Kevin Diduck - v. -, 2014 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 092 Date: April 30, 2014 File: 82/12 Location: Moose Jaw _____________________________________________________________________________ Between: Kevin Diduck - and - Justin Fall operating under the firm name and style of Advanced Roofing and Byron Benson Mr. Mark T. Persick For the Plaintiff Self-Represented Justin Fall Mr. Robert Fielding Byron Benson _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND

[ 1 ] The plaintiff owned an older residential home in the City of Moose Jaw. In October 2007, he contracted with the defendant Fall to do work on the roof. The plaintiff also had a contract with the defendant Benson, pursuant to which Benson was to monitor and care for the property, and in general act as a property manager. In May 2011, the plaintiff discovered some leaks in the roof and some water damage to the top floor.

He commenced this action alleging that the defendant Fall had failed to perform the work in a good and workmanlike manner and that the defendant Benson breached his contract by failing to adequately supervise the property and report damage in a timely fashion to the plaintiff. THE EVIDENCE [ 2 ] The plaintiff, Kevin Diduck, testified that he purchased the home in 2006. According to the information that was provided to him, the home was built in 1913.

An expert report prepared by one of the plaintiff’s witnesses, that I will come to, estimates the age of the house at between 100 and 110 years old. [ 3 ] The plaintiff lived in the home from the time of purchase in 2006 until June of 2008. [ 4 ] In July 2007, a hail storm went through Moose Jaw and caused some damage to this roof. The insurance adjuster’s report, entered as Exhibit P-8, speaks of “hail damage to roof flashing”. It also speaks about a replacement of the roof. It would appear that the insurance adjuster directed the plaintiff to obtain quotes from roofers for this work.

The defendant Fall supplied such a quote which was entered as Exhibit P-2. The quote speaks of supplying 20 year shingles, an ice dam and roof paper. The total amount of the quote, material, labour and taxes is $8,586.00. The adjuster’s report, Exhibit P-2, advises that “the insured authorized Advanced Roofing to proceed with replacement of the roof”. The report refers to the Advanced Roofing quote and states: Although the roofer has not indicated a cost per square or the number of squares of shingles required, we feel this figure has to be accepted.

No one else in the area we talked to would even consider looking at it leave alone replacing it. [ 5 ] The report goes on to request a cheque payable to Advanced Roofing in the amount of $8,586.00, the quoted amount. When the work was completed, the defendant Fall billed the plaintiff exactly as per the quote, and was paid exactly as per the quote and invoice. [ 6 ] The plaintiff testified that there was no problem with the roof prior to the hail storm.

The hail storm damaged the asphalt shingles but the roof still did not leak. [ 7 ] The plaintiff testified that he called the defendant Fall, who provided the written quote that is Exhibit P-2. The plaintiff said that he asked Fall to “fix the hail damage”. The plaintiff said he expected roof replacement and requested no extras. He also testified that the defendant Fall requested no changes to the work, and did not recommend any additional work. Fall did the work, issued the invoice and was paid.

Following conclusion of the work, everything seemed alright. [ 8 ] The plaintiff testified that in June of 2008, he had to move out of Moose Jaw. He listed the home for awhile with a Moose Jaw real estate agent, Amber Tangjerd. Amber is the daughter of the defendant Benson. When the property did not sell, the plaintiff decided to rent it out, and spoke to Amber Tangjerd about locating a property manager. She advised that her father, the defendant Benson, did some of that work. This referral led to an agreement between the plaintiff and the defendant Benson for the defendant Benson to act as a property manager.

For this service, he was paid $100.00 per month. There was no written agreement. The defendant Benson collected the rent and forwarded it to the plaintiff. The defendant Benson did one or two inspections of the property. In particular one was done in 2010 for insurance purposes. If there were problems with the home, it was expected that Benson would be in touch with the plaintiff, and seek instructions. [ 9 ] In 2011, the plaintiff had to evict his tenants. He went into the home and said that he discovered significant water damage to the second and third floor. He dismissed the defendant Benson because of this.

The evidence would later establish that there was a leak around the chimney, and this caused some of the insulation over a hallway to get wet, and it caused a softening of the drywall and

deterioration of the paint in the ceiling. It was not shown to me however, what the other significant damage was to either the second or the third floor. [ 10 ] The plaintiff introduced a photo book (Exhibit P-4) to show various problems with the roof. He had an expert report prepared and introduced as Exhibit P-5. This report speaks of several problems with the roof and recommends replacement of the whole roof and what I would describe as necessary but related work. The plaintiff is now proceeding with that work.

The cost of this larger replacement work, plus related work including much work inside, will exceed the limit of the jurisdiction of this Court. The plaintiff seeks damages in the amount of $20,000.00. [ 11 ] Under cross-examination, the plaintiff was asked if the written estimate from Fall included flashings being replaced and replacement of various items. The plaintiff said he didn’t know what was required or what had to be replaced. He admitted that he did not request any extras. He said he assumed the whole roof was to be replaced. However, he agreed with Mr.

Fielding that the quote doesn’t say replace the roof, and is relatively specific as to what is to be done. He denied that he was his own general contractor in this project.

He did admit that he received an e-mail from the defendant Benson dated June 20, 2009, which reads in part as follows: I got into look at house last week and everything appears okay except very, very, very small leak by chimney on third floor, so don’t know, probably just around flashing and I thought you said that house was just shingled not long ago, anyway I don’t think I would worry about it until it gets worse. [ 12 ] The plaintiff also called Christopher Herrington. Mr.

Herrington is a member of the International Association of Certified Home Inspectors, and is employed by or on contract with Mike Holmes Inspections. He prepared a report on this home dated June 10, 2013, and presented that report to the Court (Exhibit P-5). [ 13 ] Mr. Herrington testified that in his view it is always the best practice to remove all old shingles and other material to get to the base. In this case, that did not always happen.

At least some new materials were placed over some older materials. [ 14 ] He testified that when this house was built, no vents were installed to allow for circulation in the attic. At the time, this was a permissible building practice. When Mr. Fall worked on the roof, he did not install any vents. Mr. Herrington said this is not “the best practice” because the lack of circulation through the vents causes the attic to become hotter than would otherwise be the case, and leads to quicker deterioration of the asphalt shingles. [ 15 ] Mr. Herrington said the biggest problem with Mr.

Fall’s work related to the flashings. He stated that flashings generally have a life span of approximately one and a half times the life span of the asphalt shingles. He said the best practice is to replace the flashings when replacing the shingles. He testified that the flashings around the brick chimney were the most significant problem. Some of those flashings were bent, broken or otherwise damaged. Some were not long enough and inadequate.

The most significant problem or leak in the roof was at the chimney, where water was getting between the roof and the chimney and to the attic. [ 16 ] There was another problem at the side of the roof. In this case, the siding had been brought up too far by a previous contractor. It was brought up to the edge of the roof and the shingles. Because of this, the water could not run directly off of the roof and off of the building. Apparently, Mr. Fall used caulking to seal the area and prevent leakage. Mr. Herrington testified that this was not the best practice.

The best practice would involve cutting back the siding and bringing the roof and shingles out over the siding. [ 17 ] On the whole, Mr. Herrington testified that there was a problem at the chimney with the flashings and leakage at that point. This was related to Mr. Fall’s work, and not replacing the flashings. However, most of the other problems identified by Mr. Herrington were pre-existing problems. The major point of disagreement between he and Mr. Fall was that Mr.

Fall had not followed best practices and corrected these problems, and in fact had not even advised the plaintiff of these problems or recommended additional work to correct these problems. Mr. Herrington stated that Mr. Fall is the roofer and the expert, and he should have advised the owner about these matters. At the end of examination-in-chief and cross-examination, I inquired if it is generally the situation that the owner and/or general contractor should set the specifications for the work. At that point, Mr.

Herrington said it was his personal opinion that the contractor should educate the public by providing full advice on these matters.

[ 18 ] The defendant Justin Fall testified that he could not recall any discussions regarding the work. He did recall that there was an insurance claim, and he was asked to repair the damages, which chiefly meant the shingles. He said that he has to “take things as they come”. This meant that he had to replace the shingles, not replace the flashings, and not do a lot of other work because that might be a best practice. He testified that there was a problem with the flashings at the chimney. The flashing did not go over far enough.

All he could do was bring the shingles over the existing flashing and caulk and seal it at that point. He testified that the seal was broken, which then resulted in leakage around the chimney. He testified that he did all of the work that he agreed to do and was instructed to do, and believed he did it in a good workmanlike fashion. [ 19 ] Amber Tangjerd testified about listing the home, and the state of the home at that time. She testified that there was very minimal property damage.

Further, that at that time, the plaintiff spoke about the need to do much more significant renovations and install insulation. [ 20 ] The defendant Byron Benson testified that he was retained for awhile to be the property manager. His duty was to collect the rent and deposit it to the plaintiff’s account. Further, he contacted the plaintiff regarding any deficiencies or problems and received instructions. He testified that he did send the e-mail dated June 20, 2009 to the plaintiff advising of the very small water leak around the chimney. He was not instructed to take any action respecting that.

There was a little water stain in the hallway from leakage around the chimney. However, that was not sufficient to warrant renovations. He said the plaintiff agreed that they take no action regarding the leak around the chimney, and that they would wait until it got worse. [ 21 ] Mr. Chad Selsman testified that he and his wife rented this property from February 2009 until the spring of 2011. He testified that there was some staining in the hallway as a result of a small leak by the chimney. However there were no other water issues.

ANALYSIS The Claim Against the Defendant Benson [ 22 ] I deal with this issue out of order as I can quickly and summarily deal with it. The evidence is clear that the defendant Benson sent an e-mail to the plaintiff on June 20, 2009, advising of the very small leak around the chimney. It is not clear if the plaintiff specifically agreed to wait until matters got worse, or simply didn’t instruct that any remedial work be done. I am satisfied that the leak did not materially change between that time and the time when the plaintiff re-entered the home and dismissed Mr. Benson.

As a result, I cannot conclude that there was any apparent problem or anything that Mr. Benson should be advising the plaintiff about. The plaintiff did not instruct that any remedial work be done. There was no breach by the defendant Benson, and the action against Benson must be dismissed. Who Was Responsible for the Specifications of the Work to be Done? What Were the Terms of Contract Between the Plaintiff and the Defendant Fall? [ 23 ] Counsel for the plaintiff argued that the plaintiff hired the defendant to perform some specific tasks. He hired the plaintiff and purchased a water tight roof.

The plaintiff did not receive what he paid for. When I asked Mr. Persick who was responsible for the specifications, he argued that the plaintiff relied upon the defendant’s expertise and the defendant clearly did not provide adequate advice or an adequate job. The plaintiff’s counsel later cited to me the case of Howie v. Donovan-Brisbois , 2008 SKQB 228 , in support of this argument.

I will return to discuss this case in just a few moments. [ 24 ] With but one relatively small exception, I cannot accept the plaintiff’s argument or hold the defendant Fall liable for damages. [ 25 ] The textbook Goldsmith on Canadian Building Contracts (1998) (Toronto: Carswell) speaks of specifications at

chapter 2,

section 4. It makes the following statements:

The specifications are that part of the contract which sets out in detail the precise nature of the work to be performed. Specificationsmay be very short, or they may be extremely detailed, elaborate and voluminous. They are generally drafted by engineers rather thanlawyers, and their

interpretation often gives rise to difficulty. The rules of construction applicable to contracts in general apply tospecifications. ... If a contractor undertakes to carry out the work in accordance with the specifications, he must adhere strictly to all the details containedtherein. In most major construction work the owner will employ a supervising engineer to ensure strict compliance with thespecifications, both with regard to the quality of materials as well as methods of construction.

Although the owner generally provides the specifications, and the contractor is obliged to do his work in accordance therewith, there isno implied warranty by the owner that the work can in fact be carried out in accordance with the specifications, and the contractor whoundertakes to produce a particular result will be liable even if he follows the specifications, if that result is not obtained. ...

To the extent that there are no specifications covering a particular item of work, the contractor is entitled to carry out the work in his ownmanner, provided that the final end result of the work as a whole is produced. [26] At

chapter 8,

section 2 of the same text, the authors deal with agents such as engineers and architects. The authors make itclear that generally engineers or architects enter into a contractual relationship with the owner and thereafter act as the owner’s agent. The major function of these individuals is to prepare drawings and work specifications, and thereafter supervise the contractor’s work toensure it meets the specifications of the contract. One of the most significant Court cases supporting these statements is theSaskatchewan Court of Appeal decision in Sunnyside Nursing Home v.

Builders Contract Management Ltd. (1989), (SK CA), 75 Sask. R. 1. The facts in that case were very much different and much more complicated than in the case at bar. In thatcase, the owner retained an architect to draw up detailed plans for the construction of a nursing home. There were very significantdesign errors which caused major problems during construction. These problems forced abandonment of the project and very significantdamages. One of the issues was whether the contractor could be held liable for the construction problems, which were integrally relatedto the initial design problems.

The Court of Appeal held that the architectural firm could be held liable in contract and negligence for thedesign errors. However, most of the claims against the construction contractor were dismissed because the obligations of the contractorwere to construct the building in accordance with the specifications in the contract. The Court of Appeal stated in part as follows: It is first useful to consider the law applicable to the normal contractual or other legal relationships of the owner with the architect andcontractor where an owner intends to have a building designed and constructed to meet the owner’s needs.

That situation will in mostcases call for the owner to employ an architect to design a suitable building. The architect in so doing will employ such expertise as isconsidered necessary but has the prime responsibility to the owner for the integrity of the plans and the specifications he provides.

Theowner, with the assistance and guidance of the architect, will then put the contract for the construction of the building out to tender, andin due course enter into a contract with the successful contractor to construct the building in accordance with the plans and specificationsas provided the owner by the architect. [27] All of this says to me that the specifications in the contract are generally the responsibility of the owner. It seems to me thatjust generally makes sense in relation to building practices and the requirements for a valid contract to be entered into.

If a contractorwere required to set the specifications, in many cases either the contract would have to be very open-ended, or there would be no contractat all. How can the contractor specify what is to be done until everything is opened up and he gets a look at the underlying situation? How is he to set a price or quote when he does not know what needs to be done?

It seems to me that the responsibility must, in mostcases, remain upon the owner to specify the exact work to be done and how it is to be performed and reach an agreed price for thatwork. [28] While I believe these are generally the rules of the situation, there is one significant exception. The textbook Goldsmith onCanadian Building Contract at

chapter 5,

section 2(

b) states as follows: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications, is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.

Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were preparedby him and are deficient, even if they were approved by the owner. [29] In other words, if the contractor provides the specifications, and the owner specifically adopts and agrees with thesespecifications, then the contractor can be held liable for poor design or specifications. In my view, that was the situation in the Howie v.Donovan-Brisbois case, referred to above. I refer in particular to paragraphs 6 to 9 of Mr. Justice Whitmore’s decision. At that point in

time, he sets out in considerable detail the discussions between the contractor and the owner and clearly concludes that the contractor provided very specific recommendations as to how the work would be conducted. In effect, the contractor set out the specifications. The owner relied upon the contractor’s expertise and adopted those specifications. [ 30 ] Mr. Persick says that the plaintiff relied upon Mr. Fall’s expertise, so Mr. Fall should be held liable. However, it is not sufficient that the plaintiff simply swear that he relied upon the defendant’s expertise.

What is necessary, in my view, is that the contractor supply detailed advice and specifications, and that the owner rely upon that detailed advice or specifications. That did not occur here. To the contrary, the defendant Fall was asked to quote on the cost of replacing the shingles, and he did that. I conclude that the specifications of this contract, the terms of this contract involved the defendant replacing the shingles to this roof, and did not involve correcting other significant issues according to the best practices identified by the plaintiff’s witness.

As a result, with but one exception, in my view, the defendant cannot be held liable for the cost of the significant repairs or alterations that the plaintiff has more recently undertaken. This exception involves the flashings around the chimney. The defendant must be held liable for some damages respecting the problems around the chimney. Pictures were entered showing the flashings and the significant problems they presented. Some were cracked, bent or broken. Some were too short and inadequate in the first place.

Part and parcel of this shingling job involved bringing the shingles up to and meeting them with the chimney and creating a water tight seal around the chimney. As a result, in this case, I don’t think that the defendant Fall can simply say that he took those flashings as he found them and used them. In my view, he was obligated to say that he could not do the work in a good and workmanlike fashion and could not guarantee a water tight seal around the chimney using the existing flashings. He was required to recommend a replacement of those flashings even if it involved an additional cost. An appendix to Mr.

Herrington’s report lists a number of costs for various construction items. It lists the cost of “reflashed typical skylight or chimney” at $500.00 to $1,000.00. Because the defendant Fall did not do this, that work must be done now at the expense of the defendant. As a result, the plaintiff will have judgment against the defendant Fall for $1,000.00. COSTS [ 31 ] The plaintiff has met with very limited success as regards the defendant Fall.

As a result, there will be no order as to costs as between the plaintiff and the defendant Fall. [ 32 ] The defendant Benson will have costs as against the plaintiff, which I hereby fix in the amount of $500.00. [ 33 ] The Court was advised that there was an adjournment of this matter because the defendant Fall was on a ski trip. Further, that Mr. Fall did not advise Mr. Benson that he would not be present or of the adjournment. As a result, Mr. Benson needlessly made a trip from Arizona to Saskatchewan only to have the matter adjourned.

The defendant Benson will have costs against the defendant Fall which I hereby fix in the amount of $500.00. [ 34 ] Dated at Moose Jaw, Saskatchewan this 30 th day of April, 2014. D. Kovatch, J