Classic Paving Inc. - v. -, 2014 SKPC 132

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: June 13, 2014 Citation: 2014 SKPC 132 File: File # 398/13 Location: Regina, Saskatchewan _____________________________________________________________________________ Between: Classic Paving Inc. - and - Fresh Air Enterprises Ltd. Daniel Aussant For the Plaintiff Nestor Mryglod For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] At the outset Classic Paving Ltd. ( “ Classic ” ) brought this action against Fresh Air Enterprises Ltd. ( “ Fresh Air ” ) demanding payment of an interim invoice it presented to Fresh Air for partial paving services it rendered to Fresh Air in the summer of 2012.

[2] Fresh Air disputes that interim invoice and says that it had no obligation to remit any payment for goods and servicesrendered until the entire work was completed. In the alternative it alleges that the interim invoice seeks payment for an amount of workthat is far in excess of what was actually done.

In the further alternative it alleges that the work done was not of good and workmanlikequality and the product that was used was unsuitable for its intended purpose and therefore there is no obligation to pay the invoice. [3] Fresh Air has counterclaimed alleging that due to the poor quality of Classic’s work, its delay in completing the project, andan ensuing circumstance that has frustrated the performance of the work intended to be done, it had the right to repudiate the contract,and now seeks damages from Classic in an amount sufficient to put it into the position it would have been in had the contract beencompleted.

Preliminary Matters [4] The parties to this dispute were self-represented and each lack a comfortable grasp of how to properly plead their respectivepositions, how to call for and introduce compelling expert evidence, and what the relevant law is in relation to this dispute.

This is not anunusual situation in Small Claims, but it does cause a degree of difficulty in attempting to ascertain the essential issues in a disputeparticularly in light of the informality of the practice and procedure in this Court. [5] I believe that it is incumbent on this Court, in its effort to ensure a timely, efficient, and cost effective forum for theresolution of claims, to assist the parties to properly elucidate and articulate the substance of their respective positions.

Had I forced theparties to clarify their positions by seeking counsel and redrafting pleadings I would have been remiss in my duty, and in this Court’sobligation, to comply with those principles of proportionality which were referred to in Hryniuk v.

Mauldin, 2014 SCC 7 whichare, in my view, intended to be considered by Courts such as this. [6] For instance, Classic’s Claim, in its essence, is in the nature of a claim for restitution on the basis of quantum meruit andunjust enrichment arising from Fresh Air’s repudiation of an oral agreement for the provision of goods and services. [7] Fresh Air’s defence and counterclaim is as set out above, not as set out in the rather prolix description of combined fact andevidence and argument as set forth in its two page defence, two page counterclaim, and four page “Defendant’s Rebuttal”. [8] Having observed the parties at trial and heard their arguments, I am satisfied that my characterization of their respectivepositions are as set forth above.

Discussion of Issues 1 - What was the nature of the agreement and the scope of the work to be done? [9] Dan Aussant is the owner of Classic. He says that on or about the 22nd day of June 2012 he was called by Allen Mryglod,the operations manager for Fresh Air, to attend at Fresh Air’s premises to present a quote for the cost of “recapping” approximately4,500 square feet of pavement.

[ 10 ] Recapping is the application of a layer of asphalt of somewhere between one and two inches on existing but slightly worn pavement, in an effort to smooth over and cover existing dents and cracks, in order to extend the life of the paved premises. [ 11 ] According to the experts at trial, recap has a life of between 7 and 15 years, but might be as little as 2 years, depending on any number of factors; the quality of and existing lifespan of the pavement underneath, the amount and weight of the intended traffic, the depth of the recap, the type of asphalt used, the freeze and thaw cycle, the manner in which it is applied, the extent of compaction, and the list goes on. [ 12 ] Recapping is different than a “dig out”.

A dig out is necessary when the existing pavement is so worn and dilapidated that there are significant ruts and cracks and “alligating”; a process in which the pavement has begun to chunk apart. In this event, the underlying pavement must be removed and hauled away; a new base is added and then two layers of asphalt of about two inches in depth are consecutively laid to replace the former pavement. [ 13 ] Recapping is intended to prolong an existing pavement. It is less expensive than a dig out, and the Court heard that the difference in price is significant.

A dig out can cost three times or more the cost of a recap but its lifespan is more significant. It can last as long as 40 years, but more likely, for the purposes to which Fresh Air puts its pavement, perhaps between 25 and 30 years. [ 14 ] Dan says that when he attended the premises, Allen advised him that he had received two other quotes and was seeking a third. Dan says that he was walked through the premises and shown a number of locations outlined in spray paint that Allen wanted recapped.

He measured these locations and identified approximately 4,500 square feet that needed recapping. [ 15 ] Dan says, however, that one of the outlined portions comprising an area of between 1,500 and 2,000 square feet was in a dilapidated state and should properly be dug out because of extensive alligating. This portion of the work will be referred to as the “east side work”. He says that he alerted Allen to this concern, but Allen wanted a quote for recap. [ 16 ] In response, Dan submitted a written estimate that simply stated “recap bad areas in lot. Approx 4,500 sq ft ... Amount (inclusive of GST) $11,025.00".

Dan said that Allen agreed to the price and gave him the go ahead to proceed. [ 17 ] Allen concedes that for the most part this is what occurred.

He denies however that he was advised of the prospective need for a dig out on the east side, and he advises that he wanted an assurance that Dan would guarantee the work for a period of ten years. [ 18 ] In addition, Nestor Mryglod, who acted for Fresh Air at trial, further suggested that Dan had actually been called for the express purpose of advising Allen how best to pave the property in a manner that would provide this type of guarantee. [ 19 ] I do not believe Allen when he says that he had discussions about a guarantee for ten years, nor do I believe that Dan was called to consult as an expert for the purposes of advising on how to guarantee the work for ten years.

Nor do I believe that there was no conversation in relation to the east side work. His evidence on these points was hesitant, uncertain, and unclear. He seemed to be distinctly uncomfortable on those points, and equally hesitant when called upon to elaborate on who else quoted for the project and how much they quoted for. [ 20 ] Allen eventually conceded that he had received two earlier quotes which were approximately 20% higher than what Dan quoted. Did each of these contractors also act as consultants?

If so, would they not have also identified the dilapidated nature of the east side and quote for the much higher cost of a dig out? If so, how could they come within 20% of Dan’s recap only quote? [ 21 ] Finally, Allen had previously engaged Dan for both recapping and dig outs on the premises in the past and he advised the Court that he had been entirely satisfied with those jobs that Dan had previously undertaken. He clearly knew, or ought to have known, of the distinction between the two processes and their respective costs, and, in my view, was looking for the temporary fix that is

anticipated by a recap. [22] Where Allen’s version of these discussions vary from Dan, I prefer Dan’s evidence, and on that basis I am satisfied thatClassic was engaged for the specific purpose of recapping approximately 4,500 square feet of pavement at a cost which equates to $2.45per square foot. 2 - What type of product was to be used? How was it to be compacted? Was it defective or unsuitable? [23] As is readily apparent, there was no written agreement identifying these specific terms.

Fresh Air wants this Court toconclude that because Classic failed to provide a written contract identifying these issues, there is in essence no contract and therefore noobligation to pay for any work that may have been performed. [24] I disagree.

While it would be nice to have litigants come to this Court with comprehensive written agreements, this is by farthe exception to the more general rule in this Court, and in the absence of these kinds of written agreements, it is incumbent on the Courtto imply an unexpressed term in a contract where necessary to implement the parties’ presumed intentions and to give business efficacy tothe contract. [25] In contracts for the provision of work and materials for construction or repair, there is an implied condition that the work willbe done in a proper and workmanlike manner; that the materials supplied will be free of defects; that the work product will be reasonablyfit for its purpose absent minor defects, recognizing that reasonableness and not perfection is the test. (See generally, Mack v.

Stuike(1963), (SK KB), 43 DLR (2d) 763 (SK Q.B.) and Al Vogel Construction Ltd. v. Forbes, (SK KB),174 Sask. R. 236 (Q.B.).) [26] In assessing the type of product to be used and the manner in which it is to be applied I am satisfied that the Court may giveconsideration to the general practice which has been previously adopted between the parties. (See Atomic Interprovincial Transport ( Eastern) Ltd. v. Paul Geiger Trucking Ltd. (1988), (MB CA), 45 D.L.R. (4th) 312 at 316 (Man. C.A.).) [27] Dan Aussant performed a portion of the project over a couple of days in the latter part of July 2012.

He used a product by thename of “fines” which he says is a product that he always uses for this kind of project; which he has used for all of his working career;and which he had previously used when recapping for Fresh Air.

In so doing he used a roller and a compacting machine, and hisevidence is that it was a product and manner of application that was suitable in the instant circumstances. [28] In support of this I note that each of Nestor and Allen Mryglod gave evidence at this trial and each of them noted that therecapping work previously performed by Classic was well done and continues to this day. [29] Dan’s evidence is reinforced by the expert he called, Peter South. I accepted Peter South as an expert notwithstanding that hehas worked for Classic in the past and was going to assist on some portions of this particular job.

I was cognizant of a potential conflict,but I am satisfied that he fairly offered his opinions objectively. On inspection he confirmed that the product and its manner ofapplication was suitable and workmanlike. [30] Fresh Air disagrees, and in support of its position has presented a number of photographs showing previous work done by wayof dig out and recap together with photographs of the most recent work. It points to an area of work comprising about six one footsquare indentations and scuffs on the recap.

It says that if this can happen, then the Court should infer that it may occur whereverClassic had provided recapping. [31] Dan Aussant, his expert Peter South, and Fresh Air’s expert have all reviewed the photographs. The damage, which all agreeis displeasing but only cosmetic and does not affect the integrity of the recap, occurred shortly after the recap was laid and was not yethardened, and most likely occurred when a semi truck, laden with heavy metal coils, attended on the premises while its wheels were stillhot.

More likely than not, they say, the driver turned its wheels abruptly causing the asphalt to pinch and scuff.

[ 32 ] These photographs show damage which occurred shortly after the recap was laid. They do not show that there has been any further pinching, notwithstanding that it has been almost two years since the recap was laid down. [ 33 ] Fresh Air invites me to conclude that the product and its manner of placement, for that reason alone, shows that it is unsuitable.

It invites me to infer that it will happen at different locations and with increasing frequency and finally invites me to conclude that all of the work performed should be redone using a coarser grade of asphalt applied in a different manner pursuant to a quote provided by Fresh Air’s expert Richard Bouvier. [ 34 ] Mr. Bouvier has provided a quote to correct this apparently defective work and he was also called as an expert witness by Fresh Air. I am cognizant of the fact that his evidence too, may be tainted by some desire to benefit by getting this new job.

It is rather easy for a subsequent contractor to besmirch the work done by an earlier contractor in an effort to get the work, but again, I am satisfied that he gave his evidence fairly and objectively. [ 35 ] Mr. Bouvier’s quote suggests the use of a two inch layer of a coarser grind of asphalt. He has suggested that fines is a weaker product and may fail the test of time. (He does not say that it will fail the test of time.) He is presumably not aware that it was used previously onsite and has stood the test of time.

He concedes that he has limited experience using this product in Saskatchewan which has a more extreme freeze and thaw cycle than in Alberta where he previously worked, but he also notes that even if his coarser product was used, one could expect the same type of pinch and scuff to occur if his product had been newly laid down and a hot wheeled, fully laden semi-trailer had come to a stop and then abruptly turned its wheels. [ 36 ] While I accept his evidence that the coarser asphalt mix that he recommends may be a better product, and capable of withstanding more pressure and last longer, it also comes at a higher cost, and notably, it is also (like the earlier two quotes) 20% more expensive than the fines product.

The fact that it may be better does not convince me that the product used by Classic is unsuitable. There is simply no evidence to support this suggestion. Fresh Air was looking for a less expensive fix, and in my view, while it may not have obtained the very best product, it received a reasonable product which had been properly applied and which has, in the past, stood the test of time.

I am satisfied therefore that the work was performed in a good and workmanlike manner and with product that was suitable for its intended purpose. 3 - Did the agreement contemplate the provision of an interim invoice for work that was only partially completed? Was the amount sought fair having regard to the amount of work performed? [ 37 ] Dan says that when he first attended to do the work in July of 2012, he could only do some of the work. The parties disagree as to the reason.

Dan says that he thought that Fresh Air knew that Classic did not work on weekends, and he says that he attempted to make alternate arrangements to complete the work before the middle of September but that Fresh Air was delinquent in returning his calls, and because of their busy work schedule, could not set aside a period of time to complete the work because of the number of trucks coming and going from the premises. [ 38 ] I am satisfied that Classic ’ s failure to complete the remainder of the recapping occurred through a combination of three things.

First, Fresh Air ’ s company and premises are busy during the late summer and early fall. Recap takes time to harden, and clearly Fresh Air could not set aside a significant period of time to allow Classic to complete the east side work, particularly when it is a major through way in which Fresh Air ’ s trucks access and egress the premises.

Second, Classic knew that the east side was in a state of disrepair and I can appreciate that he would choose to follow his normal practice of not recapping after September 15 of any given year due to potential problems with cool weather and the effects that would have on proper hardening.

Third, while I believe that Allen attempted to contact Dan in the fall of 2013 to have him complete the job during what was described as a warm spell, I have no evidence before me as to how long that lasted, how it would affect the potential job, or if it was long enough to allow the recap to harden sufficiently to meet the more onerous job that would have been anticipated due to the east side ’ s dilapidated condition.

To that extent I rely on Dan ’ s experience as a paver to set the recap on the east side over to a later date. [ 39 ] On or about October 22, 2012 Fresh Air received an interim invoice seeking the sum of $8,400.00 (inclusive of tax). It stated “Billing out work that was done already... The rest will be billed when it is done next year, thanks”.

[ 40 ] Allen replied by letter on February 14, 2013. They took specific issue with the amount billed as it did not in their view come close to the rather nominal amount of work that had actually been done. They expressed concern that if they paid now, the rest of the work may never be completed and they indicated that they would not pay until all of the work was completed and done properly. [ 41 ] As indicated, there were no express terms dealing with payment by interim invoice.

It is clear that this agreement was what might be described as a lump sum contract, an indivisible contract to perform work for a set lump sum price. Generally speaking, under common law, and in the absence of express words to the contrary, the consideration for the promise to pay is complete performance of the contract, or at least substantial performance, and in the absence thereof I am of the view that Fresh Air was within their rights to demand complete performance as a pre-condition to payment.

Nor can it be said that their was substantial performance which the invoice would lead the court to believe. [ 42 ] Dan Aussant suggested at trial that he had completed approximately 75% of the work, and on that basis, presented the invoice. Allen disagreed and inclines to the view that only about half of the work was done. Nestor Mryglod however stated that after the first day of trial he went to measure the work that was done and could only account for 1,670 square feet. While Mr.

Assaunt disputes this, I would note that this Court granted Classic two opportunities to attend at the premises pre-trial to gather evidence and information and at no time did anyone on behalf of Classic attend to actually measure how much work was done. [ 43 ] Classic bears the burden of proving its case. The amount of work it says it did is purely speculative - a guess. Under the circumstances, I conclude that Nestor Mryglod ’ s evidence is to be preferred and find that Classic only recapped 1,670 square feet. At a rate of $2.45 per square foot, the actual amount owing was only $4,091.50 (inclusive of taxes).

Even if Classic could interim bill based on a suggestion of substantial performance, only 37% of the work had been performed. The contract was not substantially complete, and, in my view, there was no obligation for Fresh Air to pay this interim invoice at that time. 4 - Was Fresh Air entitled to repudiate the agreement? If it was would it be able to succeed on its counterclaim? What would be its measure of damages? [ 44 ] Dan Aussant says that in late spring and early summer he attempted on several occasions to contact Fresh Air to come in to complete the work.

Allen and Nestor Mryglod say that they were not contacted and say that their records do not reflect any calls made to them. Similarly, Nestor maintains that he attempted to and did leave messages with Dan to come in and complete the work. Dan denies that they did. [ 45 ] The evidence in this regard is entirely unsatisfactory. If Dan wanted to get paid (and he says that when he received their February letter he intended to complete the contract so he could get paid) why did he not make arrangements in person to attend as soon as the weather allowed in the spring?

It was, after all, his evidence that at this point in time, many pavers are not busy as they have not yet lined up their summer customers. [ 46 ] If Fresh Air was concerned about completing the contract why did they not take more active steps to get in touch with Dan before their very busy season started? [ 47 ] I have come to the conclusion that Dan Aussant was in the process of winding down his business (he stated as much at trial) and he simply concluded that he would do the work when he got around to it.

I have come to the further conclusion that Nestor Mryglod was no longer particularly interested in having Classic complete the work.

He was unhappy with the scuffing on the recap that had been done and in my view would have been just as happy if Dan defaulted under the contract. [ 48 ] In fact, Dan eventually attended at Fresh Air’s premises at the end of July 2013 with a work crew but after a short conversation with Nestor was told that he was not allowed on the work site, because the work done was presumably defective, and more importantly, the work on the east side which was still left to do, had deteriorated to such an extent that a recap was no longer a viable alternative.

Nestor indicated that he had obtained quotes and that other contractors had indicated that because of further deterioration only a dig out would suffice.

[ 49 ] Up until that time Classic was operating on the assumption that they still had an agreement in place. Fresh Air only gave notice to Classic in July of 2013 that they intended to repudiate the agreement.

Prior to that time, they were ostensibly prepared to allow Classic to return and do the work. [ 50 ] The expert evidence at trial was unanimous that upon a review of the photographic evidence of the east side, which had been taken by Nestor Mryglod in April of 2013, the only viable means of fixing the east side work was by way of dig out. [ 51 ] Dan Aussant attempted to argue that a recap could still provide some nominal assistance, but even he conceded that the east side work had deteriorated noticeably. [ 52 ] Up until this time, Classic had paved 1,670 square feet under the agreement.

Of the remaining work, almost 1,950 square feet dealt with the east side work which had deteriorated and could no longer be recapped, and there remained 880 square feet of recap to do. [ 53 ] Notwithstanding that there was an understanding that Classic would return in the spring to complete the job, the evidence before the Court satisfies me that by April of 2013 the east side work could no longer be recapped, or at least if it had been attempted, it would not have proven to be of any significant use.

Dan suggested, for instance, that a recap at that time might only have lasted for a couple of years. [ 54 ] In light of this turn of events, Fresh Air maintains that it had the right to repudiate the agreement, and as a result of that repudiation seeks the cost of recapping all of the work previously done by Dan and an additional area of about 5,700 square feet. In addition, it seeks the costs of a dig out on the east side in the further sum of $16,279.00.

This, it says, is due to Classic’s breach of contract in failing to complete the contract and Fresh Air’s cost of putting itself in the position it would have been but for the alleged breach. [ 55 ] In my view Fresh Air had the right to repudiate the agreement, not because of a breach of contract, but by reason of frustration of the agreement which I will discuss shortly. [ 56 ] Even if I did not find the contract frustrated, Fresh Air’s approach to their counterclaim is flawed. I have found that the work actually done by Classic to be workmanlike and reasonable.

On that basis there is no reason whatsoever that the work has to be redone. In addition, there is no reason in law that Classic should bear the cost of a much larger recap then what was originally anticipated under the agreement. At best, Fresh air would be entitled to claim for portions of the work that remained undone. [ 57 ] The proper measure of damages in situations such as this is not to award an offended party to the contract a windfall by letting it get all the work done for free, but rather to put it into the position it would have been in, insofar as money can do, had the contract been completed.

Put another way, it would be entitled to the increased cost which is now necessary to perform the agreement. [ 58 ] The first area of work is the recap of those areas other than the east side that were not done. Since the east side dig out has been estimated at about 1,950 square feet, the remaining portion would be approximately 880 square feet. Mr Bouvier’s quote to recap is $2.88 per square foot (inclusive of tax) compared to Classic’s quote of $2.45 (inclusive of tax).

The difference between the two costs is the proper measure of Fresh Air’s potential loss had the contract been breached because it is the increased cost of performance which is the proper measure of damages, and therefore, the potential loss for that portion of the work is (880 x .43) or $385.00. [ 59 ] The second portion of the work would be the east side recap/dig out. A recap of those 1,950 square feet would have cost (1,950 x $2.45) or $4,777.00. At best, and according to the evidence, it would have lasted between 7 and 15 years.

I choose the median point (ten years) having regard to its poor underlying pavement. It would have cost Fresh Air $477.70 per year over the life of the project if recap had been done by Classic. [ 60 ] By comparison, the dig out has been estimated to cost $16,279.00 (inclusive of tax). A dig out has a much longer life than a recap and according to the evidence, will last between 25 and 40 years. Fresh Air’s original pavement withstood the test of time from

1986 to 2013 for a total of 27 years. There is no reason that a dig out would not have lasted as long. If Classic was obliged to pay for this dig out it is clear the Fresh Air would derive a much better and longer lasting product than what was originally bargained for and Fresh Air would, in effect, receive a windfall. However, it is only entitled to be put in the position it would have been in had the contract been performed. [ 61 ] The difference is what is described as “betterment”.

Fresh Air’s betterment in this case would be the longer lasting product and when measured in cost per year of serviceable condition it is clear that the dig out will cost ($16,279.00 / 27) or $602.90 per year of service. Since the recap would only last ten years, the loss is the cost difference between ten years of dig out and ten years of recap ($6,029.25 - $4,770.00) or $1,952.25. [ 62 ] Even that does not end the matter. Fresh Air did not incur this expense to date. Had the work been done on the east side in 2012, there would only be eight years left of its potential use.

A new dig out, if commenced this year, will still last 27 years and in the result, the $1,952.25 referred to above would have to be reduced by two years of recap life, ($477.70 x 2) or $955.40 for a net potential loss of ($1,952.25 - $955.40) $996.85. [ 63 ] At best, Fresh Air’s potential claim for damages to put it into the position it would have been in had the contract been completed is ($385.00 + $996.85) or $1,381.85. 5 - Was the contract frustrated? If so, can Fresh Air succeed on its counterclaim?

Is Classic entitled to restitution for benefits it conferred under the agreement? [ 64 ] On the facts, I have found that Classic cannot be faulted for failing to complete the recapping on the east side before the weather changed and made it unlikely that the recap could be applied for a useful purpose. The failure was attributed to an inability of the parties to organize their business affairs to allow it to proceed.

I have also found that there was a tacit understanding that the project would proceed the following spring, and that at least up until that time, Fresh Air was prepared to allow the project to proceed. I have also determined, according to the experts, that by April of 2013 (early spring) the recap would serve no useful purpose because of the then existing state of disrepair of the east side. [ 65 ] In my view, a portion of the contract was frustrated because of fundamentally changed circumstances.

I am satisfied that as a matter of law, the parties are entitled to be released from their respective obligations if there had been a radical transformation in the circumstances governing performance under the contract. (See, generally, Davis Contractors Ltd. v. Fareham Urban Council , [1956], AC. 696 at 715 .) [ 66 ] On that basis Fresh Air was entitled to repudiate the agreement at least in so far as the east side work was to be done.

I have found however, that the original work that was recapped was not defective and therefore, there is no reason why Fresh Air should not have let Classic complete the remaining portion of the job. On that basis, Fresh Air is not entitled to succeed on its counterclaim for that aspect of the contract. [ 67 ] That stated, Classic is not seeking its potential loss of profits as a result of not being able to complete that portion of the work. [ 68 ] The Frustrated Contracts Act 1994 , c.

F-22.2 was introduced, the authorities suggest, to ameliorate the harsh common law effects that might otherwise arise by virtue of the common law.

Section 4 of that Act relieves each party from fulfilling obligations pursuant to a contract that was required to be performed prior to the frustrating event, and

section 5 of that Act grants to a party the right to restitution of benefits conferred by that party’s performance or part performance prior to the frustrating event. [ 69 ] I have found as a fact that Classic performed a portion of the contract, to the extent of 1,670 square feet, with a stated contractual value of $4,091.50. In my view, under

section 5 of the Act it is entitled to restitution in that amount.

[70]

Section 3 of The Small Claims Act 1997, c. S-50.11 applies to any claim or counterclaim for debt or damages. Since thePlaintiff is seeking what is in essence an order for restitution in the nature of quantum meruit a question arises as to whether or not thisCourt has the jurisdiction to grant this form of relief. [71] I am satisfied that it does, and in so doing I refer specifically to Grover v. Hodgins, 2011 ONCA 72 . In that decisionan appeal had been brought from Small Claims to the Superior Court and then on to the Court of Appeal.

The issue was whether or notthe Small Claims Court in Ontario had the jurisdiction to grant relief in the nature of quantum meruit or unjust enrichment, it beingsuggested that these were equitable remedies, and therefore were the exclusive purview of the Superior Court. The Court of Appeal heldthat the Small Claims Court had such jurisdiction. While noting that certain pure equitable remedies such as constructive trust (andarguably injunctive relief) are within the exclusive purview of the Superior Court, it noted that: 1.

There is some confusion as to whether or not quantum meruit and unjust enrichment are purely equitable remedies or whether theyfind their origins in the common law. (See for instance 936464 Ontario Ltd. v. Mungo Bear Ltd., (ON SC) citingProf. John D. McCamus in his text The Law of Restitution (Aurora: Canada Law Book, 1990 ch. 4); 2. A review of Small Claims Court decisions suggested that the Court has been operating on the basis that it had the jurisdiction to sogrant (something which our Court also assumes); and 3.

The reference in the Ontario Act authorizing the Court to deal with any claim for damages or debt within its prescribed monetarylimits should be given a broad and liberal

interpretation; 4. The history of the Small Claims Court is one of progressive development towards providing increased access to justice. [72] While the Court of Appeal’s analysis takes into consideration some aspects of Ontario law that is not applicable toSaskatchewan, it concluded that these restitutional remedies were within the purview of its Small Claims Court. An appeal of thatdecision was dismissed. (See Hodgins v. Grover (SCC).) [73] For these reasons, I am of the view that this Court has the jurisdiction to award restitution in the nature of quantum meruit andthat Classic is entitled to succeed.

Conclusion [74] I grant judgment in favour of Classic in the sum of $4,091.50. [75] I allow prejudgment interest on that sum commencing August 1 of 2013 which in my view is the approximate date when thecontract was repudiated. That amount is fixed by the Court in the sum of $32.72. [76] I dismiss the counterclaim of Fresh Air in its entirety. [77] It is clear the Classic attempted to seek an amount far in excess of what they were entitled to receive. It is only through thehard work of Fresh Air that the true amount owing became clear.

As such I decline to award any costs to Classic. ______________________________________ Paul Demong, J