Gerald Evin v. Beverly Evin, 2012 SKPC 90

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 090 Date: May 28, 2012 File: SC#337 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Gerald Evin and Beverly Evin - and - Marvin Harder Gerald Evin and Beverly Evin On their own behalf Marvin Harder On his own behalf _____________________________________________________________________________ JUDGMENT D.C. SCOTT , J _____________________________________________________________________________ Introduction

[ 1 ] The plaintiffs Gerald Evin and Beverly Evin hired the defendant Marvin Harder to perform services in relation to renovations being done on their newly purchased home in Dalmeny. Before the work was completed, the Evins terminated their contract with Mr. Harder believing Mr. Harder’s workmanship was poor, that he had caused some damage to their home and created a mess. The Evins hired another contractor to redo some of the work, repair the damage and finish the job. They claim their damages to be $5,975.95, but acknowledge they owe Mr. Harder for the removal of a bedroom wall. [ 2 ] Mr.

Harder, a general contractor, denies his workmanship was poor. He states he performed a portion of the work, but was not allowed to finish the job or clean up. Further, his tools remained at the plaintiffs’ home for several months after he was terminated. He counterclaims for the cost of work he completed but for which he was not paid and compensation for the lost use of his tools, in the total amount of $6,292.54. Background [ 3 ] In March 2011, the plaintiffs engaged the services of the defendant to perform work for them.

A written estimate was provided by the defendant as follows: Patch and re-tape drywall cracks in all ceiling and walls, to ready the walls for painters Total material and labour $2,480.00 Replace two skylights with new high quality skylights, including all materials to seal and waterproof Total labour and materials, including skylights 3,840.00 Remove wall in bedroom to make one room Total labour 580.00 ________ $6,900.00 [ 4 ] The original estimate was agreed to by the plaintiffs; the defendant began work on or about March 24, 2011. After the work had begun, the plaintiff Beverly Evin asked Mr.

Harder to perform additional work. In particular, she wanted holes in the backsplash area under the bay window in the kitchen patched after she had damaged it while removing the old tiles. [ 5 ] The plaintiffs identified a number of deficiencies and provided photographs at trial illustrating many of their concerns. Generally, those concerns are as follows: 1. The drywall installed in the bedroom and living room was the incorrect width and therefore did not fit flush with the existing walls; 2.

The defendant applied extra drywall mud (“mud”) to the crease between the new and existing wall in an attempt to make them appear flush, but the mud was too thick and cracked;

3. The drywall in the living room was installed so as to leave a gap between the wall and the floor; 4. Bare electrical wiring in a ceiling and wall was covered with drywall; 5. Mud applied in the kitchen to the backsplash and bay window was too thick and uneven; 6. Mud was splashed on oak woodwork, electrical outlets, countertop and sink; 7. The white carpet was stained with blood and mud, because it had not been properly covered; 8.

Four burn marks on the kitchen countertop were apparently caused by the defendant’s trouble light. [ 6 ] The plaintiffs began raising their concerns with the defendant as early as his second day of work. The defendant acknowledged the mess and indicated he would clean it up, but the plaintiffs saw no change. He addressed their concerns regarding the uneven walls by explaining he would “feather” the mudding, in an attempt to even them out. [ 7 ] In the kitchen, Mr. Harder applied a thick, uneven coat of mud to the backsplash floor and walls, splashing mud on the oak window trim, sink and electrical outlets.

The plaintiffs believed the mud was not applied properly and would take too long to dry. At the same time, the plaintiffs discovered a number of burn marks on the countertop. The plaintiffs lost confidence in the defendant and he was terminated at the end of March 2011. The plaintiffs did not give the defendant the opportunity to repair the damage, clean up any mess or fix the deficiencies. [ 8 ] According to the plaintiffs, other than removal of the bedroom wall, most of the work was begun but not completed.

After the working relationship between the parties broke down, the plaintiffs reimbursed the defendant for the cost of the skylights, which were delivered to them. [ 9 ] The plaintiffs alleged that beer cans found behind shelving after Mr. Harder was terminated belonged to Mr. Harder and implied this was the cause for the quality of his work. The defendant denied the beer belonged to him or that he consumed alcohol while working.

The Court finds the plaintiffs have failed to substantiate this allegation on a balance of probabilities. [ 10 ] George Ginther is the owner of Country-West Builders, which did the repairs and completed the work for the plaintiffs. He has worked in all aspects of contracting and subcontracting in the building trades for 25 years. It was Mr. Ginther’s opinion that most of the work performed by the defendant had to be redone. In particular, the drywall and framing needed to be removed and replaced because it was protruding and not flush with the existing walls.

The closet door was replaced as it was the incorrect size. Repairs were done to the bedroom ceiling and walls and the electrical wiring. In the kitchen, the drywall between the upper and lower cabinets needed to be replaced, because the mud was applied too thickly and would have been too costly to sand down. With respect to the backsplash, the drywall needed to be removed and replaced with aquaboard and a new backsplash. The kitchen countertop was replaced because of several burn marks on the laminate. [ 11 ] Geoffrey McBain is a cabinet maker who operates Sask Valley Cabinets.

He observed the plaintiffs’ house before the defendant began his work and was in the house several times in the spring of 2011. He confirmed that the newly installed drywall in the living room was not flush with existing walls, apparently because the incorrect width was used. He observed the cracked mud where the defendant had attempted to even out the new and existing walls. He observed the work done by the defendant in the kitchen and the burns to the countertop.

[ 12 ] Elwood Benson has been an interior house painter for 30 years and had been hired to paint the plaintiffs’ home after the defendant had prepared the walls and ceilings for paint. It was Mr. Benson’s opinion that he would have been unable to paint the walls and ceiling due to their condition after the defendant was terminated. The drywall was installed on a crooked frame, the walls and ceilings were not sufficiently sanded. He acknowledged it appeared as if the work was unfinished. [ 13 ] The defendant Marvin Harder has worked as a carpenter and general contractor for 40 years.

He performs small jobs, including window installations, basements, additions and various home renovations. He had contracted with the plaintiffs to patch holes in the walls, remove the wall in the bedroom, and repair cracks in walls and ceilings. [ 14 ] Mr. Harder does not deny he used ½ inch drywall, even though the existing drywall was 3/8 inches thick. Although he thought he could fix the unevenness with mud, at trial he acknowledged he ought to have used the same width as that of the existing drywall. [ 15 ] With respect to his work in the kitchen, it is Mr.

Harder’s practice to apply a thick coat of mud, followed by two or three thin coats and sanding. In retrospect, he acknowledged it would have been better to use drywall rather than many coats of mud even though it would have been more costly. He said that was “his mistake”. [ 16 ] The defendant denied covering the electrical wiring with drywall and then cutting out part of the wall to expose wiring previously hidden. When shown photograph 18 of new drywall with wires protruding from where a hole had been cut, he did not seem to recognize his work.

However, he acknowledged that electrical repair was required. [ 17 ] Regarding the matter of cleanliness, the defendant testified he covered the living room carpet and all floors with plastic, although he was unable to explain photos shown to him where part of the floor remained uncovered. He testified he did not typically cover electrical switch units, but rather it is his practice to clean them after the job is completed. He planned to do the same with respect to the mud on the wood trim.

He denied having caused blood stains on the carpet. [ 18 ] The defendant acknowledged his trouble light made one burn mark on the kitchen countertop but did not admit to the others, even though all of the marks appear the same. [ 19 ] The defendant testified he was terminated before he had the opportunity to complete the job and that only 23 percent of the work had been finished, for which he remains unpaid. He offered to fix the problems but was not given an opportunity to do so.

The defendant’s tools remained at the plaintiffs’ property for seven months until retrieved on the direction of the case management conference judge in this action. Issues to be decided 1. Did the defendant ’ s workmanship amount to a breach of contract or negligence? 2. To what damages, if any, are the plaintiffs entitled? 3. Is the defendant entitled to payment for the work performed for the plaintiffs? 4. Is the defendant entitled to damages for the loss of use of his tools? Analysis

1. Did the defendant’s workmanship amount to a breach of contract or negligence? [20] There is an implied term of every contract for services, such as the one between the plaintiffs and the defendant, that the workperformed will be of reasonable workmanlike quality (Maisonneuve v. Burley, 2001 SKQB 407 , [2001] S.J. No. 520 (Sask.Q.B.)).

In Maisonneuve at para. 26, Dawson J. quoted from Halsbury’s Laws of England, vol. 3, 3d ed. (London: Butterworths, 1953) asfollows: 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 thatthe work shall be done in a good and workmanlike manner, and that the workman employed on the job must be possessed of the ordinaryamount of skill possessed by those exercising the particular trade... [21] Further, the Court in Maisonneuve held that to succeed in negligence a party must prove a worker’s actions amount to a breachof a duty of care owed to them by the worker.

The Court stated at para. 31: ...the tort of negligence revolves around three elements—duty, breach and loss and, as stated by the Saskatchewan Court ofAppeal in SEDCO v. William Kelly Hldg.

Ltd., [1994] 4 W.W.R. 134 at p. 152, three questions are raised: ...Did a duty of care arise; if so, what was the nature and scope of that duty; was the duty breached; and, if the duty was breached, wasthere a loss, that is a compensable loss of the nature recoverable under the form of the tort at issue? [22] Therefore, implied in the contract for services is the term that the defendant’s work would be done in a proper andworkmanlike manner and failure to perform work to that standard would constitute a breach.

Alternatively, where a service providerbreaches a duty of care owed to his customer, by performing work which falls below the standard of reasonable care, the service providerwill be found to have been negligent. [23] In this case, there was a contract between the Evins and Mr. Harder for the completion of certain renovations. Failure toperform services under that contract in a proper and workmanlike manner would amount to a breach of the contract. Further, the Courtfinds Mr. Harder owed a duty of care to the Evins, in that there was a sufficient relationship between Mr. Harder and the Evins to expectthat Mr.

Harder’s actions, if careless, would likely cause loss to the Evins (Anns v. Merton London Borough Council, [1978] A.C. 728(H.L.)). [24] It is clear from the testimony of Mr. Ginther, Mr. McBain and Mr. Benson that the installation of drywall was unsatisfactoryand below standard. Mr. Ginther testified that the drywall and framing needed to be removed because it was not flush with existingwalls. Mr. Harder acknowledged he ought to have used the same width as that of the existing drywall. I find that, based upon thetestimony of the plaintiffs’ witnesses and Mr.

Harder himself, the incorrect width of drywall had been used, the solution was not to applyadditional mud, and this work needed to be redone. [25] I accept that drywall was applied on a ceiling and wall, covering bare electrical wires and posing a potential safety hazard, asevidenced by the photographs and plaintiffs’ witnesses. According to Mr. Ginther, the proper approach was to install the electrical boxfirst, before applying the drywall. [26] The extensive mud applied to the backsplash walls and floor needed to be removed and replaced with drywall. Mr. Ginthertestified the mud applied by Mr.

Harder was too thick, making it too costly to sand down. Mr. Harder acknowledged that he ought tohave used drywall. [27] I find the defendant’s workmanship in relation to the installation of the drywall, the electrical outlets and in the kitchen was ofpoor quality and fell below a reasonable standard, such that it constituted a breach of contract and was negligent.

[ 28 ] According to the plaintiff Beverly Evin, the defendant’s trouble light appeared to have caused several burns marks on the kitchen countertop. Mr. Harder acknowledged that his trouble light caused only one of the marks. The testimony of the plaintiffs’ witnesses and the photographs indicate all of the burn marks look the same and have the same features. The Court is satisfied that they were all caused by the defendant’s light being placed on the unprotected countertop.

Failure to take precautions to ensure the trouble light did not burn the countertop fell below the standard of care of a contractor, constituting a breach of contract and negligence. [ 29 ] Although Mr. Harder was hired to prepare the walls and ceilings for the painter, Mr. Benson testified that he would have been unable to paint the walls and ceilings in the condition in which they were left. However, it is acknowledged by the plaintiffs that they terminated their contract with Mr. Harder before the job was completed. Mr.

Harder cannot be held responsible for unfinished work. [ 30 ] Photographs tendered at trial illustrate mud splashed on the woodwork, electrical outlets, sink and carpet as well as what appear to be blood stains on the carpet. The Court accepts Mr. Harder splashed the mud, as he was the only individual working with that product at the time. However, Mr. Harder denies having spilled blood on the carpet. The plaintiffs have failed to establish on a balance of probabilities that the blood on the carpet was caused by Mr. Harder.

The Court also accepts the defendant’s assertion that he would have cleaned the mess after the work was done, at his own expense, as is his usual practice. 2. To what damages are the plaintiffs entitled? Repairs [ 31 ] The plaintiffs claim recovery of their cost to hire Country-West Builders to repair the deficiencies in the defendant’s work, in the amount of $4,116.00 including GST, according to the invoice dated May 18, 2011.

The work involved removal and replacement of drywall between the kitchen cabinets; removal and re-framing the front closet and installation of drywall; repairing the bedroom ceiling and walls, and repairing electrical wiring; removal and replacement of the kitchen countertops; and installation of the countertop over the bay window floor. [ 32 ] Because of the number of burn marks on the countertop, it was Mr.

Ginther’s opinion that it needed to be replaced, as it would not have been possible to match the existing laminate with new, if he tried to patch it. [ 33 ] Kevin Penner has worked as a carpentry contractor for approximately four years with Pro-Built Contracting in Warman and has worked with the defendant on more than one dozen jobs. Mr. Penner provided a quote to the defendant to repair the plaintiffs’ countertop in the amount of $375.00, based upon a photograph he was shown of the burned countertop.

He determined the same colour as the original arborite was available, but could not say whether he could reasonably match the arborite type and colour given that the kitchen dated back to 1987. He acknowledged that if it could not be matched, the countertop would have to be replaced and if a larger area needed to be fixed, his price would increase. [ 34 ] The Court is satisfied that the countertop could not have been adequately repaired by patching and accepts that as a result of the several burn marks, the countertop needed to be replaced. [ 35 ] Mr.

Ginther testified the original arborite or laminate was replaced with laminate of the same grade or quality. Nonetheless, the plaintiffs received a new countertop to replace one which, according to them, had been in the home for approximately 25 years. The doctrine of betterment precludes the plaintiffs from being fully compensated for a new countertop of greater value than the one which would have depreciated over time as the result of wear and tear. No evidence was presented with respect to the difference in value between the two, the obligation for which was on the defendant.

In the circumstances, the Court will assess a nominal discount of 10% of the cost of the new countertop to reflect the depreciation. Approximately $2,800.00 plus 5% GST or $2,940.00 of the Country-West invoice is attributable to the countertop replacement. Accordingly, that portion of the plaintiffs’ claim will be reduced by 10% or $294.00. [ 36 ] I find the plaintiffs have established their claim with respect to the repair work done by Country-West Builders in the amount

of $3,822.00 ($4,116.00 - $294.00). [37] Mr. Harder complains that the plaintiffs’ claim exceeds the amount they would have paid for the original job, but that is to beexpected given the repair involved the removal and dismantling of some of his work before it could be redone, along with thereplacement of the damaged countertop. The plaintiffs make no claim for, nor would they be entitled to, the cost to complete the job. Cleaning [38] The plaintiffs claim the cost of Sanity Saver Home Management for cleaning on April 28 and 29, 2011 in the amount of$405.00. This cleaning occurred one month after Mr.

Harder was discharged. The invoice is not detailed and it is unclear what wasdone or whether the cleaning invoice can be attributed only to the mess left by Mr. Harder. The onus is on the plaintiffs to establish withsufficient specificity, their damages. The Court accepts some cleaning would have been required and will allow $100.00. [39] The plaintiffs also claim the cost of Rainbow International for cleaning, including carpet cleaning, on July 11, 2011. Theplaintiffs’ cost was the amount of Rainbow’s invoice of $345.56 plus a coupon for $89.00.

This cleaning took place after the workperformed by Country-West Builders was completed in May 2011. The Court is not satisfied that the cleaning by Rainbow is in relationto the mess left only by the defendant. Further, it is likely the plaintiffs would have had the carpets cleaned following the renovationregardless of their condition. I therefore decline this portion of the plaintiffs’ claim. [40] The plaintiffs claim the cost of 22 hours of their own time with respect to cleaning, Mr. Evin at a rate of $40.00 per hour andMrs. Evin’s time at an hourly rate of $22.00.

There is no evidence that the plaintiffs sustained a loss of income as the result of theircleaning efforts. In fact, Mrs. Evin testified she was paid by her employer for the time she took from work to clean. The Court declinesthis portion of the plaintiffs’ claim. Punitive damages [41] The plaintiffs asserted a claim for punitive damages in an unspecified amount. The basis of their claim for punitive damagesis that they hired the defendant to complete the work in a workmanlike and timely manner.

Because of the delay involved in hiring anew contractor and re-doing some of the defendant’s work, there was a delay in selling and consequently they were carrying twomortgages for a time. [42] According to the Saskatchewan Court of Appeal in Lynch v. Hashemian, [2006] S.J. No. 712 at para. 18: The objective of punitive damages is to punish the defendant rather than compensate a plaintiff, whose just compensation will alreadyhave been assessed.

They are confined to exceptional cases where the defendant’s conduct was so malicious, oppressive and high-handed that it offends the court’s sense of decency. [43] In this case, while the defendant’s conduct constituted a breach of the contract and negligence, there is nothing to suggest itwas malicious, oppressive or high-handed, such that punitive damages are rationally required to punish or deter (Whiten v. PilotInsurance Co., 2002 SCC 18 , [2002] 1 S.C.R. 595 (S.C.C.) paras. 100-101). I decline to award punitive damages in this case. 3. Defendant’s counterclaim for unpaid work

[ 44 ] The defendant claims that he performed 23 percent of the work he was contracted to do, because he was not allowed to complete it by the plaintiffs. He testified that in addition to removing the wall dividing the bedrooms, he did the following: 1. Removed damaged drywall; 2. Began patching cracks on the ceilings; 3. Installed drywall in the bedroom and did some mudding; 4. Filled holes in the walls in a few rooms; 5. Made cut outs for the plumbers; 6. Applied a coat of mud in the kitchen after the plaintiffs removed the ceramic tile; 7.

Patched holes in various areas of the house. [ 45 ] He makes a claim for the cost of that work which he argues is 23 percent of the estimated cost of $2,480.00 or $570.40, in addition to the cost for removing the bedroom wall in the amount of $580.00. Much of this work, such as the installation of drywall and application of mudding in the kitchen was of no value to the plaintiffs as the work had to be redone or repaired. With regard to the remainder of this work, the defendant has failed to prove on a balance of probabilities that the work was done and was satisfactory.

However, the plaintiffs acknowledged that the defendant ought to be paid for removal of the wall dividing the bedrooms in the amount of $580.00, according to his estimate. The Court allows this portion of the defendant’s counterclaim. 4. Defendant ’ s counterclaim for lost use of tools [ 46 ] A portion of Mr. Harder’s counterclaim is with respect to the tools which remained at the plaintiffs’ property after Mr. Harder’s contract was terminated by the plaintiffs.

The case management conference judge directed that on October 20, 2011, the plaintiffs were to leave the tools in a particular location for retrieval by the defendant. That was done. [ 47 ] The defendant’s counterclaim also deals with his alleged cost to rent tools between April 2011 and October 2011 when he did not have access to his own, at a rental cost of $4,844.54. He went so far as to file a quote from the Rent-It Store & Tool Supply reflecting the amount he counterclaimed. At trial, Mr. Harder testified that in fact he had not rented replacement tools at any time.

Rather, he borrowed tools from his son and co-worker in exchange for labour; the cost of that labour was $1,800.00 according to Mr. Harder. [ 48 ] The Court is troubled by Mr. Harder’s claim that he rented tools in the amount of $4,844.54 when that was not the case. Further, no documentation or testimony was presented substantiating the swap of labour for tools or the value of that labour. The Court declines to allow this portion of the defendant’s counterclaim.

Conclusion [ 49 ] I find the plaintiffs Gerald Evin and Beverly Evin are entitled to judgment against the defendant for damages in the amount of $3,822.00 for the necessary repairs and $100.00 for cleaning. [ 50 ] I find the defendant Marvin Harder is entitled to judgment against the plaintiffs in the amount of $580.00 for Mr. Harder’s unpaid work.

[ 51 ] In the circumstances, the counterclaim of the defendant is set off against the claim of the plaintiffs. The plaintiffs are entitled to judgment against the defendant in the amount of $3,342.00. [ 52 ] The plaintiffs claim their costs incidental to the Court action, including the cost of issuing the claim, service, postage, photographs, witness fees, mileage and parking to attend Court. Many of these costs are not typically awarded in Small Claims Court.

Because the plaintiffs were substantially successful in their claim, the Court will allow the cost of issuing their claim in the amount of $41.00, and their reasonable cost for service in the amount of $50.00. ________________________ D.C. Scott, J