Rally T. Lequigan CLAIMANT v. David Jennings dba Zwicker Roofing, 2023 NSSM 36

Small Claims Court OF NOVA SCOTIA Citation: Lequigan v. Zwicker Roofing , 2023 NSSM 36 Date: 20230807 Claim: No. SCT 520744 Registry: Truro Between: Rally T. Lequigan CLAIMANT and David Jennings dba Zwicker Roofing DEFENDANT Adjudicator: Julien S. Matte, Adjudicator Heard: July 25, 2023 by teleconference Counsel: Karen Wade (property manager), representing the Claimant David Jennings, self-represented Defendant By the Court: [ 1 ] The Claimant hired the Defendant to replace the roof on a rental property. The parties agreed on an estimated price subject to the actual condition of the roof.

When the price of materials increased after delays getting started, the parties agreed to move forward with the new price. However, after the Defendant started the work and once the true condition of the roof was revealed, the cost increased substantially to account for the multiple layers of shingles found and the need for new sheeting. As a result, the Claimant cancelled the job and now asked this Court to compel the Defendant to pay back the deposit of $6,210.00 minus reasonable costs for the work done. The Defendant claims the deposit as payment for work done and material provided.

The only dispute of fact between the parties surrounds the delivery of materials to the Claimant. [ 2 ] Each party should be commended for their organization. The filing of a table of content with tabs explaining each document being tendered into evidence greatly assisted the Court. However, this matter also serves as a cautionary tale for presenting evidence through non-party representatives. While this Court allows a flexible approach for parties to have non-lawyers represent them, oral evidence can only come from witnesses not representatives.

As can be seen below, it may become difficult, absent admissible evidence, to prove a claim. [ 3 ] The parties agree that the deposit at issue was an amount to be applied against the cost of replacing the Claimant’s roof. During testimony the Defendant admitted that had the job been cancelled before it was started, the deposit would have been returned.

Unlike what many experience when cancelling a vacation property rental, the parties agree that cancellation here did not result in an automatic forfeiture of the deposit. [ 4 ] The parties agree therefore, that the Claimant could cancel the job and the Defendant could only withhold the return of all or a portion of the deposit based on the work done to that point or as agreed. [ 5 ] According to the Defendant, he arrived at the property on November 1, 2022 at around 8:30am with another roofer (his business partner) and a labourer. All three witnesses testified at the hearing.

A ladder was used to access the roof with each person climbing up using harnesses anchored to the roof. The Defendant estimates that five percent of the roof was ripped off. The Defendant observed that there were two or three layers of shingles, there appeared to be fire damaged to the wood used under the shingles and the chimney did not have proper flashing. [ 6 ] The total estimated time at the property was 2 hours for a total of 4 hours at a roofer’s rate and 2 at a labourer’s rate. The labourer testified he was paid $18 per hour by the Defendant.

The Defendant’s business partner testified that labourers were billed out at $75 per hour although hourly rates were rarely used as most jobs were quoted at a fixed rate. The Court finds that absent an agreement otherwise, $35 per hour is a reasonable rate for labourer’s time. [ 7 ] The Defendant’s business partner and roofer returned two days later and covered the exposed roof to prevent leaking. He testified that he was at the property alone for 5-6 hours and used materials at an estimate value of $300. Picture were tendered showing the work done.

To do an equivalent job, he testified that would normally charge the rate of $110 per hour. [ 8 ] A few days later, the Defendant testified that he, along with three others picked up and dropped off the shingles at the rental property. The loading, delivery and unloading took two hours for a total of 8 hours at a labourer’s rate. A receipt from Kent showed materials paid for a total of $3,008.24 not including materials used for the temporary roof repair. The Defendant asks to keep the entire deposit representing a claim of approximate $3,000.00 in labour costs.

[ 9 ] The Claimant representative asks the Court to conclude that the materials were never delivered and takes the position that $200 is a reasonable amount to compensate the Defendant for the time and materials used for the work done. No witnesses were called. The Claimant’s representative notes that the Defendant did not provide her with receipts with respect to the work done to patch the roof back up. Findings [ 10 ] The Court finds that the Defendant spent ten hours charged at a roofer’s rate of $110 per hour and ten hours charged at a labourer’s rate of $35 per hour.

The Defendant’s total labour costs are therefore $1,450.00 [ 11 ] With respect to the material, the Court accepts that despite not having receipts but based on the pictures and witness testimony as to materials used for the roof repair, the Defendant is entitled to $300 credit for materials to temporarily fix the roof. [ 12 ] On a balance of probability, the materials were purchased by the Defendant and delivered to the Claimant. No admissible evidence to the contrary was tendered by the Claimant beyond the Claimant representatives’ arguments.

The Court finds, based on the testimony of three witnesses for the Defendant and the receipt of materials purchased, that the Defendant delivered $3,008.24 worth of materials to the Claimant. Conclusion [ 13 ] The Claimant is entitled to the return of his deposit of $6,210.00 minus the Defendant’s reasonable expenses of $1,450.00 for labour and $3,308.24 for materials for a net amount owing of $1,451.76 to the Claimant. Order [ 14 ] The Claim is allowed in part and the Defendant is ordered to pay the Claimant the sum of $1,451.76. As the success was divided, no costs are awarded. Julien S.

Matte, Small Claims Court Adjudicator