the 6 judges participating in theappeal) set out five general requirements for liability in negligent misrepresentation: 1. there must be a duty of care based on a "specialrelationship" between the representor and the representee; 2. the representation in question must be untrue, inaccurate or misleading; 3.the representor must have acted negligently in making the misrepresentation; 4. the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and, 5. the reliance must have been detrimental to the representee in the sense that damagesresulted.

This list of elements is helpful, but it must be remembered that there will often be overlap among the various considerations. In this case,there is considerable overlap between the question of whether Mr. Lohnes' statements were misleading and whether reliance on them

was reasonable. ( 25 ) For different reasons, as in that case, there is considerable overlap between the considerations. Indeed, it has been my experience that is true of most cases based in negligent misrepresentation. Findings ( 26 ) In reviewing the law and evidence in this situation, I make the following findings. ( 27 ) The Defendant was hired to locate a blockage in Mr. Milburn’s sewer line. The work involved both finding the blockage and, in part, determining the best way to remove it. Typically, the line is snaked with a view to locating the source of the blockage and identifying its cause.

The Defendant undertook that process using a regular snake which proved unsuccessful, so a more powerful snake was suggested. Mr. Milburn and Mr. Canning discussed the option. I accept Mr. Milburn’s evidence the powerful snake would not guarantee its location. Mr. Milburn had luck from a recent experience with a plumber using a Scout. He opted instead for Mr. Canning to use that. ( 28 ) Simply put, the Scout missed the mark. Both attempts at using the apparatus resulted in the Scout registering a reading that the line was located in a significantly different spot than where it was actually located.

The Scout came with a disclaimer in its owner’s manual indicating its limitations. There is no evidence any of this was shared with Mr. Milburn. According to Mr. Canning, he had the instrument for a year and estimates using one approximately 3 to 4 times per year. Accordingly, I find he had used that particular Scout at most 3 or 4 times. ( 29 ) The evidence of Mr. Milburn and Mr. Canning differs markedly in regards to what was proposed on-site. There were workers on- site from G. & R. Kelly and Halifax Water Commission. Mr. Canning had an employee with him. None of those individuals gave evidence.

There is no dispute the line was identified using the Scout. The location was wrong. Mr. Milburn hired G. & R. Kelly to excavate the property as a result. ( 30 ) In employing the Queen v. Cognos analysis, I agree with Mr. O’Neil, it is clear a special relationship exists between the parties. ( 31 ) I find the statement or representations in this matter related to the location of the sewer line. Both times, Mr. Canning asserted the line was beneath the boulder, and off to the opposite side of the property from where it was actually located. Mr. O’Neil contends that Mr.

Canning offered other means to attempt to locate the blockage. For example, both parties recommended a more powerful snake and conceded that the result may be no different. Mr. Canning did not insist on the use of the second snake. He could have explained that the Scout has its limitations as well. Instead, he chose to proceed with its use. I accept Mr. Milburn’s evidence that no limitations were explained to him. ( 32 ) The primary issue in this case is the standard to be employed. I agree the standard is not one of perfection.

However, those who provide statements which are to be relied upon, must also clearly state any reasonable limitations known to them. A statement was made twice that the line was located under the boulder. Mr. Canning’s suggestion to dig closer to the house was sensible, but I find on the balance of probabilities it came later in the process. He believed the blockage in the line was 15 to 18 feet out, under the boulder. To arrive at that conclusion, the Defendant used the Scout. There is no evidence of anything wrong with it. I will not speculate if there were “bugs” to be worked out.

However, there are several limitations contained in the manual which Mr. Canning could have provided or explained to Mr. Milburn. As noted, he provided no such recommendations. It is safe to find Mr. Canning’s experience with that model was limited to 3 or 4 times based on his estimates. He was certain he knew where the line was located. His representations were sufficient for Mr. Milburn to reasonably rely upon them. They resulted in damages as a result. ( 33 ) I find the Defendant liable in negligent misrepresentation. Damages ( 34 ) The remaining question is the extent of the damages arising from the work. Mr.

Milburn submits a claim of $4543.65 for the unnecessary excavation and $7877.50 to replace the wall. Nobody from G. & R. Kelly or any of the landscapers gave evidence. ( 35 ) Mitigation has not been raised. I find it is not an issue in any event as the work was being done. ( 36 ) I find the lawn was torn up as a result of the excavation. I agree with Mr. Canning that the lawn would have been torn up and damage experienced at the wall. While Mr. Milburn attempted to apportion the work done, it is not clear the extent to which this is accurate. Secondly, the rock wall and border is also being replaced.

The Milburns purchased the property in 2007, ten years before the work was done. There would be substantial betterment if the property is restored as new. In the circumstances, I allow $7500 for the

combined cost of the excavation and restoration together with costs of $199.35 for a total of $7699.35. Counterclaim ( 37 ) I find the Defendant has proven its counterclaim for both invoices. The work was performed as stipulated with the consent of Mr. Milburn. I allow $670.50 plus costs of $66.00 or $736.50 to be set off against the amount awarded to Mr. Milburn.

Summary ( 38 ) The Claim is allowed in part. The Counterclaim is allowed. The Claimant, Edward Milburn, shall have judgment against the Defendant as follows: Claim Awarded $7699.35 Less: Set Off ($ 736.50) Total Judgment $6962.85 ( 39 ) An order shall be issued accordingly. Dated at Halifax, NS, on July 20, 2018; ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant (

s) Copy: Defendant(s)