Justin Fall, operating as Advanced Roofing Ltd. - v. -, 2019 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 62 Date: October 17, 2019 File: 15 of 2019 Location: Moose Jaw _____________________________________________________________________________ Between: Justin Fall, operating as Advanced Roofing Ltd. - and - Nancy Wollner Justin Fall For the Plaintiff Nancy Wollner For the Defendants _____________________________________________________________________________ JUDGMENT DEMONG , J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff brings this action to recover payment for goods and services that were provided to the defendant pursuant to a roofing contract.

The amount sought equates to the sum of $8,769.00. This, in accordance with an estimate given to the defendant which identifies the scope of the work that was to be completed. It is inclusive of PST and GST. The plaintiff also seeks interest on that sum calculated at the rate of 24% per annum, together with prejudgment interest, and the costs of this action.

[ 2 ] Ms. Wollner has defended the action and counterclaimed.

She alleges that: portions of the work were not completed; that some of the products used were damaged when applied to the roof; that the roof was nailed down in a manner which does not accord to the National Building Code of Canada, 2015 [ Code ] standards - and was therefore not done in a good and workmanlike manner; that the plaintiff failed to clear debris from her eavestroughing resulting in ice damming and the need to have these eavestroughs cleaned; and, that in the course of re-shingling the roof, the plaintiff caused a bottle to fall into her plumbing stack which caused her toilet to overflow causing damage to the interior of her home.

She seeks to recover the cost of repairing the damage allegedly caused by the plaintiff’s negligence, and to set-off, against the plaintiff’s claim, the amount of money necessary to correct the deficient goods and services provided by the plaintiff. She seeks her costs in relation to both her defense of this action and her counterclaim. Facts Not in Dispute [ 3 ] I find the following facts to be non-contentious. They set the framework for this dispute. [ 4 ] Ms. Wollner resides in the city of Moose Jaw and is the owner of a home identified civically as 1151 Grafton Avenue. It was built in the early 1900’s.

It is a two story structure and its roof was originally shingled with cedar shakes. The exact square footage of the roof is not clear, but the evidence suggests that it is approximately 900 square feet. The roof is, for the most part, an angled roof excepting only a flat portion of approximately 80 square feet which sits atop the kitchen. [ 5 ] In or about the 1990’s the roof was re-shingled by Collin Schoffer, one of a number of roofers working in the Moose Jaw area. The re-shingling was performed such that asphalt shingles were applied over the existing cedar shakes.

No evidence was led which would allow this Court to conclude that these cedar shakes were original to the house, or whether they were one of many re-shingling efforts over the almost one hundred year history of this home. While it may seem unusual that a person would apply asphalt shingles directly over existing cedar shakes, the evidence led at trial suggests that this is a somewhat common practice in Moose Jaw. [ 6 ] In June of 2018 the defendant decided to replace her asphalt shingles and she sought an estimate from the plaintiff which she ultimately accepted.

It was understood that the old asphalt shingles would be removed and the plaintiff decided to use ‘CertainTeed’ brand laminate shingles which would, by agreement of the parties, again be applied over the existing cedar shakes. [ 7 ] The ‘Estimate’ is set forth on the plaintiff’s letterhead. The letterhead identifies the plaintiff as ‘Advanced Roofing’ which is a trade name.

It does not identify the estimate as coming from ‘Advanced Roofing Ltd.’ which is a corporate entity owned in part by Justin Fall, and which is the business vehicle utilized by Justin Fall to carry on his roofing activities. [ 8 ] The description of the work that was to be done is described as: House- $7,900.00 Work and warranties to include: Install architecture Laminate shingles Removal of 1 layer of shingles Disposal of all debris including recycling of asphalt shingles Full synthetic underlayment to decks less than 6/12 pitch Partial underlayment to decks greater than 6/12 pitch Ice damning membrane installed to all valleys Re-seal existing chimneys Install new vents, plumbing flashings where applicable Install new drip edge to all eave edges where applicable Clean all roofing material debris out of eavestroughs Complete clean up 5 year limited workmanship warranty.

Subtotal $7,900.00 GST 5% $ 395.00 PST 6% $ 474.00

Total $8769.00 [ 9 ] The Estimate does not provide for line item costing. The entirety of the work was to be done for the price stated on the invoice. The Estimate does not identify any reference to the payment of interest if, for some reason, payment was not forthcoming within a specified time period. There is no evidence before the Court that the estimate, which comprises the agreement between the parties, should be considered as anything other than the entire agreement.

By this I mean that there is nothing to suggest that its terms, such as they are, were intended to be amended, abrogated by, or enlarged by, any ancillary oral agreement. [ 10 ] During the course of construction one of the plaintiff’s employees dropped a plastic bottle down the open sewer stack. The defendant was advised of this shortly thereafter. At or about the same time the defendant had attempted to flush the toilet located on the second floor of her home and it failed to drain.

After a conversation with one of the roofers, who advised her that she should attempt to flush the toilet again, it overflowed, which in turn caused water damage to her main floor ceiling. She had a conversation with Justin Fall, and, upon concluding that the placement of the water bottle may have caused a disruption in her sewer line, he offered to pay for her to stay overnight in a hotel while the overflow was attended to. This equated to the sum of $145.77. [ 11 ] When construction was complete the plaintiff forwarded his invoice to the defendant.

It was, again, prepared on the same letterhead as the original estimate. It sought payment of the principal sum of $7,754.23 (the difference between the original cost and the cost of the hotel stay) together with PST and GST for a total of $8,607.20. At the bottom of the invoice the following notation stated: … Payment due upon receipt of invoice. Invoice is subject to 2% interest per month (24% per annum) after 30 days from invoice date. [ 12 ] The defendant was worried about the construction process generally, and specifically noted that the plaintiff had not shingled the flat portion of her roof.

In a series of texts between Mr. Fall and the defendant, Ms. Wollner asked why that portion of the roof had not been re-shingled. The text conversation reads as follows: - Hi Nancy, so that is a flat roof that is a different kind of roofing then we do the only flat roofer in town is Duncan roofing we only do sloped roofing. - Oh … okay.

I had assumed that the whole roof was to be completed. - Sorry no that’s as different to us as say siding would be companies will do one or the other sloped or flat we only do sloped I know a guy who does it on the side he worked for a flat roofing company for 30 years do you want me to see if he would be interested in it? - Hmm. .. may have to talk to the bank again I don’t know roofing types … so when I got the quote from you I thought it was included as the quote didn’t exclude that portion. - Ya if you look on our quote it details the removal of shingles and the installation of shingles and if you notice on your flat roof there are no shingles it’s a flat roofing product.

Sorry I know it’s a small area and probably wouldn’t cost that much people won’t typically replace flat roofing unless there is an issue sometimes it can outlast 2 sets of shingles. Do you have issues with the roof? [ 13 ] Ms. Wollner did have issues with the roof and had also expressed concern that Mr. Fall had previously indicated that he would have a contractor come by to determine the nature and the extent of the water damage caused by the overflowing toilet. When apprised of the potential cost of repairing the water damage Mr.

Fall reneged on any previous representation that he might pay for it. [ 14 ] On or about September 5 th , Ms. Wollner contacted Collin Schoffer to inspect the work that had been done by the plaintiff. He came to several conclusions. First, he noted that the plastic sewer stack topper had been cracked when it had been installed and would have to be replaced. When he attempted to remove the asphalt shingles surrounding the stack with a ply bar, he noted, to his surprise, that he did not have to use a pry bar - the shingles could easily be removed by hand.

He then noted that, contrary to his understanding of the Code, the shingles had been nailed down using 1 ¼ inch nails rather than Code compliant 1 ¾ inch nails. He noted that the kitchen portion of the roof had not been attended to. He noted that no additional air vents had been added to the roof. Finally, he noted that the eavestroughs had not, in his opinion, been adequately cleaned of debris. [ 15 ] The plaintiff concedes that he used 1 ¼ inch nails instead of 1 ¾ inch nails. He does not concede that the work is deficient by reason only that he used shorter nails. [ 16 ] At trial Ms.

Wollner submitted quotes to identify the cost of remedying each of these apparent deficiencies. Mr. Fall did not object to the quantum to correct each of these deficiencies. He has, however, vigorously denied that they constituted deficient work or goods, and he denies that any loss arose by virtue of any negligent actions of his employees. [ 17 ] Ms. Wollner has identified the following cost for each aspect of the plaintiff’s alleged negligence or deficient work:

1. Kitchen roof re-shingle - $400.00 2. Remove and replace broken stack topping - $310.00 3. Clean out and remove debris from eavestroughing - $407.40 4. Drywall and paint ceiling - $900.00 plus GST and PST 5. Video scope plumbing stack and sewer lateral to see if actions of the plaintiff to retrieve the plastic bottle damaged the stack - $222.00 6. Install two additional air vents to bring roof up to National Building Code standards - $199.80 7.

Remove and replace asphalt shingles which are allegedly improperly installed by using non-compliant sized nails - $8,880.00. [ 18 ] Because these amounts have not been disputed by the plaintiff as anything other than reasonable, I accept that these amounts fairly represent the proper quantum of damages that may be awarded if I conclude that the plaintiff was either negligent or in breach of contract. The Law The Plaintiff’s Burden of Proof and its Claim for Interest [ 19 ] The plaintiff seeks to recover payment for the goods and services that he provided, and it seeks interest on that sum at 24% per annum.

To succeed it carries the burden of proof on the balance of probabilities to show that it met the terms and conditions of the agreement and that the defendant failed pay for these goods and services. Payment is a fundamental term of the contract. If payment is not provided, it constitutes a breach of the contract and the plaintiff is entitled to bring action to obtain its expectation interest under the agreement. [ 20 ] That stated, the total of the plaintiff’s claim, ($9,484.10), exceeds the final invoice presented to Ms. Wollner ($8,607.20) by the sum of $876.90.

The plaintiff argues that this is interest which had accrued from the date that the invoice was presented until the date of filing of its claim, which is February 25, 2018. This ‘interest component’ presumably arises because of the notation set forth on the invoice as identified in paragraph 11 above. [ 21 ] This Court is often presented with claims for interest which do not have a contractual foundation.

All too often a creditor assumes that it is entitled, as a matter of right, to claim interest on unpaid accounts, in any amount that the creditor decides to include in its invoice, after the goods and services have been provided - but in absence of an agreement, express or implied, that the debtor agreed to pay interest on overdue accounts. This is wrong in law. In the instant circumstances there was no express written agreement between the parties to pay interest as it was not identified as a condition of the agreement when the agreement was struck. Nor is there any evidence tending to show that Ms.

Wollner impliedly agreed to pay interest based on the parties’ course of conduct. In the absence of an agreement, either express or implied, there is no obligation to pay interest on monies due and owing, other than statutorily mandated prejudgment interest. Authority for this proposition can be found in The Prince Albert Co-operative Association Limited v Paul Rybka, 2006 SKCA 136 , 289 Sask R 92 . If a creditor wishes to charge interest on unpaid accounts, it may of course contract to do so, but that contractual obligation should be spelled out in the agreement between the parties.

In the absence of an agreement, it is simply not open to a creditor to unilaterally charge interest at any rate it chooses. Therefore, I conclude that the actual amount that Advance Roofing Ltd. may claim, if entirely successful in this action, is the reduced sum of $8,607.20. The Parties to the Dispute [ 22 ] I have referred to the plaintiff as ‘it’, and not ‘he’. There is a reason for this. In the pleadings the plaintiff is identified as ‘Justin Fall operating as ‘Advanced Roofing Ltd.’ This characterization of the legal entity which has brought the action is a misnomer.

An individual may carry on business under a trade name, in which event, it is the individual and not the trade name who has the right to bring an action. A trade name is not a person. Comparatively speaking, a limited liability company such as Advanced Roofing Ltd., which is duly registered as a corporation, is a distinct legal entity and it is a different legal entity than the person who may have an ownership interest in that corporation. This begs the question: is the proper plaintiff and defendant by counterclaim Justin Fall, or is it the legal entity known as Advanced Roofing Ltd.?

Neither party seemed to think much of this issue. Since the defendant has not taken issue with the true characterization of the actual plaintiff in her defense or counterclaim, and because evidence was led to show that Justin Fall conducts his roofing business through the auspices of a corporation, I conclude that the true parties to both the claim and counterclaim are respectively, Advanced Roofing Ltd. and Nancy Wollner. Ms. Wollner’s Burden of Proof [ 23 ] For Ms.

Wollner to succeed on her counterclaim, founded both on the law of negligence and breach of contract she carries two distinct burdens of proof. [ 24 ] On the negligence issue, which is a claim for damages arising from her damaged ceiling and the cost of a video scope of her plumbing stack, she carries the burden of proof on a balance of probabilities to convince the Court that the plaintiff, in the course of the project, owed her a duty to take care to ensure that in carrying out its activities it would not expose her or her property to an unreasonable and foreseeable risk of loss or damage; that in the exercise of its duty, it failed to meet the standard of care required of a reasonable and prudent contractor; and, that damage or loss was caused by virtue of that failure.

[25] A court will sometimes require an expert’s opinion in order to identify the requisite standard of care to be employed in any givensituation. This is not, in my opinion, necessary in this case. The standard of care can be ascertained by measuring the activity of theworkman against that of the reasonable man of ordinary prudence. [26] Causation, which is the relationship between the alleged negligence and the ensuing real or potential loss, is not necessarily an exacting science. Linden and Feldthusen, in their text, Canadian Tort Law 10th Ed.

Lexis Nexis Canada Inc., 2015, at page 125-126, note: Fortunately, the courts generally have not been trapped into endless philosophical discourse on the concept of causation. Instead, theyhave adopted a commonsense approach to the problem. Mr. Justice Sopinka advocated this in Snell v Farrell when he declared thatcausation need not be proven with “scientific precision”. He explained that “Causation is an expression of the relationship that must befound to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out ofthe pocket of the former”.

Madame Justice Soutin had also reminded us that it is often not possible to do a “controlled experiment” todiscover the precise cause of an accident. [27] On the breach of contract issue, Ms. Wollner carries the burden of proof to convince the Court more likely than not thatAdvanced Roofing Ltd. breached an essential term of the contract; and that in consequence thereof, she suffered loss or damage.

Shemust then convince the Court that as a result of that breach she should be entitled to an identifiable quantum of damages sufficient to puther in the position she would have been in had the contract been properly performed. Weighing the Evidence [28] The evidence which this Court must consider is weighed by the Court in the context of the credibility of the parties and itsinternal consistency.

Credibility is gauged by the consistency of the evidence given in the context of its harmony with the preponderanceof the probabilities which a practical and informed person would readily recognize as reasonable in that place and under those conditions.[See, generally: Brethour v Law Society of British Columbia, [1950] BCJ No 110 (QL) (BC CA)]. Expert Evidence [29] At the commencement of this trial Mr. Fall indicated that it was his intention to give expert evidence on his own behalf because,having been in the industry for some years, he considered himself to be an expert roof installer.

He also indicated that, notwithstandinghis failure to file an expert report, he intended to call a plumbing expert to speak to the negligence action brought by Ms. Wollner -specifically, the issue of causation. Ms.

Wollner in turn intended to call her own expert to give evidence respecting the quality of thegoods and services that were provided. [30] I indicated to the parties at the commencement of trial that the purpose of an expert in a civil action, is, first and foremost, toassist a judge, in an unbiased and objective fashion, to understand technical subject matter that the Court considers useful to hear in orderto better understand the issues, and which is relevant to the subject matter of the case.

An expert who presents as partisan - favoring theinterests of one party over that of the other - is of little use to the Court because of the very real apprehension that their evidence may betainted by a lack of objectivity. Those experts are generally precluded from testifying. [31] I refused to accept Mr. Fall as an expert in his company’s own cause for this very reason.

Simply put, while he was free to givehis personal perspective in relation to the company’s workmanship, I was not convinced that he could act as an unbiased and objectiveassistant to the Court. [32] I also had concerns with each of Collin Schoffer and Mr. Folk. Collin Schoffer not only did the original investigation regardingthe plaintiff’s work, he offered to contract with Ms. Wollmer to do the repairs. One can easily apprehend the bias that might exist.

Acontractor who seeks to perform work and thereby gain profit from that work may very well tend, consciously or unconsciously, toportray the first contractor - who is a direct competitor in a small market - in a less than objective light. Mr. Folk suffers from some ofthe same concerns - proximity to one of the parties. After his testimony was given, Mr. Folk chose to stay for the remainder of the trialnotwithstanding that he was losing the opportunity to return to work, and as he sat in the body of the courtroom was seen to be mouthingadvice or direction to Mr. Fall when Mr. Fall was giving evidence.

He conceded that he and Mr. Fall had been friends for the better partof ten years, and he conceded that he was providing his services to his friend at no cost. [33] In the instant circumstance, each of the parties were self-represented and I am satisfied that they may not have understood thelegal niceties involved in presenting expert evidence. I am also aware that in small communities throughout Saskatchewan, the choice oftruly independent experts will be limited, and that the cost of retaining a truly independent expert may be out of proportion to the amountof money at risk in small claims proceedings.

The Small Claims Act, 2016, SS 2016, c S-50.12 [The Small Claims Act, 2016] has, in myview, anticipated these potential problems, and it affords a certain procedural latitude to the Court.

Section 32 allows a judge, if theyconsider evidence to be both credible and trustworthy, to admit as evidence, any oral or written report. Furthermore, a judge is free toconsider some, all, or none of this evidence - depending on the weight which a judge may attach to that evidence. Simply put, while eachof the parties’ experts may lack complete objectivity. I am alive to this issue and have dealt with the evidence accordingly. The Contract [34] Parties to a contract are always free to identify the terms of their agreement.

However, In the absence of an express agreement inrelation to either the warranties to be provided, or the manner in which the work is to be carried out, a contract to perform work carrieswith it an implied condition that the work shall be done in a good and workmanlike manner; that the workmen employed be possessed ofthe ordinary amount of skill possessed by those exercising the particular trade; and that the materials to be used will be reasonably fit fortheir intended purpose. [See: Mack v Stuike (1963), (SK KB), 43 DLR (2d), 763 (Sask QB)] [35] Whether work is defective or not is a question of fact in each case, and as noted by Scheibel J. in Vogel (Al) Construction Ltd. vForbes (1998), (SK KB), 174 Sask R 236 (Sask QB), the standard for good and workmanlike compliance is not

perfection. The services provided may be good and workmanlike despite minor deviations. The true test is whether the work performedis fit for its intended purpose. [36] Work that does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications, is not of a reasonable and workmanlike quality is not proper compliance with the contract, and thereby constitutes abreach of contract.

Whether work or materials supplied is defective or not is, in each case, a question of fact, depending on theconstruction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none.[See, generally: Goldsmith Canadian Building Contracts (Toronto: Carswell, 1988) at pp 5-11 through 5-12]. [37] If defective or incomplete work is found to exist, then, and as noted earlier, the party who provided the defective or incompletework is in breach of contract.

Where one party is found to be in breach, the person who is contractually affected by that breach is,pursuant to the general law of damages, entitled, in so far as an award of money can do, to be placed into the same situation that theywould have been in had the breach not occurred. [38] Conversely, if there is no breach, a contractor is entitled to be paid for the goods and services that it provided, in accordance withthe contracted price. [39] In Husky Oil Marketing Ltd. v Keller Construction Ltd. et al (1986), (SK KB), 53 Sask R 305 (Sask QB)Walker J, although dealing with a welding contract, took the opportunity to speak to the degree of skill that is required of a contractorgenerally.

At para 31 he noted: In the absence of a comprehensive building contract, it is an implied term of a contract that the contractor’s work will be done withproper care and skill.

In deciding what degree of skill is required the court will consider all the circumstances of the contract, includingthe degree of skill expressly or impliedly professed by the contractor. … a person holding himself out to the public as qualified to dowork requiring special skill, as does welding, holds out that the work he will do will be done completely and adequately accordingto the essential requirements of the case. [Emphasis added]. [40] At para 33 of his decision, Walker J. cited, with approval, Sansan Floor Company v Forst’s Limited, (BC CA).In that case the Court of Appeal confirmed the comments set forth in Duncan v Blundell (1820), 3 Stark 6, 171 ER 749 [Duncan]: Where a person is employed in a work of skill, the employer buys both his labour and his judgment; he ought not to undertake thework if he cannot succeed, and he should know whether it will or not; of course it is otherwise if the party employing him choose tosupersede the workman’s judgment by using his own. [Emphasis added]. [41] At para 34, Walker J. confirmed that: Furthermore, no description, however meticulous, will descend to every detail of building processes, so that it is a cardinal principle ofconstruction, it is submitted, that in the absence of an expressed contrary intention, an obligation to do described work imports anobligation to do all the necessary ancillary work or processes, whether described or not, which are needed to produce thedescribed work. [Emphasis added]. [42] In Banga v Sabiston 2019 SKPC 29, a case also dealing with a roofing contract, I suggested, at para 48, that this line ofauthorities established the following general principles: A party which contracts with a skilled professional for construction services is, in the absence of terms to contrary effect, entitled to relyon that skilled professional to perform the work in a manner that is complete and adequate to the task, and it is not open to that skilledprofessional to say that he did the work in a less than adequate manner because he was not given instruction or the materials to do itotherwise.

It is incumbent on that professional to advise the owner of the shortcomings in the materials provided. [43] The legal analysis that I have just referred to is necessary in light of Ms. Wollner’s concerns regarding the use of 1 ¼ inch nailsinstead of 1 ¾ inch nails, and her suggestion that the plaintiff failed to provide additional air vents. Her argument is that the plaintiff isnot in compliance with the Code, Division B

article 9.26.2.3 which reads: Nails … 2) Nails shall have sufficient length to penetrate through, or 12 mm into, roof sheathing. Nor is it in compliance with

article 9.19.1.2 Vent Requirements, which reads:

1. Except as provided in sentence (2) the unobstructed vent area shall not be less than 1/300 of the insulated ceiling area. 2. Where the roof slope is less than 1 in 6 or in roofs that are constructed with roof joints, the unobstructed vent area shall be not less than 1/150 of the insulated ceiling area. [ 44 ] The Code refers to the objectives of the Canadian Commission on Building and Fire Codes at page vi: The National Building Code (NBC) sets out the technical provisions of the design and construction of new buildings. It also applies to the alteration, change of use and demolition of existing buildings.

The NBC establishes requirements to address the following five objectives, which are fully described in Division A of the Code: Safety Health Accessibility for persons with disabilities Fire and structural protection of buildings Environment … Because the NBC is a model code its requirements can be considered as the minimum acceptable measures required to adequately achieve the above-listed objectives as recommended by the Canadian Commission on Building and Fire Codes. … [ 45 ] The Code is adopted by regulation under The Uniform Building and Accessibility Standards Act, SS 1983-84, c U-1.2 [ Act ] as amended.

In that Act section 2(1) defines a ‘constructor”: (e.1) “ constructor ” means a person who contracts with an owner or his authorized agent to undertake a building construction project and includes an owner who: (

i) contracts with more than one person for the work on a building construction project; or (ii) undertakes the work on a building construction project or any part of such a project; [ 46 ] Sections 7 and 8 of the Act speak to building standards. They read: Application of

Part 7

(1) Subject to subsections (2) and (3), the owner of each building in Saskatchewan shall ensure that the building is designed, constructed, erected, placed, altered, repaired, renovated, demolished, relocated, removed, used or occupied in accordance with the building standards.

(2) The building standards do not apply to:

(

a) a building on which construction was commenced or completed prior to the coming into force of this section, but the building standards do apply to an alteration, repair, renovation, demolition, relocation, removal or change of use or occupancy of such a building; (

b) a building on which construction was not commenced but for which a building permit was issued prior to the coming into force of this

section pursuant to a bylaw of the appropriate local authority, but the building standards do apply to an alteration, repair, renovation, demolition, relocation, removal or change of use or occupancy of such a building; (

c) a farm building; (

d) any building or class of buildings or to any materials, equipment, protection devices or appliances or class of materials, equipment, protection devices or appliances that are exempted from the application of this

Part in the regulations.

(3) Notwithstanding clause (2)(

c) but subject to sections 23.1 and 24.2: (

a) if a rural municipality passes a bylaw declaring that the building standards apply to buildings in all or a part of the rural municipality, the building standards apply to the buildings described in the bylaw; and (

b) if a city, town, village or resort village passes a bylaw declaring that the building standards apply to farm buildings in the municipality, the building standards apply to the farm buildings described in the bylaw. Regulations re building standards 8

(1) The Lieutenant Governor in Council may make regulations: (

a) prescribing standards for any materials, equipment, protection devices or appliances used or installed in the design, construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of any building; (

b) prescribing standards for any materials, equipment, protection devices or appliances that are to be used or installed in a building or class of buildings; (

c) governing standards for the use or installation of any materials, equipment, protection devices or appliances in a building or class of buildings; (

d) prohibiting the use or installation of any materials, equipment, protection devices or appliances in a building or class of buildings; (

e) classifying buildings according to their use or occupancy; (

f) governing standards for methods used in the construction or demolition of any building or any class of buildings with respect to public safety; (

g) governing the construction standards that are to be met with respect to any building or class of building; (

h) governing standards for the use of the property on which a building is located during the period of time that the construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal or change of occupancy of the building is taking place;

(

i) generally providing for standards for any other matter in connection with the design, construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of a building; (

j) prescribing and governing the duties of owners and their agents, contractors, employees, successors and assigns and the registered owners of lands on which buildings are situated in relation to the design, construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of buildings; (j.1) prescribing and governing duties to be carried out by local authorities in fulfilling their responsibilities pursuant to

section 4; (

k) respecting any other matter or thing that he considers necessary to carry out the provisions of this Part.

(2) For the purposes of subsection (1), the Lieutenant Governor in Council may make regulations: (

a) declaring that all or any part of a prescribed edition of the National Building Code of Canada, as amended from time to time or otherwise, is in force; (

b) declaring that all or part of any other code of standards respecting materials, equipment or appliances used or installed in the construction or demolition of a building, as amended from time to time or otherwise, is in force; (

c) amending, repealing or replacing any provision of a code declared to be in force pursuant to clause (

a) or (b). Additional building standards 8.1

(1) Subject to

section 23.1, a local authority may pass bylaws prescribing building standards in addition to the building standards contained in the regulations pursuant to

section 8 where the authority considers the bylaws necessary for the health, safety or welfare of persons.

(2) Repealed . 1993, c.18, s.9 .

(3) Repealed . 1993, c.18, s.9 . [ 47 ] The net effect of

section 2(e.1) and section 7(1) is to impose on both a person contracting to undertake a building construction contract (or in this case the plaintiff) and an owner (in this case Ms. Wollner) the positive obligation to ensure that a building is repaired in accordance with the building standards. [ 48 ] These building standards, as I have said, are set forth in the regulations made pursuant to the Act . The Uniform Building and Accessibility Standards Regulations , RRS c U-1.2 Reg 5 as amended reads in part: Codes adopted 3

(1) In this section, “work” means any construction, erection, placement, alteration, repair, renovation, demolition, relocation, removal, use, occupancy or change of occupancy of a building.

(2) Subject to subsections (4) to (7), The National Building Code of Canada, 2015, including the errata and revisions issued by the Canadian Commission on Building and Fire Codes from time to time and with the amendments set out in the Appendix, is declared in force except for:

(

a) subject to subsection (3), Clause d) of Sentence 3.1.2.5(2) of Division B; and (

b) subject to subsection (4),

Section 9.36 of Division B.

(3) Notwithstanding subsection (2), with respect to work: (

a) for which a permit is issued before the day on which an edition of The National Building Code of Canada is declared to be in force or any amendment to subsection (2) comes into force; and (

b) that is not completed on the day on which that edition is declared to be in force; the edition of The National Building Code of Canada that was in force on the day on which the permit was issued is deemed to be in force.

(4) For the purposes of these regulations: (

a) each of the subsequent editions of The National Building Code of Canada is deemed to be adopted on the date that is one year after the date of its being issued; and (

b) subject to the other provisions of these regulations, any previous edition of The National Building Code of Canada does not apply to any work for which a permit is issued on or after the date mentioned in clause (a). ( 5) No person shall fail to comply with the edition of The National Building Code of Canada that is in force at the time the permit for the work to be undertaken was issued. [Emphasis added]. (6) Clause d) of Sentence 3.1.2.5.(2) of Division B of The National Building Code of Canada, 2015 is declared to be in force on April 1, 2019.

(7) Subject to subsection (11),

Section 9.36 of Division B of The National Building Code of Canada, 2015 is declared to be in force on January 1, 2019.

(8) Subject to subsections (8.1), (9) and (11), The National Energy Code of Canada for Buildings, 2017, including the errata and revisions issued by the Canadian Commission on Building and Fire Codes from time to time, is declared to be in force on January 1, 2019.

(8.1) Notwithstanding subsection (8), the edition of The National Energy Code of Canada for Buildings that was in force on the day on which a permit was issued is deemed to be in force with respect to work: (

a) for which the permit is issued before the day on which an edition of The National Energy Code of Canada for Buildings is declared to be in force or any amendment to subsection (8) comes into force; and (

b) that is not completed on the day on which that edition is declared to be in force.

(9) No person who is required to comply with the Act and these regulations shall fail to comply with The National Energy Code of

Canada for Buildings that is in force at the time the permit for the work to be undertaken was issued.

(10) With respect to the editions of The National Building Code of Canada and The National Energy Code of Canada for Buildings that are adopted pursuant to this section, the minister shall cause information respecting the editions of the Code and the NECB that are in force, the periods for which they are in force and where those editions may be accessed: (

a) to be posted on the website of the ministry; and (

b) to be made public in any other manner that the minister considers appropriate.

(11) Notwithstanding any other provision of this section,

Section 9.36 of Division B of The National Building Code of Canada, 2015 and The National Energy Code of Canada for Buildings, 2017 do not apply to the alteration, repair, renovation, or relocation of a building to which building standards apply and for which construction began before January 1, 2019. No relief of obligations to comply with Code 4 An owner of a building or an owner’s contractor or employee is not relieved from the obligation to carry out any work that is within the scope of sections 7 and 10 of the Act in accordance with the Code, or in accordance with both the Code and the NECB, as the case may be, by reason only of: (

a) the granting of a permit; (

b) the review of drawings and specifications; (

c) the making of inspections; or (

d) the absence or omission of any of the things mentioned in clauses (

a) to (c). [Emphasis added]. [ 49 ] In

summary, the Code , establishes certain building standards. These standards are incorporated, by Saskatchewan law, into any building construction project between a contractor and an owner and no person shall fail to comply with them regardless of whether a permit was granted or not. [ 50 ] I am satisfied that compliance with these standards come within the obligation of a contractor to provide services in a good and workmanlike manner. Proper air ventilation is a health and safety issue for residents of a home. So is a firmly attached roof.

It ensures that it will not detach in windy conditions exposing others in the vicinity to potential harm, and of course, it provides structural protection and safety to the home and its occupants. Health, safety and structural protection are three of the essential objectives of the Code . I note that my conclusion - that compliance with the Code is imported into what may constitute the implied condition of good and workmanlike services - is in accordance with the Court of Appeal for Ontario decision in G . Ford Homes Ltd. v Draft Masonry (York) Co.

Ltd. 1983 CarswellOnt 732 (Ont CA) , and its conclusion as set forth in paras 17 and 18: [17] On the facts of this case there must of necessity, be an implied term that the staircase could be and would be installed so as to comply with the Ontario Building Code. There could be no business efficacy to the contract without such a term. It is no contract to have stairs installed that must, by requirements of the law, be taken out for failure to comply with the code. To sanction the installation of such a staircase in contravention of the code would be tantamount to sanctioning an illegal contract.

On the basis of the principle enunciated in the Moorcock case, supra, the term should be implied in the contract that the stairs would comply with the code. [18] Alternatively, or additionally a term should be implied that both the work and the materials will be reasonably fit for the purposes for which they were required. Such a term must be implied unless the circumstances of the contract are such as to exclude any such obligation: see Young & Marten, subpar. No such exclusion appears, from the circumstances of the contract in this case.

The work and materials supplied could not be reasonably fit for the purpose for which they were required unless they complied with the provisions of the Ontario Building Code.

[ 51 ] While I am not bound by law to follow the decisions of the Ontario Court of Appeal, they are, in law, persuasive.

Were I to conclude that compliance with the Code was unnecessary, this Court would be in the unenviable situation of advising a person who brings action in this Court alleging defective work, that if they hire a trained professional and rely on their expertise in the course of a building repair, then, notwithstanding that the expert did not comply with the Code , they would not only have to pay for that service, but then incur the cost of redoing all of the work to ensure that they themselves are not in violation of the Act .

In addition, if they failed to redo the work, then they may arguably expose themselves to a negligence action or a breach of contract action when, having full knowledge of the deficiency, they fail to advise a subsequent purchaser of this defect. Issues [ 52 ] The Court is called upon to address the following issues: 1. Did one of the workmen employed by the plaintiff drop a plastic bottle into Ms. Wollner’s plumbing stack? If so, did this cause Ms. Wollner’s toilet to overflow and cause damage to her main floor ceiling? If so, was this act negligent, and if so, what is the proper measure of Ms.

Wollner’s damages? Did Ms. Wollner negligently contribute to her loss? 2. Did the plaintiff breach the contract? Specifically, was it obligated to attend to the kitchen portion of the roof? Did it crack the plastic plumbing stack cover? Did it fail to properly clean the eavestroughing of debris? Did it fail to adhere to Code standards by using nails that were of insufficient length to properly penetrate though the roof sheathing by 12 mm and did it fail to ensure that the roof was supplied with an adequate number of vents? 3.

If the plaintiff did breach its contract is it entitled to recover payment of its invoice? If it is in breach of contract what is the measure of damages that Ms. Wollner is entitled to? 4. Are either of the parties entitled to costs and if so, in what amount? Evidence Findings of Fact and Legal Analysis Issue 1 - The Negligence Action [ 53 ] I intend to deal with the negligence action first. Ms. Wollner maintains that while the roof was being replaced, she had attempted to flush her upstairs toilet, and that, rather then flushing, the water level rose.

She then called up to one of the workmen on the project inquiring as to what if anything had happened that may have affected her toilet’s performance. She says that she was advised that a bottle had fallen into the open sewer stack, but that, because the workman could see daylight around the bottle, it would be okay for her to try flushing again. She acted on that representation, but when she flushed again, the toilet overflowed and caused water damage to her main floor ceiling. [ 54 ] Ms.

Wollner invites the court to conclude, more likely than not, that the plastic water bottle had jammed into the sewer stack at first instance or while the workmen were attempting to pull it back out of the stack with a stick and an attached nail. She argues that because the sewer stack operates to vent air out of the system, once the bottle was firmly in place, air would not be able to vent out of the top of the stack.

This closed system would create a pressure barrier, and any attempt to flush the toilet would not succeed because the water from the toilet would essentially press up against the closeted air pressure in the system.

With no place to go the water would be forced out of her toilet bowl. [ 55 ] She invites this court to conclude that a workman on a roofing project should be presumed to know that a potential problem can arise if something drops into the sewer stack, and that any workman exercising reasonable diligence should take care to ensure that his personal items are not so close to an open sewer stack that they may fall in.

She invites me to conclude that a workman who is aware of this problem compounds this original negligence if he thereafter opines that this existing problem is, in fact, no problem at all. [ 56 ] I agree with her legal analysis. I am satisfied that a reasonable man of ordinary intelligence would know that a problem can arise if an object, like a plastic bottle, is deposited in a sewer stack. It is likely for this reason that stacks are covered by a topper. I am further satisfied that a roofer would be even more alive to this potential than someone who does not work on roofs for a living.

I am satisfied, therefore, that care should have been taken to ensure that this did not happen, but it did. The workman in question did not attend to give evidence at trial, and in the absence of any explanation as to how this occurred, there is nothing before me to suggest that this incident occurred in a manner that was out of his control. I am satisfied that in order to found a cause of action in negligence it is not necessary for that workman to have understood the precise nature of the damage that might occur if these events occurred.

Put another way, one need not foresee the precise concatenation of events that might arise following a breach of a standard of care nor the precise type of harm that may arise. One need only know that some loss is likely to occur. In the instant circumstances, because Ms. Wollner was advised that it was okay to flush again, I am satisfied that this particular workman likely foresaw the potential problem that might occur and that in offering a further opinion that it was okay to flush the toilet again, he was acting in a less than careful and prudent manner. [ 57 ] Mr.

Fall acknowledges that a bottle went down the stack, but argues that it was a smaller pop bottle, and that it did not trap the air inside the system, because there was room between the captured bottle and the siding of the sewer pipe. Therefore, he argues there would have been no barrier preventing air from escaping. Notwithstanding the proximity in time and circumstance, he argues that, more likely than not, there was something else in Ms. Wollner’s sewer system that likely caused a clog. [ 58 ] Mr. Fall has not produced the pop bottle that he alleges had fallen into the stack. By comparison, Ms.

Wollner had the foresight to take a picture of what she argues was the bottle in question. It was located in the trash bin that the plaintiff was using on sight. It appears to be the right size to cause a complete barrier in the stack. In addition, it has what appears to be orange coloured rusty residue on the exterior of the bottle which in my view is consistent with being squeezed up against an old cast iron pipe casing.

Significantly, it has a nail protruding from the bottom of the bottle, which is consistent with the evidence presented in court, which was that a worker had been trying to dislodge the bottle by attaching a nail to a stick in order to grab hold of the bottle and pull it up. In my view, this is

compelling evidence. [ 59 ] Mr. Fall has suggested however that this is the kind of bottle that he would use to remove debris from the eavestroughing, and that in fact this bottle was used for that purpose. Really? How would a person collect eavestrough debris with a plastic bottle which did not have its bottom cut out? Why in the world would someone choose to do this with a bottle that had a nail inserted into it? Where the evidence of Ms. Woolner and Mr. Fall conflict on this point, I prefer the evidence of Ms. Wollner.

I am satisfied, more likely than not, that the bottle in the trash bin was the culprit. [ 60 ] That stated, Mr. Folk has opined that the cause and effect scenario described by Ms. Wollner has no scientific basis. First, he argues that if in fact the bottle had been truly stuck such that no air could get past, then in any event, as soon as the base of the bottle was penetrated by the nail, sufficient air would be released to allow the sewer pipe to properly vent and allow the water from the toilet to flow.

However, the person who had punctured the bottle did not testify and therefore I do not know whether the actual puncture took place before or after Ms. Wollner flushed her toilet a second time. Even if it had happened before the second flush, I cannot accept Mr. Folk’s conclusion. The evidence before the court is that the nail remained inserted into the bottle. As such when the bottle was punctured, it would have immediately been sealed by the inserted nail and the sewer venting system would still remain a closed air system. [ 61 ] I also understood Mr.

Folk’s evidence to be that in any event, there would, more likely than not, be sufficient drains throughout the house that even if the bottle had caused a closed air system, the flushing of the toilet would have created sufficient force to push the air out through one or more of these drains, reopening the closed system, thereby allowing the water to escape through the sewer piping. I do not have sufficient evidence before me to come to this conclusion. I do not know the capacity of the toilet’s water container and I do not know how many drains are located through the house.

I do believe that every drain would more likely than not contain a trap which holds water to prevent sewer gas from percolating up through any given drain. Any homeowner who has had a trap go dry quickly recognizes the foul smell of escaping sewer gasses. Without having this evidence before me, I cannot conclude that the toilet water would have sufficient pressure to simultaneously force all of the trapped water through all of the drains in order to cause a venting action.

I say this because, it seems to me, as we are all taught in high school, when air is presented into a closed system, that air pressure presses equally in every direction. In order for air to escape through one drain trap, there must be sufficient force to allow the air to move the water equally in all of the traps. It seems to me that we prove this when we blow up air bags. The air pressure extends to all areas of the bag equally. Blow into paper bag and it expands in all directions. The bag does not fill up on the left side while the right side remains empty.

In the absence of any meaningful analysis of these concerns, I cannot conclude, as Mr. Folk would have me believe, that in a closed air system the pressure would extend first to the closest drain and blow through that trap before affecting all other traps in some kind of descending order. In the absence of some evidence tending to show that the accumulated water in each of the traps in each of the drains created less pressure, cumulatively, than the water moving out of the toilet, I cannot accept the opinion offered by Mr. Folk.

It is, in my opinion, predicated on an insufficient evidentiary foundation. [ 62 ] I note that each of Mr. Fall and Mr. Folk have invited the court to conclude that the overflow was more likely than not caused by some other clog in the system. They have led no evidence tending to show that this was the likely cause, and I think this bald assertion has been rebutted by Ms. Wollner. First, immediately after the bottle was pulled out, the toilet no longer had any problems. Second, acting on this potentiality, Ms.

Wollner had her sewer video-scoped, first to ensure that the sewer stack had been damaged by the actions taken by the plaintiff’s workmen, and second, to see if there were anything else clogging her sewer. There was nothing of consequence. [ 63 ] The simple timing of the events in question lead me to accept that causation has been made out. Neither the expert evidence of Mr. Folk, nor the speculation of Mr. Fall convince me, more likely than not, that the cause of the overflow arose for any other reason than that suggested by Ms. Wollner.

In conclusion, I am satisfied that one of the plaintiff’s workmen negligently caused the Gatorade bottle (that was later retrieved by Ms. Wollner) to get stuck in the sewer stack causing a closed air system. This in turn blocked the system and created an environment in which the toilet overflowed when it was flushed, because it could not penetrate through the air pressure in this closed air system. I conclude that Ms. Wollner had acted reasonably and to her detriment when she relied on the workman’s advice that she could try to flush again [ 64 ] I am further satisfied that Ms.

Wollner acted reasonably, when, in an effort to mitigate the potential risk that the workman may have caused damage to her aging cast iron sewer stack, she incurred the cost of a video scan to assess that potential problem. As she has proven successful in her negligence claim I award her the sum of $222.00 for the cost of the inspection, and the further sum of $999.00 ($900.00 plus GST and PST) to repair the damage caused by the overflow. Issue 2 – Breach of Contract The Damaged Sewer Stack Cap [ 65 ] Mr.

Schoffer’s inspection of the roof identified two cracks on the plastic sewer stack cap that had been installed. The photographic evidence tendered at trial shows cracking at two locations where nails had been hammered in. Six nails are visible. Four of them appear to be properly applied. Two of them show cracking around the nails, more so in one area than in another. Mr. Schoffer has opined that because of the freeze and thaw cycle in Saskatchewan, these cracks will ultimately continue to expand, necessitating a new cap. Mr.

Fall has led no evidence to suggest otherwise, nor has he tendered any evidence suggesting that the cap can be remediated rather than replaced. In my view the manner by which the cap was installed led to it being cracked. In my view this is not good workmanship, and over time, the cap will continue to crack, affecting its utility. It is not, therefore, reasonably fit for its intended purpose. I find that the cost of correcting this deficiency is $310.00. Removal of Debris from the Eave Troughing [ 66 ] Ms.

Wollner has alleged that the plaintiff had failed to remove, or sufficiently remove, the accumulated detritus (shingle pieces, old portions of cedar shake and grit) from her eavestrough after the job was done. In consequence, she suffered ice damming along one side of her home ostensibly because the water running from the roof to her gutters could not properly flow to the downspout. She presented photographic evidence of the extent of that ice damming in the winter of 2018. I have no evidence as to whether the winter

snow fall or rainfall in 2018 was significant or not, nor do I have evidence of the frequency of the freeze and thaw cycle that winter, or its severity. The photographic evidence tendered, which shows some debris in the eavestrough appears to cover a rather nominal one foot length. There was no evidence to show that this amount of debris was consistent around the entirety of the eavestroughing, and this would have been a relatively easy thing for Mr. Schoffer to look to when he did his inspection. Ice damming is a common occurrence in Saskatchewan.

Walk by any steeply sloped roofed home in Saskatchewan in winter and you will see its effects - the accumulation of icicles on the perimeter of those troughs. In my view the relatively small amount of identifiable debris in the photograph, as limited as that photograph is, does not persuade me, more likely than not, that the troughs had not been otherwise reasonably clean. As noted earlier, perfection in performance is not the test, and there is simply insufficient evidence before me to conclude that this nominal amount of debris was the cause of the ice damming.

I reject her claim seeking the sum of $407.40 to have the eavestroughs re-cleaned. The Failure to Attend to the Kitchen Overhang Portion of The Roof [ 67 ] The evidence before the court is that Mr. Fall attended at the premises prior to presenting his estimate. As such he would have noted that a portion of the roof (the kitchen overhang) is flat. The evidence is clear that none of the advertising materials used by the plaintiff refer to the fact that this roofing company is ill-equipped or unable, by lack of expertise, to repair flat roofs. The evidence is abundantly clear that Mr. Fall never alerted Ms.

Wollner to the fact that the plaintiff would not attend to the flat roof overhang. In my view, the estimate that was provided to Ms. Wollner reasonably purports to offer what a layman would assume to be a comprehensive roofing arrangement. Removal and application of shingles, disposal of debris, underlayment, ice damning membrane, re-sealing of chimneys, installation of vents plumbing flashing and drip edges. I am of the view that to a lay person, this would mean that her entire roof would be attended to and not simply those portions of the roof that the plaintiff felt comfortable dealing with.

As I have noted earlier, the law maintains that when a person contracts with a contractor who professes expertise, that contractor holds out that the work will be done completely and adequately according to the essential requirements of the contract. As noted in the Duncan decision, the employer buys both the contractor’s labour and his judgment and the contractor ought not to undertake the work if he cannot succeed, and he should know whether it will or not.

The argument, that the defendant should know that the plaintiff’s choice of shingles would not lend itself to completion of the job, is less than compelling. [ 68 ] I have no hesitation in concluding that what Ms. Wollner sought was the re-roofing of her entire roof and not just a part of it. In my view, any reasonable person, unskilled in the application of roofs would come to this conclusion. If Mr. Fall felt that he would not be doing the entire roof, or that his quoted materials and expertise were incompatible with that task, it would be incumbent on him to either advise Ms.

Wollner of those limitations and renegotiate the contract, or alternatively, retain a third party to complete this additional task. To repeat, she was buying his expertise as well as his labour. Since he was free to choose the type of shingle to be used, it seems to me that he should have also provided those services and those materials which would allow him to undertake the entirety of the work reasonably contemplated under the agreement.

This, in order to do what the law prescribes - all the necessary ancillary work or processes, whether described or not, which were necessary to do the described work’ and to use materials suitable to achieve that end. [ 69 ] The plaintiff submission - that the choice of laminate shingles precludes flat roof repair and that it ought not to have to cover the flat roof because it lacks expertise in this area – is akin to a tree pruner who walks into a backyard; identifies the five twenty five foot tall trees that require pruning and then contracts to prune them by stating that he will be using five foot long shears.

When he is finished, the top ten feet of the trees are not pruned. Is it reasonable for him to then assert that this was not part of the contract because a six foot tall man using five foot shears cannot reach beyond eleven feet and that the owner should have known that when it agreed that the contractor could use five foot shears? Is it fair for him to assert that the extent of the work is further qualified by the fact that, while negotiating the contract, and even though the contractor did not mention it, neither he, nor his workers, had the requisite skill set to use a ladder? I think not. [ 70 ] Ms.

Wollner has identified a cost of $400.00 to have this portion of her house re-roofed. I find that this is a reasonable cost to be incurred in having the work done. National Building Code Standards [ 71 ] The last two matters deal with the failure to install additional venting and the alleged use of improperly sized nails when securing the shingles. Mr.

Fall’s evidence in relation to the Code is that he is familiar with the Code generally, but that he is aware of a number of contractors who do not comply with it; that he has had no previous complaints from other owners when he has deviated from it; that if he were obligated to comply with it, when other contractors do not, he would not be able to competitively bid on roofing contracts; and, in any event the City of Moose Jaw has not passed a bylaw compelling roofers to comply with the Code . I do not find these arguments persuasive. First, I think that Mr.

Fall is mistaken when he asserts that the plaintiff need not follow the Code if the City of Moose Jaw does not expressly direct it to do so. The Act is provincial legislation and is binding on the City. While the Act incorporates provisions which allow a City to make bylaws to extend Code standards to a broader pool of persons if the City so chooses, it does not allow the city to abrogate compliance. Second, the fact that the plaintiff has not had complaints before (and there is some evidence before the court to suggest that this is not entirely correct), this is hardly an answer.

Perhaps his previous customers are simply unaware that their roofs are not Code compliant. Perhaps they are hesitant to incur the time and energy and frustration of litigation. Regardless of the reasons, it is not open to a contractor to argue that it need not comply with its obligations under the law because it has not yet been caught out. [ 72 ] Nor do I find the plaintiff’s lack of competitiveness argument compelling. First, the Court has heard evidence that the difference in the cost of larger nails is as much as $80.00 per box (which can do an entire roof), or as little, as Mr. Fall suggests, as $5.00.

I would be surprised if the plaintiff would lose a competitive edge if he had, instead of quoting $8,769.00 for this roof, he quoted $8,774.00. Regardless, the plaintiff has chosen to engage in the roofing profession. If it cannot remain competitive without cutting corners, it may be in the wrong profession. It is a rare circumstance that this Court has ever sanctioned poor workmanship because everyone else is doing the work equally poorly.

In ascertaining whether or not work is good and workmanlike the Court may look to prevailing building standards in the community, but the test is still dependent on whether or not the work being performed is, in fact, good and workmanlike. [ 73 ] Before providing its estimate the plaintiff had the opportunity to inspect the home. Having done so, it included, as part of the services to be provided, ‘the installation of vents … where applicable’. Mr. Fall conceded that the Code would require at least one more vent. (Mr. Schoffer suggested two more vents, but eventually agreed that two would be the minimum). Mr.

Fall has asserted however,

that the plaintiff was not required to add an additional exhaust vent because the roof, as designed, did not have incorporated into it, more than one intake vent and as such, the addition of an additional exhaust vent would be impractical in the sense that it would not serve any purpose if the roof was not intaking sufficient air to require the additional external vent. He did not speak to the cost of creating an additional intake vent to make the roof Code compliant; nor did Ms. Wollner’s expert, Mr. Schoffer. Mr.

Fall has argued that the reference to ‘install new vents … where applicable’ should be read as meaning only that he would be required to install exhaust vents and not intake vents. In my respectful view, this

interpretation is unduly restrictive. The estimate does not say ‘new external vents … where applicable’, it uses ‘new vents’ without qualification as the type of vent required … be they intake or exhaust.

Even if I could find the estimate to be ambiguous, and I do not, the plaintiff drafted the estimate, and the law is reasonably clear that if an ambiguity exists in relation to a contractual term, that ambiguity is interpreted in a manner that is most beneficial to the party who did not draft the agreement - especially so when the party drafting the agreement has more expertise in the subject matter of the agreement - as is the case here. The plaintiff could have, if it had wanted, clarified and limited what the phrase ‘new vents’ was to have meant. It did not and I am satisfied that Ms.

Wollner, as any other reasonable person, would have understood the estimate to include the installation of new vents, in ordert to give effect to a Code compliant roof. Even if the contract could not be given the reasonable

interpretation that I suggest, she would still be entitled to an additional exhaust vent and then leave it to another day to incur the cost of adding an additional intake vent. Ms. Wollner has adduced evidence showing that the cost of adding two exhaust vents would equate to the sum of $180.00 plus tax. As I am satisfied that in order to bring the roof up to Code standards, one more vent should have been provided, I find that the cost of correcting this deficiency would be $100.00 inclusive of tax. [ 74 ] Ms.

Wollner’s final concern relates to the plaintiff’s decision to use 1 ¼ inch (31.75 mm) nails rather than 1 ¾ inch (44.45 mm) nails. I note in passing that the Code does not require roofers to use 1 ¾ inch nails. What it demands, is that the nails being used must be of sufficient length to penetrate through, or into, the roof sheathing by at least 12 mm. Mr. Schoffer’s evidence is that in order to have this happen, when, in the instant circumstances, a nail has to penetrate through the laminate shingles and the existing cedar shakes, 1 ¼ inch nails fail to penetrate to the depth required under the Code .

In support of his assertion that the nails used by the plaintiff were inadequate to the task, he offered what I consider to be compelling evidence. When he first attended to inspect the roof he sought to remove the shingles around the plumbing stack. He did not require the use of a pry bar, but rather, he removed them easily by hand. This is suggestive of the fact that they were not driven the requisite 12 mm into the roof sheathing. (I draw the reasonable inference that the deeper they are nailed, the more structurally secure the roof is).

In addition, he provided an exhibit showing that whereas 1 ¾ inch nails can penetrate through two layers of shingle and the underlying cedar shakes to a minimum of 12mm into the roof sheathing, 1 1/4 inch nails could not. His exhibit employed the use of Grade 2 cedar shakes. He asserts that these are similar to the ones used on Ms. Wollner’s home. While Mr. Fall challenged that assertion in cross-examination, he did not, when he took the stand, say that they were not Grade 2 shakes. Rather, he asserted that her cedar shakes would have worn, over time, and become less thick. [ 75 ] Mr.

Fall tendered a similar exhibit. His exhibit shows a 1 ¼ inch nail piercing one layer of shingle and what he says are actual examples of the cedar shakes that he had retained following the completion of the job. Those shakes are extraordinarily thin. The first shake, at the point of nailing, is a nominal 5 millimeters thick and the second is an almost wafer thin 1-2 millimeters. The exhibit shows that if a nail was driven through the thicker portions of the cedar shakes used; and if they had to pierce two layers of laminate shingle; then they would not be able to penetrate 12 mm into a roof sheathing.

On that point, I note that the exhibit tendered by Mr. Fall shows the nail being driven into a single shingle but not an overlapping shingle. Why? Each of the parties filed a copy of the shingle manufacturer applicator’s manual and the manuals show that as shingles are nailed down, the next layer of shingle overlaps the first shingle and is nailed down such that it penetrates the top shingle, through the bottom shingle, then into the roof sheathing (or in this case, the cedar shake and then the roof sheathing). Mr. Schoffer’s exhibit reflects this process but Mr.

Fall’s does not, and of course, by not doing so, and by using extraordinarily thin cedar shakes it purports to conform. I say extra-ordinarily thin cedar shakes for two reasons. First, they are much thinner than the ones used by Mr. Schoffer, and second, their thickness is not consistent with the photographs (Exhibits D-2 and D-5) introduced at trial of the other cedar shakes which had been discarded in the building process. Those discarded cedar shakes appear for the most part, to be much thicker than the ones used by Mr. Fall in his exhibit. For these reasons, I am satisfied that, more likely than not Mr.

Schoffer’s exhibit is more reflective of the state of affairs existing on Ms. Wollner’s roof. [ 76 ] For these reasons I am satisfied that the plaintiff failed to adhere to the nailing requirements set forth in the Code and that in consequence, Ms. Wollner has a shingled roof that is not as structurally sound as it should be, and that the manner of securing the shingles is less than good and workmanlike. I am satisfied that the inadequately sized nails that were used are not reasonably fit for their intended purpose.

As a result, the plaintiff is in breach of the implied term of the contract that the services would be provided in a good and workmanlike manner and that the goods used would be reasonably fit for their intended purpose. [ 77 ] Ms. Wollner has been quoted the price of $8,880.00 to remove the existing shingles and redo the roof. She is entitled to be put into the same position that she would have been in had the contract been complied with. I find the cost of correcting this deficiency to be $8,880.00. [ 78 ] In total I have determined that the plaintiff negligently caused damaged to Ms.

Wollner’s home, and that there is merit to Ms. Wollner’s counterclaim for breach of the implied condition that the project be completed in a good and workmanlike manner and the materials that are used be reasonably fit for their intended purpose. The plaintiff’s claim, setting aside the interest portion, which I have found is not recoverable, equates to the sum of $8,607.20. Ms. Wollner has been successful in her counterclaim equal to the sum of $10,911.00. After set-off, Ms. Wollner is granted judgment against the plaintiff, Advanced Roofing Ltd. in the sum of $2,303.80. As Ms.

Wollner has not yet expended these sums, no prejudgment interest is awarded. [ 79 ] Ms. Wollner has asked for her costs. This would include her out of pocket expenses and general costs as identified in

Section 36 of The Small Claims Act, 2016 and its associated Regulations. Ms. Wollner is directed to file with this Court, with proof of service on the plaintiff, an affidavit of disbursements identifying her out of pocket expenses, and her position regarding the quantum of general costs that she seeks, on or before 4 p.m., November 1, 2019. If the plaintiff

objects to the quantum being sought, he is directed to file, with proof of service on Ms. Wollner, the nature of his objection and reasons therefore, on or before 4 pm November 8, 2019. The Court will consider the positions of each party, and by addendum to this judgment, make its costs award. ____________________ P. Demong, J.