R & P STAIR FINISHING Claimant (Defendant by counterclaim) - v. -, 2014 NSSM 28

Claim No: 419755 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: R & P Stair Finishing v. Think Kitchens, 2014 NSSM 28 BETWEEN: R & P STAIR FINISHING Claimant (Defendant by counterclaim) - and - THINK KITCHENS Defendant (Claimant by counterclaim) AND BETWEEN: Claim No: 420347 THINK KITCHENS Claimant - and - R & P STAIR FINISHING Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on November 20, 2013, December 16, 2013 and January 23, 2014 Decision rendered on April 20, 2014 APPEARANCES For the Claimant Kent McNally

Counsel For the Defendant Gilles Deveau Counsel BY THE COURT: 1 This decision concerns one claim (court file no. 419755) by R & P Stair Finishing (hereafter “ R&P ” ) for a debt owing of $3,686.90, and a counterclaim by Think Kitchens (hereafter referred to as “ TK ” ) for damages in the amount of $17,966.45. Claim no. 420347 is a separate claim by TK for damages in the amount of $17,095.90. The two claims were heard together as many of the facts and issues are the same. 2 The claim by R&P is not disputed, and regardless of the outcome of the other claims, the amount of $3,686.90 must be credited to R&P.

The real issues are the counterclaim and claim for damages by TK. The facts 3 TK designs and builds kitchens. R&P is in the wood finishing business. For approximately a year spanning parts of 2012 and 2013, the two companies did a lot of business together. 4 Basically, R&P did the finishing work for most if not all of TK ’ s kitchens designed and built during that time. Depending on the wishes of the customer, that finishing could be any number of clear or painted coatings.

The time in question was a busy one for both companies. 5 Typically, the kitchen cabinets would be constructed by TK, though the doors would be ordered from a large manufacturer such as Caron Industries in Quebec. The doors, as the most visible part of the cabinets, would form the bulk of the surfaces needing to be finished.

Although it was not TK ’ s only supplier, Caron was the door manufacturer for the kitchens that figure into this lawsuit. 6 Door manufacturers such as Caron offer an option of providing “ preference sanding ” which I understand to mean that the doors are supposed to be already sanded and ready for finishing with, at most, minimal touch up sanding to be done by the customer.

In the case of the doors relevant to this matter, TK ordered all doors with preference sanding. 7 In an ideal situation, where time lines did not need to be shortened, TK would receive the doors from Caron, unpack them at its shop and perform essential tasks such as the drilling of holes for hardware. This is best done before finishing, as there is a risk of harming the finish if it is done after. In theory, at least, this would also give TK a chance to inspect the doors for any flaws before sending them over to R&P. 8 In some instances, very likely including the ones in issue here, TK would be behind

schedule and would send the doors over to R&P still wholly or partly in the original Caron packaging and possibly on Caron pallets. In such situations, the drilling of holes would occur after finishing and any possible inspection of the doors by TK before finishing was theoretical at most. 9 All was well in this relationship until problems began to appear in two painted kitchens. Specifically, paint began peeling in a curious way. In these claims and counterclaims, the Court is asked to establish who is legally responsible for the cost of repairing the two kitchens.

10 There is no dispute about the unsatisfactory nature of these two jobs. People who pay significant money for kitchens have a right to expect that they will not start to peel in an unsightly way after mere weeks or months. 11 There is also not a great deal of dispute about the likely cost of repair, although counsel for R&P does not concede that these costs have been adequately proved. TK places the cost to repair each kitchen at approximately $17,000, which is detailed in estimates that it has created.

This includes the cost of new cabinet doors and, significantly, the labour involved in removing the doors and other elements and replacing them. The estimates include an allowance for the risk of damage that may be done in the dismantling process. 12 I also accept that the doors cannot economically be repaired. An effort to remedy one kitchen has already proved ineffective. The process of stripping and repainting the doors would be labour intensive and the underlying problem might remain.

So replacement is the only reasonable option. 13 There is no consensus among the parties, nor among the witnesses and others who have considered the problem, as to what precisely went wrong. Some explanations seem more probable than others. I am particularly sceptical of the theory floated by some of the witnesses for R&P that temperature or humidity fluctuations (while the doors were stored at TK ’ s facility or being transported) may have rendered the cabinet doors susceptible to peeling.

There is no compelling evidence that these doors were subjected to any such conditions, and little to support the view that they such conditions could have caused them to peel in the way that they have. 14 I am also dubious that the problem stems from improper primer or priming technique. Having stated that, the theory is not outlandish. The evidence seems clear that it is the primer, and not the subsequent finish coats, that has failed to adhere. Were it otherwise, the peeling would not expose bare wood, as it does.

In theory, there could be something wrong with the chemical composition of the primer, or with the technique of applying it. 15 Ordinary experience might suggest that this is a plausible explanation, but there is no actual evidence to support such a finding. The manufacturer of the primer performed some tests and found nothing wrong with its product.

While this evidence may be regarded as self-serving, I am persuaded to the view that there was nothing inherently wrong with the primer, by the observation of professional engineer Lawrence White, to the effect that if it were a primer problem he would have expected it to be much more widespread rather than only in certain areas. A defective primer would fail to adhere on a much more consistent basis than we see here. 16 As for the possibility of faulty technique, this is a difficult theory to credit because the primer is simply sprayed on, and Mr.

Singer is a highly experienced finisher. 17 That leaves the most plausible explanation, which is something called mill glazing. This is a condition that sometimes happens when wood is being milled, as a result of slightly dull sawing or planing equipment leading to a build up of excess heat. The process leaves a smooth, baked on residue that can repel a finish such as paint. It appears that mill glazing should normally be visible to inspection, but can sometimes be subtle.

Mill glazing can be compensated for by extra sanding, which roughs up the surface allowing the primer or other coating to penetrate and adhere. There are also apparently specialized primers or other chemicals which can break down the mill glazing and allow better adhesion. 18 It is the view of this Court that, on the evidence provided, the most probable cause of the failure of the painted coatings on these cabinets is mill glazing. This was the conclusion of Lawrence White, who was called as an expert by TK, although TK has somewhat distanced itself from this conclusion. Mr.

White has expert credentials in this specific area, and it was his opinion - arrived at after examining a representative sample of the doors - that this was the most likely cause of the problem. No other theory has any credence. Whose responsibility to detect mill glazing or a deficiency in sanding? 19 A great deal of the evidence and argument at the trial was directed to the issue of inspection: whose responsibility was it to inspect the doors and sand them, if necessary?

TK ’ s position 20 The position of TK, as expressed in the testimony of its principal, Melanie Irvine, is that it ordered its doors from Caron with the specification of “ preference sanding ” which means that it is ready to receive any type of finish. It expected R&P to inspect the doors before applying any type of finish. It also says that R&P knew, or ought to have known, that TK was not doing any sanding itself, and that in many cases it had not even unpacked the doors but delivered them over to R&P on pallets precisely as received from Caron. 21 Ms.

Irvine testified that her staff do sanding of the components that they manufacture themselves, such as the cabinets and filler strips, but that the doors are always ordered pre-sanded. She denied ever being told by R&P that TK was responsible for the sanding, or that there was ever a deficiency in the sanding of product that she sent over. 22 It was her evidence, and her position in this lawsuit, that she relied on R&P to apply the finish and that, if the finish failed, it was ipso facto R&P ’ s responsibility.

R&P ’ s position 23 The position of R&P, as expressed by its principal, Paul Singer, is that he makes known his requirement that all wood is to be sanded to 120 grit before it comes to his shop. He says that he does not do wood sanding; the only sanding he does is the sanding between coats of finish. He inspects wood products when he receives them, but just to see if there is any damage that he needs to be concerned about. He is adamant: R&P does not do preparation work (i.e. sanding).

He says that he made all of this known to TK through discussions with its staff which may or may not have included Melanie Irvine. 24 He also testified that his invoices make clear that the service he is providing is “ prime and finish. ” There is no reference to sanding or preparation of the bare wood. 25 Mr. Singer testified that he made the assumption that the doors were inspected by TK before being delivered to him, and that he could not recall having received doors that were in the original Caron packaging; i.e. he believed they had at least been opened and inspected by TK. 26 As for mill glazing, Mr.

Singer testified that if he noticed any, he would fix it - if he could. The same is true of any defects. He stated that he has never actually come across mill glazing. 27 In the case of the doors in question, had there been mill glazing, he would have expected to notice some problems with adhesion of the primer immediately. The usual reaction of the primer with the wood is that when it penetrates, it causes a certain amount of furring, which is what is sanded off before the finish coats are applied.

If there is no furring, there would be no fine dust created by the sanding, which would be a signal that something was wrong. No such problem arose here. 28 In the end, Mr. Singer says that he simply does not know why the paint failed. Legal issue 29 The claims by TK are put forward as contract or warranty claims. TK says that the kitchen components were turned over to R&P with a contractual promise by R&P to finish them competently and in a workmanlike manner. In case there were any doubt about the

express promise, there would also be an implied warranty by R&P under s.26 (5) of the Consumer Protection Act to the effect that: 26

(5) There shall be implied in every consumer sale of services a condition, on the part of the seller, that the services sold shall be performed in a skilful and workmanlike manner. 30 However, contractual understanding is a two-way street. The real question is whether or not there was a promise, express or implied, by R&P that it would be ultimately responsible for the wood being properly prepared. Its position is that the understanding was that TK was responsible for the preparation of the wood. 31 There was some evidence called about how other finishers operate.

I do not find this evidence to be of any assistance. The issue is the understanding between TK and R&P, not the understanding other finishers have with their customers. 32 Ultimately, the onus is on TK to prove on a balance of probabilities that it was the ultimate responsibility of R&P, and not of itself, to make sure that the sanding was adequate. On all of the evidence, this is not an onus that TK has discharged to my satisfaction. 33 Several facts stand out for me. First of all, it is clear that TK has sanding facilities at its shop. Indeed, it sands the components that it manufactures.

R&P knew that. 34 On the other hand, R&P does not routinely sand wood. The sanding that it routinely does is between coats of finish, which is a different process. Ms. Irvine knew or ought to have known the difference. 35 I accept the evidence of Mr. Singer when he states that he made clear to TK that all wood delivered for finishing had to be already sanded to 120 grit. The actions of TK do not contradict that. Rather, it appears, they were relying on Caron ’ s sanding to be adequate which would relieve them of any responsibility to sand.

As such, the risk that the sanding might be inadequate (because of mill glazing) would remain with TK and not shift to R&P. 36 On the question of inspection, this is a bit of a greyer area, but it is credible for Mr. Singer to say that he expected TK to inspect what they received from Caron. On many occasions, TK would be drilling holes in advance of finishing.

Even on those occasions when doors were being sent over without drilling, and even if still in original packaging, this would not suffice to shift ultimate responsibility for inspection onto R&P. 37 It is unfortunate that Caron was not a party to these claims, as it could have added to the evidence and potentially been in a position to shoulder some or all of the responsibility. In a sense, both R&P and TK are innocent parties.

Neither of them did anything obviously wrong, except perhaps to rely on Caron to deliver doors that were ready for finishing. 38 In a contest between two largely innocent parties, it is not unusual for it to come down to a burden of proof issue. It is also not unusual for the final result to be that the loss must remain where it falls. Was there an admission of responsibility by R&P? 39 TK argued in support of its position that R&P had actually admitted responsibility for the problem, but only withdrew from that position when it became clear how expensive it would be to fix these problems.

TK says that R&P made such an admission by initiating a claim with its insurance company, and also by attempting to repair the problem. 40 In my view, these actions do not constitute an admission. I regard them as attempts by R&P to “ do the right thing ” for the

customers, and to try to solve a problem regardless of who was at fault. Especially in the early days, I believe that R&P did not necessarily know whether or not it was at fault, but wanted above all else to preserve a valuable business relationship. Unfortunately, in the end the problem was not solved and the business relationship appears to have been irreparably damaged. Conclusion 41 In the result, TK has failed to prove that R&P is legally responsible for the problems experienced, and its claims must be dismissed. 42 Despite this conclusion, I am obliged to assess damages.

In the event I am wrong about liability and my conclusion were overturned on appeal, I assess the damages suffered by TK at the amounts claimed, namely $17,966.45 for the kitchen concerned in claim no. 419755 and $17,095.90 for the kitchen concerned in claim no. 420347. I do not find the estimates to be at all unrealistic, bearing in mind that they are estimates which take into account as best they can, all known contingencies. 43 As agreed, this results in a judgment in favour of R&P for $3,686.90, plus costs of $96.80. The counterclaim in claim no. 419755 is dismissed, as is claim no. 420347.

Separate orders will be drafted to reflect these results. Eric K. Slone, Adjudicator