Brian Steven Syniuk v. Michelle Adrienne Syniuk, 2014 SKPC 152

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 152 Date: July 23, 2014 File: # 2012 - 30 Location: Melfort, Saskatchewan _____________________________________________________________________________ Between: Brian Steven Syniuk and Michelle Adrienne Syniuk - and - Tim Kornberger and Lisa Meyers Self-represented For the Plaintiffs Self-represented For the Defendants JUDGMENT P.

DEMONG , J [ 1 ] By summons commenced at Melfort, Saskatchewan on the 30 th day of July 2012, the plaintiffs Brian and Michelle Syniuk brought action against their prior tenants Tim Kornberger and Lisa Meyers jointly for a debt due and owing constituting unpaid rent for each of the months April, May, June and July 2010 at the rate of $300.00 per month for a total of $1,200.00. In addition, they sought damages in the sum of $18,800.00 to reflect damage sustained to the premises while in the possession of the defendants which resulted in the premises being in an unhabitable condition.

[ 2 ] This matter proceeded to trial February 19, 2013. Following that trial, this Court concluded that in fact the defendants owed the plaintiffs $1,200.00 in unpaid rent.

In addition, the Court concluded that while in possession of the premises, the defendants caused damage to the property and the plaintiffs were entitled to claim for damages arising from the defendants’ negligence. [ 3 ] At the original trial, the plaintiffs provided little or no substantive evidence in relation to the extent of the damages sustained to the premises. [ 4 ] Notwithstanding this dearth of evidence, the Court assessed damages in relation to the clean up of debris and associated filth; damage to linoleum and carpet; damage to wall surfaces and windows.

In total the Court concluded that the cost for clean up and repair, painting, repair to the walls and installation of flooring less any betterment that would have been obtained by virtue of this repair, would have resulted in a total quantum of damages equal to $6,540.00. [ 5 ] The plaintiffs were dissatisfied with this assessment and appealed the quantum of damages component of the claim as it relates only to the cost of repair to the Court of Queen’s Bench. [ 6 ] After considering the matter, the Court of Queen’s Bench concluded that there was insufficient evidence presented to the Court upon which an assessment for damages with respect to repair could be made.

As such, the matter was remitted back to this Court for the purpose of reassessing damages based on new evidence to be submitted by the plaintiffs. [ 7 ] This matter was set to proceed in April of 2014, but the plaintiffs failed to call witnesses in support of the quotations that they obtained to effect the necessary repairs. [ 8 ] The matter was thereafter set over to July 18, and at that time the plaintiffs presented witnesses and quotes for work to be performed. [ 9 ] Having reviewed the evidence, I am satisfied that the floors will have to be redone from the subfloor up; that new carpet and linoleum will have to be installed, and that there will be significant repair to drywall and repainting of the premises. [ 10 ] The materials cost in respect to the flooring equates to $4,047.34 based on a quote submitted in May, 2013.

At trial, the evidence made it clear that those costs as at 2012 would have been at or about the same amount. [ 11 ] The cost of removing the baseboards and hardwood floor and subfloor and the installation of new floor together with the cost of cleaning up the accumulated filth was identified at $5,056.59 as at March 24, 2013.

Steven Yaremy, the individual who provided the quote indicated that those costs would not be significantly different than if they were quoted in 2012. [ 12 ] Donna Foulliard submitted a quote from Foulliard Carpets Ltd. indicating the cost to remove all existing carpet and linoleum and dispose of it, and lay down new carpet and linoleum would cost $8,038.93. She also indicated that the amounts quoted included a disposal fee of approximately $200.00 which should have been deducted from her quote.

As a result, she says that the entire cost to replace the carpets and linoleum would equate to $7,838.93. [ 13 ] The plaintiffs also called Gordon Garinger, who is an experienced general contractor with approximately 40 years experience. He indicated that the cost of fixing the existing drywall, and priming and repainting the entire house would equate to $5,565.00 as at March 25 of 2013. [ 14 ] He indicated however that this amount is approximately $1,000.00 more than it would have cost had the work been done in 2012. He ascribes this increased cost to the increased cost of labour.

In my view his quote of $5,565.00 in 2013 is fair and reasonable but should be reduced by the sum of $1,000.00 because, in this Court’s view, the work could have or should have been completed within a reasonable time and it was not. The proper amount for this work should more realistically be assessed as $4,565.00. [ 15 ] In total the plaintiffs’ claim for the cost of clean up and repair of the premises due to the defendants’ negligence equate to $21,507.86. [ 16 ] The defendants were in attendance at this trial for a further assessment of damages.

They submitted no evidence to contradict the evidence of the plaintiffs nor did they cross-examine any of the witnesses who appeared. I have considered the evidence led by the plaintiffs and I am of the view that the quotes provided for the work to be done is reasonable and necessarily incidental to bring the premises back to the condition it should have been in when the defendants vacated the premises. [ 17 ] That however, does not end the story. It is clear that this 1937 home was in need of updating. The flooring and linoleum had just about reached its normal life span.

In addition, there is no question that the premises in any event would have to be repainted at some point in time. [ 18 ] Having considered the age of the drywall, paint and flooring in its entirety, I am satisfied that a deduction of 25% of the total amount of the cost of repair should be done to reflect the betterment that the plaintiffs will enjoy as a result of the new work to be undertaken. [ 19 ] In total therefore, the plaintiffs are entitled to the following: 1. Rent pursuant to the original judgment of this Court - $1,200.00. 2. Cost of clean up and repair of the premises in question - $21,507.86.

3. Less 25% of $21,507.86 constituting the betterment to be enjoyed by the plaintiffs ... $5,376.97. 4.

Total - $1,200.00 + $21,507.86 - $5,376.97 = $17,330.89. [ 20 ] I award pre-judgment interest on the aforementioned amount from July 31, 2012 in the amount of $325.57. [ 21 ] As a result of a recent decision of the Court of Queen’s Bench, this Court is limited in what costs it may award in relation to the successful party. [ 22 ] As the costs awarded at the first trial were not appealed, I continue to award those costs in the sum of $182.00. [ 23 ] I decline to exercise my discretion to award any further costs in favour of the plaintiffs in relation to their re-attendance in both April and July of 2014 to prove their quantum of damages.

In my respectful view this evidence should have been provided at the original trial and as such, even though the plaintiffs were successful, the subsequent attendances for reconsideration for quantum of damages arose by virtue of the lack of diligence of the plaintiffs. On that basis I decline to award any further costs. In total, the plaintiffs shall have judgment against the defendants, jointly and severally in the sum total of $17,838.46. P. Demong, J