THE WATER SHED Claimant - v. -, 2013 NSSM 39

Claim No: 413745 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Water Shed v. Fraser, 2013 NSSM 39 BETWEEN: THE WATER SHED Claimant - and - ROBERT FRASER Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on May 21, 2013 Decision rendered on June 4, 2013 APPEARANCES

For the Claimant Stephen Burke Owner For the Defendant self-represented BY THE COURT: 1 The Claimant is suing the Defendant for approximately $2,800.00 in unpaid bills relating to the supply and servicing of a water pump.

The Defendant defends on the basis of faulty workmanship, and counterclaims for the anticipated cost of having someone else install a new, working pump. 2 The Water Shed appears to be a business name of the limited company “ The Water Shed Water Conditioning Ltd. ” The owner of the Claimant is Stephen Burke. 3 The story begins with a call from the Defendant to the Claimant on January 9, 2013, after the Defendant experienced trouble with the existing pump. As I understand it, that pump was of an older style, the main difference being that these pumps - called “ two line jet pumps ” - were not submersible.

There is a considerable factual difference as to what occurred on the day that one of the Claimant ’ s employees attended, which I will deal with in due course, but there is no dispute that the ultimate verdict was that the old pump could not be repaired and had to be replaced with a new one. 4 Two days later, a submersible pump was installed. 5 The well is approximately 140 feet deep, but the new pump was only dropped to a depth of 100 feet. Mr.

Burke testified that this was the correct depth, because to sink it deeper might have disturbed too much of the sediment at the bottom of the well. 6 This did not fix the problem. Within a few days, the Defendant reported to the Claimant that the water supply was regularly running out. Mr.

Burke appears to have concluded that the cause had to have been that the well was running dry, and that the pump needed to be sunk deeper, which involved extending the pipe and electrical lines to allow the pump to go down a further 45 feet or so. 7 Eventually, on February 12, 2013, the pump extension was done by the Claimant ’ s employees. 8 According to the evidence of the Defendant, which I accept, the family continued to have water shortages. I also accept his testimony to the effect that Mr.

Burke, when they managed to speak, continued to insist that the problem was with the well ’ s capacity to produce water. He is quoted as having said “ the well is what it is ” and offered to do hydro-fracturing (fracking) to increase the well ’ s capacity. 9 After some time, the relationship between the Defendant and Mr. Burke became rather hostile. This was and remains a significant obstacle. 10 Eventually, the Defendant decided to have another well company come out to diagnose the problem.

The technician from that company determined that the pump was drawing excess amperage and was automatically shutting down, with the result that it only operated intermittently. The Defendant reported this to Mr. Burke, who insisted that his own people be allowed to verify this finding. On April 2, 2013, two technicians employed by the Claimant attended and confirmed the problem. The pump is defective and needs to be replaced.

11 The Claimant is in court suing for payment of three invoices: a. Invoice dated January 14, 2013, for $2,378.20. This includes $350.00 plus some small amounts for parts for the service call on January 10, 2013, with the balance being for the new pump ($1,600.00 plus HST) and some incidental parts not included in that price. b. Invoice dated February 12, 2013 for $227.99, for extending the lines and wires on the pump. c.

Invoice dated April 3, 2013 for $130.24, for the service call to assess whether the pump needed to be replaced. 12 From the point of view of the Defendant, he is being asked to pay for a pump that is defective. His position on the first invoice is that he did not agree to all of the work that went into the attempt to repair the old pump.

He testified that he understood that the pump could not likely be fixed, and was quoted a price of $1,600.00 for the new pump. (I regard it as implicit that this price was to include HST.) His evidence was that when the technician arrived on January 10, 2013, it was the suggestion of that technician that he could fix the pump. He quoted that technician as saying that he “ had nothing to lose. ” It was also the Defendant ’ s evidence that the technician was not equipped to do any electrical work, which meant that they could not install a new pump, so he agreed.

He did not expect to be charged in excess of $400.00 for this short-lived, unsuccessful effort to fix a pump that was actually replaced the very next day. 13 As for the charges for the installation of the new pump, the Defendant ’ s position is that he should not have to pay for something that does not work. 14 The Defendant also takes objection to the extra charge for lowering the pump by some 45 feet, as it was the Claimant ’ s decision to install the pump only at 100 feet, and then also the Claimant ’ s decision to lower the pump as a possible answer to the water shortage issue which, as it turned out, was caused by the pump being faulty rather than by any other problem. 15 The final invoice is objectionable to the Defendant because it seeks to charge him for verifying the fact that the pump was defective. 16 The Claimant ’ s version of events is a little different.

Suffice it to say that he believes that his bills are legitimate. In particular, he says that the initial visit to fix the old pump was at the Defendant ’ s insistence, and that as such - despite the way it turned out - he should pay that bill.

He also seeks payment for the April 3 service call because the Defendant led him to believe that his men would be allowed to switch the pumps that day, when instead they were only permitted to verify that the old pump was defective. 17 The Defendant insists that he does not want the Claimant or any of his employees working on his pump, because trust has been completely lost. The animosity grew to the point where the Defendant had Mr. Burke served with a notice under the Protection of Privacy Act , forbidding him to enter onto the Defendant ’ s property.

His requested relief is that the Claimant deliver a new pump, in the box, which he will have someone else install. He also asks to be relieved of any responsibility to pay any of the bills, in light of all that he has endured in this situation. Findings 18 I will not attempt to decide which of the two parties is more responsible for this relationship having become so fractious. I believe there is blame on both sides, and will leave it at that. Instead, I will stick to the known facts and attempt to forge a common sense resolution.

19 On the question of the attempted repairs to the old pump, I am more inclined to accept the view put forward by the Claimant. I believe that the Defendant was likely hoping to be able to fix the old pump, and he implicitly instructed the Defendant ’ s employee to perform the work. As such, this amount should be paid in addition to any charges for the new pump. 20 Putting aside for a moment the question of the pump being defective, there is the issue of the additional work done to extend the lines. In my view, this work was only done because: a.

The Claimant decided to install the new pump at 100 feet instead of lower down, and b. The Claimant dogmatically believed that the problem was a shortage of water rather than a defective pump. 21 I do not believe that this additional work should be charged to the Defendant, and I disallow it. 22 The charge for the visit on April 2, 2013 is one that I believe should be paid by the Defendant, because he made it clear in an e- mail to the Claimant that he expected technicians to attend on that day with the new pump, ready to be installed.

The precise text of the e-mail is as follows: “Mister Burke, you are not to come to our home personally, have your service manager e-mail me to set up a time for a technician to come check the faulty pump. I suggest they bring a new pump ready to install as I will be seeking compensation for all lost time from work so it is in your best interest to limit those days.” 23 It is not accurate to suggest, as the Defendant does, that the only purpose of this visit was to verify that the pump was defective. That could easily have been done with one technician.

Instead, the Claimant dispatched two men, and the additional cost was only incurred because of the expectation that they would be permitted to install the new pump, assuming that they confirmed that the old one was defective. I do not accept the Defendant ’ s excuse that he did not want them working because they did not have proof of their standing with WCB. 24 I accept that the quoted price for a new pump was $1,600.00 plus HST. As matters currently stand, there is a defective pump belonging to the Claimant sitting in the Defendant ’ s well. The Claimant accepts the responsibility to replace it under warranty.

It is entirely possible that the old pump may be of some value to the Claimant, perhaps to be returned for credit to the manufacturer. As such, under normal circumstances the appropriate result would be to order that the Claimant be given the opportunity to honour its warranty and swap out pumps. 25 The impediments to this result appear to be the animosity between the parties, plus a lack of trust on the part of the Defendant that the Claimant is capable of doing the work. 26 I am respectful of the former reason, but not the latter.

There is no evidence that the Claimant or his crew lacks the expertise to replace a pump. Indeed, that is their business. Suppliers of goods who supply warranties must be given a reasonable opportunity to honour those warranties. Under the circumstances, however, this should be accomplished without the necessity for Mr. Burke personally to attend at the Defendant ’ s property. 27 Accordingly, I direct the following: a. The Claimant is entitled to $403.00 plus HST of $60.45, for a total of $463.45 for the work done on January 10, 2013.

b. The Claimant is entitled to $1,600.00 plus HST of $240.00, for a total of $1,840.00 for the supply of the new pump. I observe that on the original invoice there was an additional $65.00 for various parts associated with this installation, but the evidence does not support the Claimant being permitted these extra charges since there was a quote for $1,600.00 with no indication that there were any extras associated with it. c. The Defendant is not obligated to pay the invoice dated February 12, 2013 in the amount of $227.99 d.

The Claimant is entitled to payment of its invoice dated April 3, 2013 in the amount of $130.24. 28 This judgment is payable immediately. Because it is unquestionable that the pump is not functioning, and it is covered by a warranty, the Claimant shall make arrangements at the earliest convenience of the Defendant to dispatch employees (not including Mr. Burke) with the expertise and instructions to replace the existing pump with a new one.

Should any further difficulties arise with the pump arise, nothing in this judgment shall be taken to limit the rights of the Defendant to have the warranty enforced. 29 Implicitly I am rejecting the request by the Defendant to simply have a new pump delivered in a box, to be installed by someone else. 30 I also disallow any counterclaim for lost wages, as there was no proof put forward to support such a claim. Nor do I see any legal basis for such a claim.

Many people are inconvenienced by waiting around for workers to attend their property, and the courts do not generally compensate for that lost time. 31 To summarize, the Defendant shall pay to the Claimant the following: Owing for work done on old pump $463.45 Supply and installation of new pump $1,840.00 Payment for April 3, 2013 visit $130.24 Cost of issuing claim $91.47 Total judgment $2,525.16 32 Also to reiterate, the Claimant has the obligation to arrange for the replacement of the pump under warranty by someone other than Mr. Burke. Eric K. Slone, Adjudicator