2011 QCCQ 4918, 2011 QCCQ 4918

Gaul c. Couvreurs Duro-toit inc. (Duro-toit inc.) 2011 QCCQ 4918 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-117758-096 DATE: May 10, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ GARY JAMES GAUL […] Dorval, Quebec […] Plaintiff vs.

LES COUVREURS DURO-TOIT INC. doing business under the name Duro-Toit Inc. 125 Vigneault Street Ste-Thérèse, Quebec J7E 3A7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This decision follows the hearing on the merits following the revocation of a default judgment rendered by the Special Clerk on February 9, 2010. [ 2 ] Gary Gaul, who hired Les Couvreurs Duro-Toit Inc. ("Duro-Toit") to perform roofing work on his house at 2070 Goldfinch in Dorval in October of 2007, claims reimbursement of the contract price and damages, for a total $7,000, alleging improper work and materials resulting in water infiltration damage and the necessity of redoing part of the work. [ 3 ] Duro-Toit contests, defending its work, alleging that the building was poorly built in other respects, and that there were pre- existing problems as a result.

The amounts claimed are also contested. [ 4 ] There is also a dispute as to the contract price and what was paid; Mr Gaul claims he paid a contract price of $5,093.57 while Duro-Toit asserts that the contract price and the amount paid was $2,856.02. [ 5 ] There is also an issue as to the scope of work that was included in the contract.

ISSUES [ 6 ] The Court must determine: 1. the price of the work, the amount paid and the scope of the obligations of Duro-Toit; 2. whether Duro-Toit is responsible for faulty workmanship and/or improper materials; 3. and, if so, whether the appropriate remedy is reimbursement of the contract price or damages or both, and determine the amounts. FACTS

[ 7 ] It goes without saying that the roof was in bad repair and required replacement before Duro-Toit got involved. [ 8 ] There are two documents written on forms pre-printed by Duro-Toit using a colour printer. One (P-6) is a contract estimation form, unsigned, listing tasks to be accomplished and showing a cost of $4,470 and an after-tax total of $5,093.57.

The form, entitled "Contrat / Estimation" has a box for the contract number which is left blank. [ 9 ] The other document (D-1) is similar but it has a contract number (which is D-1) and it appears to have been prepared on a word processor because several items that were indicated with a tick mark in a box on P-6 and with manuscript text now appear as typed text. [ 10 ] The cost, typed as $2,233, is corrected in manuscript to $2,506.38, giving an after-tax total of $2,856.02.

The copy produced by Duro-Toit is signed by Mr Gaul and the "date des travaux" is entered as October 26, 2007. [ 11 ] Mr Gaul produces P-6, the unsigned document, as proof of a contract price of $5,093.57. He asserts that he made a cash deposit of $3,000 and to this effect produces a bank record to show that he withdrew $3,000 from his bank account on October 24 (P- 43).

He produces as well a facsimile from Centre Desjardins of the cheque dated October 25, 2007 in the amount of $2,856.02, which coincides with the contract price on Exhibit D-1. [ 12 ] Mr Gaul explains that the contract price is in line with the document that appears to be a mere estimate, while the amount paid with a cheque corresponds to the contract price artificially reduced to the amount of the cheque in order to permit Duro-Toit and himself to avoid the payment of GST and QST. [ 13 ] Mr Carl-André Durocher, President of Duro-Toit, testifies that the true facts are as represented in the documents: P-6 was an estimate for $5,093.57 and the real contract price is reflected in the subsequent document, D-1.

He points to two differences in the documents to explain the significant reduction in the price. [ 14 ] Firstly, the estimate called for deblocking the soffits for an amount of $800 and the application of two elastomer membranes known as Colphène 1500 and Colphène HR GR, whereas the contract does not include deblocking the soffits and the Colphène membranes are replaced by "une membrane Grace sous le bardeau sur la

partie 2,12 (extension arrière)" , a membrane on part of the roof only, and a cheaper one at that. [ 15 ] Mr Durocher denies that any money was received as a cash payment and points to the cheque (P-44), as proof of the receipt of the contract price as stipulated in D-1. The performance of the work [ 16 ] The work was carried out over a period of a few days in late October. It consisted essentially of removing existing roofing materials down to the wood and replacing it with new 15 lbs tarpaper and 25-year charcoal grey shingles.

Mr Durocher, who performed the work with a helper, says that in some places it was impossible to completely remove existing shingles, which were stuck to an adhesive membrane. For the most part however, the materials were removed down to the plywood and replaced as provided for in the contract. [ 17 ] He candidly admits that no effort was made to deblock the soffits. According to Mr Durocher, this work was not included in the contract because the aluminum covering over the soffits was not perforated and it would have been useless to cut holes in the plywood soffits.

These holes would not have provided ventilation because the aluminum covering was not perforated. [ 18 ] As for the replacement of wood, he asserts that there were only areas near the outer extremity of the low-sloping roof over an extension to the building that were not in good condition. He left these boards in place because he was nevertheless able to apply shingles, nailing them higher than three inches from the edge. He claims to have applied the Grace Shield membrane on this part of the roof in the areas where he was able to do so.

He admits however that, in the outer extremity of the roof, he simply applied his new shingles over the old. [ 19 ] Pictures produced by Mr Gaul make it obvious that, in certain areas of the low-sloping roof over the rear addition, both the roof decking made of plywood and the fascia boards made of two by fours were extremely deteriorated by water damage. It is obvious that, as Mr Durocher admitted, this rotten wood was not replaced.

The contract provided for the possibility of replacing rotten wood at $1.50 per square foot with 36 square feet of wood included in the contract price. [ 20 ] Another obvious shortcoming in the work that Mr Durocher admits is that openings that needed to be closed when substituting new ventilation stacks were closed with flashing rather than by replacing the plywood decking. [ 21 ] While Mr Durocher admits these shortcomings, he asserts that, in general, the work is well executed and performs properly.

The incident of water damages [ 22 ] Shortly after the work was completed, Mr Gaul had an incident of water infiltration into the ceiling of the interior of the house. He made an insurance claim for the interior damage, which was settled.

His assertion in the case is that this infiltration occurred as a result of Duro-Toit’s inadequate construction of the new roof and the incorporation of too much ventilation on the roof. [ 23 ] He also asserts that the Colphène membranes, one of which was to be applied over the entire roof surface and the other on the low-sloping roof over the rear addition, was to prevent any water infiltration as a result of ice damming, a problem that existed chronically with the building for many years and which continued to exist after Duro-Toit’s work.

[ 24 ] Mr Durocher visited the building and inspected the attic after the incident of water infiltration into the ceiling finishes. His theory is that the water did not infiltrate from the exterior through his rebuilt roof, but rather was an accumulation of condensation inside the attic caused by the lack of insulation in the roof. He states that when the roof is not insulated, the humid air coming from within the house condenses on cold structures and accumulates and eventually infiltrates the interior of the house.

The repair work [ 25 ] Mr Gaul completely rebuilt the exterior wall of the addition and redid the roofing on the low sloping roof, which represents approximately 10% of the overall roof surface. He also upgraded this addition with insulation and a vapor barrier. He redid the wiring and replaced the floor, the heating baseboards, etc.

In terms of the roof, he had openings made in the soffits, replaced ventilation stacks and made repairs to areas where openings had been improperly closed. [ 26 ] It is difficult to establish the cost of Mr Gaul’s work because, when he paid an independent contractor, the work included much that should be considered an upgrade to the building and, when roofing was involved, he performed the work himself with friends, paying only for materials.

As far as the roof is concerned, the shingles and their underlying tarpaper have been left intact on approximately 90% of the roof surface, Mr Gaul having replaced the shingles only on the rebuilt addition. [ 27 ] When Duro-Toit performed its work, it purchased approximately $1,000 worth of shingles. Mr Durocher admits that the work contracted to open the soffits could have a value of approximately $1,600 and he admits that it might have cost $150 to close holes that he had improperly patched with flashing.

The price that he admits for opening the soffits, which is twice what was included in Duro-Toit’s estimate, can be explained by the fact that it was necessary not only to open the wood part of the soffits but also the metallic coverings, something that Mr Durocher considers to be outside the scope of work of a roofer. ANALYSIS The contract price [ 28 ] Mr Gaul’s testimony as to the contract price is in direct contradiction to D-1, the document signed by him in the amount of $2,856.02.

This price, agreed to in writing, is confirmed by the cheque for the same amount given in payment. [ 29 ] The Court permitted his testimony as to the deposit of $3,000 cash because of the existence of P-6, a document which could be interpreted as a parallel agreement. While this document emanating from Duro-Toit opens the door to testimony, neither the testimony nor the document provide much assistance in proving Mr Gaul’s assertion. If he gave an additional $3,000, then the estimate should have read $5,856.02 or a number close thereto.

The numbers simply don’t add up. [ 30 ] As well, D-1, the signed contract, clearly contains less work, as it does not include the item of deblocking the soffits.

There is also an extremely limited membrane, only on the rear extension, whereas the estimate (P-6) included an elastomer membrane over the entire surface of the roof and a second membrane on the rear addition. [ 31 ] Mr Durocher’s testimony to explain that the contract price was reduced because of these changes and exclusions is much more probable than Mr Gaul’s testimony. [ 32 ] Mr Gaul produced an estimate from a competing roofing company (P-41) for a contract price, tax included, of $6,800. His purpose in producing this document was to establish a much higher market price than D-1.

This estimate is not very reliable for this purpose as the quote includes the complete replacement of all plywood on the rear deck as well as a membrane system that also includes a grip edge, which was not included in Duro-Toit’s contract. There is also the inclusion of the replacement of up to 150 sq. ft. of rotten decking, whereas Duro-Toit only included 36 sq. ft. [ 33 ] In a case where written and testimonial evidence are in conflict, even when the testimonial evidence is permitted, the Court must be convinced on the balance of probabilities, looking at all of the evidence, written and verbal.

In the present case, the contract (D- 1) is the more reliable evidence. [ 34 ] For the purposes of this case, therefore, the Court applies D-1 as the contract both in terms of its price and the scope of work. The quality of the work and the cause of the water infiltration [ 35 ] As part of his evidence, Mr Gaul produced a single page out of an expert report he obtained, apparently from a professional. The document is entitled "Main deficiencies of the roof installation" and lists five points criticizing the work done by Duro-Toit.

It doesn’t deal per se with the cause of the water infiltration that led to this claim. [ 36 ] Mr Gaul was counting on the effectiveness of elastomeric membranes and had no plans to insulate the house, with or without a vapor barrier. As it turns out, the rebuilding of the extension was apparently done according to current standards. One can see from an invoice (P-40) of work done by Entreprise Cogest Inc., the entire exterior wall surface of the building has been insulated. [ 37 ] The upgrades to the house seriously suggest that its existing insulation was inadequate.

Also, Mr Gaul admits that there were, for many years, problems of ice damming on the roof and other incidents of water infiltration in the past. The house became uninsurable for water infiltration after the incident of 2007. [ 38 ] The cause of this infiltration may well have been condensation, as opposed to infiltration from the exterior. Mr Durocher admitted that, in the areas where there was ice damming, there may have been infiltration because, according to him, no amount of water proofing will prevent water from infiltrating somewhere when there is a sufficient build-up of ice.

[ 39 ] The fact that only the shed roof was rebuilt, the rest of the roofing work being salvaged with only minor repairs, suggests strongly to the Court that, on the whole, Duro-Toit’s work was sufficient. On the low-sloping roof over the addition, however, it would appear to have been completely futile to have replaced the shingles, with or without a membrane, given the poor quality of the plywood along the edges of the roof.

Common sense would dictate that a proper job would have included replacing this plywood in any areas where it was deteriorated and making sure that there was adequate ventilation, as a minimum. [ 40 ] The rest of the roof, however, was salvaged with a certain amount of repair in terms of the venting and the holes that were improperly sealed.

The quantification [ 41 ] Because Mr Gaul’s work was paid for as part of a much larger contract of over $15,000 (of which he paid approximately $13,300) as well as various purchases of materials and work performed by himself, and because much of the work was unrelated to the roof, it is really quite difficult to arrive at a quantification of the part of Duro-Toit’s work that was performed without any value being added. [ 42 ] If Duro-Toit had opened the soffits, it would have charged additional amounts including its cost for a sub-contractor, and Mr Gaul’s cost in having this work done is really equal to the amount he saved by not having it done by Duro-Toit. [ 43 ] The same can be said for the replacement of the wooden decking, which would have been billed as an extra at $1.50 per square foot. [ 44 ] Allowing 15% of the contract price as wasted ($429) and allowing another $250.00 for correction of shoddy work to repair openings and an additional $250 to cover the organization of the work and miscellaneous costs, the Court arbitrates what it considers to be a reasonable reduction in price to cover the work that was ineffective and had to be redone.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff, the sum of $929 together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec, calculated from June 8, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $157. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 21, 2011