RAYMOND BASTARACHE Plaintiff/ defendant by counterclaim And: PATRICK FARRELL First Defendant/ first plaintiff by counterclaim And: RIVERSIDE EXCAVATING LIMITED Second Defendant/ second plaintiff by counterclaim, 2019 NLSC 153

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Bastarache v. Farrell , 2019 NLSC 153 Date : August 14, 2019 Docket : 201401G5243 Between: RAYMOND BASTARACHE Plaintiff/ defendant by counterclaim And: PATRICK FARRELL First Defendant/ first plaintiff by counterclaim And: RIVERSIDE EXCAVATING LIMITED Second Defendant/ second plaintiff by counterclaim Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 10-14, 2018; September 27-28, 2018; and March 25, 2019

Appearances: Raymond Bastarache Appearing on his own behalf David R. Power Appearing on behalf of the Defendants/ Plaintiffs by Counterclaim Authorities Cited: STATUTES CONSIDERED: Mechanics’ Lien Act , RSNL 1990, c. M-3 ; Judgment Interest Act , RSNL 1990, c. J-2 . RULES CONSIDERED: Rules of the Supreme Court, 1986 , SNL 1986, c. 42, Sch. D . REASONS FOR JUDGMENT Paquette, J. : INTRODUCTION [ 1 ] In September 2013, the plaintiff purchased oceanfront property for an executive three-storey home with plans for another executive home on the same lot.

He was seasoned in aspects of housebuilding, having organized construction and sold between eight and ten homes, and his testimony confirmed that he took enjoyment from being on site while the contractors’ progress with their work. He had worked with the defendants in the past and on 2 May 2014, engaged the first and/or second defendant to do general construction and concrete/foundation work on his property to construct the foundation.

The first defendant is the sole shareholder of the second defendant. [ 2 ] The parties did not enter into a written contract setting out the final contract price and ultimately disagreed on the terms of their arrangement. The first defendant said that he and the plaintiff had agreed to a two-track payment process; there was the “cash track” and the “invoice track”. Cash payments would be made unless the expenses related to purchases from third parties. The plaintiff denied any such two-track system.

While he was willing to pay in cash, he always demanded a written receipt. [ 3 ] For the most part, the plaintiff paid the material suppliers directly. The plaintiff said that whenever he made payment, an employee of the second defendant, Ms. Mercer, would give him a written bill acknowledging that he had paid. [ 4 ] Work was by and large completed on 27 May 2014 subject to remediation of an uneven wall.

The wall had been brought to the attention of the defendants and there appeared little dispute that it would be fixed by the second defendant. [ 5 ] The first and second defendants demanded payment for the construction of the foundation by 28 May 2014 by way of a cash payment in the amount of $10,000. Ms. Mercer contacted the plaintiff and explained that the cash payment was necessary for payroll purposes.

The plaintiff testified that he was given the final invoice for the project at the offices of the second defendant and requested a day to review the invoice, permitting him to compare the times billed to a separate record he had kept while on site. A cheque in the amount of $1,700 was given to Ms. Mercer to cover the cost of rock delivery by a third party. [ 6 ] The first defendant testified that he was enraged when he learned that payment had not been made in full.

Despite admonitions from his spouse that he pursue appropriate legal action and despite the substantive remedies contained in the Mechanics’ Lien Act , RSNL 1990, c. M-3 , the next morning he had the second defendant’s excavator driven to the site and purposefully destroyed one-half of the foundation. The first defendant testified that he had reached the point of “Caesar crossing the Rubicon”.

As this event unfolded, the plaintiff pleaded with him to stop, telling him that he had the money requested in his truck along with a draft agreement respecting a $1,000 holdback for the uneven wall. [ 7 ] Criminal charges ensued for the destruction of the plaintiff’s property. The plaintiff subsequently discovered another problem with the work, a bowed wall on the remaining foundation.

These civil proceedings involve the plaintiff’s claim for the costs associated with the damages caused by the first and second defendants, which include the cost of associated construction delays, loss of use and enjoyment of the plaintiff’s property, damages sustained to the foundation, and the repair of the subsequently discovered bowed wall

through trespass and breach of contract.

The first defendant counterclaims for payment of money he maintains are still owing to him under the verbal two-track agreement, including invoices created after the fact. [ 8 ] The first and second defendants counterclaimed for $38,345.23 which is alleged to be still owing on the contract together with special damages for loss of revenue and loss of goodwill and trading name that this lawsuit has caused the second defendant. [ 9 ] In my review of the evidence, I dismiss the defendants’ counterclaims in their entirety, and I accept the plaintiff’s claim for the repair and restoration of his foundation and the measures which he took to address the bowed wall.

I do not accept the plaintiff’s claim for mental distress or loss of future property value because he has not provided this Court with proof on a balance of probabilities that these heads of damages are founded. The defendants offered the Court no credible evidence to establish that additional monies were owing for the foundation work, and I found the first defendant’s evidence lacking in credibility throughout. I am satisfied that the second defendant, through Ms.

Mercer, duly provided the plaintiff with written invoices on a progress basis and that the bill presented to the plaintiff which he asked to review, was the final invoice. [ 10 ] I will summarize the evidence in support of my findings. The parties had a verbal agreement with the plaintiff providing periodic payment as the work proceeded. A final global project amount was never discussed. The plaintiff was quite familiar with the cost-per-foot for formwork and was satisfied that the “tape doesn’t lie”. The second defendant charged him $120 per hour for the excavation work and $100 per hour for the tandem truck.

The defendants demanded cash payments from time to time, and the plaintiff was willing to pay in this manner on the condition that he be provided a written invoice. [ 11 ] The plaintiff meticulously monitored the construction of the foundation and was on the site every day. As part of their arrangement, the plaintiff paid for the materials, for example, crushed stone and shale, directly. [ 12 ] The footings were installed in due course, then weeping tile and crushed stone.

The plaintiff explained that this is called backfilling and that this is all reflected in the final invoice he was given, all proving that the last invoice was final. The defendants have not demonstrated any basis upon which to establish that this was not in fact the final invoice. Invoices created by the defendants after the commencement of these proceedings were self-serving and cannot be given any weight. [ 13 ] The plaintiff testified that he was not dissatisfied with the work and had never suggested that he would not pay for the project.

He explained that the fact that the garage wall was uneven was not a major issue, it just made it more difficult to build upon. The parties discussed this in late May 2014, and the plaintiff said the outcome was positive. The first defendant told him that the uneven wall would be remediated with grouting or a stick frame. [ 14 ] The plaintiff recounts that Ms. Mercer contacted the plaintiff on Monday morning requesting a cash payment that day as they had a $25,000 payroll to meet Tuesday. The plaintiff’s bank did not then have $10,000 in cash, so he told her he would come by the next day. On Tuesday, Ms.

Mercer gave the plaintiff the invoice and he immediately provided her with a cheque in the amount of $1,700 to cover the cost of rock provided by a third-party supplier. The plaintiff said that Ms. Mercer told him it was the final bill and he wrote this on it, and it was entered as evidence. He took the bill with him to review it. He explained that he intended to check the number of hours included in the excavation work before paying as it was the final bill.

He never received any additional bills from the second defendant until subsequent to the filing of the counterclaim and maintains that these bills were fabricated after the fact only to incorporate into a counterclaim. [ 15 ] The first defendant said that he was shocked when he heard this because the plaintiff had agreed to pay the bill, and he needed the cash for payroll. He recalled calling the plaintiff and saying that if he did not get paid, he would come to reclaim the basement that he was not paid for. He testified that the plaintiff said that he would not pay him.

I do not accept the first defendant’s evidence that the plaintiff refused to pay the final invoice. [ 16 ] For his part, the plaintiff noted that overall, he had no difficulties with the amount remaining and that he told Ms. Mercer that she should tell the first defendant to give him a call as he only wanted to review the bill against his records before paying it. The plaintiff acknowledged receiving a call from the first defendant in the early hours of the morning, a conversation which he described as threatening, including the first defendant telling him that if he did not pay, he would demolish the foundation.

The plaintiff said that he hung up and contacted the police because the first defendant was in such a rage that he feared for damage to his property. [ 17 ] The plaintiff recalled that the first defendant came to the site the next day, 28 May 2014, in a truck owned by the second defendant with a float transporting an excavator, driven by one of the second defendant’s employees.

The plaintiff said that he had $10,000 cash in his vehicle parked at the site and was seeking only to withhold $1,000 to cover the uneven garage wall and that he had even prepared a draft agreement to cover that issue. [ 18 ] The first defendant took the excavator off the float and told the plaintiff to give him the money. The plaintiff yelled at him to stop, saying that he had the money and a draft agreement to address the uneven wall holdback, but the first defendant proceeded towards the property.

The plaintiff said that he stood in front of the second defendant’s excavator yelling, “kill me” and the first defendant placed the excavator bucket over his head. The first defendant continued to approach the foundation and the plaintiff was forced to move. In the course of the next 15 minutes, he knocked down fifty percent of the foundation’s walls. [ 19 ] In addition to the cost of replacing the damaged foundation, the plaintiff also claims for work to install buttresses to anchor a bowed wall which was only discovered after the demolition.

He said that he installed buttresses as an insurance policy for when he sold the house, noting that surface cracks were visible, on the recommendation of a reputable contractor. He said that the notoriety of the incident was rampant in the community, and it was an incident which would have to be disclosed on any resale. A real estate agent had testified that a potential buyer was not interested in viewing the property because he had heard of this incident. [ 20 ] To address his options in relation to the bowed wall, the plaintiff had a report prepared in July 2016.

Engineering advice stated that there was no structural concerns with the house. He made the decision to salvage what was there and not to tear everything down. The plaintiff remained concerned nonetheless with the impact on resale of the property given the notoriety of the demolition of the foundation and the value of the property. He said that replacing the entire wall would have cost much more. He explained that he had

talked to an engineer in August 2015 and was told that installing buttresses would not hurt.

The buttresses were not installed until 2016. [ 21 ] The evidence satisfies me that the first and second defendants are liable to the plaintiff for the damages incurred in replacing the damaged wall, in breach of their contract to construct the foundation. [ 22 ] For his part, the plaintiff has mitigated his damages in his decision not to remove all the foundation but to instead work to incorporate the replacement foundation with the existing portion and to apply buttresses and additional rebar to remediate the subsequently discovered bowed wall. He experienced delay in finding contractors to complete this work.

The defendants’ claim that the evidence confirmed that the addition of buttresses was not an engineering requirement and is not accorded weight—they had no independent engineering evidence before the Court. I consider this step taken by the plaintiff to be reasonable in all the circumstances. [ 23 ] The plaintiff testified that cleanup of the plaintiff’s property (removing concrete) started on 3 June 2014 and required further excavation. A new contractor replaced the walls and poured the forms.

The plaintiff received his last bill to replace the walls from the new contractor on 8 July 2014 in the amount of $5,508.75. After that, he explained that ties needed to be broken off, product recoated and the backfill redone. On 10 July 2014, the foundation was tarred and on 11 July 2014, weeping tile was put down even though weeping tile had been installed before the first defendant destroyed the foundation. The property was backfilled on 17 July 2014. [ 24 ] The plaintiff testified that it took 45 days to get the site back to where it had been.

On 17 July 2014, the plaintiff started building the house and moved into the property on 22 April 2015. He said that he lost four months in the overall construction project due to the actions of the defendants because he was unable to meet the

schedule of other contractors he had lined up for work after the foundation was completed. [ 25 ] I am accordingly satisfied that the plaintiff is entitled to reimbursement of rental expenses during this period, that he could not move into his house, which I find as being directly attributable to the actions of the first and second defendants. [ 26 ] The plaintiff said the situation was so stressful for him that he had to see his doctor for stress-related symptoms and was prescribed anti-anxiety medication.

His attending doctor testified that he saw him on 4 July 2014 suffering from a panic attack, stress and anxiety and again on 25 October 2016 and 11 January 2017 and that he reported flashbacks to the incident. The plaintiff had testified that he had experienced panic attacks in relation to other personal matters. The plaintiff represented himself throughout these proceedings, seeking legal advice from time to time to assist him in the drafting of pleadings and legal arguments. The plaintiff also had the foresight to have called the police in advance, and the criminal justice system became engaged.

I consider that the plaintiff’s actions in confronting the first defendant by standing in front of the moving excavator exacerbated his personal stress. He had already engaged the police and should have avoided this action which contributed to his emotional outcome.

He has failed to establish that the demolition of the foundation by the first and second defendants and its subsequent reconstruction with buttress reinforcement qualifies him for general damages for pain and suffering, and this claim is denied. [ 27 ] I am however satisfied on the basis of the evidence in relation to damages incurred in the reconstruction of the foundation, the plaintiff is entitled to those amounts which will cover the costs to have the damaged foundation replaced, including the removal of damaged concrete and the further excavation, as necessary, and the purchase and installation of new materials and correction of the bowed wall.

I am not satisfied that the plaintiff has satisfied the evidentiary burden that the delay in construction entitled him to losses relating to the downturn in the real estate market in the amount of $25,000. There was no credible evidence to establish this.

The following damages as claimed by the plaintiff in his final submissions and which are supported by the by evidence are allowed as against the first and second defendants: Cutting to join damaged wall with new wall $ 400.00 Replace ladder $ 458.85 Removal and disposal of damaged concrete slats $ 5,650.00 Concrete product required to replace damaged foundation $ 6,178.28 Paid to Concrete Pumping Inc. $ 830.55 Paid to replace foundations (A-1 Concrete Foundations) $ 7,780.00 Foundation coating $ 441.83 Purchase of rebar $ 564.76 Rental of drill $ 231.42 Paid to Victoria Building Supplies $ 606.58 Purchase of anchor bolts $ 50.29 Cost for engineer report (TEI) $ 1,725.00 Installation of buttresses $ 3,500.00 4 months’ rental due to delay $ 1,400.00 Additional building insurance incurred as a result of the delay $ 2,066.68 Casual labour employed to complete project $ 2,500.00

TOTAL: $34,384.24 [ 28 ] The counterclaim of the first defendant and second defendant for $22,000 (as modified at trial) is dismissed. The parties had filed case law which I reviewed but have not cited in these reasons. The plaintiff shall have his costs throughout on the basis of Column 3 of the Scale of Costs pursuant to Rule 55 of the Rules of the Supreme Court, 1986 , SNL 1986, c. 42, Sch. D ., to be taxed.

Given the involvement of legal counsel on an intermittent basis, it is appropriate that costs be taxed. [ 29 ] The plaintiff shall have his pre-judgment and post-judgment interest pursuant to the Judgment Interest Act , RSNL 1990, c. J-2 . _____________________________ Deborah J. Paquette Justice