Jack Trusty - v. -, 2012 SKPC 054

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 054 Date: April 2, 2012 File: SC 24-11 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Jack Trusty - and - Gregg Gross In Person For the Plaintiff In Person For the Defendant _____________________________________________________________________________ JUDGMENT D.J. KOVATCH, J _____________________________________________________________________________ Background [ 1 ] The Plaintiff is a journeyman bricklayer.

The Defendant hired the Plaintiff to do work on his house. Following completion of the work, the Plaintiff issued an account. The Defendant has paid nothing on the account, so the Plaintiff brought this action. The Defendant says that the work is done poorly and not in a good and workmanlike fashion. As a result, he denies liability on the account.

The Plaintiff’s Evidence [ 2 ] The Plaintiff testified that he is a journeyman bricklayer and has been since 1982. In the summer of 2009, he was doing work in the City of Moose Jaw, at another construction site. At that time, the Defendant came to the construction site and asked the Plaintiff if the Plaintiff would do work on the Defendant’s older home. The Plaintiff viewed the Defendant’s project and agreed to do the work for $18.00 per hour. There was no discussion of the estimated total cost.

It was agreed the Plaintiff would purchase any required materials, and at the end of the project an invoice would be issued for all of the labour and material charges. [ 3 ] The Plaintiff and his spouse kept good and detailed records regarding all of the labour and other expenses incurred. The invoice issued at the end of the project was for $3,478.35. The invoice appears to be entirely consistent with the other records detailing the hours and the other expenses incurred. The work was concluded and the invoice sent out at the end of August 2010.

The Plaintiff heard nothing from the Defendant throughout the entire winter, and began sending demand letters in the spring of 2011. The summons to commence this action was issued on March 29, 2011. The matter was set for a Case Management Conference (CMC) for July 19, 2011. At that CMC, the Defendant produced and filed a dispute note in which he alleged poor workmanship on the project.

The Plaintiff testified that it was at this CMC where he heard or learned for the first time of any allegation of poor workmanship. [ 4 ] Her Honour Judge Gordon handled the CMC on July 19, 2011, and completed and had the parties execute the standard case management checklist. On the checklist she noted: “The Defendant and Plaintiff will arrange a satisfactory time for the Plaintiff to attend the property and take pictures”. Further: “Defendant will provide pictures to the Plaintiff by October 6, 2011”.

Further: “By November 1, 2011, each party is to advise the other in writing of the name of any experts, their C.V. and a

summary of their evidence”. Judge Gordon also noted that the CMC was adjourned to October 6, 2011, at 3:00 p.m., for a conference call at that time. [ 5 ] On November 3, 2011, Her Honour Judge Gordon wrote a Fiat to the file as follows: At the Case Management Conference held July 19, 2011 it was agreed that the Plaintiff, Jack Trusty, could attend to the Defendant’s property where the brickwork was done to take pictures. On October 6, 2011, the Case Management Conference was reconvened. Mr. Gross advised he would be home for Thanksgiving until October 12, 2011.

The parties agreed that the Plaintiff, Jack Trusty would telephone the Defendant and advise which day the Plaintiff and his expert witness would attend at the Defendant’s property to view the alleged defects. On October 31, 2011, a letter was received from the Plaintiff, Jack Trusty, advising that he has been unable to arrange any access to the property. I am attaching a copy of this letter.

The Plaintiff is invited to lead evidence at the trial of this matter, scheduled for December 22, 2011 at 9:30 a.m. in order that the trial judge can consider this matter in relation to the claim, including creditability of witnesses and costs. [ 6 ] At the trial, Mr. Trusty testified as to the numerous efforts that he made to reach the Defendant, in order to view the work and take pictures. For the most part, the Plaintiff was required to simply leave messages which were then left completely unreturned by the Defendant. There were a couple of notable exceptions.

On one occasion, when the Plaintiff was able to reach the Defendant and tried to make arrangements to view the property on the Thanksgiving Day weekend, the Defendant told the Plaintiff to “go fuck himself”. On another occasion, when he was able to reach the Defendant, he was told these arrangements would be made “in a month of Sundays”. [ 7 ] The Plaintiff testified that he worked hard on this project and felt that all of the work was of good and workmanlike quality.

He was able to testify about a couple of the specific complaints, but not able to testify about others as he could not recall any problem and was not able to view or take pictures of any of the so called problems. [ 8 ] The Plaintiff testified that the Defendant has paid nothing on the account, and the entire account remains outstanding.

The Defence Evidence [ 9 ] Mr. Gregg Gross testified that he was sorry he hired the Plaintiff, as the work was done poorly. He stated on a number of occasions that he “was not happy with the work”. He gave some examples. He indicated that a window operated properly before the Plaintiff did the brickwork. However, after the work was concluded, there were problems opening and closing this window. He indicated that the Plaintiff poured a new footing inches offset from the original footing. He also said that a doorway built was too big.

He said that some small bricks were used in a portion of the wall that were not present before. He indicated that the wrong colour of cement or mortar was used. He also complained that the Plaintiff took too long to complete the project and that because of this he was not able to build a roof on the porch before the fall, and suffered some water damage. He also said that the Plaintiff arrived too early in the morning and disrupted his wife’s sleep.

In his dispute note, the Defendant said it would cost around $4,000.00 to redo the job properly, and as a result he claimed that he should pay nothing on the account. [ 10 ] With respect to the Orders made by Her Honour Judge Gordon and the Case Management Conference, I would point out that

section 7.1(1) of The Small Claims Act, 1997 , S.S. 1997, c. S-50.11 provides that a judge in a Case Management Conference may: (

g) order a party to permit a person chosen by another party to examine any item or property; . . . (

i) make any order for the just, timely and inexpensive resolution of the action. This

section clearly authorizes the exact kind of Order made by Judge Gordon. It is also clear she felt that for the Plaintiff to fairly address the allegations of poor workmanship, he should be able to attend with his expert and take pictures of any problem areas. [ 11 ] The Defendant gave no explanation as to why he did not comply with Judge Gordon’s Order. He made no explanation as to why he did not respond to the numerous letters from the Plaintiff, wherein the Plaintiff attempted to make arrangements to view and take pictures of the property.

He did not deny making the statements to the Plaintiff that are referred to in describing the Plaintiff’s evidence. It is apparent from the CMC checklist that it was contemplated that expert evidence would be presented at trial. The Defendant presented no expert evidence. He did bring some pictures to the trial which he asked be made an exhibit. He brought only one copy of the pictures. He had not disclosed or made these pictures available to the Plaintiff, in advance of the trial, as was directed by Judge Gordon. As a result, I refused to admit those pictures in evidence.

Analysis [ 12 ] Some of the Defendant’s complaints are contradictory to one another and don’t make any sense. For example, he complained that the Plaintiff took too long to get the work done and at the same time complained that the Plaintiff was there too early in the morning and deprived his wife of sleep. I don’t see how he can at one time complain that the Plaintiff wasn’t working and getting the job done and at the same time complain that the Plaintiff was there too early and working. [ 13 ] He complained that a window doesn’t open and close properly.

However, this seems to me to be simply an adjustment and maintenance item and not an item that speaks to poor quality workmanship. [ 14 ] He complained that the mortar and cement don’t match existing mortar and cement. The Plaintiff explained that the existing mortar and cement were there for many years which resulted in some natural fading, making an exact match impossible. [ 15 ] He complained that the Plaintiff should not have poured the footing slightly offset and also that the Plaintiff built a doorway that was too wide.

The legal allegation normally advanced is that the Plaintiff didn’t build in accordance with the job specifications. However, under cross-examination, the Defendant admitted that he wasn’t there while the Plaintiff did this work, and that he provided no job specifications. In fact, when questioned about why there was no suggestion of anything being done wrong until the CMC, he indicated that he was constantly at work until he was laid off in March 2011.

It was only after layoff that he was at home and in a position to inspect the Plaintiff’s work. (It would seem to me that this also is the reason why he didn’t get a roof built on the porch, and not because the Plaintiff didn’t get the work done.) [ 16 ] I note that the Plaintiff and his spouse are an elderly semi-retired couple. It seems to me, and I conclude, that the Defendant, for whatever reason, however valid or invalid, decided very early on that he would not pay this account.

He then decided that he would be completely uncooperative and offensive to the Plaintiff in the hope that the Plaintiff would be intimidated or bullied into not proceeding with this action. I can conceive of no other reason for refusing to pay the account, indicating he would present expert

evidence, refusing to allow access to the Plaintiff to inspect the property and take pictures, refusing to comply with a Court Order, and not presenting any expert evidence to prove his case. Even if this were not the case, and even if I accepted in entirety the Defendant’s evidence, I would still have to give judgment for the Plaintiff. There was no discussion between the parties and no evidence presented of any discussion that the Plaintiff warranted the Defendant’s satisfaction with the job. Because there was no such discussion, the usual implied warranties would be applicable here.

Chiefly, it was an implied term of the contract that the Plaintiff would perform the work in a good and workmanlike fashion. In the case of Maisonneuve v.

Burley , 2001 SKQB 407 , Madame Justice Dawson quoted from Halsbury’s Laws of England , 3 rd Edition , as follows: A contract to perform any work, in the absence of any stipulation in the manner to which it is to be carried out, implies a condition that the work shall be done in a good and workmanlike manner, and that the workman employed on the job must be possessed of the ordinary amount of skill possessed by those exercising the particular trade… [ 17 ] This is not the satisfaction guaranteed or money refunded warranty that is provided by some retail outlets.

The Plaintiff is not required to perform the work “to the satisfaction of the Defendant” in order to be paid. The Plaintiff was required to display and utilize the ordinary amount of skill possessed by those in his particular trade, that of bricklaying. So I ask the question: In performing this work did the Plaintiff possess and display the ordinary amount of skill possessed by those in this trade? He has been a journeyman bricklayer for more than twenty years, and testified that he did do the work to that standard. In my view, the Defendant’s complaints are minor and do not negate this.

Most importantly, the Defendant called no expert evidence. There is not the slightest evidence that the Plaintiff did not possess and display the appropriate skills of a bricklayer. In fact, the Defendant didn’t even testify that the Plaintiff didn’t display the appropriate skills in doing the work. What he repeatedly said was that he was not happy with the work. In other words, the Defendant is attempting to hold the Plaintiff to a satisfaction guaranteed standard and that is not the law. Conclusion and Orders [ 18 ] The Plaintiff’s total account is in the amount of $3,478.35.

Clearly, the Plaintiff is entitled to judgment in that amount. The Plaintiff also claimed interest on that account. This case is similar to the case of Schultz v. Nagy (Small Claims Action SC 107-09 at Moose Jaw Provincial Court, dated August 11, 2011). In both cases I concluded that the Defendant was completely unjustified in not making payment of the account. In the Schultz v. Nagy case, at paragraphs 21 and 22, I stated as follows: In the case of Benbie Holsteins Ltd. v.

Kevin Pole and Dallas Pole, SC 123-09, at Moose Jaw, Saskatchewan, dated January 19, 2011, I utilized s. 5(3) of The Pre-judgment Interest Act, RSS 1978,

Chapter P-22 .2, to award interest to the Plaintiff. Section 5(3) reads as follows: If it is proven to the satisfaction of the Court that it is just to do so having regard to the circumstances, the Court may , with respect to the whole or any part of the amount for which judgment is given, refuse to award interest under this Act or award interest under this Act at a rate or for a period, or both, other than a rate or period determined pursuant to

section 6 . (emphasis added) This

section allows the Court to fix an alternative rate of interest on an account that is fair. In the Benbie case, I set the rate at 10% per annum, on the basis that such a rate was closer to what one would normally expect to pay on an outstanding account, and closer to the rate that a business would normally pay on an operating line of credit. I will do the same in this case. [ 19 ] I note that in a written decision cited at 2011 SKQB 70 , Madam Justice Schwann upheld the decision in Schultz v. Nagy. For the reasons set out in Schultz v.

Nagy, I intend to award interest on the outstanding account at the rate of 10% per annum from August 31, 2010 until the date of this judgment. I calculate the interest as follows: $3,478.35 x 10% x 578/365 = $550.83 [ 20 ] In addition, I award the Plaintiff costs in the amount of $200.00 for unnecessary expenses as a result of the Defendant not complying with the directions of Her Honour Judge Gordon at the CMC, and I award the Plaintiff costs of this action, which I fix in the amount of $400.00. The total of all of the above mentioned sums is $4,629.18. The Plaintiff shall have judgment in that amount.

Dated at Moose Jaw, Saskatchewan, this 2 nd day of April, 2012.

__________________________________________ D.J. Kovatch, J