Rhonda Marineau v. Sylvain Marineau, 2019 NSSM 20

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Marineau v. Mader’s Roofing & Masonry Limited (Mader’s Roofing & Masonry) , 2019 NSSM 20 Date: 2019-05-14 Docket: SCCH - 483307 Registry: Halifax Between: Rhonda Marineau and Sylvain Marineau Claimants - and - Mader’s Roofing & Masonry Limited, carrying on business as Mader’s Roofing & Masonry Defendant Adjudicator: Eric K.

Slone Heard: February 5, 2019 and March 21, 2019 in Halifax, Nova Scotia Appearances: For the Claimants, self-represented For the Defendant, Rilla Banks, counsel BY THE COURT : Introduction [ 1 ] The Claimants brought this case because of their ardent belief that the Defendant provided them with a defective roof. They seek damages of $12,611.10, of which the largest component would be the cost of a new roof. [ 2 ] The Claimants, and particularly Ms.

Marineau, prepared meticulous exhibit books and tried their utmost to assist the court. [ 3 ] Unfortunately for them, they failed to appreciate that for a case like this, involving (in part) complex issues about roof construction, the court insists upon sworn evidence from qualified (preferably expert) witnesses. Unsworn and unsigned letters or reports, with no witnesses to back them up and defend them under cross-examination, are of little value.

[4] As such, the result will come as a disappointment to them. [5] The case also presented some stark credibility issues that allow for no shading. There were conflicting accounts of conversations or events that either did, or did not occur, depending upon who is to be believed. [6] The Claim is expressed this way in the Notice of Claim: The Claimants hired the Defendant to do a residential roofing job. The Claimants quickly started having issues with the roof.

The Claimants have discovered multiple deficiencies and poor workmanship with regards to the roofing job, through investigations by three independent professional roof inspections. [7] It goes on to claim $16,621.10 plus interest, costs and general damages. The evidence [8] The Claimants own one half of a semi in Dartmouth, Nova Scotia, which they purchased in 2006. In 2016, after experiencing some shingle loss during a windstorm, they decided that a new roof was necessary and sought out four quotes. One of them was from the Defendant, which is a well-known roofing company in the Halifax area.

On March 4, 2016 the owner of the Defendant, Larry Mader, attended at the Claimants’ home to provide a quote. [9] Both sides agree that there was a discussion about the fact that the Claimants have a common roof with the owner of the other half of the semi. It seemed to be a given that this owner was not interested in re-roofing her side, despite its worn condition. I accept that Mr. Mader likely said that it would be better if both sides were done at the same time, but he clearly reassured the Claimants that it was possible to do just one side.

In retrospect, given all that has occurred, he might have been better off to discourage the Claimants from doing their side only. [10] Mr. Mader did not attempt to go on the roof and based his quote on a cursory look from ground level. The initial quote was for $5,155.45 (including tax) and provided a number of relevant things: a. It was to include a 20' X 12" Weather Pro ridge vent b. ½ sheet of plywood was to be supplied to repair a 6" hole in the sheathing c. They were to re-install the existing turbine ventilator d.

Any additional sheathing would be charged as an extra. [11] The job was scheduled for June 6, 2016. On that day, a crew headed by experienced foreman Chris Williams attended to begin the job. The first step was to remove all of the old shingles. [12] Mr. Williams soon discovered that there were three layers of shingles, which meant that on two previous occasions roofers had taken the expedient (and dubious) approach of covering aged and worn shingles over with new shingles. Mr.

Williams removed all of those layers and made a determination that the underlying sheathing was not strong or even thick enough to accept a new roof. He presented the Claimants with two options. The more expensive option was to remove the old plywood sheathing entirely and start from scratch with new plywood. The slightly less expensive option was to add a layer of plywood over the existing sheathing. The Claimants

were under some pressure to make a decision, because the roof was exposed to the elements. They chose the less expensive of the two options, at a cost of another $4,140.00. The total cost of the job was now over $9,000.00. [13] The work was done. According to the Claimants, the roofers damaged the roof on the neighbour’s side, creating a “hole” which needed to be repaired. I am not sure that the Defendant “caused” a hole, but rather that they exposed a deteriorated section.

In either event, this caused them to have to encroach several feet into the neighbour’s side, which may not have been authorized but which was necessary and in itself caused no harm to the Claimants. [14] The Claimants also noticed immediately that the gutters were removed and not replaced. They were told by Mr. Williams that Mader’s did not do gutters, and the Claimants were supplied with the name of a company that specializes in gutters.

Despite this advice, the Claimants did nothing about replacing the gutters until November 2018, at which time another company supplied and installed new gutters at a cost of $396.75. [15] Mr. Williams explained in court that gutters do not always have to be replaced during a re-roofing. It depends on how the gutters are attached. Here, he says, the gutters needed to be removed in order to also remove the layers of shingles. It is unclear whether Mr.

Mader knew at the time of the quote that the gutters would have to be removed, because he did not look at the roof all that closely. [16] The evidence suggests that the gutters were old, and not salvageable in any event, at least not after being removed. [17] According to the evidence of the Claimants, they began to experience some leaks in January of 2017, in the areas of an upstairs studio room. The Defendant came about a week later to inspect and reported that the problem appeared to be traceable to an area on the neighbour’s side of the roof. By email dated January 17, 2017, Mr.

Mader explained that his company was not in a position to do anything because it would involve working on the neighbour’s roof. There the matter rested, temporarily, with a leaking roof and minor water damage inside. [18] Further major leaking occurred on August 19, 2017, causing damage to the master bedroom and living room. Ms. Marineau reported that they could also hear water dripping in the wall box that houses the chimney. Also, water seemed to be leaking into the basement, which was in all likelihood caused by there being no functioning gutters in place at that time. The Claimants asked Mr.

Mader to come back and have a look. Several weeks later, after an unhelpful phone call in which he insisted that the problem stemmed from the neighbour’s side of the roof, Mr. Mader showed up to view the problem. On September 19, 2017 a crew came by to perform some repairs. The Claimants say that they did not know what the nature of the work was, although it appears that the leaking stopped at, or shortly after this point. Credibility issues [19] At this juncture, it is necessary to contrast the different versions of what was spoken about, and what was done, at various points in the relationship. Mr.

Mader testified that he had a conversation with Mr. Marineau - in the absence of Ms. Marineau - about the ridge vent (most likely in September 2017). He testified that Mr. Marineau was unhappy about how the ridge vent looked, as it created a clearly visible extra ridge extending only halfway across the roof ridge line. He also testified that Mr. Marineau theorized that perhaps water was getting under or into the ridge vent, perhaps driven by rain during high winds, and he suggested that it be removed. Mr. Mader said that he accordingly instructed Mr.

Williams (who was doing the repairs) to remove the ridge vent and shingle over the ridge in the appropriate and familiar pattern for ridges. He also instructed him to install some vents (I believe they are called box vents) in the roof to take over the function of ventilating the attic space, now that the ridge vent was being removed. [20] Mr. Mader further explained (as did Mr. Williams) that the old turbine vent was not replaced, notwithstanding what was in the original quote, because it was old, damaged and redundant. [21] Mr. Marineau denied outright having any conversation with Mr.

Mader about the ridge vent. He denied saying that it was unsightly and denied suggesting that it might be the source of leaks or that it should be removed. He claimed not to know that a roof vent had been removed, and advanced the position that no roof vent had ever been installed - which is one of the deficiencies about which the Claimants loudly complain.

[22] Mr. Williams confirmed that Mr. Mader instructed him to remove the ridge vent, without any elaboration. According to Mr.Williams, this was done, and a particular type of dura-flow vent was installed on the roof to perform the same function as the ridge vent. [23] There were some other conversations (or non-conversations) between Mr. Marineau and either Mr. Mader or Mr. Williams,that differ greatly depending on which side is speaking. One such conversation was Mr. Williams telling Mr. Marineau that they did notintend to replace the turbine vent because it was in disrepair. Mr.

Marineau contends that this conversation never occurred. [24] Another event was that Mr. Mader testified that on the first day he came to do the quote, he was taken by Mr. Marineauupstairs in the house to look at some staining on the drywall and floor, where leaking had apparently occurred. Mr. Marineau testifiedthat this never happened; that Mr. Mader did not go upstairs and that there was no staining that he could have shown him. [25] Ms.

Marineau was not a party to these conversations and events, although it is clear that she totally believes her husband. [26] It is rare that a case presents such stark credibility issues. Ultimately, I must determine which side is more likely providingaccurate information, with results flowing from that determination. [27] Evidence is credible when it is reliable, which is different from saying that it is truthful. The evidence of a witness can beunreliable for a number of reasons. One party or the other may simply be lying. That is one species of unreliability.

But even a party whois not “lying” may present unreliable evidence. Parties may simply be misremembering, yet believe they are telling the truth. Partiesmay not hear, or not listen, to things that they are being told, and come to believe that such statements were never made. [28] As an Adjudicator I have to subject the evidence to several tests. In rare cases I may simply find a witness not to be credible,because of his or her demeanor. However, demeanor is deceptive and not usually the best indicator of truth or reliability.

More reliably, Itest each version against the inherent probabilities of the situation. [29] A useful set of tests for assessing credibility was set out by Foster J. in Sylvan Lake Golf & Tennis Club Ltd. v. PerformanceIndustries Ltd. and O'Connor (1996), (AB KB), 190 A.R. 321 (Q.B.) at para. 27: 1. The witness's evidence should first be considered on a "stand alone" basis. In this regard, (the trier of fact should consider)factors such as firmness, memory, accuracy, evasiveness, and whether the witness's story is inherently believable. 2.

If the witness's evidence survives the first test above, the assessment moves on to a comparison of that witness's evidence withthe evidence of others and documentary evidence. 3. Finally, the court must determine which version of events, if conflicting versions exist, is most consistent with "thepreponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in thoseconditions." [30] Looking at these facts, if I accept Mr. Marineau’s testimony, the Defendant did several things: a.

They never installed a ridge vent, and in fact constructed a roof without any attic ventilation. b. They never explained why the turbine vent was not being reinstalled despite the statement in the quote that it would be, anddespite the fact that it was conspicuous on the ground after the roofing job. c. Mr. Mader showed no interest initially in whether there was leaking and has simply made up the story that he was takenupstairs and shown evidence of past leaks.

d. Mr. Williams also simply made up evidence that Mr. Mader instructed him to remove the ridge vent, and that he did remove the ridge vent. e. A crew worked on the roof for as much as a couple of days in September 2017, doing things that the Claimants know nothing about. [31] Mr. Marineau’s evidence on these central points, taken at face value, seems improbable. The evidence of how the new roof sheathing was cut shows that there were several inches left at the ridge, as a space to allow for ventilation, consistent with what was needed for a ridge vent.

It seems farfetched that they would have cut the plywood this way, then simply roofed over this space, when the quote flatly called for a ridge vent, which is not a difficult thing to install, nor a particularly expensive item. There is no reason why Mader’s would then remove the ridge vent, unless Mr. Marineau had instructed them to do it - either for aesthetic or practical reasons. Both Mr. Mader and Mr. Williams had vivid recollections of the discussions surrounding the ridge vent. I find it hard to believe that they would be making this up out of whole cloth.

This also explains what they were doing to try to address the leaks in September 2017, while the Claimants claim to have no knowledge of what they were doing. [32] It also seems credible for Mr. Mader to have expressed an interest in seeing any evidence of leaking at the outset of the job. [33] In short, I find the version of events offered by the Defendant to be more inherently probable than that offered by the Claimants, and in particular where the sole evidence of Mr.

Marineau is concerned. [34] In civil cases the Claimant has the burden of proof, and if I am left in a state of uncertainty at the end of the case, with the competing versions more or less equal in terms of credibility, then I cannot accept the Claimant’s evidence in those areas where it conflicts with the evidence of the Defendant. Like in baseball where a “tie goes to the runner,” in civil cases a tie goes to the Defendant. [35] That is not to say that I ignore other evidence, and I need to go on and consider the other evidence that the Claimants have provided.

Inspections [36] The Claimants made a claim on their home insurance, because of the damage that the leaking was doing to the inside of the home. The insurer dispatched Belfor Property Restoration in October 2017, who in turn retained a company called 5 Star Roofing. That company did an inspection and made some unflattering comments about the roof in a report that was most likely verbal, as it is not found in the documents but is referred to. The difficulty I have in accepting any of that company’s findings is that the inspector was not in court, and in fact is not even identified by name.

The negative comments are hearsay, which is not necessarily inadmissible but which in the circumstances here carries little weight. [37] That company provided a quote for a roof replacement, about a year later. The written quote contains no useful statements about the roof.

While it would be possible to infer that the company would not have suggested removing a properly functioning roof, my experience tells me that many companies are prepared to quote a job simply upon being asked to do so. [38] 5 Star Roofing provided the Claimants with some photos which were useful in helping me visualize the problems, but they do not go so far as to prove that the Mader roof is actionably defective.

To the extent that the photos have comments attached to them, this is wholly unreliable as evidence, not knowing who authored those comments. [39] In September 2018 (a year later) the Claimants sought their own report from a company called JP Roofing, which provided a report dated September 6, 2018, and which found fault with several aspects of the Mader roofing job. The author is shown as Jason Patton, though he did not sign the report. There is no mention of his credentials.

[40] Setting aside for a moment the fact that the report has dubious status in court, I note that its findings include these: Defects found [at address] included but are not limited to: leaking, no ventilation, improper shingle installation, poor quality ofworkmanship, re used materials in which due to condition should have been replaced, shingled portion of neighbour’s roofwithout permission.

Corrective measures required, recommend full roof replacement including neighbour’s side of upper roof due to poor andincorrect installation. [41] That company also gave an estimate for full roof replacement, which calls into question whether the report is fully objective.Ideally, an expert should not stand to gain financially from his conclusions, by possibly getting a contract to correct the work that he hasidentified as defective. [42] The much larger problem is that the Defendant has no real ability to challenge the report.

Little is known about the author, norabout what he was told by the Claimants (as opposed to what he knew from other sources.) His sweeping statements cry out for cross-examination, which these findings might or might not survive. [43] It is a principle of elementary fairness that unsigned, unsworn reports from alleged experts with unknown credentials, who donot attend court to defend their views, cannot form the basis to defeat the testimony of a Defendant who is himself an expert - in thiscase, as a roofer. [44] Both I and others have commented upon this issue many times. In Sparks v.

Benteau, 2008 NSSM 3 , I wrote: [9] The Small Claims Court does have a more lenient standard for the admission of evidence, including hearsay, than do the highercourts, but when it comes to deciding crucial facts the only evidence that will suffice is sworn testimony by a live witness who can thenbe cross-examined. This is at least as true if not more so when it comes to expert evidence. [10] To give an example here, Mr.

Benteau sought to have the Court accept a “To Whom It May Concern” letter from a likely veryqualified individual who was purporting to offer an expert opinion as to why paint was peeling on the Claimant’s home. While such aletter might be accepted on a non-contentious point, the question of why the paint peeled is potentially central to the case, because theClaimant needs to prove that it was the result of faulty workmanship.

It would be fundamentally unfair to the Claimant to admit suchevidence and allow it to prove the contentious point, when he had no advance notice that it would be offered, and did not have the authorof the letter present to cross-examine. The right to cross-examine has been a cornerstone of our system of justice for centuries, and while many self-represented litigants exercise this rightsparingly, it is still a vital right.

Having the witness in Court also would allow the Adjudicator to ask pointed questions that might helpdecide the issue. [45] I note that the hearing in this case was spread over two evenings and at the conclusion of the first night I suggested (not subtly)to the Claimants that they might wish to consider bringing one or more of their experts to court to testify. The Claimants did not do so,explaining at the outset of the second night that at least one of the potential experts had declined to appear because he had some businessconnections to the Defendant. Mr.

Mader testified that he did not know any of these individuals. [46] The Claimants had every opportunity to support their case with an expert witness but chose not to do so.

Surely, they knew thatreluctant witnesses can be compelled to appear by subpoena. [47] Under all of the circumstances, I must give no weight to the report of JP Roofing tendered by the Claimants, nor to the hearsaystatements attributed to 5 Star Roofing. [48] I note that the Claimants referred in their claim to having had three independent inspections, yet I can find no reference to athird inspection unless the Claimants are referring to a third roofer, Bluenose Roofing, who gave a quote on roof replacement. That

company’s quote likewise makes no comments about the existing roof and why it might need replacement. [49] In the end, the Claimants’ proposition that the roof has been found to be defective by “three independent professional roofing inspections” is unsupported by any admissible evidence. Where do matters stand? [50] Did the Defendant perform the original contract? I believe that, for the most part, they did. I do not accept that they failed to install a ridge vent. Obviously, they promised to reinstall the wind turbine, but did not do so.

The explanation that the turbine was worn and redundant makes sense, though I am not sure that the Defendant communicated that clearly to the Claimants. As for the fact that they encroached over the line onto the neighbour’s roof, it seems most probable that they did what they had to do but were met with the reality that the margin between the two roofs was not going to be straightforward.

In fact, it appears, that by disturbing the status quo the result was leaking that the Claimants experienced several months after the job. [51] I am not particularly impressed by the Defendant’s effectively washing their hands of the problem by blaming the neighbour. I believe it was the responsibility of the Defendant to create a watertight roof.

As I have observed, perhaps in retrospect they should have declined the job at the outset because of the non- cooperation of the neighbour. [52] I would be prepared to hold the Defendant responsible for some of the leaks, simply on the basis that it is a fundamental feature of a new roof that it should not leak - for whatever reason.

However, somewhat curiously, the Claimants stated in a written opening statement, and stated also verbally in court in no uncertain terms , that they were “not here today to make a claim regarding these particular water leaks.” They say that the leaks have been dealt with, and that they simply refer to the leaks because it points them toward the deficiencies that they say entitle them to a new roof. [53] The current status is that the roof does not leak.

All of the interior damage was repaired by the Claimants’ insurer, who were not in court presenting a subrogated claim, despite several references by the Claimants to subrogation. [54] The Claimants have claimed the insurance deductible of $1,000.00. However, that expense would be a direct result of the leaks, for which the Claimants say they are not claiming. Additionally, some of the damage appears to have been caused by the failure to put up new gutters, leading to leaking into the basement.

The Claimants may have been surprised to find that the gutters were not being replaced by the Defendant, but they ought to have taken steps to acquire new gutters which, as observed, was not a large or expensive job. Leaving the house without gutters for more than a year amounted to a failure to mitigate their damages. [55] The Claimants contend that there are various deficiencies, quite apart from what might be proved by expert testimony. They say that the Defendant did not caution them about the deteriorated state of their chimney, which was clearly in need of repair or replacement.

I can accept this criticism, though it is unclear what consequences flows from it. [56] The Claimants say that there is inadequate venting of the attic, because the ridge vent was removed and few (or no) box vents were added to act as substitutes. I have already found that there was initially a ridge vent. The evidence about box vents was confusing. The photos provided show a couple of vents, at least one of which is on the neighbour’s side, and which are of a flimsier type that Mr. Williams insisted were not the ones he installed.

He speculates that perhaps some of the other roofers who have been on the roof over the past year-plus have removed the vents he installed. This seems farfetched, although I am not confident that we have photos showing the entirety of the roof. There may be vents not visible from the vantage points of the photos. There is no expert evidence to the effect that there is a lack of sufficient ventilation. [57] As such I cannot make a finding that there is inadequate venting. If there is, vents can easily be added after the fact.

In other words, this would not be a reason to replace the roof. [58] The Claimants apparently believe that the roof is not properly attached to the rafters, because there are several lines of nails showing in the attic. The Defendant’s witnesses explained that this can happen because the nailer is essentially guessing where the rafters are, and if the nail gun does not initially hit the rafters, then a second line of nails is sent into the rafters. There is no evidence from the

Claimants that refutes this explanation. [59] To the extent that the Claimants contend that the roof is deficient to the point of needing replacement, this is a proposition that I cannot accept on the evidence provided. As to whether there are some measures that should be done to improve the roof, the Claimants provided no evidence that might support such a finding, or that would quantify it. They staked their entire claim on the theory that the roof should be torn off and replaced. [60] At the risk of being seen as offering gratuitous comments, I will say that I am not pinning any medals on the Defendant.

They are not without blame. They were very likely ill-advised to have taken on the job, given the issue with the neighbour’s side of the roof, and they do not appear to me to have taken adequate responsibility when leaking occurred which they attributed to coming in through the neighbour’s side. The communication between the parties was arguably lacking, leading to misunderstandings. Mr. Mader was not as responsive as he should have been when problems were reported to him. The Claimants kept good records of when they contacted Mr. Mader and when he responded, which was at odds with Mr.

Mader’s testimony that he believed he was being timely in his responses. The Claimants’ frustration was genuine. Conclusion [61] In the end, I am left with no option but to find that the Claimants have not made out the case that they sought to prove, and the Claim must be dismissed. It would be inappropriate to allow the Claimants any costs. Eric K. Slone, Adjudicator