Stewart Timothy Payne O/A Tim Payne ’s Woodworking - v. -, 2011 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 039 Date: February 18, 2011 File: SC#364 of 2009 Location: Saskatoon _____________________________________________________________________________ Between: Stewart Timothy Payne O/A Tim Payne ’s Woodworking - and - Edward Danneberg and Shannon Hill L. Korchin For the Plaintiff Selves For the Defendants _____________________________________________________________________________ JUDGMENT R.D.

JACKSON , J _____________________________________________________________________________ I INTRODUCTION [ 1 ] The Plaintiff is in the business of renovations and carpentry finishing work operating under the trade name “Tim Payne’s

Woodworking”. The Defendants reside at 1418 Avenue N South, Saskatoon, the subject residence of this action. On February 10, 2009, the Defendants solicited a written quote from the Plaintiff (“the quote”) for renovations to their home in the amount of $40,000.00 plus GST of $2,000.00 for a total of $42,000.00. The last line of the quote reads “... Quote Only, Actual Price May Vary Due to Unforeseen Price Increases and Problems That May Appear Later.” [ 2 ] Captured in the quote were certain “Allowances” (“the allowances”) which were designed to ball park the cost as close as possible for the items set out.

Any amounts for these named allowances that exceeded the ball park figure would be an additional amount to be paid by the Defendants. Further, according to the evidence, the Defendants would be responsible for any other “extras” (“the extras”) not contemplated or covered by the quote. [ 3 ] The allowances as contained in the quote are:

a) windows $600.00

b) garden door $800.00

c) flooring $3,000.00

d) counters $4,100.00

e) baseboards $150.00 [ 4 ] The work commenced April 16, 2009 and continued to May 21, 2009 when the Plaintiff ceased any further work. The Plaintiff maintains his services were terminated whereas the Defendants allege that he left of his own accord following a dispute regarding further monies owed for drywalling. [ 5 ] Up to May 21, the Defendants had paid the following:

a) deposit $4,000.00

b) cabinets $6,380.00

c) progress payments $13,000.00 Total: $23,380.00 [ 6 ] The Plaintiff seeks payments from the Defendants based upon the initial quote amount of $40,000.00 plus GST together with those amounts over the allowance figures as well as for the extras not contemplated, less the $23,380.00 paid by the Defendants. [ 7 ] The Defendants maintain that the Plaintiff is not entitled firstly to the $40,000.00 because he never finished the job (Plaintiff says that the work was substantially complete by May 21 - Defendants assert by Counterclaim that in fact the bulk of the work under the quote remained to be done).

The Defendants’ position is that the Plaintiff is owed nothing further and in fact, owes them for having to correct his mistakes to the extent of $3,055.61. II ISSUES [ 8 ] The following issues arise for determination:

a) The amount owing under the initial quote;

b) Amounts owing for extras;

c) Counterclaim III DECISION

a) The amount owing under the initial quote; [ 9 ] The Plaintiff claims that he is entitled to be paid firstly the quote amount of $40,000.00 plus GST of $2,000.00. In this regard he asserts that all or substantially all of the renovation contract had been performed. The Defendants take the view that as little as 30% to 40% of the work contemplated had actually been done. As in most cases, the truth lies somewhere in between.

To a large extent this case turns upon that determination i.e. the percentage of work completed prior to the Plaintiff’s departure on May 21, 2009. [ 10 ] As far as why the Plaintiff ceased work, the evidence is insufficient in the Court’s view to ascertain that his services had been terminated by the Defendants. Rather, it appears that the work relationship was to a degree rocky from the start with each side testifying as to slights, perceived or otherwise. The culminating factor arose on May 21 when the Plaintiff requested an additional $1,800.00 to complete the drywall.

The Defendants felt that he had already been given sufficient funds as discussed between the parties and reflected on the May 5, 2009 progress payment cheque for $13,000.00 (D-5) which bore the words “reno to drywall stage”. [ 11 ] When the Defendant suggested it was the Plaintiff’s responsibility to then pay the $1,800.00 overage, the Plaintiff refused. A phone call later between Mr.

Danneberg and the Plaintiff confirmed this and that the Defendants would carry on themselves from that point. [ 12 ] In the circumstances, the Court concludes that the Defendants entitlement than must be determined on a quantum meruit basis. [1] Before assessing each party’s position as to what portion of the contract quote (P-2) had been carried out to May 21 and what was left, it is instructive to re-examine the quote and determine what precisely the Plaintiff was obligated to do. [ 13 ] Breaking out the work to be completed from the quote it appears the following was to be done:

a) framing two new windows and one garden door;

b) framing new stairwell and stairs;

c) removal of existing hardwood and installation of 450 square foot of new flooring;

d) new kitchen complete with island unit and pantry and countertop;

e) scrape ceiling, paint and re-texture ceiling in kitchen, living room and hallway and upper area;

f) drywall repairs in affected area;

g) re-paint walls in same areas;

h) new baseboard to be installed in kitchen, living room and hallway;

i) patching of siding with material taken out from windows and garden door areas. [ 14 ] No time frame was set out in the quote either for the entire job or for any of the piecework required. Notwithstanding, the Defendant Danneberg maintained he kept track of hours spent by the Plaintiff and his helpers which he tendered into evidence as 29.0 hours (D-3) to support his contention that the Plaintiff did not spend enough time on the project to have completed what he said he did. This evidence however is not credible in that the Defendants had no record of hours worked by the Plaintiff or his men from the end of

April to May 21, 2009 when the Plaintiff ceased work. Accordingly, no weight can be put on this evidence to support the Defendants’ position. [ 15 ] The Plaintiff also testified he engaged the services of Ron Fehr (Narfehr Contracting Ltd.) to do the framing work as the Plaintiff did not have this expertise and that this job took approximately two weeks in itself to complete. Although Fehr quoted $10,000.00 to do the framing, the Plaintiff paid only $7,500.00 plus GST by agreement because he had a previous working relationship with Fehr and he managed to get a good deal accordingly. Mr.

Fehr testified at trial and confirmed this to be the case. [ 16 ] The Plaintiff summarized what he had accomplished pursuant to the quote as follows:

a) Tore out drywall and insulation on exterior wall;

b) Two windows put into exterior wall;

c) Moved and put in new door;

d) Moved landing;

e) Put in new sets of stairs;

f) Cut hole in concrete and dropped garage landing so it worked;

g) Cut concrete blocks and moved gas line;

h) Framed two new walls in room upstairs;

i) Vapour barriered and insulated exterior wall between garage and house;

j) Reframed pantry;

k) Created front closet;

l) Tore out flooring in kitchen and hallway;

m) Installed all lower and upper cabinets in kitchen other than lower cabinet on right hand side of stove;

n) Trim placed on upper cabinets with crown around top;

o) Scraped all ceilings;

p) Patched siding on rear exterior wall;

q) Hauled at least 15 truckloads of garbage to city landfill. [ 17 ] The Plaintiff testified this work comprised “all of the tough stuff” and that the drywall taping, painting and laying floor was all that was left to do which was “insignificant by comparison”. [ 18 ] The Defendant Danneberg in his evidence disagreed with the Plaintiff’s contention that the bulk of the work had been done stating that he and his wife had to expend a further $35,000.00 to complete the job.

Little weight can be attached to this evidence however as to what the Defendants may or may not have spent on completing their renovation to their satisfaction (nor does this seem reasonable for what was claimed left to do - infra at para. 21). What is relevant however is the comparison of what the Plaintiff said he did according to the quote which is the subject matter of this action and what work the Defendants maintained was not completed in accordance with this quote. [ 19 ] In this respect, Danneberg asserted that the Plaintiff performed the following:

a) Framing;

b) Stairs;

c) Sub-flooring;

d) Drywall boarding;

e) Installation of kitchen cabinets, not including the island. [ 20 ] What yet remained according to the Defendants was:

a) Installing the island;

b) Kitchen countertops;

c) Drywall mudding and taping;

d) Ceiling texturing;

e) Painting;

f) Flooring installation;

g) Installation of door leading to garage as well as closet doors;

h) Floor trim work;

i) Window and door casings;

j) Installation of range hood and venting;

k) Plumbing dishwasher and sink;

l) Installation of light fixtures;

m) Installation of handles on cabinets and doors. [ 21 ] The Court must now assess the appropriate ratio of work completed on the initial quote by the Plaintiff. Having duly reviewed all of the evidence and having regard to the wording of the quote and the labour intensive nature of the work to be performed, the Court sets this at 70% completion when work ceased on May 21. This determination is certainly not scientific but represents in the Court’s view the most reasonable conclusion based upon the evidence of the parties. [ 22 ] Accordingly, as a starting point, the Plaintiff would be entitled to 70% of the $40,000.00 quote plus GST which amounts to $29,400.00.

b) Amounts owing for extras; [ 23 ] The Plaintiff tendered a list of “Extras” (P-7) totalling $7,889.55. The Court has reviewed this list in accordance with the evidence of both the Plaintiff and the Defendants and is prepared to allow the following:

a) Stairs $290.22;

b) Garage man door (agreed by Plaintiff to be reduced from $514.50 to $190.00) $190.00;

c) Gas line move $268.76;

d) Extra poly and insulation; $250.00

e) Shop supplies $42.79;

f) Drywall and insulation (agreed by Plaintiff to be reduced from $446.95 to $140.00) $140.00;

g) Plumbing (move drain) $250.00;

h) Lumber extra $367.60;

i) Cabinets (difference between allowance on initial quote of $4,100.00 and actual cost of $7,260.00 (p-10)) $3,160.00;

j) TV stand plywood $30.00;

k) Bottom linen closet $20.00;

l) Pantry cabinet doors $60.00 Sub-total $5,069.37 plus GST of 5% Total $5,322.84 The listed items not allowed by the Court:

a) Pick up man door (part of quote duties) $20.00;

b) Extra framing (not actually paid to the framer, Ron Fehr) $900.00;

c) Extra cabinet install (work not performed by Plaintiff) $200.00. [ 24 ] The Plaintiff then would be entitled to $29,400.00 on the original quote plus $5,322.84 for Extras for a total of $34,722.84. The parties agree that the Defendants had paid the sum of $23,380.00 to date which would leave a balance owing of $11,342.84 subject to the determination of the Defendants’ counterclaim.

c) Counterclaim [ 25 ] The Defendants allege various deficiencies in work performed by the Plaintiff resulting in additional cost to them. Principal among their complaints is that due to mis-measurement in the kitchen by the Plaintiff, the granite countertop had to be re-cut at an extra

cost of $2,200.00. [ 26 ] In this regard, the Defendants maintain that the Plaintiff measured where the stove was to be located in the kitchen which was critical in terms of cutting the granite countertop. The Defendants had purchased a range hood to go atop the stove which they specifically showed to the Plaintiff such that he was aware of the specific place and size of the range hood. He subsequently advised the Defendants that everything was ready for the countertops such that the workmen then came in and measured for the granite.

The Defendants however discovered that the stove was not actually in its correct spot because the range hood would not centre over the top of it. Consequently, they immediately called to change the order for the granite however it already had been cut resulting in a granite piece being three inches too short to receive the stove. This necessitated a new countertop having to be cut for which the Defendants were charged $2,200.00 extra. [ 27 ] The Plaintiff testified he should not be responsible because he had left the job site prior to installation of the granite.

The Court accepts however that it was due to his initial mis-measuring of the stove location that caused the granite piece to be incorrectly cut. Further, it was reasonable in the circumstances for the Defendants to order a replacement piece given the nature of the renovation being done to the kitchen. [ 28 ] The Defendants acknowledged that they retained the original piece of the granite which they may be able to utilise for an upstairs bathroom.

In the circumstances the Court assesses the sum of $500.00 as a reasonable amount of mitigation against their additional outlay for a net loss of $1,700.00. [ 29 ] The Defendant Danneberg also asserts that he had to correct a number of deficiencies caused by the Plaintiff for which they would like compensation at a rate of $80.00 per hour.

In this respect, Danneberg, a pharmaceutical sales representative, testified that he was an experienced renovator and handyman and that as such he should be entitled to this rate which he acknowledged would be equivalent to that of a journeyman finishing carpenter notwithstanding he has no such credentials. [ 30 ] Upon a review of the evidence including photographs submitted by the Defendants, the Court is prepared to accept the following allowances at a more reasonable measure for his services of $20.00 per hour:

a) Repair hole in deck where support brace cut on both sides without proper re-shoring 4 hours @ $20.00 $80.00;

b) Re-hanging door to garage installed upside down, including filling and re-cutting hinge pockets 5 hours @ $20.00 $100.00;

c) Re-install of cedar siding on exterior wall which cracked due to improper installation 5 hours @ $20.00 $100.00; Total $280.00 [ 31 ] The Defendants further claim for installing “stair-nosing” which the Plaintiff had not done is rejected. Upon reviewing the evidence of the Plaintiff and the Defendant, the Court is not satisfied that this could have been completed prior to the flooring being installed. Since the Plaintiff had left the job site prior to the floor installation, the Court is not prepared to allow the claim. [ 32 ] The Defendants counterclaim then is allowed to the extent of $1,980.00.

IV RESULT [ 33 ] The Plaintiff is entitled to the sum of $11,342.84 less the amount of the allowable counterclaim of $1,980.00, resulting in judgment against the Defendants in the amount of $9,362.84. [ 34 ] There shall be no order as to costs due to the divided success of the parties. __________________________ R.D. Jackson, J [1] Payment for what the services are worth.