Scotia Structures Inc. v. Singh, 2018 NSSM 33

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Scotia Structures Inc. v. Singh , 2018 NSSM 33 Claim No: SCCH 465504 BETWEEN: SCOTIA STRUCTURES INC. doing business as “ARCHADECK OF NOVA SCOTIA” Claimant/ Defendant by Counterclaim -and – SATNAM SINGH Defendant/ Claimant by Counterclaim Maurice Meagher, President, appeared on behalf of the Claimant. Ibrahim Badawi represented the Defendant. Editorial Notice: The electronic version of this judgment has been edited for grammar, punctuation and like errors. DECISION ( 1 ) The Defendant, Mrs.

Satnam Singh, hired the Claimant, Scotia Structures Inc. (“Archadeck”), to replace her old deck with a new style, namely a “Timber Tech Dry Space Below Deck Drainage System” at her house at 71 Herring Cove Road, Halifax. The contract included the removal and clean up of the old deck. The new deck consisted of systems of drains (referred to as “pans”) situated beneath the deck boards which drained rain water away and directed it to a drain along the side walls. This was an important feature as below the deck was Mrs.

Singh’s car port which was used as both a shelter for her car, a general storage area and the entrance point to an apartment. An electrical panel was also located there. The discussions for the work were handled exclusively by Maurice Meagher for Archadeck and the Defendant’s son, Paul Singh. ( 2 ) The terms of the contract are not in dispute. At issue is the status of certain representations as well as whether the Claimant did

indeed fulfill the contract. Archadeck claims the balance owing under the contract plus interest on the unpaid balance. The Defendant disputes she owes anything further and claims $25,000 to address their current and future expenses to remedy what they describe as deficiencies. Background ( 3 ) The parties signed an agreement on June 29, 2016 for the replacement of the existing deck with a new deck.

The work was to be paid in three payments: $9101.30 due upon signing, a second payment of $9101 once decking was started and the third payment, $9101.30 upon substantial completion. ( 4 ) The first payment was made on June 29, the second on August 9. The third remains outstanding. The Claimant is seeking $9101.30. The Defendant has filed a counterclaim alleging deficiencies to the extent that it results in a complete failure of consideration. ( 5 ) I note the decision and order were filed beyond the 60 day time limit prescribed by the Act .

The Supreme Court of Nova Scotia has found that the time limits prescribed under that

section are directory rather than mandatory and do not trigger a loss of jurisdiction if the timelines are exceeded. Nevertheless, the parties have been anticipating the release of this decision. Issue - Was there a breach of contract by the Claimant in the construction of the deck and if so, what is an appropriate level of damages or set-off? The Evidence ( 6 ) The evidence provided in this proceeding has been well-presented.

While I have not referenced all of the evidence in this decision, I have considered all that was tendered and given it the appropriate weight. ( 7 ) Maurice Meagher is the president of Scotia Structures. It is a franchisee of Archadeck. He owns the company with his wife, who handles some of the tax reporting. Mr. Meagher runs the business, which builds and installs decks and performs related contracting. ( 8 ) Mr. Meagher testified that he met with Satnam Singh and her son, Paul Singh, in 2016 and presented them with two options for decks.

They decided on the Timber Tech system which consists of drainage under deck planks. There was also a separate agreement for concrete work. ( 9 ) He confirmed the contract price for the deck was $23,742 plus $3561.30 HST, for a final price of $27,303.30. A separate concrete job was sought and subcontracted to a third party who did not give evidence in this matter. There were several schedules in evidence showing the scope of the work on the deck. ( 10 ) After the work was completed, the Claimant was presented with a “punch list” showing a list of alleged shortcomings.

These included rear flashing detail, install pressure treated trim, fix the downspout and wiring. Mr. Meagher describes the work as completed and the final payment has not yet been made. ( 11 ) Mr. Meagher tendered into evidence a series of documents referencing the scope of work. The work was subject to a limited warranty which is also in evidence, but was not raised as a defence. The substantial documentation he provided included building plans, electrical and finishing notes, renderings of the proposed deck, photographs of the old deck as well as the new deck, including the deficiencies.

There is also a series of e-mails between Mr. Singh and Mr. Meagher and/or other employees of Archadeck. ( 12 ) The photographs in evidence were taken in May 2016, prior to commencement of the work. The old deck had a concrete base and drained through a pipe opening in the floor. There are emails from Mr. Singh in evidence as well, which commenced in September 2016. It was a series of requests on the part of Mr. Singh for Mr. Meagher to remedy the water flowing underneath the deck into the carport. Each time, Mr. Singh alleges the work was “horrible and disgusting” and “unsightly”. ( 13 ) Mr.

Meagher described the deck prior to the work being done. These photographs were either taken or open on May 26, 2016. They were taken to show the decking and concrete work that was on-site and in need of removal. He showed in his evidence there was pooling on the old deck prior to the new deck being installed. It is also clear that moisture had been a problem as both Mr. Meagher’s and Mr. Singh’s photographs show algae on the walls beneath the old deck and cracks in the foundation which leak. The photographs of the old deck showed an electrical meter, allegedly, without exterior grade boxes.

( 14 ) He showed photographs of the work post-construction. He testified the original boards were tight but widened with a circular saw to allow for runoff. He showed where the deck boards were cut and indicated that the system repelled water once it was cut. He attributed some of the backup due to gardening where the water cannot run. ( 15 ) He testified the construction was viewed by representatives from Timber Tech who advised him all was performed as required. Nobody from Timber Tech gave evidence. ( 16 ) Mr. Meagher produced two videos. He indicated where water was running from a crack in the foundation.

When that happens, the water will by-pass the system and go through the cracks. ( 17 ) In the second video, he and Lawrence White hosed the deck with water after the work was completed. He found the water ran adequately into the troughs. ( 18 ) Under cross-examination, Mr. Meagher testified he has been in business for 15 years following a degree in Information Systems from St. F.X. He has had product training on some of his offerings. He does not have any formal education in construction.

His company, Scotia Structures Inc., has eight employees. ( 19 ) He testified the work on the Singhs’ property was performed by sub-contractors. The deck was installed by Mark Pellow while the gaps in the deck boards were cut by Colin MacKenzie. Mr. Pellow was charged with the task of removing and replacing the pans used to catch the rain water when problems occurred. ( 20 ) He confirmed his construction manager, Garnet Boutilier, is no longer employed with his company. ( 21 ) He denies using any description that “there would not be a drop of water”.

He believes the work was substantially completed by the time the punch list was received in October 2016. Beyond the punch list, he did not receive any complaints from Mr. Singh until they attempted to collect the balance. ( 22 ) He did not respond to all of the complaints alleged by Mr. Singh. He limited his response to those issues mentioned on the punch list. He denies making repairs using only a caulking gun. He believes spraying with a garden hose was sufficient to show how the work was performed. He testified the flashing and other work was examined and passed by the HRM building inspector. He believes Mr.

Singh to be stalling in payment and does not believe he has problems. ( 23 ) He believes the pans are handling the water correctly and the problem is fixed. He disagrees with the solutions proposed by Mr. Cowie. Specifically, that the solution is not a simple job. He spoke to the concrete stairs. He did not check the rise and run of the steps. Further, with respect to the algae, he indicated it predates the deck’s construction. ( 24 ) At a later date, he offered to attend to review any potential safety concerns but Mr.

Singh would not let them. ( 25 ) Lawrence James White is a construction engineer with over 30 years experience as a general contractor for commercial, residential, industrial and marine matters. He now does structural and civil engineering for residential and small commercial projects. ( 26 ) On September 19, 2016, he attended to the Singhs’ residence to view the work that had been carried out. He testified that he did not notice a failure of any kind. He found the flashing was caulked tight to the wall. He found the deck was adequately framed for a load and the size of the deck. The railings appeared adequate.

He found the handrail on the deck was inadequate. He estimates it is a 4 to 8 hour job using standard sized lumber (2 x 4s and 2x6s), brackets and a rail. He estimates the cost of $500. ( 27 ) He is familiar with Archedeck’s products. He describes them as meeting the National Building Code and the building details were satisfactory. He described Archadeck’s workmanship as within industry standards. ( 28 ) In answer to my question of what comprises industry standards for a deck, he indicated it should be roughly finished. It deals with the levelness of the installation.

There will be variation due to shrinking of the lumber. He recalls the installation as straight and level. The fasteners, screws were aligned properly. ( 29 ) He submitted a report in evidence. In his report, he described the construction as in accordance with the 2010 version of the National Building Code of Canada. The most recent version (2015) was not proclaimed in force until January 1, 2017, after the construction was complete. The deck is blocked mid-span to guard against vibration. The deck boards used are typical. He described the screw pops as typical when deck boards shrink.

He described the northside flashings as standard. He believes the 1/8” gap is adequate

between the boards. He purported to append a number of related documents to the report but they were not there or introduced into evidence. ( 30 ) In cross examination, he commented on the Cowie report. He did not remove the boards to check the flashing but observed some fastened to the wall. He did not see the ledger board against the wall. He acknowledged that if a deck were water tight, there should not be water during rain storms. He acknowledged that sprayed water does not replicate the response to the system in the same way as rain.

When observing the ledger boards, he did not observe the lag bolt. ( 31 ) He described the water build up as the result of the sitting in a gap or a groove. If the ledger board is short, the water will gather in the groove causing the build up. ( 32 ) In redirect evidence, he confirmed that if the water flowed through the pans into the gutter. One would not normally see flashing as in photo 24 in the Cowie Report. Furthermore, he observed the flashing in Cowie photograph 8 which allows water to run. ( 33 ) Preet Paul Singh is the son of the Defendant who attended to most of the negotiations.

He and his mother became concerned about the snow loads on the deck in 2012/2013 and decided to replace the existing structure. He did not experience any leaking with the old deck until 2012. ( 34 ) He went to Mr. Meagher’s office to discuss the work to be done. He wanted to ensure that water stopped from leaking into the driveway. Mr. Meagher assured him he had the skill and ability to do the work. He confirmed Mr. Meagher stated there would not be one drop of water. He qualified the statement saying it would not leak into the car port.

He signed the deposit cheque and his mother signed the contract. ( 35 ) He tendered into evidence an affidavit which was provided to Mr. Meagher prior to the hearing. It includes several exhibits showing wet spots under the car port and several areas where it leaks. He showed the leaks around the old electrical meter. The videos in evidence also show where water pools on the deck and not runs into the drain. ( 36 ) Mr. Singh referred to the contents of his affidavit. Exhibit 1 shows where the pan warps when covering the joist. He referred to the green underneath the deck on the walls of the car port.

He describes the water as pouring out of the top and not being caught by the drain. He indicated the water has been leaking and pooling since May 2017. ( 37 ) He showed subsequent videos taken in January 2018. In his opinion, the problems persist. He has shown where water continues to drip under the deck at the opening where water accumulates. ( 38 ) He showed where the water pools on the deck. He is concerned for his mother’s safety if she were to slip in the water. Mr. Meagher did not remedy the situation or make any comments about how to remedy the problem. ( 39 ) Mr.

Singh was present for the discussions regarding the concrete steps. These included repairs to the concrete and removal of the old concrete. Mr. Meagher agreed to do that by way of a subcontractor. Briar Concrete attended the site. He claims there is 20 square feet of concrete not finished. ( 40 ) Under cross examination, Mr. Singh acknowledged signing the contract and that a further $9101 remained outstanding. He further acknowledged the final payment was due once substantially complete. He acknowledged the definition of substantial completion under the contract.

He acknowledged the items on the punch list were signed off and the requirement to make payment was triggered. He confirmed the work was done “but with trials and tribulations”. ( 41 ) He reviewed the photographs of the old deck and acknowledged the green stains on the wall in the car port. He does not believe there were algae on the walls before the construction project. Mr. Meagher attempted to have Mr. Singh acknowledge water present on the concrete wall to show a crack in the wall. The video evidence is clear. There is a crack.

He was uncertain as to when some of the work was done. ( 42 ) He testified there were instances of issues with water since late 2016 even though there were only videos at certain times in evidence. He does not know how the water made it to the undersides of the pans. Mr. Meagher questioned the finding that it was pooled on December 25 as there was a weather report showing only 3mm rain. He confirmed he advised the Claimant to stop working. ( 43 ) In redirect evidence, he acknowledged there were boards cut after the videos were made. He testified that he hired Mr.

Cowie to obtain an engineer’s opinion, so he hired an expert after things went awry with Mr. Meagher. ( 44 ) Satnam Singh is the defendant in these proceedings. She owns the property at 71 Herring Cove Road. She is the mother of Paul

Singh. She indicated that her son attends to her business affairs, such as the construction of her deck. She was present when she heard Mr. Meagher promise there would not be a drop of water in the carport. They provided $500 down followed by the payments under the contract. She testified they need money to fix the problem. ( 45 ) James Wayne Cowie is a structural engineer. He has been the owner, president and principal engineer of JW Cowie Engineering Limited since 1972. His lengthy curriculum vitae was tendered into evidence. He has been qualified to give expert opinion evidence in the courts in Nova Scotia.

He was qualified to give expert opinion evidence in the field of structural engineering. ( 46 ) Mr. Cowie tendered into evidence his report comprised of two volumes and a

summary. He was initially contacted by Paul Singh who indicated he was not happy with the construction of the deck. He described the typical deck as allowing water to flow through the deck and down its side walls. This deck was designed to have a below deck dry space so that the water would flow through the deck boards, collect in the draining system where the water would be directed to drainage troughs. ( 47 ) He reviewed several of the Claimant’s plans in evidence and made several comments on them. Plan FD–1 and FF–1 showed 2x12 joists which do not exist.

He described several concerns that a portion of the wall was not close to the deck. FD-1 shows the deck supported by a retaining wall, when in fact, the deck is supported by a post. ( 48 ) He was most critical of the flashing which in his view caused water leakage. Specifically, he stated as follows: “Rain water and melt water flows off the adjacent concrete slab on grade onto the deck and down the face of the west wall and into the dry space. A metal flashing appears to have been installed on top of a 2" x 6" (nom.) ledger board anchored to the face of the foundation wall.

The flashing does not extend sufficient distance out from the face of the ledger board to prevent water from flowing down the face of the ledger board and down the wall below. Details of the metal flashing at deck level concealed by the deck and 2" x 6" placed continuously adjacent to the face of the concrete slab on grade.

Space between the 2" x 6" in the face of the concrete slab on grade is filled with caulking.” ( 49 ) Later on in his report he notes the following regarding water leakage on the western joint by the south side of the deck: “There is no flashing extending from the ledger board to direct water away from the interior face of the wall and into the gutter below.” ( 50 ) Further, with respect to the eastern portion of the wall he states: “The gutter is not tight fitting against the wall and there are no flashings to direct the water into the gutter water leakage is flowed down the face the wall.” ( 51 ) Elsewhere, he describes as inadequate the anchorage of north east guard posts.

He also recommended caps on the decking and a handrail for the stairs. ( 52 ) In his report, he provided a number of photographs. He indicated that water is supposed to be directed towards the drainage to be redirected along the walls. The manufacturer did not show all of the details of the drainage. ( 53 ) Mr. Cowie prepared new drawings which accompany his report. ( 54 ) He recommended new topping for the concrete steps as well as a new handrail.

He would not describe the work as skillful or to a high standard. ( 55 ) He showed several examples of red Tyvek tape being used as a membrane against some of the water. In his opinion, proper flashing ought to be used rather than a plastic membrane. He believes the cause of the water infiltration is improper flashing. He had not seen the videos other than when he was present in court. In his opinion, none of the leaks which he viewed were caused by cracks. He believes they were all caused by inadequate flashing.

(56) In cross-examination, he indicated he does not believe the water test using a hose was an adequate test of the run off of thesystem. He does not believe the water should run past the deck. He acknowledged that some of the water in the east end of the carportcould come from weather, i.e. wind and rain blowing in the open end, but he does not attribute all of the problem to this. He does notbelieve the water running in the carport is the result of the crack as the water table is not that high.

(57) He discussed the process for a building inspection. He does not believe a building inspector would verify flashings. The inspectorwould be more concerned with how the deck is connected to the house.

(58) He was aware that Paul hired a contractor who removed and replaced some of the pans. He described the replacements asisolated examples. When asked if taking the pans out and replacing them causes leaks, he indicated that would not occur when they wereagainst the wall. The pan installation problem was not the problem. Water does not get to the pans. Mr. Cowie acknowledged seeingwater condensating through cracks in the underside along the wall. They drip into the gutter below. In the summertime there was nocondensation.

(59) Mr. Cowie acknowledged both a white strip and blue flashing on the 2x10’s in the photograph in his report. He alsoacknowledged metal flashing in another photograph. He does not recall Mr. Singh replacing his electrical panel. The handrail was notmissing. It was the proper height beyond the top and bottom. He acknowledges that the building inspector inspects to ensure the deck isconstructed according to code.

(60) In redirect evidence, he stated he does not believe the cause of the seepage is a cracked foundation. He believes that if theflashing were replaced, we would not see water. He does not know what was done during the inspection. He is aware that the deckpassed its inspection without building code violations. He acknowledges the condensation will result from a change in temperature, but itwould not result from improper flashing, gapping, pulling or leaking.

(61) In rebuttal evidence, Mr. Meagher testified that he did not say at any point to either Mr. Singh or Mrs. Singh that there would notbe a drop of water. He acknowledges that water runs through deck boards. He testified there was flashing and the flashing served itspurpose.

(62) Mr. Meagher attempted to introduce a video which he took prior to the hearing without Mr. Singh’s permission or leave of thecourt. Mr. Singh did not consent to his being at his home taking the video. The particular video evidence is inadmissible. The Law

(63) Mr. Badawi submitted a helpful brief which included a comprehensive review of the law. He cited a case I decided, Lowe vShanmaura Developments Inc., 2013 NSSM 46: “When dealing with construction contracts, the law requires that work be completed in a good and workmanlike manner. This has beeninterpreted by the Nova Scotia Supreme Court in Flynn v.

Halifax Regional Municipality (2003), 2003 NSSC 253 , 219 N.S.R.(2d) 345 per Justice Arthur LeBlanc: ‘Certain terms are implied in every building contract: materials must be of proper quality, the work must be performed in a good andworkmanlike manner, the materials and work, when completed, must be fit for their intended purposes, and the work must be completedwithout undue delay (Markland Associated Ltd. v. Lohnes (1973), (NS SC), 11 N.S.R. (2d) 181 (S.C.T.D.); Girroir v.Cameron (1999), (NS SC), 176 N.S.R. (2d) 275 (S.C.))”.

While this case was varied by the Court of Appeal at 2005 NSCA 81, the principle was cited and not overturned. Justice LeBlancrecently applied this principle in the case of Pavestone Creations Limited v. Kuentzel, 2013 NSSC 199, where he added the following: In the Manual of Construction Law (Toronto: Carswell, looseleaf), Howard M. Wise comments, at §3.5(b)(ii), that courts will imply aterm in a construction contract that the work contracted for will be completed in accordance with a certain standard. What the comparative standard is will depend on the nature of the work and the

parties’ expectations and may include the industry standard, a regulatory body’s standards, or other acceptable standards. [46] Another term which has been implied in construction contracts is that the contractor’s work be completed in a proper and workmanlike manner. What constitutes a “proper and workmanlike manner” will seemingly depend upon the particular facts of each case. [47] A similar phrase that is often used as an implied term in a construction contract is that the work must be of quality or suitable workmanship.

If the workmanship is not of the quality that an owner could reasonably expect, the contract is in breach. [48] There is authority to the effect that in determining the appropriate standard, the court should consider “all the circumstances of the contract including the degree of skill expressly or impliedly professed by the contractor”: Donald Keating, Building Contracts, 4 th edn. (1978), at 37, cited in Stavely Community Centre v. L.&D. Masonry Enterprises Ltd. (1983), 45 A.R. 375 , [1983] A.J. No. 813 (Alta.

Q.B.) , at para. 14 . ( 64 ) As I have stated in previous decisions, decisions of the Small Claims Court are not binding, although they may be persuasive. This case has often been cited in later construction cases. Lowe v Shanmaura is an appropriate

summary of the applicable principles in construction cases. I consider those principles in conjunction with the terms of this contract. Findings ( 65 ) The parties entered into a contract for the construction of a deck above the car port. The deck was to have a dry space beneath created by water running through the deck boards and into pans. The cost of the deck was $27,303.60. ( 66 ) Mr. Badawi, on behalf of his client, placed considerable weight on the language used in Archadeck’s promotional material and references to quality of service.

While promotional material can form part of the contract and specific promises contained therein can be enforced, references to jobs being of “higher quality” and “superior” are not enforceable. To use an old phrase, such statements are “puffery”. ( 67 ) Mr. and Mrs. Singh both testified that Mr. Meagher promised there would not be one drop of water in the carport, subject to what may blow in from the east opening. Mr. Meagher denies making such a promise. If such an absolute promise were made, however misguided, it could be enforced. Mr.

Meagher impresses me as someone who is more careful than such a statement would indicate in his transactions. Given my impressions of him, I find it unlikely that he made such a statement. Mr. Singh’s evidence, particularly his e- mails, often contains embellishments. Where promises are made or allegedly made, he has been very careful to document them. He would have documented that statement early on had there been any such reference. I believe Mr. Singh believes the statement happened as he described.

However, neither he nor his mother have proven it. ( 68 ) Notwithstanding my findings regarding “not one drop of water”, I find it key to this contract that the deck design was intended to create a dry space. A reasonable person would infer that the deck was to be constructed to divert water away from the carport so that water would not enter it. There is no evidence as to what a reasonable margin of error would be. It is not a standard of perfection.

As I will note later, there is water which still seeps into the car port in addition to that which blows into the open end. ( 69 ) The deck serves a twofold purpose, a patio area for the enjoyment of the Singhs and their guests and a protective cover for the carport against the elements falling above it. The Timber Tech system was chosen with the latter objective in mind. Moreover, the deck was to be constructed in a “good and workmanlike manner” to serve these purposes. ( 70 ) I have reviewed all of the photographs and videos in evidence.

In addition, I have considered the opinions of Lawrence White and James Cowie. Due to technological difficulties, it was necessary to view the videos in court on Mr. Badawi’s laptop. I had the advantage of viewing them on a larger screen since then. I make the following findings of fact with respect to the construction of the deck and the water which flows from it. ( 71 ) In several photographs, there are cracks showing in the foundation. These were present prior to the construction of the new deck and remained there afterwards.

There is evidence of dampness including algae on the walls depicted in the photographs taken in May 2016 and after the work on the deck was finished. In his e-mails and in viva voce evidence, Mr. Singh attributes this to the actions of Archedeck. Clearly that is not the case. ( 72 ) In the photographs and videos, a dull coloured compound is present on some of the cracks in the walls, near the electrical box

and elsewhere. No evidence was called by either party as to what that was. However, I note it was sprayed where one might expect to see leaks or protect against water flow. ( 73 ) Several of the videos were shot by Mr. Singh on rainy days. He took close up shots of the pans which hang over a drain. There are square holes cut into the pans that are hanging above the plastic gutter. The pans do not appear to be manufactured this way. Based on what appears to be a rough looking edge, I find the openings were manually cut. There is no evidence of flashing on the deck floor.

In order to find any, the pans must be removed. ( 74 ) I find water flows through the side panels and misses the drainage system because it is not adequately diverted away. This occurs along the wall closest to the house. Mr. Cowie observed that the new lumber experienced water leakage at the junction of the west foundation wall. There is evidence of flashing in other shots. There is also leakage at the southwest corner. In other words, the flashing is present but it does not lead the water away from the wood. Mr. Cowie is of the opinion this is inadequate and needs to be replaced. Mr.

Meagher stated the flashing acted as intended. ( 75 ) I reviewed the evidence of Mr. White and Mr. Cowie. I find Mr. Cowie’s evidence more thorough and comprehensive. I favour his

interpretation of the deficiencies over that of Mr. White. ( 76 ) In order to test the system. Mr. Meagher sprayed water over the deck. Both Mr. White and Mr. Cowie expressed the opinion that it was not a realistic way to determine the effectiveness of the flashing. In my view, any errors in construction would not be adequately identified in this way. ( 77 ) In

summary, I find as a fact the flashing on the deck at several points was inadequate and caused the leakage into the car port below. This was contrary to the intention of the parties based on the surrounding circumstances. In other words, on this issue, the Claimant breached the contract. ( 78 ) I find the Defendant has proven there were deficiencies for which she is entitled to either a set off or counterclaim.

Calculation of Damages ( 79 ) It has been stated in numerous cases and texts that the object of an award of damages in a breach of contract is to put the parties in the position that they would have been in had the breach not occurred. Payment to the Claimant ( 80 ) The evidence is clear that but for the claimed deficiency, the Defendant would have paid the Claimant in full upon completion of the punch list. Indeed, Mr. Singh agreed with Mr. Meagher that those steps were taken.

I have made the adjustments below, but I start from the position that the Claimant has proven the balance of $9101.30 is due, less any set off or counterclaim for deficiencies. ( 81 ) It is important to point out that if either the claim or counterclaim exceeds the amount awarded to the other party, a set off is available. Counterclaim ( 82 ) The Claimant has proven the flashings are inadequate and therefore, not installed in a good and workmanlike manner. There is water in the car port, but not all of it has been caused by the defective flashing.

Further, not all of the problems experienced by the Singhs are the result of Archedeck’s work. In other words, the work has its problems but it is not nearly as bad as described by Mr. Singh. Furthermore, the report of J.W. Cowie identifies several problems about which no additional evidence was tendered. Based on the submissions of the parties, I am limiting my findings to the costs to remedy the flashing. ( 83 ) The problems were discovered in 2016. The problems were not raised by Paul Singh until the third payment was sought.

There are several quotes to remedy the problems ranging from $10,500 plus HST to $15,850. Mr. Cowie proposes several solutions at a higher rate. As noted, these quotes include other jobs not related to the flashing. I am not satisfied the whole project needs to be removed. I do not agree with Mr. White that it can be remedied for $500.00. ( 84 ) The overall remediation costs which are described in the Defendant’s submissions include the services of Mr. Cowie and his report. His fee alone was $19,028.31.

Mr Badawi quoted the New Brunswick Court of Appeal in Acme Investments Ltd. v York Structural Steel Ltd ., 1974 Carswell NB 156 :

“In my opinion, a reasonable person in the position of the defendant would be taken to know there was a serious possibility that in the“ordinary course of things” an owner who had reason to believe a building contract was improperly performed by the builder would seekthe assistance of a professional engineer to ascertain the deficiencies and the cost of correcting them. In its factum, the plaintiff submitsthat the award of $30,000 is reasonable. In my opinion, the costs of such services are reasonable...”

(85) Other frequently cited cases include the British Columbia cases of Farish v. National Trust Company, (1974) (BC SC), 54 D.L.R. (3d) 426 (BCSC) and Le Soleil Hotels & Suites v. Le Soleil Management Inc., 2009 BCSC 1303, where the courtsawarded fees for accountants and lawyers, respectively, to ascertain or remediate the issues raised by the Defendant.

(86) The British Columbia Court of Appeal stated the following in Le Soleil: “[369] As noted, the purpose of contract damages is to place the innocent party in the position that party would have occupied had thecontract been carried out. In some contract cases, it is a chance or opportunity that was lost as a result of the breach. In thesecircumstances, if the plaintiff can demonstrate a reasonable probability the benefit sought would have been obtained, the Court will valuethe likelihood that the chance would have been realized: Harvin D. Pitch and Ronald M.

Snyder, Damages for Breach of Contract, 2nded. (looseleaf), (Toronto: Thompson Carswell, 2008 update) at p. 1-1 & 3-1 to 3-13. [370] Where justified on the evidence, the Court may also award contract damages for professional fees reasonably incurred in aneffort to mitigate the loss: McMorran’s Cordova Bay Ltd. v. Harman and Co. (1979), (BC CA), 17 B.C.L.R. 173(CA) Farish v. National Trust Co.

Ltd. et. al. (1974), (BC SC), 54 D.L.R. (3d) 426 (B.C.S.C.). [371] A defendant will not, however, be liable for contract damages if, at the time of contracting, the parties could not “reasonablyhave contemplated the occurrence of the type of loss suffered given their knowledge of each other’s affairs”: Pitch and Snyder, supra, atp. 7-1. Knowledge may be actual or imputed.

The question for determination is “whether reasonable parties would have contemplatedthe type of loss that actually occurred had they put their minds to the effect of a breach of contract in the circumstances”: Pitch andSnyder, supra, at p. 7-23. [372] A plaintiff in a breach of contract claim is obliged to mitigate by taking all reasonable steps to prevent further loss once he orshe is aware of the breach. Where such steps are taken, the plaintiff can recover for loss and reasonable expenses incurred in sodoing: Asamera Oil Corporation Ltd. v.

Sea Oil & General Corporation et. al., (SCC), [1979] 1 S.C.R. 633; S.M.Waddams, Law of Damages(Aurora, Ont: Canada Law Book, Looseleaf) at 15-15.”

(87) The issue for this Court to determine is if the decisions to contact professionals are reasonable and the expenses incurredreasonably foreseeable. In one respect, it makes sense to seek the opinion of an independent professional, who, unlike a contractor, maynot have any additional work arise from the opinion, or as in Lowe v. Shanmaura, a contractor who justified the work done after it iscompleted. On the other hand, regard must also be paid to s. 2 of the Small Claims Court Act which states: Purpose 2.

It is the intent and purpose of this Act to constitute a court wherein claims up to but not exceeding the monetary jurisdiction of thecourt are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.

(88) As noted above, none of the quotes deal simply with the cost of removing and repairing the flashing. The total remediationsought by the Defendants was $35,688.82 plus interest and costs. The cost of the initial project was just over $27,000. The expert feestotal just over $19,000, almost 70% of the cost of the initial contract. Further, I have awarded less than originally sought to remediate theproblem. In my view, an award approaching that amount, even if reduced to the statutory maximum of $25,000 is not consistent with thepurpose set out in s.2.

(89) The Defendant has proven the flashing on the deck was inadequate and a breach of the contract. None of the quotes deal withthat issue alone. Accordingly, I must assign a value. I award $6500 damages to remedy the flashing and $1000 toward the expert’sservice. Costs

(90) I considered and I am bound by the following comment by Justice Heather Robertson regarding expert fees in an award of costsin the case of French v. Checkmate Inspection Services, 2009 NSSC 114: “There are no provisions for expert fees in the Small Claims Court Regulations. Notwithstanding the cases cited Glen ArbourCondominium v. Lisa Learning and Egan Wallett, 2006 NSSC 5 and Burgess v. Pickard, 2008 NSSM 15 which demonstrate thediscretion to award experts’ fees lies with the court. I do not find that this is a case where such an award should be made.

As a generalprincipal the purpose of achieving speedy and inexpensive resolution to small claims, is defeated if experts’ fees come into play in every

award of costs. Had this been contemplated by the legislation the regulations would have addressed the matter. In my view it would be a rare circumstance where such a discretion should be exercised.” ( 91 ) I do not find this to be a rare circumstance. ( 92 ) Given the degree of success by both parties, each party shall bear their own costs. Additionally, I decline to award prejudgment interest. ( 93 ) In

summary, I award the following: Claim Awarded: $9101.30 Set off: ( $7500.00) Total $1601.30 . Conclusion ( 94 ) The Claimant shall have judgment against the Defendant in the amount of $1601.30. An order shall be issued accordingly. Dated at Halifax, NS, on July 5, 2018 ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant (

s) Copy: Defendant(s)