Ian Leaman v. Rhonda Heinrichs, 2011 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 118 Date: July 20, 2011 File: SC 16-10 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Ian Leaman and Rhonda Heinrichs - and - Provincial Granicrete Supply Inc. and Darren Cleave Andrea V. Argue Counsel for the Plaintiffs Dean Stanley Counsel for the Defendant Provincial Granicrete Supply Inc. Robert C. Fielding Counsel for the Defendant Darren Cleave _____________________________________________________________________________ JUDGMENT M.T.

GORDON , J _____________________________________________________________________________ Introduction [ 1 ] Small Claims No. 16-10 is an action by Ian Leaman and Rhonda Heinrichs against Provincial Granicrete Supply Inc. and Darren Cleave. [ 2 ] Swift Construction Ltd. (Small Claims No. 09-10) is not involved in this action although it involves the same renovation project and was heard at the same time.

[ 3 ] The Plaintiffs, Leaman and Heinrichs claim $10,830.00 in damages as a result of a breach of contract and negligence, and incorrect product installation by Provincial Granicrete Supply Inc. and Darren Cleave. They also claim against Provincial Granicrete Supply Inc. on the basis of an agency relationship. [ 4 ] Darren Cleave filed a Dispute Note requesting the action be dismissed. Provincial Granicrete Supply Inc. also filed a Dispute Note and Counterclaim for $1,864.20. Leaman and Heinrichs responded by filing a lengthy Statement of Defence to the Counterclaim.

Facts according to the Plaintiff [ 5 ] Rhonda Heinrichs is a veterinarian and met Darren Cleave in 2008. In May 2009 she asked Mr. Cleave to become involved in their renovation product. Mr. Cleave was asked to do the floors, back splash, vanity counters and shower area in the two bathrooms with this new product Mr. Cleave had just learned to apply called granicrete. [ 6 ] There was an oral agreement and Ian Leaman gave a deposit cheque of $1,500.00 to Cleave on May 16, 2009. Cleave had a sample of a white-grey marble colour that Heinrichs liked.

The total cost for Cleave to do this work was agreed upon at the most to be $3,000.00. The vanity tops and back splashes were extra. Heinrichs told Cleave that in the future she would like to replace all the flooring and rugs in the house. The framing, drywall work, and floor levelling had been completed when Cleave came on board. [ 7 ] Sometime between May 24 and June 1, 2009, Mr. Cleave finished the work. However Dr. Heinrichs did not like the colour of the finished product. She claimed the colour of the floor was not the same as the sample and did not show a marble pattern.

The end result, in her opinion, looked like uncoloured concrete. Dr. Heinrichs decided she wanted a rock pattern or flagstone pattern in one bathroom. [ 8 ] As a result, Cleave put a tile pattern in the hall bathroom with grout lines. She denies he told her this would cost extra, and maintains she would have remembered if there was money involved. [ 9 ] On cross-examination she maintained she never approved grout and tile. She did approve a flagstone pattern. She agreed she could have been told of extra costs. [ 10 ] Rhonda Heinrichs stated she called Provincial Granicrete Supply Inc., without telling Mr.

Cleave, to see if the company could assist her as she was not happy with Mr. Cleave’s work. On May 30, 2009, a representative from Provincial Granicrete Supply Inc. did come to the house. She left her husband, the Provincial Granicrete Supply Inc. representative, and Darren Cleave at the house. She agreed Darren Cleave was to be paid $1,440.00 to finish what he had started and $500.00 to complete the remaining work. The next day Darren Cleave returned to finish the work. She tried to assist. She stated she felt intimidated and frightened being in the house alone with Darren Cleave.

Ian paid Darren Cleave the $1,440.00. [ 11 ] Rhonda denies terminating Cleave’s contract. Instead she said she did not want Darren Cleave back if he was no longer interested. [ 12 ] She denies ever telling Cleave she liked the job. She did agree to the colour, but the final product did not resemble the photograph or sample she had been shown which showed a marble effect. [ 13 ] Ian Leaman testified that Darren Cleave agreed to do the floors, vanity tops, back splashes and shower in both bathrooms. The quote was $3,000.00 at most. Mr. Leaman paid $1,500.00 and the balance was due on completion.

[ 14 ] Darren Cleave advertised under the name, Strongman Construction. He advised the Plaintiff he was taking more training on the weekend at Provincial Granicrete Supply Inc. [ 15 ] According to Ian Leaman, he and Rhonda were frustrated that the work was not proceeding on time or turning out as expected. The fellow from Provincial Granicrete Supply Inc. gave Cleave a hand as they tried to remedy the situation. Hugh Miller came in and sanded so dust was on the floor. Cleave was upset with Ian Leaman. [ 16 ] Rhonda called Provincial Granicrete Supply Inc. again and stated that the product was “not right”.

Ian tore out the shower and Provincial Granicrete Supply Inc. re-poured it. Ian was encouraged by Provincial Granicrete Supply Inc. to take their course so he could finish this work himself. He was offered a reduced price if he and his wife took the course together. [ 17 ] Ian referred specifically to Exhibit D4 and photographs K through V1 that show the mess made as a result of Darren Cleave’s work. As a result, Leaman and Heinrichs stated it took the whole family “four days straight” to clean the house and Rhonda and her Mom cleaned for a week.

They did not keep track of the hours. [ 18 ] Ian understood that if he took the course he would be provided with product to clean up without cost. Ian admits to picking up supplies from Provincial Granicrete Supply Inc. without paying. [ 19 ] Ian Leaman was cross-examined by Mr. Fielding, counsel for Darren Cleave. Ian agreed that they knew Cleave did not have a lot of experience and that he was still learning about the application of granicrete. Initially there was a verbal agreement that Cleave’s costs would be $3,000.00.

Ian said that after the first Provincial Granicrete Supply Inc. representative came out, Darren asked them to sign a written contract which required payment of an additional $1,400.00 to complete the job. Cleave was paid a total of $2,940.00 and the countertops and back splashes were not completed. Leaman stressed the work was to be done to their satisfaction. [ 20 ] Ian Leaman stated that Darren Cleave said acquaboard was satisfactory to use and cost less than cement board.

After taking the course, Ian would have chosen cement board. [ 21 ] Ian stated that he and Rhonda agreed to the flagstone pattern because Cleave could not achieve the marble look as in the sample. However, Ian denies that they ever agreed to any grout lines. Ian and Rhonda were not pleased about paying additional amounts. They deny telling Cleave “you are done”. [ 22 ] Mr. Leaman, on cross-examination by Mr.

Stanley, counsel for Provincial Granicrete Supply Inc., agreed that Darren Cleave had his own advertisements on the internet under Strongman Construction. [ 23 ] The downpayment was made by Leaman directly to Darren Cleave, there was no involvement with Provincial Granicrete Supply Inc. Allan Carton, the first representative from Provincial Granicrete Supply Inc. came out to assist Darren Cleave in completing the job using granicrete product. No payments were made to Provincial Granicrete Supply Inc. Mr. Leaman was referred to certain documents in the Provincial Granicrete Supply Inc. document binder.

Ian agreed to pay for half of the course and thought he had paid. He could not produce any proof of payment. He acknowledged that the agreement he signed with Provincial Granicrete Supply Inc. when he took their course, limits the relationship of the corporation. Finally, Ian admitted receiving invoices (Exhibits 5 and 6) for product but thought Cleave and Provincial Granicrete Supply Inc. would cover the costs. [ 24 ] Darren Cleave testified he met Rhonda and told her he was taking the granicrete course and thought the product may work for Ian and Rhonda. Darren took the flooring course April 24 - 26, 2009.

The parties agreed a short time later that Darren would do the flooring, showers, tub surround and vanity tops. [ 25 ] The customer chooses the colours, after looking at samples. It is nearly impossible to replicate the colour exactly. Cleave explained the process in some detail. Rhonda had looked at his house and she then chose, from the sample, a white and grey marble pattern. The cheque representing half the cost was used to purchase product. Darren’s day job is with Highways, therefore he indicated

this job would take him a couple of weeks. [ 26 ] Darren was told by Ian and Rhonda that the house had not really been lived in for 12 years and not to worry about mess as renovating was taking place. [ 27 ] Darren described his work and on May 24 th he had finished the flooring. However, Rhonda didn’t like it and said it was not the same as the sample. According to Darren, after some discussion, Rhonda agreed to a tile look with grout lines for $100.00 extra representing 4 - 5 hours of extra work. Darren wanted them to like the finished product.

Rhonda returned in an hour and told Darren just to stop work as she did not want to spend anymore money. He explained that he could not stop midway so it was agreed he would finish. On May 26, Darren called Rhonda and she told him it was the wrong pattern. [ 28 ] The parties met the next evening and after a heated discussion it was agreed Darren would colour the floor. The Plaintiffs were to be present and approve the work. [ 29 ] In the meantime, Shelley from Provincial Granicrete Supply Inc. called Cleave and said Rhonda and Ian were unhappy with the work.

As a result it was agreed that Allan Carton of Provincial Granicrete Supply Inc. would come to the house. The Plaintiffs agreed on a colour. The grout lines had to be filled in as Rhonda and Ian changed their minds and wanted a seamless floor. [ 30 ] Allan Carton worked with Darren and re-poured the floor in the colour chosen by the Plaintiffs. They also did some minor work on the shower floor. [ 31 ] The flooring was completed and the Plaintiffs indicated they were satisfied. Darren made some sample back boards. Darren agreed to work out any costs with Allan Carton and not pass it on to the Plaintiffs.

Darren charged the Plaintiffs a total of $250.00 to redo the floor. The total Darren charged the Plaintiffs was $2,500.00 for the shower and floors, $100.00 mileage, $100.00 for the first redo, and $240.00 for the final redo. He acknowledges receiving a $1,440.00 cheque as final payment. The back splashes and vanity tops would be an extra $500.00. Darren left and was told not to return. As a result he did not do a complete clean-up. Darren estimated it would have taken three to four hours to do a satisfactory clean-up of his work area.

The Plaintiffs were still not satisfied and called Provincial Granicrete Supply Inc. again. [ 32 ] On cross-examination by Mr. Stanley, counsel for Provincial Granicrete Supply Inc., Darren agreed that he took his training in Regina at the Provincial Granicrete Supply Inc. office. He agreed he was not an employee of Provincial Granicrete Supply Inc., and could not enter into any contract or make any commitment on behalf of Provincial Granicrete Supply Inc. Provincial Granicrete Supply Inc. had no involvement in locating clients for him. He received no commission from Provincial Granicrete Supply Inc.

He could buy product from Provincial Granicrete Supply Inc. and take any of its courses to be certified to use their product. Various documents were entered as exhibits to show the relationship with Provincial Granicrete Supply Inc., namely D9, 10, 12, 15 and 16. [ 33 ] Mr. Cleave was cross-examined extensively by counsel for the Plaintiffs. Darren Cleave was asked many of the details concerning the way he performed his work. Mr. Cleave was challenged on many details such as whether he followed the granicrete manual. It was suggested Mr.

Cleave did not clean up properly, recommended improper materials, and did not follow the Plaintiffs’ instructions. [ 34 ] Counsel for the Plaintiffs also tried to suggest that Mr. Cleave worked in conjunction with Provincial Granicrete Supply Inc. Mr. Cleave said he accepted the assistance of Provincial Granicrete Supply Inc. so that the customer would be satisfied. It was the Plaintiffs not Darren Cleave who contacted Provincial Granicrete Supply Inc. each time. [ 35 ] Mr. Stanley, counsel for Provincial Granicrete Supply Inc., called Ms.

Shelley Carton, one of the owners and CEO of Provincial Granicrete Supply Inc. She explained they established Provincial Granicrete Supply Inc. three years ago in Regina. The parent company is Granicrete International in Phoenix, Arizona. The company has certified installers who work independently. They can be trained at the Regina location but all training material comes from the international company. Once trained, the independent installer can purchase granicrete from the Regina store, or any other authorized distributor.

[ 36 ] Provincial Granicrete Supply Inc. does not know the customers of the installers and does not pay the installers in any manner. Provincial Granicrete Supply Inc. has no idea what or how the product is going to be used at the time of purchase. [ 37 ] Darren Cleave completed the countertop and flooring courses, and did a “wonderful job”. [ 38 ] Ms. Carton testified she received a call from Rhonda Heinrichs stating she was not satisfied with Darren Cleave’s work.

Rhonda Heinrichs also stated if she was not happy she would give the product and therefore Provincial Granicrete Supply Inc., a bad name. [ 39 ] Provincial Granicrete Supply Inc. discussed the matter and made a business decision to send someone out. They worked to support Darren Cleave who had recently taken their course. Rhonda called back and said she had selected a photograph on their website which she liked. As a result Allan Carton called Cleave and made arrangements to meet at the Plaintiffs’.

Ian Leaman had indicated he was interested in taking some training at Provincial Granicrete Supply Inc. and an agreement was reached (Exhibit D11). Exhibit D13 was an invoice to Ian Leaman for materials he had arranged to pick up after hours. This has not been paid. [ 40 ] On cross-examination by the Plaintiffs’ counsel, Shelley Carton stated no cash payment had been received from Mr. Leaman.

She also reiterated that non-certified people cannot buy product and that it was just a good business decision to try to smooth things out for Darren Cleave. [ 41 ] Allan Carton testified he was a shareholder in Provincial Granicrete Supply Inc. and the lead trainer in Regina. Provincial Granicrete Supply Inc. asked Darren Cleave if he required a mediator in the situation. As a result Mr. Carton met with Cleave and the Plaintiffs at the house. It was agreed that Darren would attempt the floor one more time. Mr. Carton assisted Darren Cleave. He observed Darren Cleave had good technique. Mr.

Carton stated the floor did not need to be redone, other than to keep Rhonda and Ian happy. [ 42 ] After a long day, the Plaintiffs seemed pleased with the final product. Rhonda Heinrichs had enjoyed helping with the final colouring. On cross-examination, Mr. Carton repeated that it was a business decision to go out to the Plaintiffs’. In his opinion, Darren Cleave could have managed on his own. However, by attending, he diffused the situation and the work was mainly completed that day.

He noticed that plastic had been put down but did not make a close inspection of the area. [ 43 ] Dale Achter was the final witness called by Provincial Granicrete Supply Inc. He is the CEO, shareholder, director and main installer. [ 44 ] He attended at the Leaman/Heinrichs’ home. He noticed it was dusty and dirty. He looked at the work done by Darren Cleave and stated it was “not so terribly bad”. He stated the floor needed another coat of sealer and the shower was a little bit wavy. The work was actually “acceptable”. [ 45 ] Mr.

Achter sanded the floor and took the shower base out to make sure it was done correctly. [ 46 ] Ian and Rhonda told him not to worry about the dust as they were thinking of replacing the other flooring. [ 47 ] He was shown the series of photographs (Exhibits D4 A-

W) and identified dust of some sort, dirt and white specks in the pictures. He stated a good vacuum could suck up this dust. [ 48 ] On cross-examination by Mr. Fielding he stated he had just decided to redo the shower floor. Mr. Cleave was not present.

[ 49 ] On cross-examination by the Plaintiffs’ counsel, he said he would have put in a rounded-edging for a finer finish. He stated that he is very picky and most of his criticism was for purely esthetic reasons. Argument Plaintiffs: Ian Leaman and Rhonda Heinrichs [ 50 ] Ms. Argue stated that her clients, the Plaintiffs, Ian Leaman and Rhonda Heinrichs, made full payment to Darren Cleave. He has not advanced any counterclaim. However the Plaintiffs are asking that the Court award damages to them for the extra costs incurred by them as a result of the poor work done by the Defendant.

The Plaintiffs state that the Defendant, Cleave, was negligent in the installation of the granicrete flooring and shower areas and that he did not perform his duties in a good and workmanlike manner. In addition, extra costs were incurred due to delay and clean-up. [ 51 ] The Plaintiffs also claim against Provincial Granicrete Supply Inc. on the basis of agency. The Plaintiffs acknowledge there was no contractual relationship. However, the Plaintiffs urge the Court to look at the actions of the company.

Specifically, on two different occasions, two different owners of Provincial Granicrete Supply Inc. travelled to the Plaintiffs’ home to remedy the deficiencies. Mr. Achter from Provincial Granicrete Supply Inc. came out in mid-June after Darren Cleave was out of the picture. The Plaintiffs’ counsel argued that actions speak louder than words and it would be reasonable for a customer to conclude that there was some relationship between Provincial Granicrete Supply Inc. and Cleave. Defendant: Darren Cleave [ 52 ] Mr.

Fielding, counsel for Darren Cleave, argued that his client performed the work in an acceptable manner and standard, and was paid accordingly. He suggested that the evidence disclosed that the Plaintiffs were aware he was inexperienced and had just taken the course, they had seen his work and samples, chose and approved all work to be done. [ 53 ] Cleave asserts that the problems encountered on this job were the result of the Plaintiffs, or one of them, changing their mind, or being disappointed with the actual look. Mr. Cleave followed all directions from the Plaintiffs and sought approval before making changes.

Rhonda Heinrichs contacted Provincial Granicrete Supply Inc. without telling Mr. Cleave. [ 54 ] Mr. Cleave’s work meets reasonable standards, while perhaps not the excellence of a person with many years experience. Any perceived deficiencies were “in the eye of the beholder”. [ 55 ] Mr. Fielding noted there is no basis to find that Mr. Cleave intimidated Rhonda Heinrichs. He consulted, he followed her instructions, he wanted his customer to be satisfied.

The evidence shows that Rhonda Heinrichs was able to speak her mind and even suggested to Provincial Granicrete Supply Inc. that she would give them bad publicity if they did not come out. [ 56 ] Mr. Fielding points out that the cleanliness of the house was not an issue until Rhonda Heinrichs became unhappy with the final product. [ 57 ] The evidence from several witnesses was that the house had not been lived in. The Plaintiff spoke of changing the old flooring and that Mr. Cleave was not to worry about the mess. In addition, Mr. Cleave was told not to return.

There was no documentation for the actual clean-up costs. Defendant: Provincial Granicrete Supply Inc.

[ 58 ] Mr. Stanley, on behalf of his client, Provincial Granicrete Supply Inc., divided his closing remarks into the following categories; namely agency; work done by Allan Carton; work done by Dale Achter; the alleged damages and finally the counterclaim by Leaman and Heinrichs. [ 59 ] First of all, Provincial Granicrete Supply Inc. argues that there was no agency agreement with Darren Cleave. The evidence disclosed that Cleave’s only connection with Provincial Granicrete Supply Inc. was his ability to purchase materials as he was a certified installer.

Cleave was not paid in any way by Provincial Granicrete Supply Inc. Cleave made his own arrangements with customers to do work which could involve the use of products he purchased from Provincial Granicrete Supply Inc. [ 60 ] There was no agency relationship between Provincial Granicrete Supply Inc. and Cleave. The two representatives, namely “Carton” and “Achter” from Provincial Granicrete Supply Inc., came to the Leaman/Heinrichs home to assist in resolving a dispute involving Mr. Cleave, a certified granicrete installer.

They also viewed this as part of a good business practice. [ 61 ] Provincial Granicrete Supply Inc. also argue that the work completed by Achter and Carton was done in a good and workmanlike manner. [ 62 ] The Plaintiffs were satisfied with the work when Achter and Carton left. Provincial Granicrete Supply Inc. submits that there has been no proof of the damages claimed by Leaman and Heinrichs. Heinrichs and Leaman had also obtained product from Provincial Granicrete Supply Inc. and have refused to pay.

In addition, Leaman agreed to take the Provincial Granicrete Supply Inc. installer course at an agreed upon reduced price which has not been paid in full.

Issues [ 63 ] Whether the work provided by the Defendant lacked the quality of workmanship to the extent that the Plaintiffs should have their payments refunded and be awarded further damages as claimed. [ 64 ] Has the Plaintiff established that Darren Cleave was acting as an agent for Provincial Granicrete Supply Inc.? [ 65 ] Has the Plaintiff established that Provincial Granicrete Supply Inc. was negligent in their efforts to satisfy the Plaintiffs and if so, what are the damages? Analysis [ 66 ] The facts have been related in some detail.

I accept that there was a contract between the Plaintiffs, Ian Leaman and Rhonda Heinrichs, and Darren Cleave to install granicrete product in two bathrooms. The Plaintiffs knew the Defendant, Cleave, had recently taken the course and was inexperienced. The Plaintiffs accepted the Defendant’s quote of no more than $3,000.00. The Plaintiffs paid $1,500.00 as a downpayment. [ 67 ] The Plaintiffs were not pleased that this renovation was taking so long. They started off with Swift Construction Ltd. (09-10) and I concluded that arrangement ended in a mutual termination. The Plaintiffs then hired Mr.

Miller to finish that work. By this time they were behind

schedule and happy to engage the services of Darren Cleave. [ 68 ] The Plaintiffs, Leaman and Heinrichs, hired Darren Cleave with full knowledge that he had recently completed the granicrete course and was a new installer.

[ 69 ] I accept Mr. Cleave’s evidence that he sought approval and instructions from the Plaintiffs or either one of them right from the start. He showed Rhonda Heinrichs samples and she chose the one she wanted. I am satisfied that the evidence shows Mr. Cleave was careful to ensure that his clients, the Plaintiffs, had samples of his work and approved what he was going to do at each stage. He was aware that Rhonda Heinrichs was the one who, for the most part, made the necessary decisions to proceed.

When the first application did not appear identical to the sample, Cleave discussed options with Heinrichs and followed her instructions. She was then disappointed with the final product. I find that Mr. Cleave worked diligently trying to please his clients. He was forthright and told Heinrichs that he could not follow one of her choices as he did not have the necessary product. On the last day, Cleave testified and I accept his evidence that Heinrichs helped with the colouring and appeared happy and satisfied with the product. Ms. Heinrichs was not satisfied with “the work” once the work was done. Mr.

Cleave suggested various alternatives and again he followed her instructions. Again, Rhonda Heinrichs did not like the result and phoned Provincial Granicrete Supply Inc. threatening that if they did not do something she would give them bad advertising. [ 70 ] There is no evidence to support Ms. Heinrichs’ comments that she felt intimidated by Cleave. She is an educated women, quite able to speak up for herself. There is no evidence to suggest any impropriety. [ 71 ] Ms. Heinrichs called the Provincial Granicrete Supply Inc. office in Regina without telling Cleave and complained about his work. Ms.

Shelley Carton testified that it was Ms. Heinrichs who was threatening, suggesting she would give the company a bad name if it did not do something about her complaints. [ 72 ] Mr. Cleave worked with a representative from Provincial Granicrete Supply Inc. who attended the first time. He testified that Rhonda Heinrichs liked the final product and even assisted in the final application. [ 73 ] Mr. Cleave advised the Plaintiffs of the additional charge along the way, and I find he only proceeded when the Plaintiffs agreed. As a result Mr. Cleave was paid an additional $1,440.00. [ 74 ] The Plaintiffs terminated Mr.

Cleave and as a result he left the job site before he was given any opportunity to clean up. In addition, the evidence is that Mr. Cleave put plastic down, and understood from what he was told by the Plaintiffs, they were going to be replacing the other flooring. Other witnesses made this same statement. There was evidence that there was a lot of dust, some spilled product and general mess from having this work done over a period of time. Mr. Achter, from Provincial Granicrete Supply Inc., stated there was a product available for clean-up. A good vacuum would get the dust described. Mr.

Achter reviewed the work in the bathrooms. The work was not perfect but acceptable. In his own home he would do some fine finishing. Most of his comments were for cosmetic reasons, such as trying to achieve a smoother surface and applying another coat of sealer. Overall, I conclude that he found the work acceptable. The clients appeared happy with the outcome. [ 75 ] Ms. Carton also testified that Cleave completed his course and did a “wonderful job”. Allan Carton asked Cleave how he could help to finish the job and satisfy the Plaintiffs. Mr. Carton worked with Mr.

Cleave and noted his technique was satisfactory. He also confirmed that the work site was not out of the ordinary in terms of cleanliness. There is always lots of dust and Cleave was returning the next day to apply the final seal and presumably clean up. [ 76 ] Dale Achter also stated that the work site was reasonably clean, plastic down and the Plaintiffs said not to worry as they were thinking of replacing all the flooring. Even on cross-examination, Mr. Achter acknowledged that he was a very critical person and if this work was in his home he would have made some changes.

He acknowledged that their changes were more for esthetic reasons, such as a smoother, finer finish. [ 77 ] Mr. Achter is the head installer and assists with the training at Provincial Granicrete Supply Inc. Given his background and experience, the final product may have looked better. However, that does not mean that Cleave’s work was not up to standards. Mr. Achter testified Cleave’s work was “acceptable”. Mr.

Achter, as did the other witnesses, confirmed that the work area was dusty but could easily be cleaned. [ 78 ] The Plaintiffs did not call any expert evidence to explain the nature and extent of the alleged deficiencies. The Plaintiffs point to the evidence of Dale Achter, a co-worker at Provincial Granicrete Supply Inc., to support their claim.

[79] I find the Plaintiffs have not provided any evidence to document the actual clean-up costs. Their claim is based onspeculation and exaggeration as a result of commencing this action. Mr. Cleave was not allowed to stay but estimated clean-up wouldonly take him less than a day, more like 3 to 4 hours. [80] The law is clear that an owner is entitled to rely on the skill and experience of his contractor. An implied term of the contractis that the contractor will perform his work in a good and workmanlike manner. Donaldson v. Collins (1992), 2 W.W.R. 47 (SaskSC). [81] In Maisonneuve v.

Burley, 2001 SKQB 407 , [2002] 1 W.W.R. 111 (Sask. Q.B.), the Court states: The Contract between the plaintiffs and the defendant was a contract to do work and supply materials. The governing law is set forth inMack v. Stuike (1963), (SK KB), 43 D.L.R. (2d) 763 (Sask.Q.B.). At p. 771 of Mack, supra, Balfour J. quotes fromHalsbury’s Law of England, vol. 3, 3d ed. (London: Butterworths, 1953) at 453, para. 818 as follows: ...

A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a conditionthat the work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of theordinary amount of skill possessed by those exercising the particular trade ... [82] The Court also noted that this means that the person performing the work must have the “... ordinary amount of skillpossessed by those exercising the particular trade.” [83] In Garth’s Carpets & Color Centre Ltd. v.

Platzke, 2010 SKPC 34 , 2010 SKPC34 (Matsalla J.) stated that theDefendant Platzke could expect the Plaintiff, a competent installer, “... to complete the installation in a manner acceptable in thetrade...”. [84] The Plaintiff engaged Darren Cleave after seeing his work and being aware that he did not have a lot of experience. I acceptMr. Cleave’s evidence that he did everything that was expected of him to try and please his clients. He was forthright with themexplaining he could not follow one of their requests as he did not have the product. [85] In my view, the Plaintiffs were disappointed in the final “look”.

This is not unusual in renovating as it is often difficult for laypeople to accurately visualize the final product. [86] I find that Mr. Cleave’s work meets reasonable standards. The fact that Dale Achter would have made some improvements,mostly for esthetic reasons, does not change my view. [87] I do not accept Rhonda Heinrichs’ evidence that she was intimidated by Mr. Cleave. The evidence is that Mr. Cleave wasvery careful to treat her with respect and make sure he explained the process and alternatives to her. Ms. Heinrichs was no shrinkingviolet.

She presented in her evidence as a capable, competent and assertive woman. She called Provincial Granicrete Supply Inc.without telling Mr. Cleave and even suggested to them they had better do something or there would be bad publicity for the company. [88] I accept Mr. Cleave’s evidence that in the end Ms. Heinrichs was assisting with the colouring and appeared pleased with theresult. [89] The Plaintiffs in their brief of law discuss the law of contract and tort. However, it is my view that the Defendant, Cleave, metthe objective standards of care of the “reasonable and prudent man”.

The Plaintiff notes the Ontario case of Cox Construction Ltd. v.1232046 Ont. Inc. (2009), 80 C.L.R. (3d) 29, and quotes “a defendant is not required to display the highest level of skill, but a higherlevel of skill will be expected from one who holds himself out as a professional. Industry standards should be considered and will ofcourse depend on the facts of each case.” [90] The Plaintiffs note correctly the concurrent basis of contractual and tortuous liability in Landui v. InterCity Contractors Ltd.

(1987), (SK KB), 54 Sask. R. 53. As a result the Plaintiffs argue that the Court can award damages to complete thecontract and remedy the work and also other damages that flow from the negligence. [91] However, in the within case, the Plaintiffs have not satisfied the Court that there was a breach of contract or that Mr. Cleave’swork was not of an acceptable quality. [92] Mr. Cleave was asked to leave the job. I accept his evidence, as well as that of several witnesses who testified that thePlaintiffs were not particularly concerned about the renovation mess.

Several witnesses commented that both Plaintiffs said the rest ofthe flooring was going to be replaced. I find that Mr. Cleave took reasonable steps to reduce the dust. He stated he could have cleanedup in less than a day. [93] The Plaintiffs did not present any evidence of actual clean-up costs. In my view, the Plaintiffs’ evidence was a “best guess” ofhow long it would take to clean the entire house. As well, it is uncertain as to whether this “guess” was just for the clean-up as a resultof Mr. Cleave’s work, the entire project or a major house cleaning. Mr.

Cleave said he could have cleaned up his mess in a few hours. [94] The Plaintiffs’ action against Darren Cleave is dismissed. The Plaintiffs also claim against Provincial Granicrete Supply Inc., on the basis of agency [95] The Plaintiffs, in their brief, argue that Darren Cleave was an agent of Provincial Granicrete Supply Inc. and thus ProvincialGranicrete Supply Inc. should be responsible for Mr.

Cleave’s breach of contract and negligence. [96] Counsel for the Plaintiffs and Provincial Granicrete Contract Inc. filed comprehensive briefs of law with respect to the law ofagency and ably presented their argument in Court. Therefore, I am prepared, even though it is not necessary, to deal with thesesubmissions. [97] In addition, Provincial Granicrete Supply Inc. filed a counterclaim for invoices sent to Ian Leaman for the cost of the trainingcourse and product, totaling $1,864.20. [98] Both counsel set out in some detail the law of agency.

An agency relationship may be described as follows: Agency is a relationship that exists between two persons when one, called the agent, is considered to represent the other, called theprincipal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making ofcontracts or the disposition of property. 4414790 Manitoba Ltd. v. Nelson, 2003 MBQB 183 at para. 16. [99] I do not find any agency relationship between Darren Cleave and Provincial Granicrete Supply Inc. There was no contract, nocommission, no employee relationship between Mr.

Cleave and Provincial Granicrete Supply Inc. The evidence was that Mr. Cleave wasa certified installer and thereby would purchase product from Provincial Granicrete Supply Inc. [100] There were no representations by Provincial Granicrete Supply Inc. to the Plaintiffs of the existence of any contract or agencyrelationship. It is the alleged principal that needs to make the agency representation. At the time the Plaintiffs made the contract withMr. Cleave, Provincial Granicrete Supply Inc. was not involved. Mr. Cleave stated he had just become a certified installer of granicrete. [101] At no time did Mr.

Cleave represent himself to be an agent of Provincial Granicrete Supply Inc. The Plaintiffs admitted this incross-examination.

[ 102 ] The fact that two representatives from Provincial Granicrete Supply Inc. chose to attend at the Plaintiffs’ residence does not change the situation. I accept the evidence of the corporation’s witnesses that the three of them met and decided for public relation reasons to try to remedy the situation for the Plaintiffs. After all, Ms. Heinrichs had made it clear she would make it known that their product was unsatisfactory. [ 103 ] The Plaintiffs also allege that Provincial Granicrete Supply Inc. did not complete the work in their home in a good and workmanlike manner.

First of all, I do not find there was any agreement between the Plaintiffs and Provincial Granicrete Supply Inc. Nevertheless, the evidence was that both Heinrichs and Leaman were satisfied with the end result after Achter and Carton’s work. [ 104 ] Mr. Leaman, with some reluctance, accepted the offer of Provincial Granicrete Supply Inc. to complete the granicrete course for a discounted cost of $650.00. In addition, Leaman and Heinrichs ordered and arranged to pick up after hours, additional product from Provincial Granicrete Supply Inc. totalling $1,214.20.

I am satisfied that the Plaintiffs agreed to pay these amounts and payment has not been made. [ 105 ] Based on the foregoing, all claims made by the Plaintiffs, Rhonda Heinrichs and Ian Leaman, are dismissed. Pursuant to its counterclaim, Provincial Granicrete Supply Inc. shall have judgment against Rhonda Heinrichs and Ian Leaman in the amount of $1,804.20.

Section 31 of The Small Claims Act gives the Court discretion to order costs. In this case, the Court finds that the Plaintiffs’ claim is without merit. Therefore, the Plaintiffs are ordered to pay costs to Provincial Granicrete Supply Inc. the sum of $500.00. Dated the 20 th day of July, 2011, at Moose Jaw, Saskatchewan. _______________________________________________ M.T. Gordon, J