Karan Marguerite Gendron v. Maurice James Joseph Gendron, 2013 SKPC 75

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 075 Date: May 15, 2013 File: 2011-69 Location: Melfort _____________________________________________________________________________ Between: Karan Marguerite Gendron and Maurice James Joseph Gendron - and - Richard Miskuski Mr. Ahmed Malik, Student at Law For the Plaintiffs Self-Represented (Assisted by Mary-Ellen Miskuski) For the Defendant _____________________________________________________________________________ DECISION B.

MORGAN , J _____________________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs purchased an unoccupied home that was located on land a short distance from their current residence. Their plan was to have the house moved to the farm yard they were living on, place it on blocks until such time as they could have a foundation dug next to the mobile home they were using as a residence, and then attach it to the mobile home to make a larger residence.

[ 2 ] They therefore purchased the home, which Ms. Gendron referred to as being “absolutely adorable”, from Scott and Jolene Sikora. The purchase price was $5,000.00, and it was a term of that agreement of purchase that the house be moved off the Sikoras’ land by July 1, 2011. Although the agreement itself is not dated, it was made, and the purchase price paid, sometime in June of that year. [ 3 ] The plaintiffs then hired Mr. Miskuski, a farmer in the area. He was recommended to them as he also did house moving as a separate business to supplement his farm income.

He came and looked at the house shortly after it was purchased, while it was on the Sikoras’ land, and agreed to have the house moved to its new location near Weekes, Saskatchewan, for a total of $7,000.00, $3,500.00 of which was paid by deposit, with the remaining $3,500.00 to be paid when the move was completed. The plan was to have the home moved between June 25 and June 30, which would make sense in light of the Gendrons’ need to have the home off the Sikoras’ land by July 1. [ 4 ] Unfortunately, after Mr.

Miskuski had jacked the house up and placed it on a trailer preparatory to moving it, and while he had taken a load of some other items to the new location for the house, the house somehow collapsed, with approximately half of the house, referred to as the addition, simply falling off onto the ground. The net result of this was that the house was essentially split in two. [ 5 ] According to the plaintiffs, what Mr. Miskuski offered to them upon this disaster being discovered was to give the deposit back, haul the house away and burn it, or alternatively, to get his “guys” to fix it up, as if nothing happened.

The plaintiffs accepted this latter offer. The complicating factor is that Mr. Miskuski argues that the only way he could have fixed the house such that it would be as good as new would be to have it placed on a foundation prior to undertaking the repairs to it. The plaintiffs argue that was never discussed, and that they had put blocks in their yard for the purpose of having the house placed on those blocks until such time as they could build the foundation.

In any event, the house never did get fixed up, and it remains sitting on the plaintiffs’ land in a somewhat joined together fashion, although with the passage of time, and considering the house was basically severed in two, it is obviously not in the shape it was originally. [ 6 ] The plaintiffs argue that the defendant breached the contract with the plaintiffs, and is liable for damages for that breach of contract, or alternatively, liable for damages to the house as a bailee, or liable in negligence. [ 7 ] Mr.

Miskuski does not really take issue with the fact that the house was damaged while he was in the process of moving it; rather, he seems to argue that the reason the house could not be restored to its original condition was because the plaintiffs never did build the foundation, and that he couldn’t rebuild it while it was sitting on blocks.

FINDINGS OF FACT [ 8 ] It would be helpful to give a better description of the house itself, and the moving process, focusing on how it is the house came to fall apart. [ 9 ] David Petersen is a fire and building inspector who examined the house once it had been moved to the Gendron yard, where it was sitting on temporary wood blocking. Mr. Petersen describes the house as a storey and a half design, approximately 16 feet, eight inches by 24 feet, eight inches, likely built in the 1940s.

A “lean to” style addition sometimes referred to as a porch by some witnesses (although it was enclosed) was approximately 12 feet by 24 feet, eight inches, and had been added sometime after the original construction. [ 10 ] Mr. Petersen’s expert opinion was that the house, as he viewed it, was a “total loss”. This was caused from damages from the original fall from the trailer, and damages that occurred because the house was poorly supported for an extended period of time on the wooden blocks (he looked at the house on November 1, 2012; the fall occurred on July 5 or 6, 2011).

[ 11 ] I find as a fact that the cause of the house falling in the first place was that the width of the house and addition was such that the addition was hanging over the edge of the platform, in an unsupported fashion. Mr. Orval Musselman had testified that he was present when Mr. Miskuski came and measured the property prior to entering into the contract to move the house. Mr. Musselman raised with Mr. Miskuski as to whether or not he was going to put braces under the addition, to which Mr. Miskuski replied that he had done many moves and there would be no need to do that. Although I accept Mr.

Miskuski made those comments, that doesn’t really change matters: Mr. Miskuski had a responsibility to do the job properly, irrespective of his experience. This he failed to do. (See Swift Construction Ltd. v. Leaman and Heinrichs , 2011 SKPC 117 .) [ 12 ] As a result of the fall the addition portion ripped away from the main portion of the house while the house was sitting on the moving platform. The addition had toppled over, landing on its roof, and was completely severed from the main house.

The main portion of the house was partially on the platform, although it had slipped the other way, that is, away from the toppled addition, such that a portion of it was on the platform, and a portion of it was on the ground. [ 13 ] When Mr. Petersen looked at the house some 16 months later and described it as a total loss, he was referring to the state of the house when it sat on the temporary wooden blocks that the Gendrons had originally planned to have the house placed on. I find as a fact that the house was a total loss from the time that it toppled off of the trailer.

It may be that further damage was caused by rain and the fact the house was not properly supported on the temporary wooden blocking, but that is damage that is, in these circumstances, quite inconsequential. By way of analogy, if a motor vehicle is burned to the point where the vehicle is a total write-off, and someone later breaks the windshield, that is hardly adding to the damage. [ 14 ] At the time that Mr. Miskuski offered to Ms. Gendron to either haul the house away and burn it, or move it to the site where it was originally to go and repair it, Mr.

Miskuski did not place any conditions upon the house having to be placed onto a foundation. He knew at that time that in fact there was no foundation, as the Gendrons had prepared the temporary blocks that they were originally planning to place the house on, once it had been moved to their property, before they were going to build the foundation and attach the house to their mobile home. Accordingly, I reject Mr. Miskuski’s claim that the reason the house became more damaged in the 16 months after the fall, before Mr.

Petersen inspected it, was because he was prevented from repairing the house. [ 15 ] I also find as a fact that, although Mr. Miskuski believed the house could be repaired at a nominal cost, that was simply not the case. Mr. Jason Alexander, a carpenter with some 20 years experience who does a lot of renovations, who was called by the plaintiff, had seen the house on the Gendrons’ property, and had actually seen the house previously when it had been on the Sikoras’ property. He referred to the original house as “a functional little house”.

He had looked at it in late December of 2012, and noted that the floor had sagged way down, that water had run into the house, and in his view, the house was now “useless”. I accept his evidence, when asked if it was salvageable, that “you got to weigh your costs”. He stated that if he had to rebuild the house, he would charge $157,500.00 for a new house. In his view, it would actually cost more than that to fix the old house. This was, I note, a house that was originally purchased by the plaintiffs for $5,000.00. Thus, whereas one could repair it, the cost would be so prohibitive it would simply not be worth it.

As Mr. Petersen put it, the cost and time involved to repair the house, at the time he saw it, would far exceed the value of the house. [ 16 ] I reject the evidence of the defence witnesses on the cost of repair. Mr. Lee Ruiter, a witness called by the defendant, had approximately seven years experience in the construction trade. When he went to see the house on the Gendron property, he was of the view that if the house was on a foundation, it could be made livable. However, he was of the view the house would crack if it sat on the wooden blocks for a long time.

When asked if this house could be repaired at a “reasonable cost”, he stated it could be, but only if it was on a foundation. [ 17 ] His view of a “reasonable cost” to repair the house was comprised of labour costs of $2,200.00, materials of just under $1,600.00, for a total of, with GST factored in, just under $3,900.00. [ 18 ] It appears that quote was for the addition only. In any event, I remind myself that this house had been torn completely asunder when it fell off the moving platform. I cannot accept Mr. Ruiter’s evidence where it conflicts with that of Mr. Alexander. Mr.

Alexander was very clear in his evidence, and he factored in all of the costs that it would take to repair the house, which Mr. Ruiter did not.

[ 19 ] In my view, at the time that Mr. Miskuski offered to Ms. Gendron to complete the move and repair the house, he made an offer that he simply could not practically comply with. His offer, which was accepted by the plaintiffs, created a new contract. I find as a fact that, when Mr. Miskuski tried to get individuals to repair the house, he soon lost interest in the project, and he never took any concrete steps to carry through with finishing the work on the house to put it back in the condition it was in when he first became involved with the moving project.

Whereas he might have thought that the repairs could have been completed for somewhere around $4,000.00, he is simply wrong on that; the evidence of Mr. Petersen is that the house was a total loss, and I accept that evidence. From the time the house toppled off the moving platform, it was completely destroyed. Mr. Miskuski’s offer to rebuild it could have been complied with, but at a cost that would make it prohibitive to do so. However, he did not do the repairs. The fact that the cost would be prohibitive is therefore somewhat moot.

DAMAGES [ 20 ] It is appropriate to assess damages on the basis of a breach of contract, as a contract is what the parties originally had and a further contract is what Mr. Miskuski entered into with the plaintiffs upon the house falling off the moving platform. I agree with the plaintiffs that liability also rests with Mr. Miskuski on the basis of negligence; the fact that the house fell off the platform in this case proves the fact of the negligence.

I would also find liability in bailment on the facts of this case. [ 21 ] Damages for breach of contract are designed to put the plaintiffs into the position they would have been in had the contract not been breached. Damages for negligence are designed to compensate the plaintiffs for what the actual and foreseeable losses were. [ 22 ] In this case, fair compensation to the plaintiffs requires that the plaintiffs’ deposit of $3,500.00 be returned to them. The plaintiffs are relieved from any liability to pay any further costs for the move, as the move was in fact completed.

As well, there is the cost of the house which has been destroyed, which was $5,000.00. Cost of issuance of the claim was $85.00, and the cost of the preparation of the report of Mr. Petersen was $180.00 (see Exhibit P-1, document 6). [ 23 ] The defendant shall have until July 31, 2013, to retrieve the house from the site on which the plaintiffs had it moved to, in the event he wishes to retrieve it. [ 24 ] The plaintiffs will have judgment against the defendant as follows: (

a) the sum of $8,500.00 in damages (

b) court costs and expert witness fees of $265.00 (

c) costs of service by registered mail of $10.02 (

d) pre-judgment interest on the amount of $8,500.00 from July 5, 2011 to date of judgment. B. Morgan, J