Infinity Roofing v. Bernhardt, 2018 BCPC 170

Citation: Infinity Roofing v. Bernhardt 2018 BCPC 170 Date: 20180706 File No: C-5082 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: 0837829 B.C. LTD. doing business as INFINITY ROOFING CLAIMANT AND: BRENDA BERNHARDT DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing for the Claimant: Eric Ian Rae Appearing on her own behalf: Brenda Bernhardt Place of Hearing: Duncan , B.C. Dates of Hearing: May 11, June 5, August 25, December 4, 2017 and February 1, 2018 Date of Judgment: July 6, 2018

INTRODUCTION [1] This is a dispute over the supply and the installation of a metal roof during the fall of 2014 to replace a cedar shingle roof on anolder residence situated at Mesachie Lake, BC (the “Residence”). Mesachie Lake is a former lumber mill town, located near the Villageof Lake Cowichan, on the south shore of Cowichan Lake on Vancouver Island. It is at a higher elevation than on the coasts surroundingVancouver Island; the area experiences significant rainfall and precipitation.

Mesachie Lake is now rural and semi-rural in nature withan abundance of trees including a canopy of coniferous trees comprising of part of the west coast temperate rainforest. The Residencesits in this type of setting. [2] The claim was initiated by the roofing contractor 0837829 B.C.

Ltd. doing business as Infinity Roofing (the “Claimant”)against Brenda Bernhardt, the owner and occupier of the Residence (the “Defendant”) for the unpaid amount of $13,172.00 invoiced bythe Claimant, plus a claim for interest at a contract interest rate of 24% per year, calculated to be a total of $4,347.84 as at the date offiling the Notice of Claim on May 11, 2016, plus a filing fee. [3] The Defendant disputes the claim for payment on the basis that the installed metal roof (the “Metal Roof”) was “substandard”and was not installed in accordance with the manufacturer’s specifications or in accordance with “good construction practices”.

It isfurther alleged in the Defendant’s Reply, filed May 30, 2016, that the Claimant neglected to install ventilation which led to propertydamage. [4] Accordingly, the Defendant’s Reply also contains a counterclaim in which the Defendant provides some particulars of thealleged defects of the Metal Roof and claims an amount of $15,449.92 for the removal and the replacement of the alleged defectiveMetal Roof, and the amount of $9,550.08 for damages arising from a condensation problem, and the subsequent growth of mould in theResidence, all alleged to be the result of the defective Metal Roof and the Claimant’s failure to install proper ventilation. [5] The Defendant’s counterclaim was limited to the amount of the monetary jurisdiction of the Provincial Court at the time offiling being $25,000 and any excess was abandoned.

In the course of the proceedings an order was made pursuant to the Small ClaimsRule permitting the Defendant to counterclaim for the full amount of the counterclaim up to $35,000 being the monetary jurisdiction ofthe court. [6] The task of this court is to determine whether the Claimant on one hand and the Defendant, on the other, as a Claimant by wayof counterclaim, have each proven their respective claims and in the case of the Defendant’s counterclaim whether the damages claimedhave been proven both as to causation and to quantum.

Summarizing the Evidence [7] I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed andsomewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach wasrecently approved by Woods P.C.J. in R. v. Connell, 2017 BCPC 123, at paragraphs 5 and 6. This approach has been approved in otherrecent decisions of our court including, R. v. S.W.P., 2017 BCPC 234, R. v. Bergman, 2017 BCPC 334 ; 2017 B.C.J.

No. 2329,and Holliston v. 1839928 Ontario Ltd. (dba Volkswagen Victoria), 2018 BCPC 86. [8] However, in drawing necessary inferences and in reaching my conclusions, I have carefully considered all of the evidence, evenif I have not made specific reference to certain aspects of it. Specifics of Undisputed Circumstances and Undisputed Facts [9] Based upon the whole of the evidence there are a number of relevant circumstances and undisputed or un-contradicted facts,that have given rise to the claim.

I have summarized them below. [10] The Defendant is educated and trained in veterinary medicine and has practiced in the Cowichan Valley since 2000. From 2011she has operated a mobile veterinary service for small animals whereby she attends at patient’s residences. She has had experience withhome and commercial renovations projects and has in the past acted as her own general contractor as well as physically completing someof her own construction and renovation work.

She characterized herself as being “not a newcomer to renovation work”. [11] The Defendant purchased the Residence out of a foreclosure action in or around June of 2014. The Residence is believed tohave been built around 1991. Because of the timing constraints arising from the court sale process, the Defendant did not obtain a formalhome building inspection report.

However, the Defendant had a short period of time to obtain the building plans for the Residence fromthe Cowichan Valley Regional District (“CVRD”) and to conduct a thorough walk through, physical inspection of all rooms, closets, andstorage spaces including a tower portion and to look into the unlit main attic space with a flashlight. This was done all in the presence ofa representative of a local building restoration contractor. They were specifically looking for things which would go beyond outstandingroutine maintenance.

Among the things that were the subject of their inspection was any evidence of leaking and of rot, mildew ormould, and also the condition of the original 24 year old cedar shingle roof. The Defendant’s conclusion was that it all looked andsmelled okay. Some small areas of rot damage were found on the exterior of the Residence.

The Defendant’s plan was to replace thecedar shingle roof on the Residence and some outbuildings, notwithstanding that she was of the belief that the existing cedar shingleroofs had an original life expectancy of between 30 to 40 years and hence the cedar shingle roofs still had some life expectancy and wereserviceable. [12] The Residence has some unique features. It is a two-story house, with the front facing south and the back to the north.

Its roofdesign is referred to as a mansard roof, which generally means a roof that slopes on all four sides with each side divided into a gentleupper slope and a steeper lower slope. The second floor rooms present exteriorly at the front of the Residence as a continuous windowed

gable which is covered by a low profile peaked roof and which contains an accessible three foot high attic space, such height being measured from the center line of the roof. There is a gutter connected to the upper roof above the gable windows. On each end of the gable and below the windows are the steeper lower sloped portions of the mansard roof which themselves connect into a gutter system. On the west side of the Residence and forming part of the house is a tower containing a 144 square foot room that is accessed by a pull down ladder.

The tower extends above the second floor roof line and is covered with a gently sloped roof. There is an attic area in the tower which is not externally accessible. Access to the three foot high main attic of the Residence is by way of a half door in the tower room as well as by way of a standard push up ceiling hatch door in a second floor room in the main part of the Residence. Open decks extend off the east and west side of the second floor of the Residence. Adjacent to the Residence is a detached garage (the “Garage”) and a detached woodshed (the “Woodshed”).

As noted above, I understand that at the time of the purchase, all of the roof surfaces on the Residence, on the Garage and the Woodshed were made of cedar shakes and were the original roofs. [ 13 ] Eric Ian Rae is the sole shareholder and director of the Claimant. He is in his mid-30’s, has been involved in roofing since he was 17 years of age and has accumulated approximately 18 years of experience in the roofing industry. He has no formal training and holds no certifications but learned the roofing trade through on the job experience.

Over the last 10 years he has taken a number of one day industry supplier sponsored courses to learn about new roofing products. [ 14 ] The Claimant has been in business as an incorporated entity since about 2008. It is both an industrial-commercial roofing contractor and a residential roofing contractor. It has crews of three to four hourly paid employees with a foreman in charge. About 85% of its work involves roofing on larger scale industrial and commercial projects which provides about 75% of its annual revenue.

On average, it completes 150 to 200 roofs per year using quite a variety of different roofing materials and products. The Claimant does on average two metal roofs per month. Most of its projects are in the Greater Victoria area and in the Cowichan Valley, which includes the locale for the Residence. [ 15 ] Eric Ian Rae generally looks after the estimating work for the Claimant as well as the office administration and overall management. On occasion, he is called upon to perform site work.

He was responsible for attending at the Residence to inspect the intended roofing project and to complete the single page document described as a “Price Estimate” for the re-roofing of the Residence, Garage and the Woodshed with the Metal Roof. All of that estimating work took less than hour. He did not enter the attic over the main portion of the Residence. The Price Estimate provided for a total of 2,300 square feet of installed roofing material. The Price Estimate does not provide a specific area break down but Mr. Rae testified that the breakdown of the roof areas was as follows:

a) main roof (being the peaked portion) 930 square feet;

b) mansard roofs (being the steeper lower portions) 280 square feet;

c) tower roof 192 square feet;

d) lean-to Woodshed 40 square feet; and

e) Garage 858 square feet. [ 16 ] The Price Estimate specified the removal of the existing cedar shake roof, use of a 26 gauge snap lock metal roof product, installation of a synthetic roofing underlayment under the brand name of Titanium UDL 30, which serves as an air, water and vapour barrier under the metal roof covering, a ridge roof vent for better ventilation of the attic, one flapper vent for the kitchen fan, various metal flashings and covers on the ridges and hips, as well as clean up, haulage and disposal of all garbage.

There were no expressed warranties or representations set out in the Price Estimate. The Price Estimate specified a 40 year product warranty and a labour warranty of 25 years.

An actual single page signed warranty document (the “Warranty”) was eventually delivered by the Claimant to the Defendant on or about December 17, 2014 which reflected these terms but contained a provision that the guarantees set out in the Warranty were not valid “unless payment is received in full”. [ 17 ] The Warranty states in part as follows: Infinity Roofing warrants that for the period of 25 years from the date of completion listed above (noted as December 17, 2014), the roof system installed will not leak water through due to: 1.

Improper workmanship in the installation of the roofing system and it shall for the Warranty Period repair any such leaks at no expense to the owner. [ 18 ] The Warranty contains a list of 4 “Exclusions and Limitations of Warranty” which includes: 2. Natural causes including, but not limited to floods, lightning, earthquake, health and windstorms. [ 19 ] The Price Estimate set out an all-inclusive price for labour, materials and waste disposal being an aggregate figure of $12,000, plus GST of $600, for a total of $12,600. It was not broken down under any of these three price categories.

Under comments it specified as follows: “Other options available in (sic) wanted. Please add $2,000 to install 3/8” plywood to entire roof”. [ 20 ] The Defendant initially selected the plywood “option”. Ultimately, the plywood was not installed when the Metal Roof was installed. [ 21 ] The apparent reason for this “option” arose from the fact that the original cedar shingle roof on the Residence had been installed on strapping which usually consists of one inch by four inch (or wider) lengths of soft wood attached to the rafter or truss system forming the roof.

The lengths of strapping run horizontally, that is parallel to the roof surface (and not up and down), which were spaced apart and the cedar shingles were then affixed to the top of the strapping. As I understand it, older cedar shake or cedar shingle

roofs may or may not have been affixed over top of an underlay of felt paper or tar paper depending on the era of installation. In other words, the Residence’s cedar shingle roof had not been installed on solid sheeting of any kind. [ 22 ] There is a factual dispute between the Claimant and the Defendant in their evidence about why the plywood option ultimately was not incorporated into the completion of the Metal Roof. The Claimant says that it was the sole choice and the ultimate decision of the Defendant based upon her budget concerns.

The Defendant says that the decision was based upon the faulty recommendations of the Claimant provided by Mr. Rae. More will be said about this later in these reasons for judgment. [ 23 ] Therefore, the Titanium UDL 30 underlay was ultimately placed directly on top of the existing strapping boards, which I understand actually were each about seven inches wide and with three inches of space between each strapping board; the metal panels were then installed over top of that underlay.

Thus when looking up while in the main attic through the spaces between the strapping, one could observe the back of Titanium UDL 30 underlay installed up tight against the metal panels. [ 24 ] The manufacturer of the roofing panels and the mounting screws for the Metal Roof was WestForm Metals (the “Manufacturer”). Information from the Manufacturer’s website (see Exhibit 1, page 7) under the heading of “Instructions” states as follows: Our product can be used in both new and old construction. We recommend installation over solid substrate. Installation over strapping is also possible.

The following steps should be taken to prepare the roof or installation of any roof panel. 1. Make sure there are no nails or other objects that might puncture the underlayment of roof panels. 2. Check all details for possible roof penetrations which must be added to the roof prior to panel installation (vented ridge-plumbing stacks). 3. Cover the roof deck with Nova Seal, overlaying 6 inches. When installing over strapping, run the felt parallel with the metal panels, making sure that the felt is tight. 4. Snap a chalk line along the gable and where the first panel will be installed.

This line should be ½ inch away from the edge of the roof and square with the eave. [ 25 ] In this case the installed panels forming the Metal Roof were attached to the original strapping overtop of the newly installed synthetic roofing underlayment called Titanium UDL 30, instead of the underlay product known as Nova Seal referred to on the WestForm website. There is some documentary evidence before the court by way of information taken by the Claimant from the Titanium distributor’s website that Titanium UDL30 is a replacement for “#30 felt” which has historically been used as a roofing underlay. Mr.

Rae confirmed this to be the case. The Titanium website information indicates that the UDL30 product is “100% synthetic and therefore totally unaffected by water, which means it is 100% inert to mould”. I also understand from Mr.

Rae’s evidence is that it impermeable to water and moisture and to air flow. [ 26 ] An important feature of the Metal Roof design is a vented ridge, being a space above the tops of the roof panels and located at the roof ridge line, that is open to the air but has protective flashing installed and is topped with a ridge cap to cover the open space, all of which is intended to protect against the entry of the elements including protecting from wind-driven rain and debris being blown under the cap flashing and into the attic. This vented ridge is intended to provide a circulation of air out from the attic.

The vented ridge is recommended and intended to have an open space of one and one half inches on each side of the roof ridge and located above the top of the roof panels. [ 27 ] According to the Price Estimate, the estimated time for completion of the Metal Roof was one week from commencement, which the Claimant estimated would be in early September of 2014, “weather permitting”. [ 28 ] The Defendant and Mr. Rae, on behalf of the Claimant, were in email communication with each other, following the delivery of the Price Estimate, regarding various aspects of this re-roofing project.

Based upon the ongoing communications there were also some relatively minor changes made to the scope of the work, including what I understand to be the re-roofing of a flat portion of the roof above the main entrance with a torch-on roofing product. [ 29 ] A delay in the selection of the colour of the Metal Roof panels by the Defendant thereby delayed the finalization of the Claimant’s purchase order for the materials which was submitted around September 30, 2014. Upon placing of the order, it was learned that some of the materials were backordered.

The timing of the ultimate delivery of the materials to the Residence, as well continuing work by the Claimant on other roofing projects, resulted in the installation of the Metal Roof starting in or around October 1, 2014. The work of the Claimant’s crew was overseen by a foreman named Al Clithero, referred to in the evidence as “Foreman Al”. He was experienced in roofing and had previously worked on several metal roofs. [ 30 ] Substantially all materials for the re-roofing of the Residence, the Garage, and the Woodshed were acquired by the Claimant through Cedar Grove Building Products Ltd. (“Cedar Grove”).

The various invoices issued by Cedar Grove were paid for by the Claimant. The Cedar Grove invoices issued between October 10, 2014 and December 16, 2014 totalled $7,308.99. In addition, the Claimant paid for the disposal of the old roofing materials at cost of approximately $900. [ 31 ] Some extra items were added by the Defendant, including snow guards on the Residence and the Garage for a cost of $425. Some extra three eighths of an inch plywood was purchased and installed as sheeting on the Woodshed and to replace some rotten portions of the roof deck for a cost of $120.

A final invoice was rendered to the Defendant by the Claimant dated December 5, 2014 based upon the Price Estimate of $12,000 with the extra items which totalled $12,545, plus GST of $627 for a total of $13,172.00. The Claimant never did obtain a deposit from the Defendant, notwithstanding that the Price Estimate provided for a deposit of $1,000 and the Claimant had the Defendant’s credit card details for that purpose. [ 32 ] No amounts were paid by the Defendant on the Claimant’s invoice.

[ 33 ] Before the installation of the Metal Roof started the Defendant consulted and then hired Kevin Darwin carrying on business as “The Insulation Guy” and apparently now doing business as “Kevin J Darwin Healthy Homes Restorations”, to inspect the main attic of the Residence. During his inspection, Mr. Darwin located a small patch of mould in the attic over the second attic access hatch which apparently had not been sealed properly. Accordingly, a two by three foot area on the underside of the roof strapping and the cedar shingles was remediated using a mould control product.

The attic hatch was then properly sealed to prevent the escape of heated air from the living space in the Residence into the attic. [ 34 ] Based on Mr. Darwin’s advice, the Defendant then hired him to check the original soffit ventilation for the attic and thereafter to install soffits baffles or vents which are apparently about three inches wide and about 10 inches deep and are situated above the soffit vents. The baffles are approximately four feet long and about one foot wide.

The baffles are made of Styrofoam and extend up into the attic to an intended height above the attic insulation which might have been some six inches or more. A baffle was initially installed at every rafter space. The Defendant understood that the installation of the soffit baffles was intended to increase the volume of intake air into the attic, which coupled with the outflow from the attic by means of the vented ridge would provide a flow of air through the attic to keep it dry and healthy. [ 35 ] Mr.

Darwin’s insulation crew then installed loose fill insulation in the attic on top of the existing batt insulation to bring the “R value” of the attic insulation up to R 55. [ 36 ] Mr. Darwin’s work was completed around October 1 and 2 of 2014 which was the same time that the work had started by the roofing crew from Infinity Roofing.

The Claimant’s crew continued their work until about October 9, 2014 and then had to take a break for about a week awaiting the arrival of further materials to finish the Metal Roof. [ 37 ] The installation of the Metal Roof under the direction of Foreman Al Clithero was completed by the Claimant on October 16, 2014 although as it turned out a vent on the tower roof had not been installed nor had a flapper vent for the kitchen exhaust. Mr. Rae had not attended during the course of the installation of the Metal Roof apparently having left it to the experienced Mr.

Clithero to oversee the project. [ 38 ] On October 16, 2014 and apparently prior to the completion of the roof cap on the Residence portion of the Metal Roof, the Defendant spoke to Foreman Al Clithero about her concerns regarding the ridge vent being open only on one side and the fact that the Titanium underlay appeared to be covering one side thereby restricting the flow of air out of the ridge vent. Mr.

Clithero offered an explanation saying that he had made the decision to only cut back the Titanium underlay on only one side and further said that the resulting open space would be sufficient. [ 39 ] In or around the end of October or the first couple of days of November 2014 the seasonal rains had started in Mesachie Lake. Based on her concerns about Mr. Clithero’s comments and the size of the roof ventilation, the Defendant started to make her own critical observations about the quality of the completion of the roofing project by the Claimant.

She observed certain finishing aspects of the Metal Roof that she believed were problematic. This led her to open up the half door access into the attic from the tower at which time she was able to observe condensation throughout the entire attic area. The condensation was forming as droplets on the back side of the Titanium underlay and then dripping down the edge of the strapping and from there onto the attic insulation. [ 40 ] The Defendant immediately contacted Mr. Darwin about the attic condensation problem. He and his insulation crew attended at the Residence in early November of 2014.

They checked the baffles to ensure that they were clear of roofing debris and correctly placed. Some debris consisting of coniferous needles and tar paper from the removal of the original cedar shingle roof was removed from some six of some thirty four plus soffit baffles. Some of the soffit baffles may have been replaced. Mr. Darwin expressed concern to the Defendant about the restricted amount space for airflow at the ridge vent and the partial cover created by the underlay over the ridge cap space. [ 41 ] The Defendant also contacted Mr.

Rae about the problem although the exact timing of the communication is in dispute. Both agree that Mr. Rae attended promptly at the Residence to inspect the problem and to perform some remedial work. Upon first viewing the condensation problem in the attic Mr. Rae concedes that he told the Defendant that he “had no idea what was going on”. [ 42 ] It appears that in response to the Defendant’s communications Mr. Rae first attended between October 31, 2014 and mid- November of 2014. There were a total of four to five attendances by Mr.

Rae at the Residence up until December 17, 2014, which was the last attendance date by Mr. Rae or anyone from the Claimant. At that point the Defendant did not want Mr. Rae or the Claimant’s crews to return to the Residence. On his first attendance Mr. Rae fixed a leak between the deck on the north side of the Residence and the Woodshed. Around November 19, 2014 Mr. Rae installed the missing vent in the tower roof and also put in the missing kitchen exhaust fan. Around December 3, 2014 the Defendant discovered some condensation issues in the Garage and contacted Mr. Rae. In mid-December of 2014 Mr.

Rae installed a ridge vent in the Garage as requested by the Defendant which apparently addressed that condensation issue. [ 43 ] Mr. Rae did concede that the Titanium overlay over the roof ridge vent should have been cut back by the Claimant’s crew. The attic condensation problem was not resolved notwithstanding that Mr. Rae cut back the overlay over the roof ridge vent and removed and replaced the vent cap and cut back the strapping with a hand tool in order to widen the gap on each side. Again there is a dispute as the exact width that was obtained and also the way that such width should be measured.

The original custom ridge cap, which was manufactured with “bent down tabs”, was taken off and reinstalled and as I understand it, modified several times by Mr. Rae. It was ultimately replaced by what is called an “open faced” ridge cap produced by the Manufacturer, which increased the available space for air flow. The replacement was done at no additional expense to the Defendant. Mr. Rae also inspected the gutters and removed some debris which he thought may be causing water to soak up into the boards in the roof structure.

He indicated that debris removal from the gutters at the end of the job in October was a standard procedure for the Claimant’s crew. [ 44 ] It is clear from the evidence that at this point the Defendant was of the belief that the attic condensation problem was stemming from the lack of ventilation through the roof ridge vent. Initially Mr. Rae seemed to agree that it was a ventilation problem. Accordingly, he took steps to open up the width of the roof ridge vent. When that failed to resolve the condensation problem, Mr. Rae

was of the belief that it stemmed from a lack of intake ventilation through the soffits and he concluded that they must be blocked by the blown-in insulation that had been installed by Mr. Darwin. [ 45 ] Mr. Rae sought advice from the manager of his supplier Cedar Grove, Darcy Tringham, who attended at the Residence to inspect the problem. Mr. Rae was not present but later spoke to Mr. Tringham who had apparently also spoken to the Defendant. No solutions were suggested by Mr. Tringham other than to replace the vent cap with the open faced ridge cap and to pull back the attic insulation from the baffles. Mr.

Rae and the Defendant met shortly after Mr. Tringham’s departure. [ 46 ] Around December 10, 2014 the Defendant went up into the attic and used a rake to pull back the blown-in insulation from around the soffit baffles to ensure there was no impediment for the airflow. Mr. Darwin and his crew returned to the Residence on or about December 15, 2014 and installed additional soffit baffles at every rafter space on each side of the roof structure thereby doubling the soffit baffles to increase the air intake into the attic. It is likely that this occurred after Mr. Rae had replaced the ridge cap. Mr.

Rae told the Defendant on several occasions and again after Mr. Tringham’s visit that he and Mr. Tringham were of the view that the insulation contractor should be recalled to check that the soffit vents were clear. The Defendant explained to Mr. Rae that the insulation contractor had made several visits and assured her the soffit vents were clear and that the intake ventilation work was fine. It appears that the Defendant did not specifically provide Mr. Darwin’s personal name or his business name or contact particulars to Mr. Rae. [ 47 ] Mr.

Darwin and his crew returned again on or about January 3, 2015 at the request of the Defendant because of her continuing concerns about the accumulation of moisture in the attic and her unsuccessful efforts to dry out the attic. Mr. Darwin and his crew removed all soffits on the Residence including the tower in order to conduct an exterior check of each. Every soffit baffle was found to be clear and properly positioned. While removing some of the soffits on the Residence and the tower, water sprayed out at several places. What was taken to be black mould was observed on the tower soffits.

The soffits were left off for several days but the Defendant installed screening. New replacement soffits were subsequently installed by another contractor. [ 48 ] The Defendant took steps shortly after discovery of the condensation problem in late October and early November to attempt to alleviate the moisture issue in the attic and to dry it out. She acquired four fans which she installed and used, starting shortly after her first observations of the attic condensation and for the purpose of increasing the attic airflow up towards the ridge vent.

She did not observe any significant improvement and the condensation continued to accumulate. The Defendant and Mr.

Rae continued to email each other throughout November and December about the attic condensation problem in the Residence and the Defendant’s concern about possible problems in the tower attic. [ 49 ] The Defendant insisted that because a vent had not been installed on the roof of the tower for some six weeks, the Claimant should be responsible for taking off the roof of the tower in order to inspect for moisture accumulation and mould in the tower attic or for creating an interior access door for it to allow for inspection.

The Claimant declined to do this without some extra charge to the Defendant, as I understand it, on the basis that it was both unnecessary and beyond the scope of the contracted work. The Claimant did agree to spray a mould treatment into the attic of the tower but that suggestion was declined by the Defendant. Eventually the interior access to the tower attic was installed by a carpenter at the Defendant’s expense and some mould was detected. [ 50 ] Both before and after Mr.

Rae’s last attendance at the Residence around December 17, 2014 the Defendant sought advice from several sources including her own Internet research, other local roofing contractors and the Cowichan Valley Regional District’s building inspector both with respect to the condensation problem and also in connection with a remediation process to dry the attic out and to prevent mould from growing. Based upon the Defendant’s discussions with another local roofing contractor, who made a brief inspection visit to the Residence, the Defendant emailed Mr.

Rae on December 14, 2014 with a list of seven items about the Metal Roof that required his attention including dealing with the concerns about the width of the ridge vent and the airflow through the ridge cap that had been installed. [ 51 ] As part of the attic remediation, the Defendant acquired three dehumidifiers which were installed and operated in the attic starting sometime after January 3, 2015. As I understand it, these were to assist in dehumidifying the attic and drying it out. The Defendant sealed the attic in plastic and then ran the dehumidifiers.

In the process of doing so she removed approximately 120 gallons of water from the dehumidifiers over a period of some seven weeks. By February 4, 2015, the relative humidity in the attic was decreased from 95% to 50% and the wood moisture level decreased from 25% to 15% (all measured from earlier readings taken at the beginning of January of 2015) and the plastic was then removed from the attic after the measured decrease in the humidity.

At that point the Defendant used a rake and pushed back the- blown in insulation towards the soffit baffles. [ 52 ] Discolouration of some of the roof strapping and trusses in the attic was observable. The Defendant attributed this to the accumulation of condensation and thus had concerns that some of the discolouration was from moulds or mildew.

The Defendant took some samples and submitted them for testing. [ 53 ] On February 13, 2015 the Defendant received an email report from Lewkowich Engineering’s Hygiene Lab that identified the presence in the Residence’s main attic and the tower attic of what I understand to be two common attic moulds and mites, as well as an unidentified substance thought to be mould body parts but apparently dormant because of a lack of spores. The moulds were identified as Cladosporium and Aureobasidium.

The hygiene lab supervisor indicated the samples sent in were too difficult to remove from the tape and too difficult to photograph for a report. No apparent alarm or concern was raised in the email from Lewkowich Engineering about their findings or lack of findings. The email invited a follow up from the Defendant which as I understand did not occur.

The Defendant then personally sprayed both attic areas with a mould spray known as Concrobium which I take was done by her as a reasonable precaution to limit the growth of mould. [ 54 ] In or around March 1, 2015 the Claimant retained the services of Doug Downs of DougLes Consulting Services Incorporated. According to the documentary evidence, Mr. Downs has lengthy experience in construction, post disaster services and insurance restoration work but there is nothing to indicate that Mr. Downs has any specific expertise in roofing. Mr. Downs completed a six page report dated March 25, 2015 (the “DougLes Report”).

Mr. Downs was not called as a witness nor was his report introduced or relied upon by the Defendant as an expert’s report. The DougLes Report provided numerous criticisms of the work done and the finished product of the Metal Roof and opined to the Defendant that the job was substandard and should not be accepted. The DougLes Report

was not sent to the Claimant by the Defendant until September of 2016 following a demand for production of it that was made by the Claimant’s lawyer. In the preceding correspondence and email exchanges the Defendant made frequent references to statements in the DougLes Report that were critical of the Metal Roof. [ 55 ] The DougLes Report provided the Defendant with some suggested courses of action.

The one that was followed by the Defendant and presented by way of an April 13, 2015 registered letter to the Claimant was a final chance to correct all of the Metal Roof deficiencies under the direct supervision of a roofing inspector certified by the Roofing Contractors Association of British Columbia (the “RCABC”). That proposal was rejected by the Claimant who then filed a Builder’s Lien against the Residence. The Claimant never commenced a Supreme Court action to enforce the Builder’s Lien. [ 56 ] Email exchanges between Mr. Rae and the Defendant continued on an intermittent basis with Mr.

Rae seeking a list of deficiencies that he stated would be corrected by the Claimant pursuant to the Warranty but he insisted on some payment from the Defendant. The Defendant insisted that any remedial work had to be done under the direction of a certified roofing inspector to be paid for by the Claimant and the Defendant refused to provide a list of the deficiencies until the Claimant agreed to complete the work under that form of supervision. [ 57 ] The attic condensation problem re-appeared in December of 2015. The Defendant reinstalled the fans and dehumidifiers in the attic and resealed it with plastic.

The fans and dehumidifiers continued in operation until February of 2016. [ 58 ] Attempts to resolve the matter through the processes of the Better Business Bureau in April of 2016 were unsuccessful and this litigation ensued. [ 59 ] The Defendant purchased and the spayed both attic areas with a mould control product for a second time in April of 2016. [ 60 ] Through her research, the Defendant concluded that it was necessary to provide a thermal barrier in the attic under the Metal Roof in order to prevent further condensation and any further mould growth for the upcoming winter of 2016-2017.

The options considered were a spray insulation which in her view had the disadvantages of toxic vapours and expense or another product known as Roxul, which is a spun rock wool insulation, which could then be sealed in a vapour barrier. Between April and August 2016 the Defendant personally undertook the work required to install Roxul in every rafter space in both attics. However, due to some personal physical ailments and inadequate working space caused by the slope of the roof truss system she was physically unable to complete installation of the vapour barrier.

Hence, she proceeded to reseal the attic in plastic and set up the dehumidifiers for the 2016-2017 winter season. [ 61 ] Between August and October of 2016 the Defendant then hand applied and sprayed on all of the accessible attic trusses and attic gable ends a product known as Kilz Primer, which I understand is a primer designed to block severe stains and odours and also may act as a mould inhibitor. [ 62 ] During the course of the trial heard over the course of five days, the Defendant testified that she had hired Top Line Roofing Ltd (“Top Line Roofing”) in August of 2017 to remove and dispose of the Metal Roof on the Residence, to then cover the roof area with half inch plywood sheeting, to install a 30 year guaranteed Malarkey fiberglass laminated shingle roof over an underlay and to install all required flashings and vents.

This new roof was all done in accordance with an estimate dated November 10, 2016 (the “Top Line Roof”). As I understand it, the Top Line Roof, in addition to the 30 year manufacturer’s warranty on materials, came with a 10 year warranty on workmanship from Top Line Roofing and a possible availability of a five year “RCABC 5 warranty”. The Metal Roof on the Garage and the Woodshed and, as I understand it, the flat roofing above the front door of the Residence all of which were installed by the Claimant were not replaced by Top Line Roofing and still remain in place.

The Defendant paid Top Line Roofing $11,333, plus tax. There have been no condensation problems in the main or tower attics since the Top Line Roof was installed.

Summary of Alleged Defects and Deficiencies [ 63 ] In contemplation of the trial of this matter, the Defendant obtained a report from Westcoast Roof Inspection Services Ltd. (“Westcoast Inspection”) dated January 31, 2017 (the “Westcoast Report”). Westcoast Inspection is described in the Westcoast Report as a “Professional Consultant Member” of the Roofing Consultants Institute. [ 64 ] The Westcoast Report was authored by Dan Twizell who is described in the Westcoast Report as holding a designation from the Roof Consultants Institute as a Registered Roof Observer (“RRO”). Mr.

Twizell was not called to provide any viva voce evidence or to be cross-examined on the Westcoast Report. The Westcoast Report was delivered to the Claimant by the Defendant in accordance with Small Claims Rule 10(3) and (4) [ 65 ] The Claimant had no objection about the qualifications of either Westcoast Inspection or Mr. Twizell to provide expert evidence. In fact, although he disagreed with some of the opinions contained in the Westcoast Report, Mr.

Rae testified that Westcoast Inspection is a roof inspection firm that he trusts. [ 66 ] Accordingly, based on the status of Westcoast Inspection as a member of the Roofing Consultants Institute and the designation of Mr.

Twizell as a RRO and the specific statement in the Westcoast Report to the effect that Westcoast Inspection understood its duty to provide its “un-biased opinion of the roofing application only”, this court accepted the Westcoast Report along with the attached photographic log into evidence as an expert report, as it related to the inspection of the Metal Roof conducted by Westcoast Inspection, as well as their findings and their opinions expressed in the Westcoast Report. [ 67 ] It is noteworthy that Westcoast Inspection did not charge the Defendant for the Westcoast Report. [ 68 ] The Westcoast Report confirms that Westcoast Inspection recommended to the Defendant to “retain a building envelope specialist to analyse the attic conditions and provide you with building science information that would resolve what we feel is condensation forming under your panels”.

So far as I can determine the Defendant did not follow that advice.

[ 69 ] The Westcoast Report noted ten deficiencies about the Metal Roof which are described as being details where the metal panel system comprising the Metal Roof had not been installed to the Manufacturer’s application instructions. These deficiencies are set forth in the Westcoast Report and read as follows: 1. The metal vents for ventilation of the tower roof attic space in the kitchen range are sealed onto panels using caulking only and are not enveloped into the panels. Metal roofing details should not be reliant on caulking. 2.

The locking seems have been caulked from the eaves to the ridge at numerous locations. We are unsure why, as this is normally not necessary. 3. The range vent was installed directly over one of the roof trusses making it impossible to attach the duct work for future attachment if needed. 4. There are holes in the seams from removal of snow guards, which were never replaced. 5. Panels are too short at eaves on all mansard sections and on the main roof at eve transitions at four locations.

Strips of metal flashing were added in an attempt to repair the mansard sections, these strips do not even lap under the panels at several locations. 6. Sheet metal flashing on rake ends slope to the outside and are top fastened. Top ends are open to weather and debris at lower eve transitions. 7. Flashing at walls on [sic] does not extend sufficiently behind the vinyl siding and trim at the mansard sections, we note only 1/8 inch at one wall. 8. Panels on mansard sections extend too high, causing the existing sheet metal sill flashing to slope into the walls. 9.

We noted 3 upward deflections in the field area of the main roof on the front side, likely from under-driven nails from the original cedar roof. 10. For the vented ridge, the original turned up top portion of the panels has been bent down and the cap flashing replaced without the original turned down portion. The existing ridge venting has no closures to prevent wind driven rain and debris from blowing under the cap flashing. The bug screen over the openings in the deck could easily allow water ingress, or be blocked with debris and block exhaust ventilation.

Also, the flashing is not centred over the ridge, is bent over at rake ends, has raw edges, and caulking does not cover or seal the gap. The rake flashing is also poorly installed. Below is a diagram of the manufacturer’s recommended detail for ridge venting (note: the diagram has not be reproduced for these reasons for judgment). [ 70 ] Under the heading “Recommendations” the Westcoast Report provides the following opinions:

a) In order to conduct these repairs approximately 40% – 50% of the panels will have to be removed. Most will have to be replaced once removed. We find that the quality of the work was sub-standard and believe subsequently that the installers were not qualified tradesmen. If they were, they did not take care in order to install a high-quality roof system as this should be. Caulking should not be the means of waterproofing on a metal panel roof system.

b) The other concerns that we have is that the roofing contractor did not take into account that they changed the interior conditions and elements of the attic space to create a condensation issue, which still is not rectified. We hope that the Owner can retain a building envelope specialist to help in that matter.

c) Given the extent of the repairs necessary, it may be more cost-effective to start over with a full roof replacement that is installed to meet the manufacturer’s requirements, BC Building Code requirements and good roofing practices. Although more stringent, we also recommend following the Roofing Contractors Association of BC requirements if possible. [ 71 ] The Westcoast Report makes no specific mention of the Claimant not using plywood sheeting over the strapping prior to installation of the metal panels nor does it make mention of the Titanium underlay utilized by the Claimant. But it does reference the attic condensation problem in item (

b) above of the Recommendations. [ 72 ] However, in the documentary evidence, the Defendant separately has provided information obtained from the RABC website and in particular, its “Consumer Guide to Roofing” that states under

section 4.d “Architectural Metal Roofing” that “non-structural, hydrokinetic (water shedding) systems must be installed over solid roof decks”. [ 73 ] From the photographic logs attached to the Westcoast Report, I understand the enumerated deficiencies relate to the Residence portion of the Metal Roof and not to that portion of the Metal Roof installed on the Garage or the Woodshed. [ 74 ] In his evidence, Mr. Rae provided a point by point response to the 10 deficiency items set out in the Westcoast Report.

In essence, he rejects any characterization of these as being serious matters, but rather contends they are minor and essentially cosmetic in nature. Furthermore, he rejects the suggestion that the removal of the roof panels as recommended by the Westcoast Report is necessary. [ 75 ] He provided evidence that the Claimant was prepared to correct the 10 deficiencies noted in the Westcoast Report. Mr. Rae testified that the total cost of resolving the ten deficiencies including replacing all mansard panels, totalled $1,067.61.

However, I understand that figure may not include labour charges and depending on what mansard panels had to be replaced there could be as much as an extra $1,200 for labour expense. If all of the roof panels of the Metal Roof on the main roof of the Residence had to be replaced he estimated the expense for labour and materials and taxes would be $4,265. If the entire Metal Roof including the mansard roof panels had to be replaced he estimated the labour and materials cost would be around $5,000.

As I understand it, none of these amounts included the installation of plywood sheeting over the original wood strapping before re-installation of the metal panels.

[ 76 ] The Defendant compiled and testified about a further list of problems and complaints about the Claimant’s alleged deficient and incompetent work surrounding the installation of the Metal Roof and the resulting sub-standard finished product. These totalled some 31 in number (see Exhibit 8). Thirteen of those were variations of the 10 deficiencies identified in the Westcoast Report and another two were partly covered by the Westcoast Report.

Among the remaining 16 items, the Defendant included some general complaints about “carelessness in the yard leading to damage”, the running out of roofing panels and materials in early October and the outstanding and incomplete items on the Metal Roof when the Claimant’s crew left in October of 2014. Based upon the whole of the evidence, many of these outstanding and incomplete items were subsequently attended to by Mr. Rae during his personal attendances at the Residence in November and December of 2014.

Summary of Evidence of the Claimant’s Witness ERIC Ian Rae [ 77 ] The Claimant’s only witness was Eric Ian Rae. No expert reports were submitted by the Claimant. [ 78 ] Mr. Rae testified that to the best of his memory, the re-roofing work overall took about two weeks to complete and that there were three workers on site other than himself. Mr. Rae was working on another out of town project. Mr.

Rae testified that the work on the Metal Roof for the Residence took longer than he had originally estimated because of the return travel time for the crew from Greater Victoria to the Lake Cowichan area, although travel time had been factored into the Price Estimate. The Claimant’s crew worked for about one week straight and then had to wait for some additional panels which were ordered and shipped on October 16, 2014.

He admitted that he had made an error and “missed a few panels” when he had placed the original order with Cedar Grove. [ 79 ] Time records were maintained by the employees of the Claimant for this re-roofing project but they were only used to pay the employees and were not used for billing purposes because the Price Estimate called for a set aggregate amount. Mr. Rae described the Price Estimate that he gave to the Defendant as a “good price”. [ 80 ] Mr.

Rae said he never saw mould in the attic and he was not aware of the mould in the attic of the Residence which apparently had been observed by Kevin Darwin and the Defendant before the work on the Metal Roof started. Thus, he concluded that mould in the attic was a pre-existing condition and not one for which the Claimant should be responsible.

He agreed that at some point the Defendant told him of her concerns about mould in the attic and told him that some mould was growing. [ 81 ] He testified that he (and by inference the Claimant) was not aware of the insulation and the ventilation work that had been undertaken by the insulation contractor after he had been at the Residence and had provided the Price Estimate. He further said that the Defendant refused to provide him with Mr. Darwin’s name as the insulation contractor despite his repeated requests for that information. [ 82 ] Mr.

Rae testified that he was “confident” that the condensation problem had to do with the soffit ventilation. He says that he only received a copy of a letter prepared by Mr. Darwin and provided to the Defendant dated April 30, 2015 in September of 2016 as part of the litigation documentation disclosure. [ 83 ] He testified that none of the reports provided by the Defendant say that the condensation problem in the attic is caused by air circulation issues caused by the Metal Roof. Mr.

Rae also suggested that the condensation problem may in part be caused by a lack of or an inadequate vapour barrier in the attic below the insulation batts and the new blown in insulation, thus allowing warm air and moisture from the living space in the Residence to penetrate into the main attic. [ 84 ] He disagreed with the opinions expressed in the DougLes Report about the poor quality of the workmanship, the problems identified therein and the suggestion that the Metal Roof be replaced. Mr. Rae was of the view that Mr.

Downs did not have any known qualifications or expertise in roofing matters. [ 85 ] He conceded the Metal Roof was not “picture perfect” but qualified that comment with “but no roof is”. At another point in his evidence he also said that various installed flashing were not “text book perfect”. [ 86 ] He expressed the view that the RCABC was an “old boys club” whose inspection and supervision services were expensive and normally focussed at large scale roofing jobs. [ 87 ] Mr.

Rae testified that it was the Defendant’s ultimate choice not to spend the extra money and have plywood sheeting placed over top of the strapping before the metal panels forming the Metal Roof were installed. He testified that her choice was based upon her tight personal financial situation. He further testified that he did not tell her to install the plywood or not to install the plywood.

His evidence was the Defendant indicated to him that her decision was made after consulting with her own (but unidentified) insulation contractor who suggested to her that that affixing the metal panels to the strapping without installing the plywood would allow the attic to “breathe better”. Mr. Rae recalled a telephone discussion with the Defendant about cancelling the plywood installation in late September of 2014. Up to that point there had been on going communications between the two of them about the possible widths of the plywood sheeting to be installed. [ 88 ] Throughout his evidence Mr.

Rae continued to state that the installation of the plywood sheeting was not required by any building code nor was it necessary under the Manufacturer’s recommendations and hence it was only an option that he offered and which was declined by the Defendant.

Summary of Evidence of the Defendant as her own Witness [ 89 ] The Defendant was the sole viva voce witness on her own behalf. [ 90 ] In the course of the Defendant’s case she provided and introduced into evidence an extensive number of pictures as well as video footage to document the alleged deficiencies in Metal Roof, the attic condensation problem and the alleged problems and damage caused by the attic condensation problem. [ 91 ] The Defendant testified that she chose the Claimant based upon her own research and on the basis that the Claimant had a good

record with the Better Business Bureau. She further testified that the initial work completed by her insulation contractor, Mr. Darwin, occurred at the time that the Claimant’s crew, under the direction of Mr. Clithero, arrived at the Residence.

She described that the overlapping work of each contractor was being coordinated under her direction. [ 92 ] The Defendant denies the Claimant ever asked her for the name of her insulation contractor and says that the Claimant’s crew, under the direction of Al Clithero and her insulation contractor Kevin Darwin, worked together at the commencement of the removal of the old roof and the start of the installation of the Metal Roof. The suggestion she made is that the Claimant knew or should have known who her insulation contractor was. [ 93 ] She testified that Mr.

Darwin had initially explained to her the importance of attic ventilation both through the soffits as well as through the roof vent and that Mr. Darwin stressed to her the importance of having adequate ventilation space in the roof. She thought he had stated that one and a half inches of venting on each side of the roofline was required. This was the amount set forth in Mr. Darwin’s further letter to her of March 3, 2017, which was apparently prepared for this litigation. She further testified that Mr.

Darwin had told her of the importance of the adequate attic ventilation especially with a metal roof. [ 94 ] She testified that she had direct discussions with Mr. Clithero about the roof vent requirement but indicated that she told him that it should be two inches on each side of the roof line and that he told her that this amount of space was “standard”. [ 95 ] She further testified that she and Mr. Darwin went to the attic and checked the adequacy of the vapour barrier in the attic below the insulation batts and found it to be adequate. That inspection apparently occurred when Mr.

Darwin was making his inspection in early October of 2014. [ 96 ] Among her complaints of carelessness of the Claimant’s crew, the Defendant cites a broken concrete block, trampled raspberries and a medicinal comfrey plant and a cut soaker hose. The replacement cost of these items totalling $125.00 as set out in Exhibit 2 on page 20. She testified that she emailed Mr. Rae about these concerns and also spoke with Mr. Clithero. [ 97 ] The Defendant says that when she first opened the half door into the main attic area she was “horrified” to see the amount of moisture. She further testified that Mr.

Rae was “shocked” to see the amount of moisture when he first opened up the half door to the attic. She described it as “raining in my attic”. The evidentiary photographs and videos certainly lend support to that observation and characterization. [ 98 ] The Defendant testified that she was unable to view any problems in the tower attic because of the lack of ingress and egress and specifically the lack of an initial installation of a proper vent in the roof of the tower portion of the Metal Roof. She testified that no insulation was placed in the tower attic by Mr.

Darwin because of the lack of ingress and egress. She requested Mr. Rae have a form of access installed by the Claimant and at the Claimant’s expense, which he refused to do. Eventually on January 21, 2015 she hired a carpenter and paid for the installation of an entrance hole to the tower attic and discovered some mould in the tower attic which she said she treated. [ 99 ] The Defendant testified that when she initially had been in the main attic with Mr.

Darwin she observed that the existing strapping boards for the cedar shingle roof were approximately seven inches wide and with a three inch space between each piece of strapping. The strapping boards were described as being “shiny and white”. [ 100 ] The Defendant testified that she had been told by Mr. Rae by way of advice when he provided the Price Estimate, that he would not install plywood sheeting on his own metal roof.

Therefore, she said that based upon her observations of the extensive amount of strapping and the limited spaces between each strapping board and “although it didn’t seem right” and she “felt awkward at first” about not installing plywood sheeting she made the decision to follow Mr. Rae’s advice and to not have the plywood sheeting installed before the Metal Roof was affixed. She intended to use the resulting financial savings to follow Mr. Darwin’s advice about increasing the main attic insulation.

However, from the available emails presented into evidence, the final decision to eliminate the plywood sheeting was not communicated to the Claimant by the Defendant until her email of September 24, 2015. [ 101 ] The Defendant testified that up to October of 2016, she personally logged over 300 hours to perform mitigation and remediation work necessary to dry out the attic spaces, maintain proper levels of humidity, and to deal with her concerns about the growth of mould in the attic areas. Thereafter that she logged another 100 hours for further mitigation and remediation work.

As I understand her evidence, she did the work personally because she could not afford to pay for it to be completed by tradesmen. The quotes for dealing with the attic mould spraying and mitigation and steps to dry out the attic were presented into evidence and were in the range of approximately $3,675 to $5,917. [ 102 ] In the course of the various inspections and work completed by hers and others in the attic space, the original carpeting in the tower room became soiled and was subject to excessive wear. According to her it needed replacing and at the cost of the Claimant.

The cost estimate is $864.53 [ 103 ] The Defendant testified that she has incurred out of pocket expenses in order to complete the work that she personally undertook to deal with drying out the attic and attending to mould mitigation. These amounts up to September 2016, as set out in Exhibit 2, page 20, totalled $5,195.67, after deducting $125 for the damaged items noted above. These out of pocket expenses included consumable products such as flashlight batteries used for the attic work, and one use products such as paint and mould control products, protective clothing and masks, and a sprayer rental.

However, these out of pocket expenses also included a vacuum cleaner, a sweeper, the dehumidifiers, an air purifier, and some other similar equipment, all of which the Defendant still has in her possession. The equipment cost amounts are approximately $1,043. There is also a $500 charge for the DougLes Report which she used as a resource for her own information but was not accepted as an expert report in these proceedings. There are included expenses of $762.46 for Rolux insulation which she installed and which was subsequently removed prior to the installation of the Top Line Roof.

She has also included a carpenter’s charge of $125 incurred in January of 2015 to check the soffits because Mr. Rae kept saying they were the cause of the attic condensation problem and a further charge of $210 to create the access to the tower attic. Also included are extra hydroelectric charges of $104.78 for running the dehumidifiers in the attic during the two winters.

[104] The Defendant says that she is concerned that there will some financial loss to her when she eventually sells the Residence andis required to disclose the previous condensation problem in the attic and the mould remediation that has been undertaken. No evidenceof the quantum of that potential loss was provided in evidence. [105] She testified that she has not replaced the new blown-in insulation provided by Mr. Darwin or the pre-existing batt insulation inthe attic but she is of the opinion that it should be replaced. The cost estimate presented into evidence is $4,377.18.

The Defendantobtained a quote in September of 2016 for the removal and replacement of the Metal Roof, the removal and replacement of all of the atticinsulation, and the replacement of all of the roof trusses and the soffits for a total cost of $33,720, plus GST. A separate quote from thesame contractor for the replacement of the trusses was $7,490, plus GST. These quotes state “as per owners request.” [106] Ms. Bernhardt testified that she incurred an extra expense with Vancouver Island Gutter for $817.04 to replace all of the soffitsfor a second time.

She testified the soffits had to be removed for the purposes of removing roofing debris and checking the ventingbecause of the positon taken by the Claimant that it was a soffit ventilation problem. [107] There is no supporting evidence and the Defendant did not provide any independent reports or estimates that confirmed thenecessity for the insulation to be removed and reinstalled or for the trusses to be removed and reinstalled nor did she provide a buildingenvelope report that confirmed the extent of and possible dangers of the mould issue in the Residence and the recommended stepsrequired to mitigate it. [108] The Defendant testified that she has found the whole experience dealing with the problems related to the Metal Roof to be verystressful, requiring numerous visits to her physician to deal with her problems stemming from the stress and to obtain necessarycounselling.

Applicable Legal Principles Burden of Proof [109] The burden of proof in a civil case rests with a Claimant to prove their case on the standard of a balance of probabilities. TheSupreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at paragraph 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [110] Therefore, the Claimant must prove the existence of the facts and other essential elements upon which it relies in order tosucceed in its claim against the Defendant. If it fails to do so, it cannot succeed. [111] Similarly the Defendant, as a claimant by way of counterclaim, must do the same with respect to the matters subject matter ofher counterclaim. [112] What does “proof on a balance of probabilities” mean?

It does not mean proof beyond a reasonable doubt. That standard ofproof applies only in criminal trials. In civil trials, the party who has the burden of proof on an issue must convince the finder of fact(here being a judge alone) that what she or he asserts is more probable than not or to put it another way that the balance is tipped in his orher favour [see F.H. v.

McDougall, supra]. [113] The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denningin the following terms: …it must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that thetribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not. [see: Miller v. Minister of Pension, [1947] 2 All E.R. 372. at 374 (K.B.)] [114] In Smith v. Smith, (SCC), [1952] 2 S.C.R. 312; [1952] S.C.J.

No.25 (S.C.C.), Justice Cartwright (as he then was)of the Supreme Court of Canada articulates the applicable test as follows: … that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of apreponderance of probability and I do not propose to attempt a more precise statement of the rule.

I wish, however, to emphasize that inevery civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonablysatisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment isformed including the gravity of the consequences of the finding. [115] Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) [“Sopinka et. al”)at sections 5.52 and 5.53 provide the following useful

summary: [5.52] …simply put, the trier of fact must find that the existence of the contested fact is more probable than its nonexistence. Conversely, where a party must prove the negative of an issue, the proponent must prove its absence is more probable than its existence. [5.53] But how does a trier of fact determine if the standard has been met? Certainly not based on the number of witnesses or the volumeof evidence adduced. Also, if the nature of the inquiry is serious or the evidence adduced is very unsatisfactory, a jury may not besatisfied as to the existence of a disputed fact even though the proponent of the issue adduced a preponderance of evidence. [116] Sopinka et. al. in

section 5.53 at footnote 135 go on to cite Dixon J. in Briginshaw v. Briginshaw, (1938), 60 C.L.R. 336 at 361-362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words: The truth is that, where the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence

before it can be found… [117] If the evidence on an issue is evenly balanced such that the trier of fact is unable to say where the balance of probabilities lies,then the decision on that issue must be made against the party who has the burden of proving it. [118] In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidencerelevant to that issue, no matter who produced it. [119] Notwithstanding that there is more flexibility in admitting evidence in the small claims process [see: Small Claims Act

section 16and Small Claims Rules Rule 10 - The Trial, and see also The Continuing Legal Education Society of British Columbia: Provincial CourtSmall Claims Handbook (“CLEBC: Small Claims Handbook) parts 7:21 to 7:24 inclusive] the burden of proof is not diminished. The Role of Expert Evidence [120] The Supreme Court of Canada’s decision in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, sets out criteria fordetermining the admissibility of expert opinion.

To qualify for admissibility the expert evidence must meet four criteria: 1. relevance; 2. necessity in assisting the trier of fact; 3. the absence of any exclusionary rule; and 4. must be given by a properly qualified expert. [121] A properly qualified witness must be independent and impartial [see: White Burgess Langille Inman v.

Abbott and HaliburtonCo., 2015 SCC 23 , [2015] 2 SCR 182 at para 53]. [122] Evidence from a qualified expert is admitted in a trial as an exception to the general exclusionary rule barring opinion evidence,in order to provide the trier of fact with the necessary technical or scientific basis upon which to properly assess the evidence presented[see: Sopinka et. al., at

section 12.35]. In other words, it is a tool to allow the trier of fact to better comprehend complex or technicalevidence in making its decision, where the complex or technical evidence is likely outside the knowledge and experience of the trier offact. [123] A previous rule of evidence known as the “ultimate issue rule” restricted an expert from opining on the very issue before and tobe determined by the court.

The concern was that court’s role as the trier of fact may be usurped by experts. [124] The modern judicial view is that the admission into evidence of the opinion of an expert on the “ultimate issue” is notnecessarily inconsistent with the prerogative of the trier of fact to decide the ultimate issue.

In all circumstances it is open to the trier offact to accept or reject the opinion of an expert on the ultimate issue [see: The Continuing Legal Education Society of British Columbia:Expert Evidence in British Columbia Civil Proceedings, Third Edition (2011) (“CLEBC: Expert Evidence”) parts 2.17 to 2.21 inclusive]. Positions of the Claimant Claimant’s Positon on the Claim [125] The Claimant submits that it provided the Mental Roof in accordance with the contractual arrangements between the Claimantand the Defendant.

Specifically the Claimant says that the roof system comprising of the Metal Roof was installed in accordance withacceptable standards including the specifications of the Manufacturer.

If there are any deficiencies they are of minor nature and could befixed at a relatively small expense and in any event by the Claimant pursuant to the Warranty. [126] Throughout the course of the dispute between the Claimant and the Defendant, the Claimant had contended that the Residence’sattic condensation problem arose from the lack of proper intake ventilation through the soffits and had nothing to do with the installationof the Metal Roof, and further, that the installed roofing system was not the cause of the condensation problem in the attic. [127] Somewhat surprisingly, in submissions on behalf of the Claimant, Mr.

Rae did concede that the probable cause of the atticcondensation problem was in fact due to the lack of plywood sheeting being used in the course of the installation of the Metal Roof. [128] I understand him to be accepting that the condensation problem was in

part caused by warm and moist air in the atticcondensing on the underside of the Titanium UDH 30 and resulting in the formation of the water droplets. [129] As I understand it, the Claimant’s submission and its theory is that the warm and moist air was making its way through aninadequate vapour barrier from the interior of the Residence and then condensing on the underside of the Titanium UDH 30 underlay.

Iunderstand the Claimant is further saying that inadequate attic intake ventilation was still a contributing cause. [130] However, the Claimant says that the lack of plywood sheeting used in the installation of the Metal Roof is the fault of theDefendant who chose not to have the plywood sheeting installed notwithstanding that it was offered as an “option”. [131] The Claimant says that it offered to correct any of the deficiencies made known to it by the Defendant but that the Defendantrefused to provide a comprehensive list of deficiencies until such time as the Westcoast Report was provided significantly later and inpreparation for this litigation. [132] The position of the Claimant with respect to those deficiencies, as being minor in nature, is set out above in the

summary of theevidence of Mr. Rae. The Claimant says that it was always prepared to stand by its offer to complete those repairs in accordance with

the Warranty but says it was never given the chance to do so. Claimant’s Position on the DEFENDANT’S Counterclaim [ 133 ] With respect to the Defendant’s counterclaim, the Claimant says that any problems with mould were as a result of a pre-existing and common condition in the attic and the lack of timely mitigation on the part of the Defendant to follow through with the available options of insulating the roof with a spray product to form a vapour barrier.

The Claimant submits that the replacement of the Metal Roof was the most expensive and least practical solution for the Defendant to pursue. [ 134 ] The Claimant denies that it should be responsible for any damages being claimed by the Defendant in her counterclaim. [ 135 ] No case authorities were presented to the court for consideration and none were relied upon by the Claimant with respect to either the claim or the counterclaim. Positions of the Defendant Defendant’s Position On the CLAIMANT’S Claim [ 136 ] In

summary, the Defendant’s position with respect to the Claimant’s claim for payment of the unpaid amount for the Metal Roof is that there were numerous and significant deficiencies in the fulfilment of the contract to install the Metal Roof and hence the Claimant has breached the contract. These deficiencies are detailed in the Westcoast Report. As I understand the Defendant’s position, the only practical option to solve the problems of these deficiencies was the one suggested by the Westcoast Report and that was to replace the Metal Roof with the Top Line Roof.

That she says has successfully resolved the condensation problem in the attic. [ 137 ] Accordingly, the Defendant should not be required to pay the amount outstanding for the Metal Roof because she has been required to expend additional monies to replace the defective Metal Roof. She accepts that she cannot recover the costs of the Top Line Roof from the Claimant if she is relieved from her obligation of paying for the Metal Roof.

DEFENDANT’S Position With Respect to the Counterclaim [ 138 ] Although it is not clear on the pleadings, I understand that the Defendant is pursuing her counterclaim on the basis of damages flowing from the breach of contract to provide the Defendant with a satisfactory Metal Roof, without the condensation problem in the attic areas and the loss that she has incurred as a result of that breach. [ 139 ] With respect to her counterclaim, she submits that the damages flowing from the breach of contract that she has incurred are reasonably foreseeable. [ 140 ] I also understand that the Defendant seeks at the very least, compensation for the cost of remediation of the attic and to deal with the condensation problem which are in part the items that she describes as her out of pocket expenses. [ 141 ] While not being precise on this point, it seems that the Defendant also expects that her measure of damage should be for at least an amount of the cost that she would have incurred had she engaged trades to perform the work that she performed herself. [ 142 ] No case authorities were presented to the court for consideration and none were relied upon by the Defendant with respect to either the claim or the counterclaim.

Analysis The Terms of the Contract [ 143 ] In construction law, it is commonly accepted that a contract is an agreement which apportions risk and responsibility between the parties to the contract. The initial step in the contracting process is the formation of the contract. That requires an offer and acceptance. The offer and acceptance must be sufficiently communicated by each party so as to make the other party aware of one’s assent to the terms as understood by the other [see: Howard M . Wise, Manual of Construction Law , (Toronto: Carswell) at

section 3.1 (“Wise”)]. [ 144 ] The evidence establishes that the Claimant contracted to sell and the Defendant contracted to purchase certain roofing materials and services. The contract is partly in writing in the form of the Price Estimate and in the form of the Warranty delivered after completion of the Metal Roof. The contract is also evidenced in writing by the exchanges of emails between Mr. Rae, on behalf of the Claimant, and the Defendant.

On the whole of the evidence it is also clear that part of the terms of the contract were oral in nature and based upon various discussions between representatives of the Claimant, in the persons of Mr. Rae and also foreman Al Clithero and the Defendant. For example, it appears that the offer and the acceptance were communicated orally, on the basis of the Price Estimate and following its presentation, and then subsequently confirmed in writing by way of email exchanges.

I accept that the Price Estimate sets out the basic terms of the scope of the work being the removal and disposal of the existing roof, the supply and installation of a 26 gauge snap-lock metal roof with a Titanium 30 underlayment, various flashings, drip edges on all gables, plumbing stack covers on all pipes, installation of “ridge roof vents installed for better ventilation of attic” and one kitchen flapper vent. Provision is also made for cleaning of gutters at the end of the job, a magnetic raking of the lawn and driveway for nails and disposal of all garbage.

The 40 year warranty on the product is specified and the labour warranty of 25 years is also specified. The price is specified and the option to provide the three eighths of an inch plywood is also specified. The estimated time for completion is stated but the commencement date is not. No specific provision is made for payment of the purchase price and there are no warranties and representations with respect to the quality of the work. The colour selection for the roofing materials and even the Defendant’s ability to make such a selection is not noted in the Price Estimate.

In fact, the communication of that selection by the Defendant was apparently done orally and subsequently confirmed in writing by email some weeks after the delivery of the Price Estimate.

[ 145 ] It is clear that there were other expectations between the parties that do not seem to have been clearly set out either in writing or in the oral communications between the parties. For example, the Claimant expected to be paid for their services at some point. The Defendant expected to have a completed and functional metal roof on the Residence and the two outbuildings. [ 146 ] In G.H.L.

Friedman: The Law of Contract in Canada, 6 th edition (Toronto: Carswell) (“Friedman”) states as follows at pages 463 and 464: The law has long recognized that it is not always possible to confine the terms of a contract, whether written, oral or partly written or partly oral, to those which have been expressly stipulated between the parties. There are circumstances in which a court is entitled to conclude that everything agreed to by the parties is not contained in the written document or documents or the oral statements of the parties that appear to make up the contract.

Some additional terms or terms must be implied. The acceptance of what Duff J. once called “an unexpressed incident” requires more than that a court might think it reasonable to make such an implication. It is firmly based on the idea that courts are seeking to discover what the parties intended not what a court thinks reasonable. As Ayles J.A. said in Mr. Convenience Ltd. v. 040502 N.B. Ltd . the implication of a term “is a m

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