Joan Stoll - v. -, 2010 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 165 Date: December 01, 2010 File: SC#352 of 2009 Location: Saskatoon _____________________________________________________________________________ Between: Joan Stoll - and - Franklin Homes Inc. Self For the Plaintiff Ms. D. Engebretson and Mr. F. Sneddon For the Defendant _____________________________________________________________________________ JUDGMENT Q.D.

AGNEW , J _____________________________________________________________________________ [ 1 ] In 2007, the Plaintiff wished to have some renovations performed to a house which she owned and was renting out. She contracted with the Defendant to perform such work. Subsequently, issues arose between the parties, the contract was not completed and Ms. Stoll had the work which had been performed by the Defendant to that date redone by someone else. She now sues for damages, claiming that the work originally performed by the Defendant was not properly done.

She also claims for return of a $1,000.00 deposit made on a separate contract for other work, none of which was ever performed by the Defendant.

[ 2 ] The Defendant counterclaims for the unpaid balance on both contracts. Background [ 3 ] The parties first came into contact in the summer of 2007. At that time, the Plaintiff met with Frank Sneddon of the Defendant company to discuss certain renovations to her rental property in Saskatoon. The house was described in the evidence as a “wartime house”, and the parties agreed that amongst other things this meant that the line of the roof did not extend beyond the walls. The Plaintiff wished to add insulation to the outside of the walls of the house.

This would mean that the top of those walls would not be covered by the roof, and accordingly she wished to extend the roof in all four directions. After discussing the matter with Mr. Sneddon, she entered into a contract with Franklin Homes dated August 28, 2007 to extend the roof, replace the shingles, and install aluminum soffit and fascia, ice shield, drip caps and eavestroughing. According to the contract, the work was to be done as soon as possible, and completed by October 15, 2007. [ 4 ] It is common ground that the work was not completed in a timely fashion. Each party blames the other for this.

Ultimately, after a number of difficulties back and forth, the Plaintiff in April, 2008 told the Defendant to remove its workmen from the site. According to the Plaintiff, she did this simply to allow herself some time to calm down in order to discuss the matter rationally with the Defendant. She did not communicate this intention to the Defendant. The Defendant, in my view not unreasonably, took the position that its involvement in the project had been terminated.

No further work was ever done by the Defendant on the house. [ 5 ] The Defendant takes the position that the Plaintiff breached the contract by refusing to allow the Defendant’s workers access to the job site. The Defendant therefore believes that it is entitled to the full amount of both contracts, namely $15,400.00, less the amounts paid by the Plaintiff, namely $6,000.00. [ 6 ] The Plaintiff, on the other hand, is of the view that she did not intend to terminate the contract, but even if she did so, she was entitled to do so and is entitled to damages from the Defendant for fixing the poor work which they did.

The work [ 7 ] The extension to the roof took the form of a wooden framework attached to each side of the roof to extend it outwards. Estimates of the width vary, with some figures being in the range of two feet; the contract, on the other hand, refers to the extensions being approximately 12 to 16 inches. The extensions themselves were referred to in the evidence as “ladders”, “gables”, and other terms.

In essence, they constituted a framework of two long parallel wooden members connected perpendicularly by a series of short members, the entire piece looking somewhat like a ladder: hence the reference in the evidence to “ladders”. Each structure was attached to a part of the roof line, such that a connected series of these ladders ran all the way around the house at the outside edges of the existing roof. A strip of board, either plywood or similar material, was then fastened onto the ladders, and the entire roof then re-shingled.

There was some issue in the evidence as to how the ladders were originally to be supported. The Plaintiff’s understanding appears to have been that no support from below was to be done, but rather that the ladders were to be tied into the existing roof. Ultimately, the Defendant’s subcontractor said that the ladders should be braced from below by way of “knee braces”, to which the Plaintiff ultimately agreed. No knee braces were ever installed. [ 8 ] By April, 2008, the ladders had been attached to the roof although without knee braces or any other support.

The roof had been completely re-shingled but no fascia or soffit installed. No eavestroughing, ice shield or drip cap had been installed. The Plaintiff was distrustful of the quality of the work being performed, and was dissatisfied with the responses she was getting from Mr. Sneddon. For a variety of reasons, she wished to be informed in advance of when the Defendant was going to be working on the house, and wished to be able to approve or otherwise of this timing. When in April she found that she had not been given notice that the Defendant was

going to be working on the house, she told the Defendant to remove its workers from the site. The Defendant did so, and considered both contracts to be at an end. At this stage, with respect to the second contract, the Defendant had not actually taken any steps other than ordering some materials. Those materials were apparently then returned, albeit on payment of a re-stocking charge. The amount of that re-stocking charge was never disclosed to me in the evidence. [ 9 ] The Plaintiff called Curtis Tweet as a witness. I accepted Mr.

Tweet as an expert in the area of roofing based on his 19 years of experience in that field, and allowed him to provide opinion evidence with respect to proper or common roofing techniques and practices. Mr. Tweet was a very careful witness, and I was impressed by his testimony. He took care to distinguish between what he had personally observed, what he could observe from photographs presented to him, and what he did not know. He was careful to indicate where an answer involved speculation on his part. I found his evidence very compelling.

He was of the opinion that the method used by the Defendant to tie the ladders to the roof of the house was inadequate and faulty, resulting in the ladders sagging and pulling away from the building. Various other problems were also identified by him, including gaps left and shingles nailed incorrectly. Certain of the photographs submitted by the Plaintiff appear to bear out his observations. [ 10 ] Somewhat to my surprise, Mr. Tweet was the only witness with any knowledge of roofing or of the work done on the Plaintiff’s house.

The only other witness for the Plaintiff was the Plaintiff herself, who does not have any knowledge of roofing. The Defendant called two witnesses, Donna Engebretson and Frank Sneddon. Ms. Engebretson handled the office side of the Defendant’s business, and disclaimed any knowledge of roofing practices. Mr. Sneddon met with customers, provided quotes and supervised the work. The Defendant does not employ people to fulfill its contracts; rather, it subcontracts out all of the work which it contracts with customers to perform. [ 11 ] Mr.

Sneddon was adamant in his testimony that he was not a roofer, and expressly stated on the witness stand that he is not an expert in the field of roofing. According to Mr. Sneddon, his task for any of the Defendant’s projects amounted to driving by the job sites daily and talking to “the guys”. He was adamant that he knew nothing about the roof at the Plaintiff’s house, and that he never so much as went up the ladder to look at the work at any point in the eight months between when the contract was signed and the last day of work by the Defendant’s subcontractor.

He stated very firmly that he has no experience or education in building whatsoever. When asked about whether or not the work conformed to the National Building Code he stated, “I don’t go by the National Building Code.” When asked about certain sections of the National Building Code, he stated that he had never seen the Code before those sections were presented to him on the witness stand. He was asked whether or not the roofing subcontractor he used on the Plaintiff’s house complied with the National Building Code, to which he responded that he did not. Mr.

Sneddon disclaimed all knowledge of roofing, despite testifying that he provided quotes for such work on behalf of the Defendant, and purported to oversee on behalf of the Defendant the work done by subcontractors to fulfil the Defendant’s contracts, including roofing contracts. [ 12 ] Mr. Sneddon testified that with respect to the Plaintiff’s roof, he did not know how his subcontractor decided to make the ladders, how he installed them or indeed anything else having to do with this project.

Other than the fact that he has known this subcontractor for about five years and that the subcontractor had worked for his (that is, the subcontractor’

s) father doing roofing, Mr. Sneddon had no information as to the subcontractor’s expertise or abilities. Nonetheless, he considered the subcontractor’s work to be “good”. [ 13 ] In light of Mr. Sneddon’s own evidence regarding his lack of knowledge of roofing generally and the work on the Plaintiff’s roof specifically, I am unable to accept his testimony where it conflicts with that of Mr. Tweet. [ 14 ] Mr. Tweet, between a one page written report and his oral testimony, indicated that the ladders were incorrectly built and installed, and were all pulling away from the house.

There were excessive gaps in the sheeting, no drip edge, ice or water shield where required, incorrect nailing of the shingles and “extremely poor workmanship” throughout. In addition, the evidence indicates that in at least one place, the shingles were installed directly over a sizeable hole; that is, there was no supporting material whatsoever beneath the shingles. I accept Mr. Tweet’s testimony with respect to all of these matters. [ 15 ] I should note that Mr.

Sneddon claimed in his testimony that all of these problems would have been fixed had the Plaintiff not demanded that his subcontractor leave the work site in April. I do not accept this contention. Certain of these problems, such as shingling over a hole, or not nailing down shingles properly, appear from the evidence to be errors in the original workmanship, not matters which were awaiting completion. Similarly, the fact that the knee braces had not been installed to support the ladders by April seems very late - a conclusion supported by the fact that the ladders were pulling away from the roof.

[ 16 ] Based on all of the evidence, I find that the work that was performed by the subcontractor for the Defendant, for whose work the Defendant is of course responsible, was improperly and inadequately done. [ 17 ] The Defendant did not install the aluminum soffit and fascia by the time its work on the building was terminated, in April. Termination of the contract [ 18 ] I note that the evidence from the Defendant was that a roofing project should typically be completed by the Defendant within a week. Even taking into account that this project was more extensive than some, the delay was grossly excessive.

While the Defendant alleges that the Plaintiff was responsible for some of the delay, and I accept that there is some validity to that contention, nonetheless there are two reasons this does not absolve the Defendant. Firstly, the allegations the Defendant made as to the delays caused by the Plaintiff or otherwise by causes not within the Defendant’s control explain only a small portion of the excessive length of time this project took. Secondly, the Defendant’s assertions regarding the delays were largely comprised of hearsay, being comments that Mr. Sneddon had been told by his subcontractor.

That evidence is clearly inadmissible. No evidence was provided to me as to why the subcontractor was not called as a witness. [ 19 ] I find that the Plaintiff was entitled to terminate the contract, due to both the amount of time it was taking to complete the same and the workmanship with which the contract was being performed. Damages [ 20 ] I find that repair of the problems created by the Defendant, and completion of the original contract, required all of the services performed by Mr.

Tweet. [ 21 ] The Plaintiff paid Tweet’s Roofing $4,051.95 to correct the Defendant’s work, and a further $3,118.50 to complete the balance of the first contract, for a total of $7,170.45. She had paid the Defendant $5,000.00 toward the contract price of $7,700.00. She has therefore paid a total of $12,170.45 to achieve the result which she had contracted with the Defendant to accomplish at a price of $7,700.00; that is, the Defendant’s fault has resulted in her paying an excess of $4,470.45 for the roof she was to receive. [ 22 ] I find that she is entitled to that amount, save for one issue.

The material discloses that she contracted with the Defendant to install 25-year shingles, but contracted with Tweet’s Roofing to install 35-year shingles. There is no evidence before me as to the difference in value between these two, although I am willing to assume that there is one. The breakdown of the charges from Tweet’s Roofing indicates that they charged $3,583.00 to supply and install the shingles. There is no breakdown from the Defendant with respect to the 25-year shingles.

Where there is an onus on one party to lead information, for example to establish their claim, and that party does not do so, I can refuse to award them damages on the basis that they have failed to prove those damages. In this case, however, neither party addressed this issue when arguably both should have done so. On balance, I think it proper that I make a deduction for the fact that the Plaintiff received better shingles from Mr. Tweet than she had contracted for with the Defendant. In the absence of any better information, I think a reduction of $500.00 is equitable.

Her damages with respect to the first contract are, therefore, $3,970.45. [ 23 ] With respect to the Defendant’s counterclaim, as indicated above I find that the Plaintiff was entitled to terminate the first contract, due to both the amount of time it was taking to complete the same and the workmanship with which it was being performed.

The Defendant is therefore not entitled to damages arising from the termination of the first contract. [ 24 ] In light of the reasons why the first contract was validly terminated, I find it reasonable that the Plaintiff would have lost all confidence in the Defendant with respect to the second contract. It would be unreasonable to expect the Plaintiff to continue with the

Defendant’s services on the second contract after the failure in performance of the first contract. I therefore dismiss the counterclaim with respect to the second contract as well. [ 25 ] The Defendant alleged that it had purchased material toward this contract, but later returned it and suffered a loss only of a re- stocking fee. The Defendant did not however provide any information whatsoever as to the amount of that re-stocking fee. This is a situation where the onus is on the Defendant to establish the amount of the damages it is claiming in its counterclaim.

As no evidence was provided with respect to the amount of material purchased, its cost or the amount paid as a re-stocking fee, I conclude that the Defendant has not proven any damages with respect to this matter and I accordingly do not award any amount for the re-stocking fee. [ 26 ] The Plaintiff had requested return of the $1,000.00 deposit she had given for the second contract. None of the work on the second contract was ever performed by the Defendant.

Having justifiably terminated the contract, the Plaintiff was entitled to return of her deposit. [ 27 ] I therefore award the Plaintiff judgment in the sum of $3,970.45 for the cost of repairing the roof, together with a further $1,000.00 for return of the deposit on the second contract, for a total of $4,970.45. I further award the Plaintiff interest pursuant to The Pre-judgment Interest Act on $3,970.45 from August 27, 2009, that being the date of the second invoice from Tweet’s Roofing, and on $1,000.00 from November 8, 2007, that being the date the deposit was paid on the second contract.

I also award the Plaintiff costs in the amount of $96.00. _____________________________ Q.D. Agnew, J