Donald Sangster v. Esther Sangster, 2012 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 109 Date: July 11, 2012 File: SC 51-11 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Donald Sangster and Esther Sangster - and - Jason Tuckett In Person For the Plaintiffs In Person For the Defendant _____________________________________________________________________________ DECISION M.T.

GORDON , J _____________________________________________________________________________ Background [ 1 ] The Plaintiffs and the Defendant entered into a residential contract of purchase and sale on the standard Saskatchewan Real Estate Commission form on or about July 7, 2010.

Schedule A lists the conditions. On October 20, 2010, certain conditions were removed when the buyers sold their home in Regina. On October 20 the conditions were amended to provide for an earlier possession date. The seller also completed a property condition disclosure statement that was incorporated into the contract. The parties were represented by separate real estate agents as well as separate lawyers in handling this transaction. When the Plaintiffs conducted their

final inspection with their realtor on November 15, 2010, they noticed that there were certain drywall marks and paint chips that were to be professionally repaired by the Defendant as contained in the conditions that were still in effect. These buyers discussed this with their agent who contacted Mike Walz, the seller’s realtor, to discuss this problem. The buyer’s counsel, from Noble Johnson Law Office in Regina, suggested to the seller’s counsel, David Chow, of Moose Jaw, that $2,000.00 should be held back until the painting was completed by a professional.

The seller disagreed and the buyers ended up taking possession. Background [ 2 ] The Plaintiffs had a summons issued on May 18, 2011, naming Jason Tuckett as the Defendant. The Case Management Conference (CMC) was set for November 1, 2011. The Defendant did not appear at the CMC and therefore judgment was given in favour of the Plaintiffs, Esther and Donald Sangster. The Issue [ 3 ] The issue before the Small Claims Court was the

interpretation of the following clause in

Schedule A of the purchase and sale agreement between the parties: “Drywall marks and paint chips to be professionally repaired”. [ 4 ] On or about November 16, 2011, an application was made by the Defendant Jason Tuckett’s counsel to set aside the default judgment pursuant to

section 37 of The Small Claims Act . Judge Kovatch granted this application on the condition that Mr. Tuckett paid to the Plaintiffs $200.00 costs. The Defendant did pay this amount and a CMC was conducted by Judge Kovatch on December 22, 2011. The parties were unable to reach any settlement and the trial date of June 14, 2012 was set. [ 5 ] The Plaintiffs had served and filed in support of their claim two booklets. The first one contained exhibits marked P-1 through to P-30. The second booklet was photographs of the various rooms and the exhibits were marked P-24A, B, etcetera, right through to P-27D.

These exhibits were admitted with exhibit numbers at the trial. [ 6 ] The Plaintiff, Esther Sangster, testified and pointed out that initially on touring the house on November 15, 2010, when they took possession, it was very obvious that the repairs had been very poorly completed. She testified they tried to get the seller’s lawyer to hold back some funds and did not understand why that could not be done. She described each of the photographs in some detail.

She stated that they did not repair or paint all of the rooms; specifically they did not repair anything in bedrooms number one and three, the laundry room, the siding or the attached garage or closets. She admitted that in two rooms the colour was changed. She pointed out in the photographs that the paint colour was clearly visible where Mr. Tuckett had tried to repaint. She pointed out, for example, in photos 1-12 of P-24, which was the front entry hall, that there were lighter spots on the walls that were still visible and the drywall was not properly repaired.

In Exhibit 24B, photos 1-16, she pointed out the spots where the drywall was damaged. On photo 7 there was a large spot that looked like it had been sanded but not repaired and there was a halo effect. Photos 9-12 showed large spots and photo 12 clearly showed a roller mark that would not be done by a professional. Photos 13-16 showed the fireplace wall showing the variation in the paint colours and very poor repair jobs that appeared to be incomplete. Photo 24C is the den or office area, and she pointed out the marks and damage.

On photo 24D she pointed out small white spots in the stairwell pictures and marks where she speculated a roller might have bounced. Photo 24E again shows along the stairwell and the photos 1 and 2 show the purple bedroom has pink discolourations and a major flaw in the wall. Photo 24F shows the main floor bathroom with uneven paint colour. Photo 24G shows imperfections in the wall colour. Photo 24H is the master suite bathroom showing significant chips. Photo 24I shows the kitchen/dining room area with imperfections and not the same colour. Photo 25A shows chips on the wall.

Photo 25B shows roller marks from the baseboard up. Photo 26 shows the outside siding and window box that had been removed and the remaining holes. Photo 27A shows the shelving units that were removed from the garage and not repaired. Photo 28 is the outside of a small shed that has been scraped, but not repainted. [ 7 ] The Plaintiff admits that they viewed the house on two occasions. On the first visit, the viewing was about an hour, and the second visit was a shorter time.

They decided that they did not require a home inspection. [ 8 ] The Plaintiff admitted that this was not a brand new home, but had been built in 2006. She testified that she believed that a certified “professional drywaller” would do the repairs, to a “good and sound condition”, although she admits this would not be flawless. She testified that most of the pictures were taken about November 15, 2010, and was adamant that the damage was not from their movers or themselves from moving any furniture once they were settling in.

She said that her husband, who was not a professional drywaller, did much of the repair work, and Exhibit P-29, with a figure of $1,500.00, is a conservative estimate of the amount of time, and therefore money, it took her husband to do the drywall repairs. The numbered company on the invoice is solely owned by her husband.

[ 9 ] Exhibit P-30 is an invoice dated June 9, 2011, when the painting was completed. [ 10 ] She testified it was her understanding that the outside siding and the door in the garage were included in this condition to repair and paint. [ 11 ] Larry Ireland was called as a witness by the Plaintiffs. Mr. Ireland said he has 42 years experience as a painter, in both commercial and residential painting. He has his journeyman certificate as a painter. He has been hired and done many drywall repairs. When he came to the Sangster home most of the drywall repairs had been completed.

There was some work that he had to do, but for the most part those repairs had been completed. He described that a professional paint job, in his view, was when the painted surface appeared even, there was a smooth sheen and the paint was consistent throughout. It took him and his employees one full week to do the work at the Sangster house. There was a major amount of patching and painting to do. In his view, it was necessary to paint the entire wall rather than just touching up at the spot that had been repaired.

He said it is very difficult to achieve colour match the same one hundred percent; there is always a slight variation. He said that sometimes small areas can be touched up if they are lower in the wall by the baseboard or where there is no direct light. He said that sometimes it was quicker to paint the whole wall rather than trying to get a perfect match and blend in with just painting the same repaired area. Mr. Ireland identified P-30 as the invoice he had presented to the Plaintiffs for this work and for which he was paid. [ 12 ] The Defendant’s first witness was Michael Walz. Mr.

Walz is an associate broker and realtor with Royal Lepage. He had been working in this capacity for ten years. Prior to being a realtor, he was a general contractor. Mr. Walz testified that he knew Mr. Tuckett, the Defendant, and they had had real estate dealings before. He had also seen much of Mr. Tuckett’s carpentry work and it was quite acceptable, or within the range of being satisfactory work. [ 13 ] Mr. Walz testified as to the conversation that he had had with Beth Vance, the buyer’s realtor, about the paint chips and drywall chips in the fireplace area and the television wall. In his mind, the clause in

Schedule A was in relation to that particular wall. He agrees in hindsight that both realtors should have been more specific and that nothing should be assumed. In his view, this house was in good condition with normal wear and tear excepted. [ 14 ] In cross-examination, Mr. Walz again said that Beth Vance had referred to the nicks and repairs on the wall in the television area and the fireplace area. He was not aware of any damage behind the furniture. He had done a final walk through in the house on November 14, 2010, later in the day, likely after 5:00 p.m.

The purpose of this viewing was to ensure that all the personal effects of the seller had been removed and the required items remained. He did not check specifically with respect to the conditions in dispute. He said he had confidence in the Defendant as he had seen the Defendant’s work. Again Mr. Walz was very candid, and said in hindsight that the term in issue in

Schedule A was too vague. He said that everyone wants to get the deal completed, as the seller wants to sell and the buyer wants to buy, and once in awhile issues like this arise. In his view, the buyer did not pay a premium for this house. When questioned by Mrs. Sangster, Mr. Walz said he could not recall any conversation with Beth Vance about Mr. Tuckett agreeing to pay the Plaintiffs for the repairs at a later date. [ 15 ] Jason Robert Tuckett took the stand and his binder of exhibits was admitted into evidence as Exhibit D-1.

He testified he did the necessary repairs to comply with the repair condition in the purchase and sale agreement two days before possession date. Mr. Tuckett testified that he felt he was capable and competent to affect these repairs as he had done many improvements and renovations, and had in fact, rebuilt part of the basement area in the house in question. He testified that he repaired and patched the nicks in the laundry room, which he was not required to, and there was no complaint about this work.

He had understood from his realtor that he just needed to repair the areas in question and not do a full paint job. He testified that it is difficult even using the same can of paint to have paint match on the same wall. He bought a new can of paint from the same supplier but even then the shades can be slightly different. He said the paint, especially in certain light, can look different. [ 16 ] Mr. Tuckett commented and referred to many of the photographs filed by the Plaintiffs.

His general comments about the Plaintiffs’ photographs were that there was no indication as to the scale in the pictures, and that most pictures are taken at very close range. He based that on the fact that some of the pictures are out of focus and most of the pictures are close up of an area, and you do not see any other parts to identify even what room it is in. He testified, that in his view, that the nicks and the problem areas referred to by the Plaintiffs were very small when you compare the area to, say, the baseboard, which can be seen in most pictures. The baseboard is three-quarters of an inch thick.

In his view, many of the marks are three-eights to a half-inch in diameter at the very most. He referred to the photographs he filed in Exhibit D-1, and they are marked as numbered photos. D-16 shows the fireplace niche and in his view there is nothing obvious that shows anything other than the repair was done properly. His pictures were taken in 2009 by his girlfriend when he was present. It was his view that many of the Plaintiffs’ pictures distorted the actual situation. He also speculated that there could have been nicks and scratches done by the Plaintiffs’ movers.

He felt he could comment on this as he had worked as a mover for about three years, and his father owned a moving company. He noted that the real issue of the Plaintiffs’ was that the paint didn’t match perfectly. He testified that the Plaintiffs’ pictures photos 26A of the outside siding were not included in this condition as it was siding

board, not drywall. [17] On cross-examination he stated that his

interpretation of the clause in

Schedule A was reasonable repair and that minorimperfections would not be a problem. He further testified that the defects that the Plaintiffs are complaining about, when his furniturewas removed from the house, are patent defects that could have easily been seen by the buyers and were certainly not included in theclause as an issue. He specifically, in responding to the Plaintiff’s question about photographs, being Exhibit 24B, photographs 9, 11,and 12, acknowledged there was minor variation of the paint colour, especially if you looked at it at just the right angle and in the rightlight.

In conclusion, he told the Plaintiff he had done good and sound repairs. He had measured from the specifications that the actualwall area of this house, excluding the upper floor and excluding the windows, was 7,000 square feet. He felt that only about two squarefeet were damaged, if you put all the nicks together. [18] Ms. Sangster admitted in argument that the Defendant had not complied with

Schedule A in terms of a professional repair. She denies that they caused the damage and stressed that they would not have bought this house if the work was to be done to any otherstandard. In fact, when she was asked by the Court, she was of the understanding from her real estate agent that having the conditionprofessionally repaired equated to the same thing as having the whole interior of the house repainted. [19] Mr. Tuckett, in closing argument, suggested that the Court can only accept evidence that is reliable and relevant. He referredto the Plaintiffs’ photographs as exaggerating the problems.

He also referred to the concept of caveat emptor in relation to patent andlatent defects. He speculated that some of the damage would have been caused by the movers or house shifting. Finally, he referred tothe principle of betterment, in that the Plaintiffs have a freshly painted house, which is above and beyond the requirement in theagreement. Analysis [20] First I will consider the meaning of the clause “drywall marks and paint chips to be professionally repaired” within the contextof the sale and purchase agreement. [21] In my opinion, the parties had a different

interpretation of this clause right from the start. I conclude that the wording wascarefully chosen by the Plaintiffs to ensure a certain acceptable standard of work. [22] The Defendant had no difficulty accepting this condition, as he thought he was capable of quickly fixing the problem on hisown. [23] A professional is not an amateur. A professional is someone who makes his/her living from a certain type of work whichhe/she has the skill and training to perform. [24] The Plaintiff was entitled to the work being done in a manner acceptable to the trade. In Maisonneuve v. Burley, [2002] 1W.W.R. (Sask.

Q.B.), the Court stated: The contract between the plaintiffs and the defendant was a contract to do work and supply materials. The governing law is set forth inMack v. Stuike (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask. Q.B.).

At p. 771 of Mack, supra, Balfour J. quotes fromHalsbury’s Law of England, vol. 3, 3d ed. (London: Butterworths, 1953) at 453, para. 818 as follows: ….A contract to perform any work, in the absence of any stipulation as to those exercising the particular trade… the manner in which itis to be carried out, implies a condition that the work shall be done in a good and workmanlike manner, and the workmen employed onthe work must be possessed of the ordinary amount of skill possessed by those exercising the particular trade… [25] The stipulation in this case was the work was to be completed to a professional standard which is at least the standard referredto in Maisonneuve.

The finished product was not an example of being professionally repaired. If the Defendant had hired a

professional painter with the results as shown at trial, the proper Defendant would surely have been that person. [ 26 ] The Plaintiff, Esther Sangster testified that the work was not done to the required standard. She filed a booklet of photographs (Exhibit P-2) which showed the areas which were not repaired properly and painting touch-ups which did not match. Larry Ireland, a journeyman painter with 42 years experience, said he was hired by the Sangsters to do minor drywall repairs and paint. He said that touch-ups of paint can be done on smaller areas near the baseboards, or where there is no direct light.

He said it was very difficult to match paint colours a hundred percent. Often it could be quicker to paint the entire wall. [ 27 ] At trial the Defendant took the position that the repairs were completed in a satisfactory manner. He testified he was experienced at doing home repairs and in fact had rebuilt part of the basement in the house. His realtor, Michael Walz, said he had confidence in the Defendant. [ 28 ] The booklet of photographs filed by the Plaintiffs (Exhibit P-2) shows numerous areas on the walls throughout the house that were repaired and/or painted.

They range from small areas where the “touch-up” paint job is only slightly visible (e.g. Exhibit P-24A) to areas where it is clearly visible (Exhibit P-24B, photos 9, 11, 12). All of these areas show a job poorly done. [ 29 ] There are numerous other photographs that show small chips (white spots) in the drywall. Even accounting for the fact that many of the pictures appear to be taken at close range, the nicks or chips are visible. [ 30 ] The Defendant and his real estate agent testified that it was the area around the fireplace and feature wall (television area) that were subject to repair.

The Plaintiffs referred to photos 13 – 16 in Exhibit 24B. The photos are taken close-up, but they clearly show the unsatisfactory repair. Again, the written agreement does not define or restrict the obligation to repair. The understanding by the Defendant and his realtor was incorrect. The Defendant did do some repairs and painting in other areas as well. [ 31 ] However, I do agree with the Defendant that this condition is restricted to the inside of the home.

It would be an unrealistic stretch to include the siding, garage and shed door. [ 32 ] The Plaintiffs state that the Defendant was required to fill and paint the small holes left by pictures being taken down. In my view, the Defendant was not required to do that by the condition in question. This is a part of “normal wear and tear” that is present when purchasing a pre-owned house. [ 33 ] The series of photographs filed by the Defendant (Exhibit

D) show the house shortly after Mr. Tuckett moved in in the fall of 2009. These photographs show a very lovely furnished home in a good state of repair. There are no visible marks on the walls, and the walls show a very nice even paint job. [ 34 ] Ms. Sangster testified that on November 15, 2010, when she and her realtor Beth Vance did the walk through, she was appalled by the condition of the house. No doubt, the house, without furniture and pictures, etcetera, in full noon hour light, appeared different from when she viewed the home. Mr.

Walz admitted he did a quick walk through the home on the evening before to check that all personal effects had been removed and the appliances as agreed had been left. [ 35 ] Mr. Tuckett’s submissions regarding the distinction between latent and patent defects are not applicable. The parties had a written contract and it must prevail. Mr. Tuckett agreed to the term in the contract that “drywall marks and paint chips to be professionally repaired”. The wording of the condition suggests that it would be a “professional” who would carry out the work, not the seller.

It would be a person who was in the business of doing the type of work, or at the minimum to the same standard. It was not to be done by your home handyman unless he could meet the standard of a professional. The clause was purposely worded in that fashion. [ 36 ] I conclude that the Defendant breached the term of the contract by failing to have the work done to a professional standard. The Plaintiffs are entitled to such compensation as may be necessary to put them in a position that they would have been if the contract had been performed properly.

[ 37 ] In their claim the Plaintiffs ask for the sum or $5,000.00, being the estimated cost of repair. Since then, the Plaintiffs have repaired the damage and repainted. [ 38 ] Mr. Donald Sangster has a company and submitted an account for $1,650.00 to repair the drywall. I am not prepared to compensate the Plaintiffs for this $1,650.00 amount. Mr. Sangster is not a professional drywaller. While according to the professional painter, Mr. Ireland, most of the drywall repairs were satisfactory, it would not be appropriate to compensate Mr.

Sangster when the Plaintiffs’ complaint is that the Defendant did not have a professional to complete the work. [ 39 ] The Plaintiffs did have Mr. Ireland of Shamrock Painting to paint the interior of the house and finish repairing the marks and chips in the walls. The Plaintiffs paid Mr. Ireland’s invoice of $5,793.90 on or about June 9, 2011. [ 40 ] There is no breakdown of this amount per room. Mr. Ireland testified that no closet space was done. Ms. Sangster testified that Mr.

Ireland did not do any work in bedrooms one and three, the laundry room, closets, siding or the garage. [ 41 ] According to the specifications the home was built in 2006. While the photographs show it is an attractive property, it is not brand new. The price the purchasers paid is not relevant. The parties had their own realtors and legal counsel to give them advice on making the agreement and completing the transaction. There was not a fundamental breach of the contract. The buyers’ lawyer was under trust conditions to advance the purchase price on the possession date.

The parties could have voluntarily agreed to amend the trust conditions and agree to a $2,000.00 hold back of funds but there was no legal obligation to do so. [ 42 ] As a result of what has transpired, the Plaintiffs have received a benefit over and above the contractual obligation. The Plaintiffs have a freshly painted home. They have had an improvement above and beyond mere repair. This in law is referred to as betterment. [ 43 ] The Defendant testified, from the specifications, he calculated the wall area of the interior of the house to be approximately 7,000 square feet.

He testified that if you put all the little nicks and marks on the walls together, it would only be an area of about two square feet. [ 44 ] The fact of the matter is there were marks throughout the main area of the house that required repair and a paint touch-up. The work was not completed in the manner agreed to in the contract. The work was not done by a professional. A professional is not an amateur. A professional is someone who makes his/her living from a certain type of work which he has the skill and training to perform. A professional does his/her work to an acceptable standard.

The work does not resemble the work of a professional painter. [ 45 ] There shall be an award of damages in favour of the Plaintiffs. However, the amount has to be less than the cost of the new painting job for most of the house as completed by Mr. Ireland. The Defendant said the actual area to be repainted was a very small portion of the entire wall surface. However, the cost of repainting is greater than just brushing a spot of paint on the area.

Therefore, to reflect these two competing positions, the Defendant, Jason Tuckett shall pay to the Plaintiffs, Donald Sangster and Esther Sangster, the amount of $2,000.00. There shall be no order as to costs. Dated at Moose Jaw, Saskatchewan, this 11 th day of July, 2012. ______________________________________ M.T. Gordon, J