Willis v Mangion, 2023 ABCJ 265

In the Alberta Court of Justice Citation: Willis v Mangion, 2023 ABCJ 265 Date: 20231201 Docket: P2102600199 Registry: Lethbridge Between: Amber Willis Plaintiff/ Defendant by Counterclaim - and - Graham Mangion Defendant/ Plaintiff by Counterclaim Judgment of the Honourable Justice P.G. Pharo Introduction [ 1 ] Ms. Willis operated a landscaping business, called Element Landscape Design and Construction in Blairmore in the Crowsnest Pass. She did some landscaping work for Mr. Mangion at his home in Coleman in the Spring of 2021. Mr.

Mangion was not satisfied with the quality of the work she did, so he refused to pay for any of it. Ms. Willis sued him for the amount of the contract for the landscaping work she did. Mr. Mangion hired another landscaper to remedy the alleged deficiencies of Ms. Willis’ work and claimed that cost back against Ms. Willis as a counterclaim. What Were the Terms of the Contract Between the Parties? [ 2 ] In her evidence, Ms.

Willis described herself as a horticulturist, landscape architectural technologist, permaculture designer, legal land and seismic surveyor, utility locator, and said she was working towards her degree as a clinical herbalist. She said that she had a diploma from Olds College in horticulture and had been in that field for some 13 years, and worked as a landscape architectural technologist for 16 years. She had been working for most of that time in the Calgary, Okotoks and High River areas. She had recently moved to the Crowsnest Pass and started working there.

She stated that there was a difference performing horticultural work in the Crowsnest Pass area, as compared to Calgary and Okotoks, because the weather and climate were different. She said hardier plants have to be used in the Crowsnest Pass.

[3] Mr. Mangion said he had lived in Edmonton previously, where he was in the automotive dealership business for 30 years.He and his wife bought a house in Coleman in 2003 as a recreational property, then moved to it as their full-time personal residencearound 2006. He went to work in highway maintenance, but then at the time was doing on call work operating a snow plow in the winter.He said he had no knowledge about landscaping, other than cutting his grass and watering the lawn. [4] Mr.

Mangion testified that he wanted to have some landscaping work done on his home in Coleman in the spring of 2021.He saw an advertisement on Facebook that Ms. Willis had posted. He contacted her and a meeting was arranged. At the meeting, Mr.Mangion said that the rip rap rock that covered part of his lawn had been overgrown with quack grass and weeds over the years, so hewanted that remedied. He wanted some steps dug into a hill on the lawn to replace the grass, because when it got wet, or in the winter, itgot quite slippery. As well, Mr.

Mangion said he wanted the existing material in the planters out front removed and replaced with propershrubs. Lastly, they discussed repair work on the retaining wall in the front, as a possibility. Ms. Willis agreed to provide Mr. Mangionwith an estimate to do all that work. [5] Ms. Willis did provide an estimate to Mr. Mangion by email, dated March 27, 2021 (the “Estimate”). The email from Ms.Willis that covered the Estimate stated that it was a “fairly rough, “worst case scenario” estimate”. The evidence of Mr. Mangion, whichI accept, was that Ms.

Willis stated in her meeting with him that she said she always overestimated her jobs. [6] In the Estimate, three categories of work were identified. The first category was called the “Front Rock Bed/Planting”. Thiscategory stated that the existing stone would be stripped back, the slope on the east would be graded and landscape fabric laid, with theexisting stone replaced. The west slope would be graded, soil amendments to be made, and a mixture of perennials and shrubs planted.Landscape fabric was to be laid, followed by the replacement of some of the existing stone.

The existing tiered planters were to becleaned of the current plant material, soil amendments made and then replanted with a mixture of shrubs and perennials. The quoted costfor this first category was $4026.91. [7] The second category in the estimate was called the “Steps”. It called for pressure treated 6” x 6” timbers to be dug into theslope of the lawn to create steps. The timbers were to be held in place using 10M rebar. The area between the steps was to be leveled,with landscape fabric laid followed by placement of desired stone.

The quoted cost for category 2 was $1455.26. [8] The third category on the estimate was called “Retaining Wall Repair”. It was agreed between the Parties not to proceed withthis part of the Estimate. [9] At the bottom of the Estimate, there were a number of what were called “Terms and Conditions”. The term that was a liveissue in this case was the term that stated that any extra charges of the Estimate would be executed only upon written change orders andwould then be over and above the original Estimate. In this case, there are some extras claimed by Ms.

Willis, but there were no writtenchange orders ever signed. [10] At the bottom of the Estimate, was a place for the Parties to sign. The Parties never signed it. [11] Mr. Mangion testified that he decided to go ahead and hire Ms. Willis based on his meeting with her, at which time he felt thatthey had a good rapport, and he had a good feeling about her, and she seemed to be professional. The Parties started emailcommunication, and Mr. Mangion confirmed that they were probably going to go ahead with most of the work, but the retaining wallwould have to wait. During the email conversations before Ms.

Willis started, Mr. Mangion told her he could supply some of thematerials himself. He managed to get some lumber at work at no charge to him, and also some screened gravel. Ms. Willis stated that shecould start the job by the end of May. Ms. Willis did in fact start the job on or around May 26, 2021, and she finished on June 8, 2021.During the job, the evidence was that Ms. Willis was on site the whole time, and she got someone, Mr. Verdi, to assist her with labourwork. [12] The evidence of Mr. Mangion was that he was expecting an invoice from Ms.

Willis of around $5500 plus GST, which wasbasically what she had quoted for the first category and the second category in the Estimate. Mr. Mangion said he expected an invoice inthat range because Ms. Willis had stated in her email that the Estimate was a “worst case” scenario, and that she told him she alwaysoverestimated, and furthermore he had supplied some materials himself. Ms. Willis’ invoice was for $7096.20 plus GST. Mr. Mangionimmediately disputed the invoice. The evidence was that at first, on June 11, 2021, he offered to split the difference with Ms. Willis,suggesting he pay her $6298.00. Ms.

Willis refused to accept that. [13] Shortly after that, Mr. Mangion took the position that the work had not been properly done by Ms. Willis, complaining aboutthe workmanship on the installation of the steps, and also complaining about quack grass and weeds growing up through the landscapingfabric. Mr. Mangion never paid Ms. Willis anything for the job and eventually hired another landscaper to remedy the deficiencies. What is the Value of the Materials and Work that Mr. MangionProvided? [14] Mr. Mangion testified that he supplied the timber for the steps.

He got it from work at no cost to him because it wasconsidered scrap. There was no evidence before the Court as to the value of the timbers, other than the invoice of the other landscaper,Mr. Oberholtzer. It is difficult for this Court to estimate the value of the timbers. Nonetheless, in the case of 581257 Alberta Ltd v Aujla,2011 ABQB 39, that Court stated: (

a) The degree of certainty and particularity in proof of damage is that which is reasonable, having regard to the circumstances andto the nature of the acts themselves by which the damage is done (Wood v. Grand Valley Railway Co., (1915) (SCC),51 S.C.R. 283 at 301). (

b) The difficulty of assessment of damages cannot relieve the wrongdoer of the necessity of paying damages (Wood at p. 289). If

the amount is difficult to estimate, the tribunal must simply do its best on the material available (S.M. Waddams, The Law of Damages,looseleaf (Toronto: Canada Law Book, 2008) at para. 13.30). [15] I recognise that case relates to damages in a negligence case, but in my view the principles are the same. There is very littlematerial available here to help estimate the value of the timber supplied by Mr. Mangion. Nonetheless, I am bound to do my best tomake a reasonable finding on the value of the timber. I assess its value to be $500. [16] Mr.

Mangion testified that he bought some limestone rock to repair the driveway where the bobcat had been digging. He saidhe paid $800 for that rock. I accept that evidence. However, as noted below, I have found that this was part of an extra the Parties agreedto. [17] Mr. Mangion testified that he stripped the rock out of the weeds to prepare the ground for the shrub on the west side of theproperty. As noted below, I have also found that this work was part of an extra. [18] The evidence of Mr.

Mangion was that he also brought some heavy equipment from work, but he testified that it was notreally suitable so was not used much. [19] Therefore, I find that the amount of $500 for the timber should be deducted from the contract amount, as calculated using theEstimate. Did Ms. Willis Do Extra Work and For What Value? [20] The evidence of Ms. Willis about the extra work she provided was as follows: 1. Ms. Willis said she was already releveling the driveway, so she said Mr. Mangion asked to get the weeds out, put landscape fabricdown, and put more gravel on top.

She said she was actually cleaning up the mess she had made by turning around in it. As noted, Mr.Mangion supplied and paid for the gravel. This took her an extra hour. She put the extra cost of this at $350. 2. She pulled rock from the south side of the garage, laid fabric, and planted five juniper trees. She said it took her half a day to cleaneverything out, and two hours to plant the junipers. The five junipers cost about $1500 in total. Based on her rate of $65 per hour, theextra six hours of work would add up to $390. The total of this extra would therefore be $1890. 3.

On the west side of the yard there was a small bed that Mr. Mangion removed the rocks, then she put fabric down and plantedanother juniper, and replaced the stone. The evidence was that Mr. Mangion paid for that juniper. She said that took her about an hourand put the cost of $100. 4. Ms. Willis testified that Mr. Mangion asked her to move the steps closer to the retaining wall, which she did, for a cost of $325. Shesaid he also asked her to install two more treads, at a cost of $130. [21] Mr.

Mangion argues that these extras should not be allowed because there was no written change order, as described in theEstimate. Ms. Willis responds that they had a good working relationship, and at that point, they were relying on verbal agreements. Shesaid that Mr. Mangion agreed to pay for the above extras. The evidence was that Mr.

Mangion was a very experienced businessman. [22] This issue was considered by the Alberta Court of Appeal, in the case of Impact Painting Ltd. v Man-Shield (Alta)Construction Inc, 2019 ABCA 57 where it stated at para 18: 18 In deciding what extras ought to be allowed, the trial judge noted at paras 19-20 that both parties accepted as correct the law asstated in Ridge Rock Construction Ltd v Beckmyer Builder Ltd, 2006 ABQB 850 at para 30, 58 CLR (3d) 143, adopting dicta from Kei-Ron Holdings Ltd v Coquihalla Motor Inn Ltd, (BC SC), [1996] BCJ No 1237 (SC) at para 41, 29 CLR (2d) 9: In determining liability for the cost of extra work, the first question to be answered is whether the work performed was, in fact, extrawork; that is, it did not fall within the scope of the work originally contemplated by the contract.

If so, did the owner give instructions,either express or implied, that the work be done or was the work otherwise authorized by the owner? Next, was the owner informed ornecessarily aware that the extra work would increase the cost? Finally, did the owner waive the provision requiring changes to be madein writing or acquiesce in ignoring those provisions? If the plaintiff can establish these elements, the defendant is liable to pay areasonable amount for the extra work. These elements must be proved with respect to each extra claimed.

This statement of the law is correct. [23] In considering whether this test is met, it seems to me that these extras are indeed extra in the sense that they are not part ofthe scope of work in the original contract. It also seems to me, and I accept that Mr. Mangion asked Ms. Willis to do this extra work.Next, it seems to me that although I accept that the extra cost was not explicitly discussed, as an experienced businessperson, Mr.Mangion would reasonably have understood that there would be an extra cost for these changes. And finally, it is clear that Mr.

Mangionwaived or at least acquiesced to the fact that the change orders were not in writing. I note that the Estimate calling for written changeorders was never signed by the Parties. Having found that all these elements have been proven in this case, I find that Mr. Mangion isliable to pay a reasonable amount for the extra work. I find that the amounts set out after each item are a reasonable amount. [24] I therefore find the total amount of the extra work to be $2795. What is the Total Amount Owing on the Contract Between Ms.

Willis and Mr. Mangion? [ 25 ] Upon the acceptance of the offer as set out in the Estimate, I find the amount of the contract between them was $5500 plus GST. From this should be subtracted the value of the timber supplied by Mr. Mangion, in the amount of $500, reducing it to $5000 plus GST. The reasonable amount of the extras agreed upon in the amount of $2795.00 must be added on, bringing the total amount if the contract to $7795.00 plus GST. However, Ms. Willis’ actual invoice was for $7096.20 plus GST , so it appears that is the amount she agreed to, so that is the number I will use in these calculations.

Were There Deficiencies in the Performance of the Contract? [ 26 ] Mr. Mangion started complaining almost immediately about the quack grass and the weeds growing up in the planter beds, as well as in the rip rap rock. He was also unhappy with the steps, saying they were uneven and irregular, and had grass in the treads. Mr. Mangion said these things made the steps into a tripping hazard, especially when they were wet or icy in the winter. [ 27 ] Mr. Mangion entered as Exhibit 1 a number of photographs of the work done by Ms. Willis.

It does appear from this evidence that very quickly after the job was done, quack grass and weeds started growing up through the rip rap stones and in the flower beds. The photographs of the steps also show them to have irregular dimensions, and also uneven grass in some of the step treads. [ 28 ] Mr. Mangion called an experienced landscaper, Mr. Oberholtzer, to give evidence at the trial. Mr. Oberholtzer was actually contracted to do the remedial work with respect to this contract. He operated a landscaping business called Crooked Tree Landscaping.

He had been a landscaper since he was 16 years old, at various places in Alberta. He had been a landscaper in the Crowsnest Pass area for 12 years. He said that landscaping practices were different in the Crowsnest Pass, mainly because of wind related issues. He said different types of materials would have to be used, especially paying attention to things like east/west wind corridors. [ 29 ] The evidence was that Mr. Mangion contacted Mr. Oberholtzer to come and give his professional opinion about the job in the Spring 2022. Mr.

Oberholtzer said that he noticed that at that time the rip rap rock was overgrown with weeds and the steps were not evenly spaced, with uneven riser heights and tread depths. He gave Mr. Mangion an estimate of the remedial work that he thought had to be done. He testified that he thought all the rip rap would have to be removed to allow for cleanup and reinstallation. He said the existing landscaping fabric would have to be removed, and all the weeds and grass that were growing in there had to be removed. He said that new landscaping fabric had to be laid down.

Then all the big rip rap had to be hand-placed on the new fabric. He said he found that plant matter was growing both on top and beneath the landscaping fabric. [ 30 ] Mr. Oberholtzer testified he thought the landscape fabric that Ms. Willis had used was not appropriate for this particular job because first of all it was too thin, and secondly it had felt fabric on top, which tended to provide a growing media for weed and grass seeds that blew in. Mr.

Oberholtzer testified that he uses a thicker landscaping fabric, with a smooth surface on the top side, especially in an east/west wind corridor, so it is more slippery and does not hold the blowing silt and sediment. He testified that Mr. Mangion’s house was on an east/west wind corridor, so since there was a prevailing west wind, extra care had to be taken when installing in such areas. I accept Mr. Oberholtzer’s evidence on these points. [ 31 ] Ms. Willis testified that the reason there were so many weeds growing in the stones and the planters was that Mr.

Mangion’s dog had tracked dirt and seeds into those areas. Mr. Mangion disputed this, saying his dog was on a lead, and could not go into all those areas. I accept the evidence of Mr. Oberholtzer and find that the reason that the rocks and planters were overgrown with weeds and quack grass so quickly was that Ms. Willis did not install the proper landscape fabric for this area. [ 32 ] It was the opinion of Mr. Oberholtzer that some of the steps had to removed and reinstalled, the landscape fabric removed and then limestone fine rock be put on top of the fabric in some of the treads. Mr.

Oberholtzer testified there was no building code that applied to these outside steps, however he said best practices were that the same code as for interior steps should be used. He said that the interior building code for steps was for there to be consistent tread depth and riser height. In this case, Mr. Oberholtzer said the inconsistencies in the steps constituted a tripping hazard. He said that a difference of even a 1/4-inch could cause someone to kick it. Mr.

Oberholtzer also testified that, consistent with what shows in photographs in evidence, in some of the treads where there was grass growing, there were no flat surfaces, and it was lumpy, rounded and hard to walk on, which again was a tripping hazard. I accept Mr. Oberholtzer’s evidence on these issues. [ 33 ] With respect to the steps, Ms. Willis testified she took Mr. Mangion’s instructions about how to construct them, and that he specifically wanted them constructed that way. Mr. Mangion disagreed with that evidence, saying he felt that Ms.

Willis was the expert landscaper, and that he relied on her to install the steps in a proper manner. I accept that Mr. Mangion did rely on Ms. Willis’ expertise, and he relied on her to install the steps properly and in accordance with best practices. [ 34 ] In

summary on the issue of deficiencies, I find that there were deficiencies in the performance of the contract, because there should not have been quack grass and weeds growing up in the rip rap rocks, within weeks of the completion of the job. I find that this was caused because Ms. Willis installed the wrong kind of landscape fabric, in that it was not thick enough and did not have a smooth surface, in accordance with common practice in the windy areas on the Crowsnest Pass.

I also find deficiencies in the installation of the steps, in that they also were not installed in accordance with best practices, or in a workmanlike manner. What Did it Cost to Remedy These Deficiencies? [ 35 ] Mr. Oberholtzer testified that he did the remedial work on this contract. [ 36 ] He testified that he removed all the big rip rap and cleaned it up. He removed the old landscape fabric and threw it away. He

put down the new landscape fabric and reinstalled the rip rap. [37] He said with respect to the two levels of shrub beds, he replaced the landscape fabric and put some stone on top. [38] With respect to the driveway planters, he installed 4 x 6 pressure treated lumber and built a border by the junipers under theplants to give them a bed to sit on, so the soil did not wash away to expose the roots. [39] As to the steps, he testified he kept the top four or five stairs that were consistent and took the rest of them out. He said theycalculated how high they needed to go, and how long they needed to be.

Once that was determined, he installed new 6 x 6 lumber andcreated a couple of steps, a landing, and then another couple of steps. In the treads, they put down landscape fabric, and then installedlimestone fine gravel and compacted it. [40] Mr. Oberholtzer’s invoice for doing this remedial work came to $7426.25 plus GST. Mr. Mangion paid it immediately onAugust 11, 2022. Was There a Fundamental Breach of the Contract? [41] It is my understanding Mr. Mangion takes the position that Ms.

Willis fundamentally breached the contract, which he is thenentitled to accept as a repudiation of the contract, pay her only the value of the work done, which he says is nothing, and maintain aclaim against her for his damages being the cost of rectifying the landscaping work. [42] In the Alberta case of Nu-West Homes Ltd. v Thunderbird Petroleums Ltd., (AB CA), [1975] AJ No. 345(Nu-West), the parties entered into a contract to build a house. It was partly completed by the builder Nu-West, when the parties had adispute, and work stopped.

The owner, Thunderbird, then took possession of the house, and ultimately finished it. The AppellateDivision of the Alberta Supreme Court stated as follows: 24 It is not every breach of a building contract that will entitle the owner to discharge the contractor. In most cases the failure to liveup to the plans and specifications or to good building practices and standards is caused by misunderstanding or carelessness. It would bemonstrous to allow an owner to get substantially what he bargained for and yet not have to pay for it. Thus, we have a leading case of H.Dakin &. Co. Limited v. Lee (1916) 1 K.B. 566.

In that case the builder failed to perform the contract as described in three specificinstances. As a whole the work was satisfactory. The Master of the Rolls Lord Cozens-Hardy said at page 579: "The matter has been treated in the argument as though the omission to do every item perfectly was an abandonment of the contract. Thatseems to me, with great respect, to be absolutely and entirely wrong.

An illustration of the abandonment of a contract which was givenfrom one of the authorities was that of a builder who, when he had half finished his work, said to the employer "I cannot finish it,because I have no money," and left the job undone at that stage. That is an abandonment of the contract, and prevents the builder,therefore, from making any claim, unless there be some other circumstances leading to a different conclusion.

But to say that a buildercannot recover from a building owner merely because some item of the work has been done negligently or inefficiently or improperly is aproposition which I should not listen to unless compelled by a decision of the House of Lords." 25 In the same case Pickford, L.J. said at 581 and 582: "There is nothing in all this that seems to me to amount to doing only a part of the work contracted for and abandoning the rest.

That theplaintiffs have done is to perform the work which they had contracted to do, but they have done some part of it insufficiently and badly;and that does not disentitle them to be paid, but it does entitle the defendant to deduct such an amount as is sufficient to put thatinsufficiently done work into the condition in which it ought to have been according to the contract." 27 The Court of Appeal of Nova Scotia dealt with the problem in Webber v. Havill (1964) (NS CA), 47 DLR (2d)36 (NSCA).

MacQuarrie, J. speaking for the court said at 44: "What amounts to substantial performance is a question of degree in each case, and little guidance can be obtained from the decidedcases: see Hudson's Building & Engineering Contracts, 8th ed., p. 138. Under the doctrine of substantial performance, if there has been asubstantial though not perhaps an exact and literal performance by the promisor, the promisee cannot treat himself as discharged.

A partymust pay if he has received substantially the whole of what he was promised. [43] The result in Nu-West was the Court found that the owner, Thunderbird, had spent $102,474 to finish the work agreed to inthe contract, and the contract price of work done with extras owed to Nu -West was $65,334. The Court held that the proper way todecide the issue was to deduct the amount owed to Nu-West, from the costs of Thunderbird to finish the work, leaving a net of $37,140owed by Nu-West to Thunderbird. [44] The evidence in this case, based on her invoice, was that Ms.

Willis and her worker spent 103 hours on this job. The evidence,based on the invoice of Mr. Oberholtzer, was that he and his workers spent 54 hours doing the remedial work. This is not a situation, asdescribed in the Dakin case above, where the builder did part of the work and then abandoned the rest. Even in the Nu-West case, thecontractor Nu-West did not complete the job. [45] That is not what happened here. The facts are not disputed that Ms. Willis finished the job, and apparently in a timely manner.She rendered her bill promptly. Mr. Mangion initially offered to pay her bill if he got a discount.

At that point, Mr. Mangion seemed tobe happy with the performance of the contract. In fairness to him, the weeds and quack grass started showing up sometime later. Onthese facts, I find that there was substantial performance of the contract, but with the deficiencies noted above. The facts in the Nu-Westcase were that the contractor did not finish the job, and the owner had to complete it. In this case, as noted, Ms. Willis did finish the job. Itherefore find that there was not a fundamental breach of the contract.

I find instead that there was a substantial performance of thecontract, with a number of deficiencies, for which Mr. Mangion is entitled to a remedy.

What Are the Damages? [ 46 ] As noted, Mr. Mangion takes the position that there was a fundamental breach, and that Ms. Willis is not entitled to anything for the work she did, and that Mr. Mangion should recover the full amount of what he paid to Mr. Oberholtzer from Ms. Willis.

The Alberta Court of Appeal in the Nu-West case dealt with exactly that point and said that it would be very unfair to allow an owner to get substantially what he bargained for and yet not have to pay for it. [ 47 ] In accordance with the principles set out in the Nu-West case , and because I have found that there was no fundamental breach, in my opinion Ms.

Willis should be entitled to recover what was agreed to under the contract, which I have found to be $7096.20 plus GST, as she claimed in her invoice. [ 48 ] Also, in accordance with the principles set forth in Nu-West , I have found that there were significant deficiencies in the performance of the contract, and Mr. Mangion is entitled to the cost to remedy those deficiencies, which was $7426.25 plus GST. [ 49 ] Unfortunately, this means that the cost to remedy these deficiencies is greater than Ms. Willis’ invoice for the whole job. In her closing argument Ms.

Willis suggested that she was new to town at the time and was quoting good rates to get established. [ 50 ] In the result, there will be a judgment against Ms. Willis in favour of Mr. Mangion in the amount of $330.05 plus GST of $16.50, for a total of $346.55. Court Costs [ 51 ] Court costs are in the discretion of the Court to decide, based on a number of factors that are relevant in the context of each case. In this case, I have found that Ms. Willis succeeded in her claim, but that Mr. Mangion also succeeded in his counterclaim. There was not much difference in the amounts.

I also take into account the positions the Parties took at the trial, and the degree of success each had with respect to that position. The amount recovered is not large. I therefore find that in the context of this case that each party should bear their own costs. Conclusion [ 52 ] Mr. Mangion shall have judgment against Ms. Willis in the amount of $346.55. Mr. Mangion shall be entitled to interest under the Judgment Interest Act, RSA 2000, c J-1 from August 11, 2022. Each party shall bear its own court costs. Heard on the 24 th day of July, 2023.

Dated at the City of Lethbridge, Alberta this 1 st day of December, 2023. P.G. Pharo A Justice of the Alberta Court of Justice Appearances: A. Willis Self-Represented Plaintiff/Defendant by Counterclaim

L. Moskaluk for the Defendant/ Plaintiff by Counterclaim