Alex Banga - v. -, 2019 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 29 Date: May 2, 2019 File: 329/18 Location: Regina _____________________________________________________________________________ Between: Alex Banga - and - Darrell Sabiston Alex Banga For the Plaintiff Ashlan Friesen For the Defendant _____________________________________________________________________________ JUDGMENT DEMONG , J _____________________________________________________________________________ Introduction [ 1 ] By Amended, Amended Statement of Claim, Mr. Banga brings this action against Mr.

Sabiston seeking to recover damages arising from what he alleges to be a faulty roofing installation undertaken by Mr. Sabiston. While his losses allegedly exceed the statutory jurisdiction of this Court, he has limited his claim to that monetary jurisdiction, which is $30,000.00, together with prejudgment interest on that amount, and costs. While the claim is not drafted with legal precision, he alleges that Mr. Sabiston was either negligent in the provision of his services as a roof installer by failing to meet the standard of care of a reasonably prudent professional installer; or

alternatively, that he breached an implied contractual warranty that the work be completed in a good and workmanlike manner. [ 2 ] Mr. Sabiston has defended this action. The defence is comprehensive. Mr. Sabiston denies that he was negligent and he denies that he is in breach of an implied condition of the contract that he would perform the work in a good and workmanlike manner. On the latter point, he argues that he did not provide a warranty, either expressly or by implication. In the alternative, if he was negligent, or if he breached an implied contractual warranty, then Mr.

Sabiston pleads contributory negligence and a failure to mitigate. In answer to the entire claim Mr. Sabiston places into issue the quantum of damages claimed by Mr. Banga. He further alleges that by replacing the roof, Mr. Banga has bettered his situation and therefore, he seeks a reduction of any damages that may be awarded, which he says should be calculated in proportion to that betterment. Finally, Mr. Sabiston asserts that because Mr. Banga did not bring his action within the limitation period established by The Limitations Act , SS 2004, c L-16.1 , he is statute barred from advancing this claim.

If successful, Mr. Sabiston seeks his costs of defending this action. [ 3 ] I will first provide an overview of the evidence and a

summary of those facts which I draw from that evidence. Where the evidence is in dispute, I will explain why I accept one version of the evidence over the other. I will then identify the issues which need to be resolved and analyze the evidence as it applies to each issue. Evidence, Analysis and Findings of Fact [ 4 ] Mr. Banga is a retired professional engineer. He obtained his Bachelor of Science in Agricultural Engineering in 1971 and his Master of Science specializing in hydrology and water resource engineering in 1981.

His career focused almost exclusively on the management of water resources in Saskatchewan, eventually overseeing 12 to 16 other hydrologists, hydro-geologists and hydrologic technicians. [ 5 ] Mr. Banga is the owner of a cottage located at 120 South Katepwa Drive. It fronts Katepwa Lake facing due west. The word ‘cottage’ does not quite pay homage to this property. It is a rather large two story home partially surrounded by a deck on two sides of the cottage. The second story of this property has floor-to-ceiling glass windows fronting the lake.

The lake- facing side of the home has a sharply pitched ‘A’ frame roof described as 12/12, which means that the roof runs 12 feet horizontally for every 12 feet that the roof rises. This ‘A’ frame changes its shape as one moves east. Two dormers extend to the north and south of the home. The roof on each of these dormers also pitch 12/12. Continuing east to the far end of the home, the slope of the roof becomes less extreme, with a pitch of 5/12. [ 6 ] This home was constructed by local contractors retained by Mr. Banga and it was completed in 2011. [ 7 ] In an effort to reduce potential costs, Mr.

Banga sought to purchase the materials necessary to shingle his roof, with the intent, thereafter, to hire a professional roofer to provide installation services. To this end, he decided to purchase a type of shingle described as ‘Harmony’. He attended at a local lumber yard and, after discussions with its sales staff, he purchased roof edging, grip guards, asphalt felt (underlay), roofing coil, flashing, and 157 packages of shingles. His cost to purchase these materials equated to the sum of $5,161.87 inclusive of taxes. He did not purchase ‘asphalt cement’.

It did not occur to him to do so, and he was not advised by the sales staff at the lumber yard that this might be necessary. There is no evidence before me that Mr. Banga has ever shingled a roof, or that he had any particular knowledge relating to proper roofing installation before he hired Mr. Sabiston. There is no evidence that, prior to contracting with Mr. Sabiston, he had ever reviewed the Application Instructions which came with this roofing package. The invoice for these materials identify that these materials were delivered to Mr. Banga on October 19, 2011. [ 8 ] While Mr.

Banga was at the lumber yard, he asked the staff to provide him with names of local area roofing professionals and they provided him with three names. Mr. Sabiston was one of the names mentioned. Mr. Banga contacted Mr. Sabiston in the latter part of October, 2011, and, after Mr. Sabiston attended at the cottage to inspect the premises, the parties orally agreed that Mr. Sabiston would install the shingles. Mr.

Banga has testified that there was no agreement on price at that time, and that he did not ask for or make inquiries about ensuring that the work was performed to accommodate the wind specifications set forth in the Application Instructions, nor did he ask for a price reduction for the work that was to be done. After the work was completed, Mr. Sabiston charged him $5,197.50, and this amount was duly paid. [ 9 ] As happens more often than not, this oral agreement was long on ambition but short on specifics. While Mr. Sabiston says that Mr.

Banga was in a panic to have his roof shingled, that may or may not have been an over statement. I am, however, satisfied that most people in Mr. Banga’s position would recognize the importance of having their roof shingled before the snow began to fall and that he would have been anxious to have it completed. [ 10 ] I accept Mr. Sabiston’s evidence that he did not warrant the quality of his work. That stated, I find the comment to be equivocal. I take it as meaning that he did not offer an express warranty. There is no evidence that Mr.

Sabiston expressly stated that he would not be bound by any warranties that may arise by implication of law. [ 11 ] Mr. Sabiston was, at all relevant times, a professional roof installer. At trial he indicated that he had been roofing in that capacity for 25 years, which means that at the time that the agreement between these two parties took place, he had worked as such for about 18 years. He worked in and around the Fort Qu’appelle region. Katepwa is within this region. Mr.

Sabiston indicated that at the time that the contract was entered into, there were between 6 and 8 other roofers working in this region. [ 12 ] Mr. Sabiston has worked on what he described as ‘hundreds and hundreds of roofs’. Seventy five percent of these roofs were asphalt shingled roofs. He and his crew commenced work in late November of 2011. Mr. Banga provided some labour at the worksite. This was limited to using machinery to lift the packages of shingles onto the roof. He watched the work being done from time to time, but he did not check on the integrity of the work that was being done.

The work was completed on November 24, 2011. [ 13 ] Mr. Sabiston stated then when installing the shingles on this roof he followed his standard practice. He confirmed that he had previously worked with Harmony brand shingles and that, at the time of this installation, he was aware of the Application Instructions that were provided by the manufacturer.

[ 14 ] The Application Instructions as they existed in 2011 were provided to the Court and constitute exhibit P-4.

Section 1 of the Instructions identifies the tools and materials that will be required. That

section specifically identifies ‘asphalt plastic cement’ as a required material.

Section 2 provides a graph identifying what, respectively, is considered to be ‘low slope’, ‘normal slope’, and ‘steep slope’. Steep slopes are identified as slopes with a pitch of greater than 8/12.

Section 3 speaks to the type of nails required and the proper manner of installing nails. It reinforces that nails should be driven deep enough into the shingle to ensure that they are flush with the surface, and not overdriven, not under driven, not driven in a crooked fashion, nor driven into the adhesive strip that is attached to the shingle. [ 15 ]

Section 3 also speaks to the manner in which asphalt cement is to be applied and its purpose. A notice is provided in bold and it reads: IMPORTANT: Shingles have a factory applied adhesive that is activated thermally. Certain conditions will hinder effectiveness by which the adhesive keeps the shingle tabs down to prevent wind blow-offs. SEAL DOWN SHINGLE TABS IF SHINGLES ARE INSTALLED: - In high wind areas; - On a steep slope and mansard roof 15/12. …; - At a temperature that will not activate the self-seal adhesive, BP recommends that hand sealing should be done from September 21 st to March 21 st . Please refer to

Section 3.1-F; - After nailing, seal shingle tabs. Seal by applying a dab of asphalt plastic cement no larger than the size and thickness … at bottom of every tab on all shingles … . [ 16 ]

Section 3 D speaks to the manner of installation on steep slope roofs: D – Application on Mansard and steep slope roofs: The maximum slope considered suitable for normal shingle application is 15/12. Use six (6) nails per shingle instead of four. … After nailing apply a small spot of Asphalt Plastic Cement, … under the bottom corners of each tab … . [ 17 ]

Section 3 F speaks to cold weather application and to High Wind Warranties. It reads: F – Cold Weather Application : Shingles have a factory applied adhesive which is thermally activated. The self-seal adhesive must be subjected to sufficient heat to activate the bond. When the shingles are installed in environmental conditions that will not produce such temperature or in very windy areas, the shingles should be sealed down with spots of Asphalt Plastic Cement under each tab as specified in CSA A123.51 – M85.

BP recommends that hand sealing should be done from September 21 to March 21. … E – High Wind Warranty Installation: To qualify for High Wind Warranty, which warrants against wind damage or shingle displacement for winds between 130 km/h and 220 km/h, shingles must be fastened using 6 nails and all shingles located at the roof edges must be cement [sic] together in a 10 cm wide layer of plastic cement. … Table one, identified in

section 3, identifies that the standard wind warranty for Harmony shingles at 180 km/h. The high wind warranty is identified at 220 km/h. [ 18 ]

Section 5 provides further clarity on the correct manner of nailing shingles in respect to the product identified as ‘Harmony’: B.2 – Application of Shingles: Nailing: Improper nailing will render the warranty null and void. (see

Section 3.1-A). Nail as per figure 29. The head of the nails must be driven flush to the top of the shingle surface. Raised nails can result in shingle distortion and may prevent sealing due to lack of contact with the sealant. … A minimum of four (4) nails is required for all slopes.

On steep sloped or Mansard roofs 15/12 and up, a minimum of six (6) nails is required. … HARMONY shingles offered in the West must be nailed between the adhesive dabs [sic]of the patterned sealant band (nailing line) to allow penetration through the double ply area just above the tops of the laminated tabs. … [ 19 ] I would note in passing, for reasons which will become evident later, that the Application Instructions which came with Harmony shingles in 2014 had a slightly different wording under its equivalent to

section 5. In the latter version, under the heading ‘Nailing’, no reference was made to the need to use six nails on ‘steep sloped roofs’. That version reads as follows: … A minimum of 4 nails per shingle is required for all slopes. On slopes greater to or equal to 15/12, a minimum of six nails is required. … [ 20 ] It is clear that Mr. Sabiston did not use any Asphalt Plastic Cement, notwithstanding that the shingles were installed in cold weather conditions.

He asserted that he was, at the time of the installation, aware of its use for Harmony shingles and the reasons therefore, but he stated that he did not apply any Asphalt Plastic Cement for two reasons: first, because none had been provided to him

when Mr. Banga presented him with the materials to do the job; and second, and in any event, because the additional labour involved in applying this product would increase the complexity of the job and arguably take longer to complete the work, thereby increasing the labour costs by as much as $3,000.00. [ 21 ] Mr. Sabiston stated that it is his practice, when materials are provided for him and he is providing labour only, then he would not apply asphalt plastic cement unless it was expressly asked for by the client and provided to him for his use. [ 22 ] It is clear, as previously stated, that Mr.

Banga did not provide this cement, nor did he expressly ask that it be used. That stated, I am satisfied that Mr. Banga did not turn his mind to this consideration while negotiating the contract, nor at any time when the work was being performed. I am further satisfied that he would not, at that time, have read the Installation Application manual, or otherwise have been aware of the necessity for this product. It is also clear to me that Mr. Sabiston never advised Mr.

Banga that Asphalt Plastic Cement should be used; or that it was not being used because it had not been provided to him; or that to use it would cost more. [ 23 ] In March of 2012, approximately 4 months after the installation, Mr. Banga attended at his cottage and noticed that approximately 40 of the shingles on the steep-sloped north side of his cottage had come off. He contacted Mr. Sabiston who attended at the cottage on or about March 18, 2012 to make repairs. Mr. Sabiston charged him $100.00 to affect these repairs. In late 2013 Mr. Banga again noted that some shingles had fallen off of his roof.

Once again, this damage was located on the north side of his home, but this time on the steep slope of the north-west dormer, close to the original loss but not in the same precise location. Once again, Mr. Sabiston was called and he re-attended at the cottage in the month of January, 2014, to make further repairs. Mr. Banga paid the sum of $78.75 to affect these repairs. In October of 2015, approximately 25 shingles fell off, and again, this occurred on the north and west facing portion of the steep-sloped roof. [ 24 ] Between the months of October and December of 2015 Mr. Banga attempted to contact Mr.

Sabiston on a number of occasions to re-attend to the cottage to make further repairs. It is clear that Mr. Sabiston refused to return to make the repairs . Mr. Banga has stated, and I believe him, that it was difficult to find a roofer that would come and make such a minor repair for the rather nominal amount of money that would be involved. Mr. Banga ultimately found a roofer who attended at his cottage in September of 2016 to make the repairs. He charged Mr. Banga $75.00, and to that sum Mr.

Banga added a gratuity of $65.00, in the hope that the roofer would be incented to return for any future minor work that might be required. [ 25 ] I would note in passing that the evidence before the Court was to the effect that the wind on Katepwa Lake, at this location, generally comes from the North. I also note that these shingles, assuming proper installation, are rated to withstand winds of up to 180 km/h.

Evidence was led at Court tending to show significant winds at this location from time to time, but nothing in excess of 111 km/h, which is nowhere near the rated maximum for the standard wind warranty which is rated at 180 km/h. [ 26 ] Mr. Banga indicated that on each of first three occasions that he sustained damage, he was advised by Mr. Sabiston that the cause of the damage was attributable to wind, and that this could occur from time to time. Mr.

Banga stated in his evidence that he accepted this explanation without question and that it never occurred to him to try to scale this steeply sloped roof in an attempt to ascertain whether or not the loss was attributable to faulty workmanship because he relied on Mr. Sabiston’s explanation. Mr. Sabiston, however, gave evidence to the effect that on each of these occasions, Mr. Banga never asked any questions as to the likely cause of his problems and instead, advised Mr. Sabiston that he had sustained ‘wind damage’. [ 27 ] On this point, I prefer to accept the evidence of Mr. Banga.

I would certainly think that any reasonable person in Mr. Banga’s position would want to know the likely cause of his failing roof and would ask this type of question. With no experience in roofing, I would not expect him to personally access the roof in an effort to ascertain the cause of the problem, particularly in light of his lack of experience as a roofer. I find it highly unlikely that Mr. Banga would ascertain the cause of the damage and advise the professional rather than vice versa. In my view, Mr.

Banga’s version of these encounters is, as described in Bradshaw v Stenner , 2010 BCSC 1398 at para 187 ‘the most consistent with the preponderance of probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions’. [ 28 ] The contractor who performed the work on the third occasion was not called to testify. I have no evidence to conclude that the work that he performed was done in the same manner or differently than that undertaken by Mr. Sabiston.

I have no evidence that he was ever asked about, or provided an opinion as to why, this subsequent damage had occurred. [ 29 ] On October 17, 2017, Mr. Banga was at his cottage on what I understand was a windier day than normal, and he observed what looked like the shingles on his roof lifting or heaving and that some of the shingles had ripped off. Once again, this was located primarily on the north slope of his roof, and along the ridge cap on the north side and along the western facing portion of the north dormer.

His evidence, supported by a blueprint and a series of photographs (exhibits P-11 and P-14), show the precise location and the nature of the damage. Mr. Banga asserts that this area was much larger than the previous damage and comprised approximately 700 square feet. He says that this incident led him to believe for the first time that there must ‘be a bigger problem’, and in early 2018 he decided that he would replace the entire roof.

Daily Environmental data reports published by the Government of Canada for Regina and Yorkton, each approximately 100 kilometres away from Katepwa, were introduced into evidence as P-11(

a) and (b). These reports identify an average wind gust of about 45 kph daily, with a maximum wind gust in each city on October 17 th of 111 kph for Regina and 83 kph for Yorkton. [ 30 ] After investigating different roofing types, Mr. Banga ultimately decided to purchase and install a steel roofing system, describing it as safer against the wind because it is used in ‘hurricane country’. This new roofing system was installed in the late spring of 2018 by Resener’s Super Seamless at a labour cost, inclusive of taxes, in the sum of $39,960.

The materials cost equated to the sum of $27,872.65, with a nominal abatement following the return of unused material. [ 31 ] Mr. Resener has 30 years’ experience in roofing. When he first attended to inspect and then tear down and replace the shingles, he had the opportunity to identify the work that had originally been performed. While not called as an expert in these proceedings, he observed certain conditions of the roof that caused him concern. I accepted his evidence as to what he saw, as opposed to any opinions that he may have proffered. At the same time, Mr.

Banga took a series of photographs which reflected those concerns. Mr. Resener’s

evidence and the photographs (exhibits P-14 and P-15) identify missing shingles arising from the events on October 17, 2017; the improper application of underlay – in that it was not applied tight to the peak of the roof or to the roof valley, or properly overlapped; nails that were driven in at an angle instead of flush to the shingles, overdriven nails, and what he described as some slight mold development in the north facing slope of the roof deck; nailing of only 5 instead of 6 per shingle; nails placed up to 2 inches above the designated nail line on a number of shingles; and improper spacing between nails.

The defendant’s expert, whose evidence I will discuss shortly, took issue with the suggestion that mold had started to develop. He based that analysis on his review of the black and white photographs which had been tendered into evidence. With due respect to that expert, I have no hesitation in accepting Mr. Resener’s visual inspection over that of the expert, based as it is on an assertion that the photographs appear to show only discoloration which may or may not be mold. Mr. Resener has worked in the industry for a great number of years.

He did not overstate his evidence, and if anything he understated the mold concern. I have no doubt that he would be able to discern mold as opposed to mere discoloration and that his actual inspection is more compelling than an opinion predicated on a black and white photograph. The mold problem was minor and remediated in the course of a couple of minutes with the application of a wash.

Its existence, however, is significant in that it shows that at least in some locations on the roof, water had penetrated beneath the shingles and underlay and into the roof deck, which, if left unchecked, may have had significant long term consequences. [ 32 ] The Court heard expert evidence from each of Mr. Millen, a home inspector called by the plaintiff, and Mr. Carpenter, an in- house construction specialist working with Saskatchewan Government Insurance.

Each of these men were accepted by the Court as experts for the purposes of offering opinion evidence as to good and workmanlike roofing practices on residential properties. I found each of them to be objective, although I note that each offered slightly conflicting opinions on the quality of the work that was done by Mr. Sabiston – in the sense that each tended to support the positions of the parties who had called them. I do not see that as worrisome.

They are two experts offering to the Court what their experience and training suggests as appropriate. [ 33 ] I would note, at this point, that there was no suggestion whatsoever that the goods that were used were defective, or that there was some kind of inherent defect in the construction of the cottage or its roof deck that may have contributed to the damages that were caused. The sole issue before the Court dealt with the quality of the services that were provided by Mr. Sabiston. [ 34 ] Mr. Millen was inclined to the view that the work performed by Mr. Sabiston was deficient.

His opinions, generally speaking, would invite the Court to conclude that roofers should be held to a higher standard of workmanship than would Mr. Carpenter. His essential opinions can be summarized as follows: - Because the best temperatures to install shingles is between 4 and 26 degrees Celsius, and because the shingles were applied in temperatures below this range, the shingles should have been hand-sealed with Asphalt Plastic Cement, as recommended in the manufacturer’s Application Instructions.

Because this was not done, it was more likely than not that the shingles’ thermal seal did not properly activate to hold the shingles tight to the roof deck. This more likely than not allowed the shingles to lift, even in light winds, but certainly in strong winds, allowing sand and dirt particles to enter under the shingles and thereby compromise the seal itself. When Mr.

Sabiston attended on each of the first two repair occasions, he should have, as a professional roofer, noticed that the shingles were not secured down properly and he should have sealed them in accordance with the instructions which came with the shingles. This would likely have prevented any further disruption. - The underlay was not properly installed, as noted in the evidence of Mr. Resener and the photograph tendered into Court. If underlay is provided to a roof installer, it should be properly applied.

It provides an additional layer of protection from water penetration and if not properly applied, moisture can, and likely did, penetrate as evidenced by the development of a slight mold issue on the roof deck. - These shingles came with an identifiable nailing strip upon which the nails should be attached. A failure to comply with this methodology voids the manufacturer’s warranty. There were a number of instances where the nails were misplaced which would have the effect of voiding the warranty.

In addition, the Application Instructions called for the application of six nails per shingle on steep slopes, and much of Mr. Banga’s roof, and in particular, where most of the damage occurred, is a steep slope. The use of only five and sometimes only four nails is less than good and workmanlike, and more likely than not contributed to the lifting of the shingles on the roof. - Taken together, the manner of installation likely would not meet manufacturer’s standards and therefore the warranty that came with the shingles would be voided by the manufacturer.

If not corrected, it would be more likely than not that Mr. Banga would continue to experience additional and ongoing damages which may have ultimately caused safety and welfare concerns for the occupants of the home. In the result, the only reasonable conclusion would be to tear out and replace the entire shingling job. - Professional roofers are normally expected to comply with National Building Code standards, which may have, for the most part, been met by Mr.

Sabiston, but where, as in the instant case, a manufacturer identifies more stringent standards regarding the manner of application, reasonably prudent professional installers, as ‘an unwritten rule’ would regularly comply with the more stringent standards. In his experience, this would be a standard protocol although, in his estimation only about 50% of installers actually follow this unwritten rule. [ 35 ] Like Mr. Millen, Mr. Carpenter based his evidence, not on a personal inspection of the roof, but rather on the photographs and materials that were introduced in evidence at trial.

This included one of a number of shingles that Mr. Banga had brought to court, and which was presented as identifying a representative sample of the work that had been done by Mr. Sabiston. His opinions are summarized as follows: - Even though Mr. Sabiston did not use asphalt plastic cement, the summer heat in each of 2012 (6 months post installation) and 2013, (18 months post installation) would have thermally activated the factory applied adhesive and therefore, this issue would no longer be relevant.

Evidence of this activation is identifiable on the representative sample tendered at trial as it evidences a dark tar line which is indicative of its activation on that shingle. - The underlayment may have been provided by Mr. Banga, but underlayment is not mandatory in the manufacturer’s Application Instructions on steep slopes, it is only recommended. In addition underlayment is not required on steep slopes under the National

Building Code. (In addition, he would invite the Court to conclude that it was possible that the condition of the underlay may likely have been different in 2017 than when it was installed because of the previous work done on the home in each of 2012, 2014, and 2015). - He concedes that there are instances of improper nailing, however, 6 nails per shingle is not required by the National building Code, only 4, and the evidence is consistent with the placement of 4 to 5 nails per shingle.

Because the 2014 Application Instructions do not call for 6 nails to be placed on each shingle the Court should therefore infer that the previous Instructions were inordinately demanding. Since the representative shingle, and others that were reviewed by him, identify that the nails were ultimately placed such that they penetrated both the top and underlying shingle, this would provide reasonably secure attachment notwithstanding that they were not always on the nailing strip.

He has seen many occurrences where a shingled roof is adequate notwithstanding the occasional misplaced nail or a placement of a nail that is not flush. In short, it is common to see this kind of deviation. - Shingles regularly come off as a result of wind. Even though there is no evidence that the wind on October 17, 2017 was in excess of the Harmony brand-rated maximum, a wind storm in Saskatchewan at the time resulted in a number of roofing claims being presented to SGI on that occasion. - Overall, he concludes that the shingles were properly installed.

The failure to use asphalt cement would have contributed to the first loss, but not thereafter because of the amount of heat that would have sealed the shingles in the summer of 2012 and 2013. [ 36 ] I have some trouble in drawing the inferences that Mr. Carpenter invites me to make. First, there is no evidence whatsoever that the underlayment may have been disturbed when the further work was done in 2012, 2014, and 2015. Second, I am not prepared to infer that the nailing requirements in the Application Instructions set out in 2014 were made more lax because the original instructions were inordinately demanding.

For all the Court knows, the product itself may have been improved. Nor am I prepared to conclude that the summer’s heat on 2012 and 2013 would have fully activated the thermal seal on the shingles. While there is evidence of some activation, there is no evidence that it was fully activated, and it is reasonable to assume that in the absence of full activation, the very thing that concerned Mr. Millen occurred… that because the shingles were not sealed, dirt and particulate penetrated beneath the shingles causing inadequate adhesion. If I were to accept Mr.

Carpenter’s assertion, to the effect that the thermal seal would have activated in the summer of 2012, why did a subsequent loss occur the following year, and then two years later and then once again? In addition, the fact that SGI may have had a number of roofing claims arising from a windstorm in October of 2017 is not of any particular assistance. Were the affected roofs inadequately installed in the first instance? Were the affected roofs aging or at the end of their expected utility? Were these roofs shingled with the more expensive Harmony brand of shingles?

In the absence of these additional considerations, I place little importance on this fact. [ 37 ] The most telling part of Mr. Carpenter’s evidence is the answer that he gave to a question put to him by the Court - barring a wind event that exceeds the Harmony brand stated resilience of up to 180 km/h; barring any defect in the building of the home or the roof deck itself; and, barring actual physical contact of a thing applied against the shingles, what is the most likely cause of these sequential problems?

The answer - deficient work. [ 38 ] The determination of causation or the cause in fact, of loss, is not necessarily an exacting process, as noted by Linden and Feldthusen, in their text, Canadian Tort Law 10th Ed., Lexis Nexis Canada Inc., 2015, at page 125-126: Fortunately, the courts generally have not been trapped into endless philosophical discourse on the concept of causation. Instead, they have adopted a common sense approach to the problems. Mr. Justice Sopinka advocated this in Snell v Farrell when he declared that causation need not be proven with “scientific precision”.

He explained that “Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former”. Madame Justice Soutin has also reminded us that it is not often possible to do a “controlled experiment” to discover the precise cause of an accident. On the evidence before me, I find, more likely than not, that the cause of Mr.

Banga’s ongoing problems, located as they were, primarily on the north and west side of his home, was attributable to the lack of the placement of asphalt plastic cement when the shingles were applied in cold conditions; and the failure to use a sufficient number of nails on the steep slope shingles. This allowed wind and particulate to enter underneath the shingles which in turn did precisely what the Application Instructions warned about - it hindered the effectiveness of the thermal sealant which would otherwise have effectively bonded the shingles to the roof deck. [ 39 ] Damages are in issue in this action.

Mr. Banga chose to tear off the old shingles and underlayment and replace the entire system with a new and more expensive steel roofing system. Part of the labour cost incurred by Mr. Banga in this process included the cost of tearing out the old shingles and underlay and hauling them away. Unfortunately Mr. Resener’s account does not itemize the actual costs associated with this service. At trial Mr. Resener advised that the labour cost for this service would equate to about 100 man hours using unskilled labour at a paid rate of $18.00 per hour. Because Mr.

Resener incorporates a profit markup of 100% on his labour, he estimated that the tear down cost that he would have incurred would equate to the sum of $1,800.00 and his charge to his client would be $3,600.00. This, however, would not include the cost of dumping the shingles. The shingles would weigh approximately 12,000 pounds and the dump fees would cost $.11 per pound. This would equate to an additional cost of $1,320.00. His estimate for a tear down and removal would therefore be $4,920.00. [ 40 ] Mr.

Resener was also asked to identify what his company would have charged if it was asked to replace the roofing system using Harmony shingles. He estimated that, in addition to the costs of the tear down, he would incur labour costs in the sum of between $5,000.00 and $8,000.00, and taking the middle point, I conclude that his charge would be about $6,500.00. If Mr. Banga decided to purchase the goods directly, he would then charge out his labour with a 100% markup to secure his profit. The cost of the shingles in 2018 dollars would equate to $6,124.16 according to the evidence tendered in court.

Therefore, were Mr. Banga to employ Mr. Resener’s company to tear down the old roof and haul it away; supply Mr. Resener with new product and engage him to re-shingle the roof, Mr. Banga’s cost would likely be: (tear down and haul away - $4,920.00; purchase of new product - $6,124.16; labour with profit included - $13,000.00 = $24,044.16). GST and PST would, of course, be included in the labour portion for an additional cost of $1,971.20, for a total cost to Mr. Banga of $26,015.36.

[ 41 ] In addition to this evidence, Mr. Banga presented two written quotes to the Court. Dynamic Roofing was asked to provide a quote for removal and disposal only, and this quote equated to the sum of $5,280.00. This is within 10% of the amount that Resener would have charged for this service. Another quote, from Optima Roofing, for removal and disposal of the existing shingles equated to the sum of $9,600.95, taxes included. [ 42 ] Mr.

Sabiston, by comparison, inclined to the view that his charge to remove the existing shingles would be $1,260.00 based on a labour charge of $17.50 per hour, multiplied by approximately 72 man hours. The disposal fees would equate to $1,320.00, and to that combined sum, he would seek a profit margin of 25%. His charge, would, therefore, be $3,225.00. I would note in passing, however, that Mr. Sabiston has made it clear to the Court that his profit margin is significantly lower than his competitors - this, to undercut competitors and attract business.

I would also note that this amount does not take into consideration taxes which would increase that amount by $345.75, for a total of $3,579.75. I take special note of the fact that, respectfully, his profit margin is lower than what the business community would usually charge, and that he has a keen interest in the outcome of this trial. In my view his quoted price is on the low side. I conclude, on the evidence before me, that the average of the four price quotes for tear down and disposal provided to the court equates to $5,844.75. I therefore accept that Mr. Resener’s price of $4,920.00, is reasonable.

Issues [ 43 ] This Court is called upon to address the following issues: 1. Did Mr. Sabiston negligently perform the contract by falling below the standard of care of a reasonably prudent contractor, or alternatively, did he fail to comply with the implied contractual condition that he perform his services in a good and workmanlike manner? 2. Does the fact that Mr. Sabiston chose not to offer a warranty for the services he provided either negate his obligation to perform the contract in a reasonably prudent fashion or his obligation to comply with this implied contractual condition? 3.

If the contract for services rendered was negligently performed, or provided in a less than a good and workmanlike manner, what is the measure of damages to which Mr. Banga is entitled? 4. Did Mr. Banga negligently contribute to his damages, or fail to mitigate his damages and if so, by what amount should his damages be reduced? 5. Should Mr. Banga’s damages be reduced by virtue of the principle of Betterment? 6. Is Mr. Banga precluded from claiming damages by virtue of the passage of time? Good and Workmanlike Services [ 44 ] I intend to deal with issues 1 and 2 together.

Parties to a contract are always free to identify the terms of their agreement and if a contractor expressly indicates that he is not warranting his work, either in part or at all, and the other party, fully aware of the implications of this arrangement agrees to it, the parties will be bound by that arrangement. But this is a somewhat different circumstance than what Mr. Sabiston is alleged to have or have not done. Mr. Sabiston’s evidence was to the effect that he did not provide a warranty. He did not say that he refused to be bound by any particular warranty that may be implied by law.

This court is often presented with some iteration of this warranty question. Either that, because an express warranty for a given amount of time was not provided, and therefore the plaintiff should have no remedy for less than workmanlike services; or that an express warranty was provided only for a period of six months, and therefore if the services are found to be less than good and workmanlike after that time, there is, once again, no remedy.

But that is not the law. [ 45 ] In Mack v Stuike (1963), 43 D.L.R. 2(2 nd ) 763 (Sask Q.B.) the Court recognized that: A contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies a condition that the work shall be done in a good and workmanlike manner, and the workmen employed on the work must be possessed of the ordinary amount of skill possessed by those exercising the particular trade … Goldsmith, in his text, Canadian Building Contracts (Toronto: Carswell, 1988) at pp 5-11 through 5-12 notes that: Work that does not meet the requirements of the specifications in the contract, or which, in the absence of such specifications, is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.

Furthermore, compliance by the contractor with the specifications will not be sufficient performance, if the specifications were prepared by him and are deficient, even if they were approved by the owner. Whether work or material supplied, is defective or not is, in each case, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none. Simply put, parties to a construction contract may identify the precise nature of the terms and conditions to which the contractor may be bound.

In the absence of any terms, where, as in the present case, there is an absence of a specified warranty, the provisions identified above become operative. The contract, by law, incorporates an implied warranty that the services be provided in a good and workmanlike manner. On the evidence before me, Mr. Sabiston’s failure to give an express warranty does not negate the warranty that is implied into this contract by operation of law. [ 46 ] Mr.

Sabiston would invite the court to conclude that because he was not provided with plastic asphalt cement, he did not hand seal the shingles, notwithstanding that he knew that the Application Instructions called for it. He has argued that, in these circumstances, he is not obligated to hand seal, presumably because the Court should infer that this was not sought by Mr. Banga, and because it would have cost more in labour. I have already indicated that Mr. Banga was unaware of this requirement, and that the contract as formulated did not include any discussion relating to plastic asphalt cement.

[47] With respect, I find this line of argument to be of little assistance to Mr. Sabiston. If too few nails had been provided, would Mr.Sabiston have simply used two or three nails per shingle, contrary to building code requirements? If Mr. Banga had provided aninsufficient number of shingles, say, fifty fewer than would have been required, would Mr. Sabiston have concluded that the work wasdone if 150 feet of the roof was left undone? I do not think so. Mr. Sabiston has held himself out to be a professional roofer, and notsimply a labourer. As such, he is, in law, held to a higher standard.

In Husky Oil Marketing Ltd. v Keller construction Ltd. et al (SK QB), Walker J. was dealing with a services contract for welding. Notwithstanding the different nature of thecontractor’s service being rendered in that case, his characterization of the law, generally, binds this Court. At para 31 he noted: In the absence of a comprehensive building contract, it is an implied term of the contract that the contractor’s work will be done withproper care and skill.

In deciding what degree of skill is required, the court will consider all the circumstances of the contract, includingthe degree of skill expressly or impliedly professed by the contractor. … a person holding himself out to the public as qualified to dowork requiring special skill, as does welding, holds out that the work he will do will be done completely and adequately according to theessential requirements of the case.

At para 33 he cited, as authority, Sansan Floor Company v Forsfs Limited (BC CA), [1942] 1 W.W.R., 553 (B.C.C.A.)which in turn cited Duncan v Blundell (1820), 3 Stark. 6, 171 E.R. 749: Where a person is employed in a work of skill, the employer buys both his labour and his judgment; he ought not to undertake the workif it cannot succeed, and he should know whether it will or not; of course it is otherwise if the party employing him choose to supersedethe workman’s judgment by using his own.

At Para 34, citing Hudson, at p 264, he noted: Furthermore, no description, however meticulous, will descend to every detail of building processes, so that it is a cardinal principle ofconstruction, it is submitted, that, in the absence of an expressed contrary intention, an obligation to do described work imports anobligation to do all the necessary ancillary work or processes, whether described or not, which are necessary to produce the describedwork… [48] This line of authority establishes the following legal conclusion: a party which contracts with a skilled professional forconstruction services is, in the absence of terms to contrary effect, entitled to rely on that skilled professional to perform the work in amanner that is complete and adequate to the task, and it is not open to that skilled professional to say that he did the work in a less thanadequate manner because he was not given instruction or the materials to do it otherwise.

It is incumbent on that professional to advisethe owner of the shortcomings in the materials provided. This is particularly so, when, as in the instant circumstances, Mr. Sabiston wasaware of the guidelines that the Harmony product called for, and the reasons why they ought to have been used. [49] Mr. Sabiston says however, that his decision not to use the plastic asphalt cement and six nails per shingle was not necessarybecause the National Building Code does not require their use, and he says that in following the National Building Code, he met theimplied contractual warranty. His expert, Mr.

Carpenter agrees with this standard, but Mr. Banga’s expert, Mr. Millen does not. He hasasserted that proper workmanship anticipates compliance with the higher standard incorporated in the Application Instructions. [50] In the instant circumstances I have found that the shingles failed precisely because Mr. Sabiston failed to follow the guidelines asrecommended. I have also noted that the warranty would have been breached had the nailing requirement not been followed.

In Town ofCutknife v Weikle 1983 CarswellSask 226, 4 C.L.R. 26, Wimmer J. was considering a claim for deficient work performed in relation to asheet metal roof on the plaintiff’s civic centre. He found that the defendant was not familiar with the product, and that he had installed itin a manner that was not as intended by the manufacturer, and that as a result, the roof leaked.

While he did not cite authority for thespecific proposition that this Court is seeking, he concluded, at para 4 that the defendant had taken no steps to familiarize himself withthe manufacturer’s specifications or the manufacturer’s prescribed method of application, and because the loss was attributable toinstallation contrary to the manufacturer’s recommendations, he did not fulfill his obligation to use reasonable care and skill, andtherefore was in breach of contract. [51] In Levy v Elmer Lohnes Lumbering Ltd. 2004 CarswellNS 342, 2004 NSSC 172, Stewart J. had to determine whether or not acontractor’s work was not of workmanlike quality when the contractor failed to comply with the manufacturer’s instructions, eventhough those instructions were not required by the then existing National Building Code.

The Court concluded that the loss arose byvirtue of the defendant’s failure to comply with the manufacturer’s instructions, and his comments at p 40 are worthy of consideration: At this stage it was incumbent upon the contractor to know or determined or at least to admit to Levy to not knowing the ramifications ofnot complying with installation instructions of the product … Furthermore, it was incumbent upon Lohnes to make sure his client, fromwhom he sought directions, knew what risk, if any, he was taking by agreeing to comply with the installation instructions or make surehe still chose to agree with his proposal having been alerted to risks or possible risks.

An agreement with a lay person concerningconstructions obtained in a vacuum is of no avail, especially when the product is unique and requires specific directions. At Para 42, Justice Stewart concluded: I am satisfied that there is no question that the siding deterioration and the leaks were all defects of the same cause, namely the improperinstallation of Maibec siding which permitted moisture build up behind the siding. The contractor failed in its duty to provide goodworkmanship.

I would note that Justice Stewart did not state that compliance with the manufacturer’s instructions were mandatory, he simply notedthat this failure, as in the instant case, went to ‘the heart of the defects in workmanship’. [52] In Alberta Cycle Motorsports Ltd. v Performance Paving Services Inc. 2011 ABPC 46 Judge Young found that the defendantbreached the good and workmanlike standard when, contrary to those instructions, it failed to sweep and pressure wash the lot prior to anapplication of sealant, and/or failed to apply more than one coat of sealant. In Paul V Urban Farmer

(1993) Ltd. 2009 NBQB 64, 2009CarswellNB 98, the Court concluded that as an installation was not in accordance with the manufacturer’s guidelines, and defective, the

warranty available from the manufacturer was void, and therefore, the plaintiff’s claim had been proven. For a case more directly on point, In Wilson v Howard Hussey & Sons, construction Ltd. 2009 CarswellOnt 3803 Deputy Judge Searle was dealing with a claim arising from a roofing contract. In concluding that the nailing of the shingles was insufficient in that case and therefore not good and workmanlike, the Court stated at para 38: This court agrees with Deputy Judge McGill of the Small Claims Court at Kitchener in the case of Kraft v Baumac Developments Ltd. Kitchener Court File No.

SC1262/05 [2007 CarswellOnt 8266 (Ont. S.C.J.) ]. In reasons released December 14, 200-7 she said at page 6 of those reasons that if shingles are manufactured for a particular installation format then an installer assumes the risk if he deviates from the process. In the case at bar Hussey assumed that risk and made an undeniable contribution to the failure of the roof. [ 53 ] Having found that the problem with Mr. Banga’s roof was directly attributable Mr.

Sabiston’s failure to follow the manufacturer’s installation guidelines, and on the strength of the decisions referred to above, I am of the view that while a contractor is free to determine the manner in which he provides his services, they run the risk of falling below the standard of good and workmanlike services when, and as again in the instant circumstances, that professional is aware of a recommended installation procedure; and where, as I have inferred in this case, that installer knew or ought to have known that the owner anticipated be afforded the warranty that the product came with; and where, as in the instant circumstance, the loss that occurs arises from the failure to follow those recommendations.

I conclude that Mr. Sabiston services were less than good and workmanlike in the instant circumstances; that this failure was the direct and proximate cause of the loss sustained by Mr. Banga; and that, therefore, Mr. Sabiston is in breach of contract. Damages, Contributory Negligence, Failure to Mitigate and Betterment [ 54 ] I intend to deal with Issues 3, 4 and 5 together.

Whether characterized as negligent performance of a contractual obligation, or more properly, as a failure to comply with an implied warranty that services would be provided in a good and workmanlike manner, the measure of damages which flow from a breach of either is the same, and the long established principle regarding compensation is simply this - the purpose of a damages award is to place the plaintiff in the position he or she would have been in had the wrongful act not been committed. [ 55 ] In the instant circumstances, this means that the Court should calculate the costs incurred by Mr.

Banga in ascertaining the cause of his loss; in attempting to correct the deficient work; and thereafter, to put him, in so far as the Court can do by a monetary award, into the same position that he would have been in had the services been provided in a good and workmanlike manner. That position would demand a roof that was shingled with similar materials, and properly installed to afford him the protection of the warranty that the manufacturer offered which, according to the materials filed with the court, was for a period of thirty years. [ 56 ] I will set aside the costs incurred by Mr.

Banga in ascertaining the cause of his loss under the heading of costs. That stated, it is clear the Mr. Banga incurred the cost of repairing the damage following the first loss event by paying Mr. Sabiston the sum of $78.75. He incurred a further cost of repair when he paid Mr. Sabiston the sum of $100.00 to fix the damage following the second loss event in the sum of $100.00. He incurred a loss of the further sum of $75.00 when he paid another contractor to repair damage following the third loss event. I take notice that Mr.

Banga paid an additional gratuity, and while he felt that this would incent future attendances to his cottage in the event of further damage, this, in my view this was a gratuitous payment and is not recoverable. [ 57 ] In ascertaining the remainder of his damages, the court is not concerned with the cost that Mr. Banga incurred in installing a significantly more valuable roof. It is concerned with attempting to ascertain what it would have cost to put him in the situation he would have been in had the original roof been installed correctly.

While the defendants have attempted to argue that since only the north and west portion of the roof appears to have been sequentially damaged, and therefore the damages to be awarded should be limited only to a tear out and disposal and re- shingling of that portion of the roof, I do not agree. I accept Mr. Millen’s conclusion that, over time, the deficiencies noted may have caused significant and ongoing loss over other parts of the roof. As none of the roof was cemented down, and as I have found this to be a significant factor in causing the loss, I conclude that it would be reasonable for Mr.

Banga to seek to ensure that the entire roof be replaced. In so doing, I take note of the fact that all of the steep slope portions of the roof lacked cement or the appropriate number of nails; that there were instances of potential mold development which may have otherwise spread; and that the underlayment was improperly installed. Had the shingles been installed properly at first instance, Mr.

Banga would have had the peace of mind that his warranty was valid and subsisting, and that, more likely than not, there would be no further instances of damage. [ 58 ] I accept that the reasonable cost associated with a tear down and disposal of the shingles would equate to the sum of $4,920.00. I also accept that in 2018 the cost to acquire the Harmony package of materials would equate to the sum of $6,124.16. I further accept that Mr. Resener’s evidence as to what he would have charged for his company’s services, inclusive of profit, is a reasonable sum - $13,000.00.

While this is significantly more than what Mr. Sabiston says he would have charged, I simply note that according to his own evidence, he tends to significantly reduce his operating profit to undercut the competition. I am satisfied that, on a global basis, the market cost of tearing down and redoing the roof can reasonably be identified as $24,044.16. [ 59 ] I am not prepared to conclude that Mr. Banga negligently contributed to his loss.

First, I do not accept that he should have had the wherewithal to assume that his contractor, being fully aware of the Application Instructions should not have alerted him to the lack of asphalt plastic cement. Mr. Banga does not shingle roofs for a living, Mr. Sabiston does. Second, there is no evidence that Mr. Banga’s failure to redo the roof at an earlier time resulted in any significant additional loss. Nor am I prepared to conclude that Mr. Banga failed take reasonable measures to mitigate his loss.

When mitigation is pleaded, it is incumbent on a defendant to prove that there was a failure to mitigate and the manner in which this failure contributed to the loss. Precious little evidence was led in either regard. If the argument is that he should have known of the deficiencies earlier, torn it down, and re-shingled it much earlier, there is still no evidence that this would have reduced his potential damages in any meaningful way. [ 60 ] I do, however, accept the defendant’s argument respecting betterment, although not as the defendant originally identified that issue.

The original concern of the defendant, in this regard, dealt with Mr. Banga’s argument that he should be entitled to a significantly better and more expensive roofing system. I have already indicated that this is an incorrect method of assessing loss. The more compelling argument is simply that - and while Mr. Banga may not feel assuaged by this analysis due to the frustration that he had with ongoing repairs to his roof - he had contracted for installation services which would provide him with a thirty year roof. He should have

received that, but instead, and repairs notwithstanding, he ended up getting a roof that was replaced in April of 2018. This means that,notwithstanding outlaying some capital to repair the shingles, he had an otherwise performing shingled roof for a period of 6 years and 5months. Were he to be given a sum of money to install a new thirty year roof, his situation would be better, in the sense that he wouldderive the advantage of a shingled roof for 36 years and 5 months instead of the warranted 30.

In consequence, he is entitled to a sum ofmoney which will be sufficient to replace the old shingled roof less the duration of time that he had the advantage of a shingled roof, plushis interim costs of repair. In consequence, the assessed damages must be reduced to reflect this potential betterment, by a factor of6.5/30 or 21%. In total then, Mr. Banga’s damages equate to 79% of $24,044.16, or $18,994.88. To this must be added the cost of hisinterim repairs in the sum of $253.75 for a total of $19,248.63. The Passage of Time [61] Mr. Sabiston argues that Mr.

Banga’s claim is statute barred by virtue of the passage of time, and he has expressly plead TheLimitations Act, SS 2004, c. L-16.1. (hereafter, ‘the Act’). His argument, simply put, is that too much time has expired from when Mr.Banga knew or ought to have known of the deficient work until the time that he commenced this action. In that regard I would note inpassing that for time limitation purposes, an action is ‘commenced’ under The Small Claims Act, 2016 SS 2016 c. S-50.12 when the feeis paid. [See, specifically, Bakaluk v McGregor, 2003 SKQB 386 ]. [62] Mr.

Banga’s action was commenced, within the meaning of Bakaluk, when he paid his fee to the court to commence his actionand this occurred on July 25, 2018, six years and approximately eight months after the original contract was completed. [63] It is not unusual in this Court to have plaintiffs speak to what they consider to be the unfairness of limitation periods. However,Major J, in Stoddard v Watson (SCC), [1993] 2 S.C.R. 1069 has explained the competing issues at play.

He cited thecomments of LaForest J, in M. (K.) v M. (H. (SCC) [1992] 3 S.C.R. 6, at pp 29 and 30: In order to determine the time of accrual of the cause of action in a manner consistent with the purposes of The Limitations Act, I believeit is helpful to first examine its underlying rationales. There are three, and they may be described as the certainty, evidentiary, anddiligence rationales …. Statutes of limitations have long been said to be statutes of repose; … The reasoning is straightforward enough.

There comes a time, it issaid, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations… The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period haslapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim … Finally, plaintiffs are expected to act diligently and not “sleep on their rights”: statutes of limitation are an incentive for plaintiffs to bringsuit in a timely fashion.

He then went on, at p 1079-80, to conclude: While these rationales benefit the potential defendant, the Court also recognized that there must be fairness to the plaintiff as well.

Hencethe reasonable discovery rule which prevents the injustice of a claim being statute barred before the plaintiff becomes aware of itexistence. … A limitations scheme must attempt to balance the interests of both sides. [64] The relevant sections of the Act under consideration are: 2 In this Act: (a) “claim” means a claim to remedy an injury loss or damage that occurred as a result of act or omission; 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day onwhich the claim is discovered. 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant firstknew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused or contributed by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission onwhich the claim is based took place, unless the contrary is proved. 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired; or (

b) there is no limitation period that applies to the claim. 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before thecommencement of the proceeding, the claim is barred and the proceeding shall not be maintained.

[65] There is no question but that Mr. Banga’s action is a claim within the meaning of

section 2 of the Act. He is seeking a remedy inthe form of a judgment for damages arising from what is alleged to have been certain failures or omissions in the provision of servicesunder an oral contract. [66] The basic limitation period, as set forth in

section 5 of the Act, is two years. That is to say, prima facie, Mr. Banga is not entitledto bring his action after two years from the day on which the claim was discovered. [67] Section 6(2) of the Act creates a rebuttable presumption that Mr. Banga knew that Mr. Sabiston had provided deficient serviceswhen he first completed the job, which, in this case, is November 24, 2011. [68] Because Mr. Sabiston has raised the issue of a limitation period in his pleadings,

section 18(

a) of the Act operates to shift theburden of proof to Mr. Banga to convince the Court that the limitation period has not expired. [69] If Mr. Banga cannot, on a balance of probabilities, meet that burden, then his action cannot be maintained, and the Court must, inlaw, dismiss the action. [70] In order to meet that burden of proof, he must, as noted by our Court of Appeal, in Langenburg (Town) v Gamey, 2010 SKCA 11, at para 34, convince the Court that ‘his cause of action was not discoverable within the limitation period by the exercise of duediligence’. [71] It is not open to Mr.

Banga to argue that the limitation period does not commence until he has had the opportunity to determinethe full extent of damage that he suffered. In Peixeiro v Haberman, (SCC), [1997] 3 S.C.R. 549 (S.C.C.) the SupremeCourt of Canada noted at para 18: 18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay the time under a limitationperiod. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue.

Oncethe plaintiff knows that some damage has occurred and has identified the tortfeasor … the cause of action has accrued. Neither the extentof the damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the fullscope of the damages may not be ascertained for an extended time beyond the general limitation period. [72] Mr. Sabiston’s argument is rather straightforward and he has argued, as he is free to do, in the alternative.

He argues that becausehis work was completed on November 24, 2011, the presumptive two year limitation period identified in section 6(2) should govern andthe limitation period would expire on November 25, 2013. Alternatively, he argues that in March, 2012, when Mr. Banga first observeddamage to his shingles, he certainly knew that damage had occurred, and at that point, it should have been apparent to him that it waslikely caused by or contributed to by Mr. Sabiston’s deficient work, and, that bringing an action would be an appropriate means to seekto remedy that deficiency.

In which event, the limitation period would expire by approximately April 1 of 2014. [73] Mr. Sabiston makes the same argument for the third occasion of loss. Since that loss occurred in October of 2015, then thelimitation period would still have expired within two years and no action can be brought after the end of October, 2017. He argues thatcertainly by that time Mr. Banga must have had his suspicions aroused. Mr.

Sabiston says, in effect, that even if it would have taken Mr.Banga some time to give a fulsome consideration to this third occasion, in order to exercise his due diligence, and arguably call on someone to inspect the roof to ascertain the precise cause of the loss, it should not have taken a further 7 months, or until July 25th, 2016,to do so. I say July 25, 2016, because this would be two years prior to the date that the action was actually commenced. [74] As I have said, in order to rebut the presumptive 2 year limitation period, Mr.

Banga bears the burden of satisfying the Court thathe could not have, through the exercise of due diligence known that (

a) loss had occurred, and that (b), it appeared to have been causedby or contributed to by

an act or omission of Mr. Sabiston, and (c), that having regard to the nature of the loss, a proceeding in courtwould be an appropriate means to seek to remedy it. Point (

a) has been met, Mr. Banga clearly knew of the damage in 2012, 2013 and2015. Point (

c) is not, in my view, contentious. I am absolutely satisfied that Mr. Banga knew or ought to have known that if Mr.Sabiston provided deficient work that he could proceed to court to obtain a remedy. [75] I do find point (

b) to be problematic. Can it be said that Mr. Banga either knew, or by the exercise of due diligence, ought to haveknown that Mr. Sabiston’s work was less than good and workmanlike within two years of either the first or second or third loss event? [76] Mr. Banga has led evidence to the effect that on each of the first three instances he enquired of Mr. Sabiston as to the likely causeof his roof damage. On each occasion he has stated that Mr. Sabiston advised him that it was simply wind damage and that this sort ofthing could happen. Mr. Sabiston denies that he made these representations, and that it was Mr.

Banga who asserted to him that windwas the cause of the damage. I have already explained why I prefer Mr. Banga’s evidence. It simply strikes me as unlikely that Mr.Banga would advise the professional as to the cause of his loss. At best, I suspect that Mr. Banga may have advised Mr. Sabiston thatsome of his shingles had blown off of his roof. Technically speaking, the answer given by Mr. Sabiston doesn’t answer the key question… Why is Mr. Banga having wind damage at all? It is this more important question which causes me a concern. Mr.

Sabiston is askilled roofing professional and he has testified that he knew about the Application Instructions for Harmony shingles and that heunderstood the reasons why asphalt plastic cement should be used and the 6 nail requirement set out in those instructions. With that foreknowledge, I am satisfied that as a professional, Mr. Sabiston, having done the work, likely knew, or at least had his suspicions as to thelikely cause of the loss. [77] I am satisfied that when Mr. Sabiston was asked about this problem on each of these three instances, Mr.

Banga, not being anexpert, or even knowledgeable about roofing would have been placated by the answer. I say this having regard to the fact that his owninstaller was offering up the advice. I say this having due regard to the rather nominal amount of damage that was sustained on each ofthose three occasions and to a lesser extent, on the difficulty that Mr.

Banga would have to have incurred to access this steep slope, andarguably attempt to personally locate a problem which would not be apparent to a lay person, I say not apparent, because I do not thinkthat a layperson would attempt to locate the absence of a cement laid under a shingle without knowing that it should have been applied.

[ 78 ] In my view, Mr. Sabiston’s representations were, at the very least, misleading. He knew that the work was done in late November and he knew that cement should have been applied and he knew that in its absence, the thermal seal might not activate effectively. He was aware of the fact that six nails were not used on the steep slope portion of the roof because he observed and oversaw the work as it was being done. [ 79 ] As I have said, I am satisfied that, on the evidence before me, Mr. Sabiston knew or ought to have known of the likely root cause of Mr. Banga’s loss.

By representing that the first three rather nominal losses were attributable to an arguably common problem - wind, and by representing that this sort of thing could happen from time to time, is it open for Mr. Sabiston to now say, in effect, ‘my representations, regardless of my actual knowledge, and regardless of my continuing reaffirmation of these representations, should not have been relied on by Mr. Banga, and accepted as more likely than not’? [ 80 ] With respect, I do not believe it is open to him to say so, and subsequently argue that by relying on them, Mr.

Banga is now precluded, due to the effluxion of time, from bringing his action. In Ryan v Moore 2005 SCC 38 , 2005 CarswellNfld 157, the Supreme Court of Canada discussed the limitation of actions in the context of estoppel.

The Court noted that an estoppel must involve some statement or conduct by the party alleged to be estopped on which the alleged representee was entitled to rely and did rely, in the sense that the statement or conduct produced either a belief or expectation in the mind of the representee so that, depending on the circumstances, it would thereafter no longer be right to allow the representor to resile by challenging the belief or expectation which he has engendered.

If the party seeking to establish estoppel shows that he acted, (or abstained from acting) on the basis of that representation, to his detriment, in the sense that his legal position is adversely affected, then, if the Court finds that this would be unfair or unjust or unconscionable, the representor is precluded from asserting that the representation should not have been relied on. [ 81 ] There is no question that there was a special relationship between Mr. Sabiston and Mr. Banga – Mr. Sabiston was his roofer, and the very person who had intimate knowledge of the work that had been done.

I am further satisfied that Mr. Banga reasonably relied on this advice by not taking further steps to investigate the actual cause of his loss. I am satisfied that his reliance proved to be detrimental, in the sense that Mr. Banga did not choose to second guess his installer and hire an inspector. In my view, all of the elements of negligent misrepresentation and detrimental reliance are made out as it relates to the first three instances, and on that basis, these representations operated as an estoppel. On that point, I note that Mr.

Sabiston had two separate opportunities to re-attend on the premises to conduct repairs. On each of those occasions it would have been open to him to alert Mr. Banga as to the likely cause of the wind damage but he did not do so. [ 82 ] In my view, Mr. Banga’s delay in acting diligently to ascertain whether or not his loss was caused by Mr. Sabiston’s deficient work following the first event was understandable. On the evidence before me I find the same to be true of the second incident. [ 83 ] But what about the third instance? I have now struggled with this question for a number of weeks. At what point does Mr.

Banga’s obligation to question the representations of his roofer and diligently ascertain the true cause of his loss arise? If not three times, what is the number? When I look to the facts, I note that on each of the first three occasions, the loss was minor, and it was located in approximately the same location. In my view, had each subsequent loss occurred in different locations, and become consecutively more severe, a reasonable person’s suspicions would become more profound and to the effect that perhaps the original work was negligently performed.

However, the consistency of the location, and its minor nature would, in my view, offset those concerns in the mind of a reasonable person, and that more likely than not a reasonable person would simply conclude, as Mr. Sabiston represented, that occasionally, on a steep sloping roof which faces a prevailing wind, that minor wind damage can occur. That, more or less, was the expert opinion of Mr. Carpenter - and if an expert can come to this conclusion - should Mr. Banga be held to a higher standard in the face of repeated representations to this very effect by his own roofer?

I simply do not think so. [ 84 ] For these reasons, I am satisfied that the limitation period did not begin to run until October of 2017 when Mr. Banga’s personal observation of seeing his shingles lifting, led him to the reasonable conclusion that the work originally provided by Mr. Sabiston may have been less than good and workmanlike. This would mean that the limitation period would expire in October of 2019. Since Mr. Banga brought his action in July of 2018, his claim is not extinguished by virtue of the passage of time. [ 85 ] For all of the foregoing reasons, I find in favour of Mr.

Banga, and award him damages in the sum of$19,248.63. Mr. Banga is also entitled to prejudgment interest on that sum, which the Court has calculated from the date that the claim was commenced, and which equates to $225.04, for a total of $19,473.67. Costs [ 86 ] As Mr. Banga has been successful in this action he is entitled to his costs. Under Section 36(3) of The Small Claims Act, 2016 he is entitled to general costs to a maximum (pursuant to the Regulations) of 10% of his claim. Section 36(3) identifies several factors for the Court to consider.

It is this Court’s general practice to award five percent, all other things being equal, absent the existence of a settlement offer, which, if exceeded, would have had the effect of showing good faith on the party making the offer. No such offer has been provided to the Court, and therefore, I award the sum of $973.68, or 5% in general costs. [ 87 ] Mr. Banga has also sought out of pocket costs under section 36(1) of the Act . They include the charge for filing the claim in the sum of $100.00 which I find to be reasonable. I am prepared to allow the further sum of $2,940.00 for the preparation of Mr.

Millen’s expert report and his attendance at trial. I am prepared to allow the further sum of $104.00 for the cost of preparing exhibits, and the subpoena charge for Mr. Resener. Mr. Banga seeks the further sum of $987.15 which equates to what he says were his costs in serving Mr. Resener with his subpoena, service of the claim on Mr. Sabiston and his cost of bringing certain shingles to the Court half way through trial for the defendant’s inspection. I conclude that these costs are too high. Mr. Banga has sought mileage at the rate of $.85 per kilometer travelled.

The proper amount is as set forth in the government’s public service guidelines, which is $.4514 per kilometer travelled, which would reduce this amount by the sum of $254.66. Mr. Banga also asks for the sum of $325.00 for ‘his time spent’ in effecting service which appears to be about $65.00 per hour. I do not see this as reasonable, or justified. In total, this portion of his claim for costs is reduced to the sum of $408.49. Mr. Banga is granted costs in the sum of $4,526.19.

[ 88 ] In total, Mr. Banga shall have judgment against Mr. Sabiston in the sum of $23,999.98. ____________________ P. Demong, J