Kovalsky v Bhatt, 2023 ABCJ 278

In the Alberta Court of Justice Citation: Kovalsky v Bhatt, 2023 ABCJ 278 Date: 20231213 Docket: P2102000103 Registry: Fort McMurray Between: James A. Kovalsky Plaintiff (Defendant by Counterclaim) - and - Sitanshu Bhatt Defendant (Plaintiff by Counterclaim) Judgment of the Honourable Justice S.A. Cleary [ 1 ] This case is an unfortunate illustration of the consequences which sometimes occur when people do not have a written agreement outlining their expectations of each other in their business dealings, or records of what each of them have performed during those dealings. [ 2 ] In the case at hand, Mr.

Kovalsky claims that he was not paid for the work that he did at Mr. Bhatt’s rental unit. Mr. Bhatt claims that Mr. Kovalsky did not properly complete the job he was hired to do. He claims that he paid Mr. Kovalsky in cash and then had to pay other people to properly do the work, that he lost rent while that happened, and that Mr. Kovalsky went off with his tools and damaged the property. [ 3 ] Mr. Kovalsky was an engineer by profession but now is retired and works as a handyman. In the past he had done some work for Mr. Bhatt, who works in logistics in the Oilsands industry. [ 4 ] Although at trial Mr.

Kovalsky complained about Mr. Bhatt being difficult to work for, he agreed to do a bathroom renovation of sorts in a rental unit owned by Mr. Bhatt in August 2020. [ 5 ] Mr. Bhatt had obtained two quotations from other companies. One of these was for $2,000 and one for $2,250. Mr. Kovalsky testified that he looked at the quotations and agreed he would do the job for $2,000 with Mr. Bhatt providing materials and extra help to get it done.

[ 6 ] The parties put nothing in writing to outline exactly what the job was supposed to consist of. Nor did they have anything in writing outlining when the work was to be completed. Filed with the court was a handwritten quote from a different company which outlined various tasks that made up their quote of $2,250. Mr. Kovalsky maintained that he did not agree to do certain of the items listed by that other company. [ 7 ] It was very difficult to follow either party’s description what they claimed to be the scope of work.

However, essentially it seems to be that a tub and fittings were to be installed in place of a shower, and that this installation would involve some drywall work, putting in a new vanity and moving a toilet, washer and dryer around to allow for all that. [ 8 ] Mr. Kovalsky started work around August 7, 2020. He worked for 3 days and claimed that he did most of the job by that point. He was also working for a member of Mr. Bhatt’s extended family around this same time and said that this interfered with his ability to finally complete the job. He said that Mr.

Bhatt asked him to patch up some vapour barrier and install some laminate flooring He said he did that and planned on invoicing Mr. Bhatt for what he says was extra work. During the tub installation Mr. Kovalsky said that some issues were encountered respecting the drain to the tub. He also said that Mr. Bhatt was to provide all the materials but that he had to go and pick those up himself on occasion. [ 9 ] Mr. Kovalsky testified that by August 20, 2020, he had done most of the work except for some drywall finishing which he could not complete because the drywall was wet. He said that he asked Mr.

Bhatt to put a fan on the drywall to help dry it out. By August 21, 2020, the drywall was still wet. Mr. Kovalsky said he had to leave on that date due to a family emergency. His mother had recently passed away and his elderly father was left without care in North Battleford. Mr. Kovalsky said that he arranged for a fellow contractor to attend and finish the job. [ 10 ] At this point whatever positive relationship that existed between the parties totally and instantly evaporated. Mr. Bhatt refused to let the person Mr. Kovalsky hired to finish the work into the apartment to do so.

He said the job had been botched. Mr. Kovalsky took the position that he had essentially completed all the work he was hired to do. At court he agreed he had not finished the drywall and thought that was probably about $70 worth of work to finish. He claimed that for the extra work he did including the floor (30 hours he says at $25 per hour) and court costs, that Mr. Bhatt owes him $3,000. [ 11 ] Mr. Bhatt testified and said that Mr. Kovalsky agreed to do the bathroom renovation for a price of $1,500 which he claimed that he paid in two installments of $750.

He claimed he made these two payments even though the parties had not dealt in that fashion before and that he was reluctant to pay Mr. Kovalsky up front. [ 12 ] Mr. Bhatt testified that Mr. Kovalsky bungled the entire job. He said that Mr. Kovalsky took too long and that the work he did was poor. He said he had to help Mr. Kovalsky with the work and that therefore he is entitled to payment for his own time from Mr. Kovalsky. He testified that Mr. Kovalsky left with the job unfinished and that he had to pay other contractors to fix the job. He said Mr.

Kovalsky lost a screw to a faucet which meant an expensive new one had to be purchased. He said that Mr. Kovalsky’s poor work meant that he could not rent out the unit and that Mr. Kovalsky is therefore responsible for lost rent. He also testified that Mr. Kovalsky’s truck backed into one of his fence posts causing damage to it. His claim is that Mr. Kovalsky therefore actually owes him $6,873. [ 13 ] Following the breakdown of their relationship, the parties exchanged very unseemly, immature, and unprofessional email correspondence.

Considering the responsibilities each would have had in their respective professions, the content of the emails is quite shocking. On Mr. Kovalsky’s side it descended into actual name-calling. Mr. Kovalsky also threatened to call Mr. Bhatt’s employer to complain Mr. Bhatt did not pay his bills, although what this would have accomplished, besides embarrassing Mr. Bhatt, I fail to see. Mr. Bhatt accused Mr. Kovalsky of making him homeless, ruining his life, his finances, his family relationships and health, and dared Mr.

Kovalsky to involve “Trump, Obama, CIA, FBI.” It was apparent on the date of trial, more than 3 years after this incident, that the parties still hold each other in utter contempt. [ 14 ] It is in this context that I must make my findings on the evidence before me. [ 15 ] The burden is on a party making a claim to prove that claim on the balance of probabilities. That is, to succeed, Mr. Kovalsky must prove to me that Mr. Bhatt owes him $3,000. Mr. Bhatt must prove to me that Mr. Kovalsky owes him $6,873. [ 16 ] Because it is the most straightforward part of this case, I will deal first with Mr.

Bhatt’s counterclaim. With respect, I find that Mr. Bhatt has not proven his counterclaim on the balance of probabilities, and I dismiss it. [ 17 ] Mr. Bhatt showed me photographs he said depicted the job in the state it was left by Mr. Kovalsky. One of those photographs, Tab 18, page 2, top photograph, clearly shows a chipboard floor. However, in one of Mr. Bhatt’s own table of complaints (email of August 21, 2020, 10:04 am) he details supposedly improperly installed floor planks. It is clear to me, therefore, that the photograph Mr. Bhatt wanted me to accept as proof of the state in which Mr.

Kovalsky left the job did not actually depict that. This seriously undermines his credibility as a witness. I am not prepared to accept his evidence. [ 18 ] I find, therefore, that Mr. Bhatt himself was not a reliable witness due to his incomplete and misleading evidence regarding the state of the bathroom floor. While there are many photographs, I am not able myself to assess the professionalism or otherwise of Mr. Kovalsky’s work. No independent or reliable witnesses who could assist me with this assessment were called by Mr. Bhatt.

I therefore decline to award him anything for the work he claims was not done or was improperly done. [ 19 ] There were several other parts to Mr. Bhatt’s claim. Mr. Bhatt claimed that Mr. Kovalsky took some tools belonging to Mr. Bhatt when he left. These were not detailed in any reliable way. They are referred to variously as some small items and in other parts as “all my tools.” While it may be that Mr. Kovalsky inadvertently took with him some small items, I do not accept that he took “all” of Mr. Bhatt’s tools. As Mr.

Bhatt’s evidence on this point is not reliable, this portion of the counterclaim is not proven. [ 20 ] Mr. Bhatt also claimed that Mr. Kovalsky lost a screw to a faucet. It was clear that Mr. Bhatt was to provide the materials to do this job. It is certainly possible that a faucet could have left the store missing a screw. Further, in the August 21, 2020, 10:04 am email, Mr. Bhatt refers to this faucet costing $154, but in his evidence claimed it cost $423. This difference is unexplained and detracts

from Mr. Bhatt’s credibility on this point. I find he has not proven that Mr. Kovalsky is responsible for the lost screw. [ 21 ] Further, Mr. Bhatt claimed that his fence post was damaged. He did produce a photograph that showed the post pushed slightly out of alignment by what appears to be Mr. Kovalsky’s vehicle. However, he did not provide any photograph of what the post looked like once the vehicle was moved. Mr. Kovalsky admitted bumping into the post but said it went back into place once his vehicle left. Mr.

Bhatt did not provide me with a photo depiction of the supposed damage to the post, or any quotation for fixing it, nor did any other witness whose evidence I could accept testify on this point. I therefore find that this portion of his counterclaim has not been proven. [ 22 ] Mr. Bhatt also claims that Mr. Kovalsky spilled an oily substance on his deck. While there is a stain on the deck, there is no evidence that Mr. Kovalsky had anything to do with it being put there. This portion of the counterclaim was not proven. [ 23 ] Mr. Bhatt also claimed that he lost two months’ rent due to Mr.

Kovalsky’s work not being completed. Even if it is true that Mr. Kovalsky did not complete his work as agreed, which is difficult to conclude given that there was no written agreement regarding completion date, it was incumbent on Mr. Bhatt to mitigate his damages in this regard. In other words, knowing that the work was incomplete on August 20, 2020 (assuming that it was), it was incumbent on Mr. Bhatt to get the work completed so that he could rent the apartment. He was not entitled to do nothing and let the damages continue to accumulate and still recover them. Mr.

Bhatt had at least two quotes from people who could do the work on the bathroom. There was no evidence on when he took steps to complete the work, or what steps he took the rent the apartment. He claimed himself that the work should only have taken a couple of days to complete. That being the case, there is no reason the work on the apartment could have been completed very shortly after August 20, 2020 the date when Mr. Bhatt claimed he knew the work was done. Whatever portion of the counterclaim has to do with lost rent has not been proven. [ 24 ] Therefore, as I said previously, Mr.

Bhatt’s counterclaim is dismissed. [ 25 ] I will now deal with Mr. Kovalsky’s original claim regarding the renovation work. As I stated at the beginning of my decision, Mr. Kovalsky bears the burden of proving his claim and the value of it on the balance of probabilities. I am left in a difficult position in this case as the parties had no written agreement, nor are there any records generated detailing how much Mr. Kovalsky actually did. I am satisfied that Mr. Kovalsky was hired to do some work for Mr. Bhatt. I am satisfied that he did some of that work.

However, I am not able to assess the value of the work that he did do. I am also satisfied that there was some work undone when Mr. Kovalsky had to leave the job to look after his father. Mr. Kovalsky stated in one of his emails (August 31, 2020, 2:00 pm) that he had photographs of the work that he did do. If those photographs did exist, they were not provided to the court. Neither were there any other witnesses called who were able to speak to this point. Mr. Kovalsky admitted that he was working on other jobs at this time. He never invoiced Mr.

Bhatt, but simply sent insulting emails demanding payment which also said, “see you in court.” He testified that since this incident he has changed his approach to work and now keeps track of his hours and the work he does using an app. [ 26 ] Therefore, while I do accept that Mr. Bhatt received the value of some work from Mr. Kovalsky, that Mr. Kovalsky did some work that he was not paid for and that there was not a legal reason for him to be unpaid, I am not able to assign a monetary value to that work. [ 27 ] Accordingly, I dismiss Mr.

Kovalsky’s original claim for lack of proof on the civil standard. [ 28 ] There will be no costs awarded to either party. By way of hopefully helpful comment, I suggest that both govern themselves differently in their business and personal dealings in the future. Heard on the 09 th day of November, 2023. Dated at the Hamlet of Fort McMurray, Alberta this 13 th day of December, 2023. S.A. Cleary A Justice of the Alberta Court of Justice Appearances:

James A. Kovalsky - Self-Represented for the Plaintiff (Defendant by Counterclaim) Sitanshu Bhatt - Self-Represented for the Defendant (Plaintiff by Counterclaim)