Lecomte Refrigeration & Heating Ltd. - v. -, 2012 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 144 Date: October 11 , 2012 Small Claim #: 81/2011 Location: Swift Current, SK _____________________________________________________________________________ Between: Lecomte Refrigeration & Heating Ltd. - and - Rodney Klassen Mr. Dennis Lecomte For the Plaintiff Mr. Rodney Klassen For the Defendant DECISION L.A. MATSALLA , J [ 1 ] The plaintiff has commenced an action to recover the sum of $5,262.24 with interest from the defendant that it claims is due under a contract to supply labour and materials.

It also claims additional amounts that it says is due for increased costs, mileage and extra labour. Of that amount Mr. Klassen acknowledges that he only owes the sum of $1,977.57. Mr. Klassen has filed a counterclaim against the plaintiff for the sum of $1,415.61 consisting of a claim for wages and mileage.

Facts [ 2 ] Mr. Lecomte is the president and most significant employee of the plaintiff company and he testified that the firm is in the business of supplying and installing geothermal heating and cooling systems. The firm is based in Moosomin, Saskatchewan. Mr. Klassen is a farmer in the Hodgeville District, Saskatchewan. (

a) Position of the plaintiff [ 3 ] According to the plaintiff, the defendant approached Mr. Lecomte in November of 2005 to discuss the possibility of using geothermal heat in a new residence that he planned to build on a farm in the Hodgeville District. The defendant provided Mr. Lecomte with the blueprints for the house in order to obtain an estimate of the cost. In a letter dated March 8, 2006, the plaintiff provided the defendant with a written estimate of $25,820.00 and GST for labour and materials based on the blueprints that were supplied to it for “a complete Geothermal Heating and Ventilation System”.

The price was in effect for 30 days and did not include the cost of electrical connections, plumbing or trenching. The quote listed numerous materials that were to be supplied including a 40 gallon water heater. [ 4 ] In August of 2006, the plaintiff contacted the defendant to inquire as to whether he wanted to go ahead with the project. On September 19, Mr. Lecomte attended at the Klassen residence and provided the latter with a written proposal which referred to the March quote and set out a price of $26,820.00 - an increase of $1,000.00 over the original quote.

The invoice refers to the price that is to “be held to March 31, 2007”. Mr. Klassen paid a deposit of $3,000.00 that day and, after examining the state of the construction of the building, Mr. Lecomte stated that he could start promptly. Apparently the defendant was to complete some trenching that was required which consisted of five trenches - each 300 feet long and dug to a depth of seven to eight feet and having a width of two feet with each having a flat bottom since plastic pipe was to be placed flat on the base. Particulars had been provided to Mr. Klassen. [ 5 ] Mr.

Lecomte needed some help so he hired a person suggested by Mr. Klassen and in November, after picking up the duct work and plastic lines, he attended to do the work. He started to put in the lines but found that because of drastic elevations and valleys at the bottom of the trench it was necessary to level the peaks. Mr. Lecomte said that he gave Mr. Klassen some options, one of which was for the both of them to enter the trench and take down the peaks. He said that he told the defendant that he would be charging something for the extra work although no specifics were discussed.

Six hours later, the work was done and Mr. Lecomte subsequently billed for his time at $75.00 an hour (total = $450.00). The plastic pipe was installed and the trench was backfilled. The inside work then began. [ 6 ] After six long days, 85% of the project was completed. Invoice #0440, dated November 20, 2006 for the sum of $10,000.00, was submitted and paid. The parties talked in March of 2007, and while Mr. Lecomte was ready to finish the job, Mr. Klassen’s basement was not yet ready. Usually, according to Mr. Lecomte, he arranges for the delivery of larger materials but because of the delay on Mr.

Klassen’s part, Mr. Klassen himself picked up the materials instead of having it shipped to the farm. [ 7 ] Invoice #0495 dated July 8, 2007, in the sum of $10,500.00 including GST was submitted and paid. [ 8 ] In the fall of 2008, Mr. Lecomte came back to the site to install the duct work. Only the final hook-up was necessary. Mr. Lecomte asked Mr. Klassen to arrange for an electrician to do the electrical work since the agreement between the parties did not include electrical connections. [ 9 ] In April of 2009, Mr. Klassen contacted Mr. Lecomte and told him that he was now ready to complete the hook up. Mr.

Lecomte attended at the site on April 16, planning to spend one day. The electrician had hooked up the electricity to the geothermal unit but he was reluctant to complete the wiring for the main control because he did not have the experience to do so. Mr. Lecomte testified that he was left with the choice of leaving the job to return another day or to hook up the controls himself. He went ahead on his own. Mr. Klassen was billed $75.00 an hour for two hours (total = $150.00) to do the work. At the time, the defendant could not make the heat exchanger work properly so he asked Mr. Lecomte to fix it, which he did.

The system was working when Mr. Lecomte left the site.

[ 10 ] By invoices 0114 and 0115, dated July 12, 2009, the plaintiff billed the defendant as follows:

a) Remainder owing on the contract - $4,329.40

b) Increase in the cost of goods and services of 7% - $303.05

c) Labour to level the bottom of the trench (6 hours @ $75.00/hr) - $450.00

d) Wiring the controls for the heat exchanger (2 hours @ $75.00/hr) - $150.00 [ 11 ] In addition to the above noted claims, the plaintiff now seeks the cost of his travel to the work site (which he has calculated at $180.00). Furthermore, the claim includes the cost of an HRV switch at $48.61 and $60.00 for the cost of ethanol supplied for the system - all claims made at the time of trial and were not included in any invoices. In cross-examination Mr.

Lecomte acknowledged that the trench floor did not require a lot of scraping to level although the plaintiff’s claim includes compensation for six hours of work to do so. He left the site on October 2008 in part, as I understand it, because the basement was not insulated although he did not recall requesting Mr. Klassen to insulate the basement. Mr. Lecomte said that he had to supply an additional HRV switch because Mr. Klassen said that he lost a similar switch, that had been supplied by the plaintiff and so the defendant was billed for the cost of the switch, particulars of which was not supplied at trial.

The original contract between the parties called for the supply and installation of a 40 gallon water heater, however Mr. Klassen purchased the water heater on his own. The plaintiff is willing to provide the defendant with a credit of $352.00 for the value of the water heater. [ 12 ] Mr. Klassen filed a counterclaim in the sum of $1,415.61 for wages that he says are due to him for the assistance that he provided Mr. Lecomte to install the geothermal system and he seeks mileage incurred by him to pick up the material in Regina from the plaintiff. In response, Mr. Lecomte argues that Mr.

Klassen offered to help and he made his own arrangements to pick up the material which would otherwise have been shipped to the work site. (

b) Position of the defendant [ 13 ] Mr. Klassen testified that he was to dig the trench but he said that there were no specific instructions as to how flat the base of the trench was to be dug. He went on to say that a few peaks had to be levelled which took 15 minutes per trench for a total of about one hour. It took a total of six hours to have the pipe put down. Mr. Klassen said that it was Mr. Lecomte who asked him to pick up the equipment in Regina in the month of March of 2007 and Mr. Lecomte agreed to pay Mr.

Klassen if the latter helped him with the work however there was no discussion as to the amount that was to be paid. Mr. Klassen purchased the hot water heater on his own at a cost of $750.00 and 5% GST for a total of $787.50. Mr. Klassen makes his claim based on 38.5 hours at $25.00 per hour for a total of $962.50 and mileage costs of $300.50 plus GST in the amount of $92.61. Analysis [ 14 ] The plaintiff agreed to complete the contract for $26,820.00. Once the deposit was paid by the defendant, the parties had a contract. The contract price was fixed.

Unless it was subsequently agreed to amend the contract or unless it was a specific term of the contract that the price could change to take into account increased costs, a party cannot unilaterally change the terms without the agreement of the other party. Reference to the term “price will be held to March 31/07” presumably means that the plaintiff was prepared to supply labour and materials at the price quoted if the defendant was prepared to retain the firm to do the work by that date. Mr. Klassen did so since the deposit was paid the same day. [ 15 ] I accept that Mr.

Klassen was told that the bottom of the trench should be relatively flat and while there may have been some extra time spent to level the trench, I am not satisfied that the trench required the amount of time claimed by the plaintiff. In the circumstances, without a specific agreement, it is not reasonable for Mr. Lecomte to be charging the defendant $75.00 per hour to level the trench. The amount that ought to be charged is, it would appear, a rate that could be paid to a labourer. The defendant admits that extra time was spent by the plaintiff to prepare the trench.

Therefore, the plaintiff shall be compensated for three hours of work at $25.00 per hour for a total of $75.00 as extra labour expended to complete the contract. I am satisfied that Mr. Klassen was to arrange for an electrician who was qualified to hook up the system. Had he done so, he would have had to pay that electrician to hook up the controls. Accordingly, since Mr. Lecomte did the work, he is entitled to claim the sum $150.00 for services rendered. I am inclined to accept Mr. Lecomte’s evidence that he supplied a replacement switch valued at $48.61.

It seems to me that the supply of ethanol was part of the contract price.

[ 16 ] The contract provided for the plaintiff to supply a 40 gallon water heater as part of the contract price but since the water heater was supplied by the defendant and not the plaintiff, he cannot expect payment for something that he did not supply. The parties agreed that the plaintiff was to supply a water heater but there was no agreement that the tank that was to be supplied was to be of any special quality and I accept Mr. Lecomte’s evidence that the water heater that the plaintiff would have supplied would have been valued at $352.00.

There shall be a credit in favour of the defendant in the amount of $352.00. [ 17 ] The plaintiff was required to attend at a distant location in this province on a number of occasions to complete the contract and he must have considered such costs when entering into the agreement. The claim for those costs will not be allowed. [ 18 ] The plaintiff shall be entitled to the following amount:

a) Amount owing under the contract: $ 4,329.40

b) Extra goods and services:

i) labour to dig trench ($25.00 x 3) $ 75.00 ii) electrical work ($75.00 x 2) $ 150.00 iii) HRV switch $ 48.61

c) Less credit for water heater (including GST) $ 352.00 Total: $ 4,251.01 Counterclaim [ 19 ] The evidence does not satisfy me that there was a clear agreement between the parties in which the plaintiff agreed to retain the defendant to assist Mr. Lecomte. It appears to me that Mr. Klassen volunteered to help. He also volunteered to pick up the equipment in Regina. Therefore I find no merit to the counterclaim and it shall be dismissed. Conclusion [ 20 ] Judgment shall issue in favour of the plaintiff as follows:

a) Claim $ 4,251.01

b) Pre-judgment interest $ 91.88 (calculated on the sum of $4,251.01 from July 12, 2009)

c) Cost of Summons $ 53.00 TOTAL $ 4,395.89

____________________________ L.A. Matsalla, J