Morris v. Brace, 2022 NSSM 12

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Morris v. Brace , 2022 NSSM 12 Date: 20220217 Docket: SCCH 505723 Registry: Halifax Between: Jennifer Morris and Melissa Morris Claimants - and - Andrew Brace Defendant Adjudicator : Eric K. Slone Heard : December 22, 2021, via zoom in Halifax, Nova Scotia Last written submissions received January 11, 2022 Appearances : For the Claimant, John O’Neill, counsel For the Defendant, Patrick J. Eagan, counsel BY THE COURT : [ 1 ] The Claimants seek a total of $15,566.74 in damages, plus costs, for alleged breach of contract by the Defendant. The amount

initially sought when the claim was issued on April 21, 2021, was much less - $4,987.20 - but an amendment was later allowed after counsel was retained, to increase the amount of damages claimed. [ 2 ] The Claimants own a home in Dartmouth, Nova Scotia. [ 3 ] The Defendant is in the landscaping business. [ 4 ] In March 2021 the Claimants sought a quote from the Defendant to perform some work on their backyard. The problem that they were trying to address was primarily that there was poor drainage, with the result that water tended to collect toward the rear of the property.

There was a thought that an above-ground pool might be placed there, which would require much more stable ground. [ 5 ] There was discussion about re-sodding the entire backyard, but that would be a future project later in the spring. [ 6 ] On March 26, 2021, the Defendant gave a written quote which describes the work to be done: [ 7 ] I believe that the reference to sod was inadvertently left from an earlier version of the document, and there was no sodding to be done in this phase of the project. [ 8 ] The quoted price for the job was $9,000.00, inclusive of HST. [ 9 ] It is not disputed that the Claimants provided $5,500.00 in two advances on the contract. [ 10 ] The work commenced a few days after the quote was given.

The Defendant arrived with another man and with a small excavator. According to the Claimant Jennifer Morris, who was the Claimants’ sole witness, the excavator did damage to several things immediately. She says that several trees were struck and damaged. A clothesline was knocked over. Parts of the front yard had the sod ripped up. The edge of a neighbour’s asphalt driveway was cracked by the weight of the machine. And the siding of the Claimants’ home was hit and slightly damaged.

There were photographs backing up these assertions. [ 11 ] The contract called for trenches to be built to accommodate drainage pipes. According to Jennifer Morris, almost immediately after that pipe was installed the excavator ran over it and cracked the pipe, requiring the pipe to be dug out and replaced sometime later. [ 12 ] Also, according to Jennifer Morris, the Defendant had a large hole excavated at the bottom of the property which was supposed to be filled by surge stone to allow for proper drainage. Instead, she says, the Defendant had loads of ordinary fill brought in to fill that hole.

[ 13 ] That delivery of fill created a secondary problem. Because the entry to the backyard was too narrow to allow for it to be dumped close to where it was needed, it was dumped on the street with the intention to have it brought on the property in small loads by the excavator. When it was all removed, it left a significant mess on the street which needed to be power washed. The Claimants were ordered by the city to clean it up or face legal action. They eventually hired a third party to clean the street as the Defendant never attended to it. [ 14 ] Eventually, the Defendant ceased doing any work.

He claims that the Claimants discharged him. The Claimants say that he abandoned the work. [ 15 ] Whoever is right about the cause of the contract ending, the Defendant’s last day of work was April 11, 2021. [ 16 ] The Defendant claims that the Claimants were micro-managing his work and made it very clear that he was not wanted. The Claimants say that he found himself in a situation where he was losing money and decided to abandon the work. [ 17 ] In order to resolve this question, I refer to a text exchange that offers a window into the Defendant’s thinking.

On April 11, 2021 the Defendant wrote: I am not sure where we stand with this project but personally I am not interested in continuing anymore its been two weeks you guys have taken control and basically I told myself but I don’t know what I am doing and really I’m not interested in continuing this anymore. Mike will gladly take care of you I will forward his number along as for the other two loads of fill in and the remaining bill I am not sure what you guys want to do.

Give it some thought and let me know but as it stands right now there is no money in this job and its really just becoming a headache and we don’t know what we’re doing anyways apparently so I think another company would be your best option. [ 18 ] This text has all the hallmarks of something that was dictated and I suspect a critical sentence should read “you guys have taken control and basically told myself that I don’t know what I am doing and really I’m not interested in continuing this anymore ..” I do not believe that sentence should be read as an admission by the Defendant that he did not know what he was doing.

He appears to have been reacting to an accusation by the Claimants that he did not appear to know what he was doing. [ 19 ] Photos of the property taken at that time show massive puddles of water and mud. There is no disputing that the work was started in extremely wet weather. The Claimants contend that the work should never have been started that early, given the wet conditions. Given that the entire premise of the project was that this was a property with inadequate drainage, I tend to agree with the Claimants’ view.

The wet conditions made it all the more difficult to navigate the excavator without sinking into soft ground and doing damage along the way. [ 20 ] I also find puzzling the fact that the Defendant chose to bring in ordinary fill for the bottom of the backyard when the contract clearly called for stone, for what has been called a French Drain. The Defendant testified that he understood initially that this area was intended to support an above-ground swimming pool, but that at some point he was informed that the Claimants were changing their plan to a trampoline.

He appears to have taken this to mean that he did not have to bring in stone, and that he could use ordinary fill. [ 21 ] Jennifer Morris testified that they did not abandon the idea of a pool, though she may have mentioned that they were not sure about the pool and that such pools were unavailable at that time anyway. She stated that there had been a trampoline in that spot before .

I accept her evidence that she never agreed to abandon the plan to have surge stone in that area of the yard. [ 22 ] I am satisfied that there was some doubt about the Claimants’ plans that may have given rise to some confusion in the Defendant’s mind, but this would not have been sufficient to allow the Defendant to make a major modification to the contract. The specification was to “ Remove unstable ground where pool will be placed.

Fill area with surge, class 1 and tamped, crusher dust and tamped .” If there was to be a major modification to the contract, such as the Defendant contends, one would expect it to be confirmed in writing - even if only by way of a text message. Also, had they specified such a change, the Claimants might have sought a reduction in the contract price as it is likely that a French Drain is a more expensive proposition than simply filling in the excavated area with ordinary fill.

[ 23 ] For the Defendant to make such a change without proper confirmation from his clients was not only poor business practice; it was also a breach of the contract. [ 24 ] It is also inescapable on the evidence that the Defendant should not have started the project at the time he did, and perhaps also not with the excavator he was using. It was early in the season. The weather was unusually wet. In this day and age, everyone has access to accurate weather forecasts. It was entirely foreseeable that the Defendant would have difficulty caused by soft, wet ground.

The whole rationale for the project was that the property had poor drainage. [ 25 ] I can appreciate that the Claimants must have looked on with some horror as the Defendant’s machine cut a swath of admittedly minor but unexpected damage as it navigated its way into and around the property. I am satisfied that the excavator damaged the neighbour’s driveway, the siding on the house, several trees, and the clothesline.

The Claimants must also have been concerned when that same machine damaged newly installed drainage pipe, causing that work to have to be redone. [ 26 ] I do not believe that the Claimants were guilty of micro-managing the project, as the Defendant contended in his text. I find that they were completely justified in watching the Defendant closely, which may have been uncomfortable for the Defendant. [ 27 ] I find that the Defendant abandoned the contract.

However, even if the Claimants had fired him, I believe they would have been justified. [ 28 ] In the end, the work done by the Defendant arguably caused as much harm as good. I find that he is liable in damages for breach of contract. That is not to say that the Claimants are entitled to all that they have claimed. In their counsel’s brief, they have particularized their damages as follows: Paid to HRM Quality Craftsman $16,355.13 Paid to Defendant $5,500.00 Paid for street cleaning $287.50 Estimate to repair neighbour’s driveway (Dr.

Driveway) $862.50 Estimate to repair siding, clothesline, sodded area, fencing (Blue Quartz Construction & Landscaping) $1,561.61 Less contract price ($9,000.00) $15,566.74 [ 29 ] To this they add $487.45 in proposed costs and general damages, which I will examine separately. Damage calculation [ 30 ] I generally accept the Claimants’ methodology in calculating damages, but I must look very closely at the evidence in support of the damage figures claimed. [ 31 ] I have no difficulty accepting the $287.50 paid for street cleaning.

The Claimants were under pressure to get it done and the amount paid seems reasonable. [ 32 ] The two estimates to repair collateral damage are likewise reasonable, as I will explain. [ 33 ] The driveway repair estimate proposes to cut out and replace a small area of asphalt. The price of $862.50 ($750.00 + HST) may seem a bit steep for such a small job, but I recognize that whoever does the job would need to bring material and machinery much

like would be needed on a larger job. It can be hard, and expensive, to get a small job done professionally. [ 34 ] I note that the Defendant has argued that such a claim belongs to the neighbour, and not to the Claimants. I disagree. I believe that the Claimants had a legal duty to repair any damage done to the neighbour’s property, and they are entitled to pass this expense on to the Defendant. [ 35 ] The quote for the other damage is not out of line.

I accept that $1,357.42 + HST is the price to pay for another small job repairing sundry items. [ 36 ] I note that the Claimants have not claimed for the damage to several trees, nor for the fuel spill on the street emanating from the excavator. [ 37 ] The large-ticket item, the contract with HRM Quality Craftsman, is in a different category from the smaller items, and is not something that I can accept at face value. The major problem is that no witness was called to support it and to explain it.

The second, and equally concerning issue, is that there was no evidence that the Claimants sought more than one quote. [ 38 ] The case of Towle v. Samad , 2013 NSSC 260 , a decision of Justice Moir in the Nova Scotia Supreme Court, is generally accepted for the proposition that Small Claims Adjudicators may admit hearsay evidence, such as invoices, quotations or estimates, despite the fact that they are hearsay, so long as they meet the test of reliability. But as also observed by adjudicator Nickerson in Moore v. Fairway Insurance Services , 2016 NSSM 52 , once the evidence is admitted it still must be weighed .

Merely being admissible is not a guarantee of full acceptance. [ 39 ] The reality of litigation in the Small Claims Court is that parties cannot be expected to call witnesses in support of every small quote or estimate that supports their claim for damages. But as the quotes get larger, the expectation that someone will be called to support it rises accordingly.

Also, a quote or invoice that contains opinions on contested matters may carry a greater need to be supported by testimony, and in particular by providing the opportunity for the opposing party to cross-examine the person expressing such an opinion. [ 40 ] Counsel for the Claimant did not explain why no one was called in support of this invoice, which is particularly puzzling as on a previous date when the matter had to be adjourned, it did appear that he had such a witness (Dan Currie) lined up to testify.

Both counsel for the Defendant and I might have had questions for him about the scope of the work that he did, and how it compared to what the Defendant had undertaken in his contract. [ 41 ] The other problem that I mentioned is that there was no evidence that the Claimants obtained any other quotes for the remedial work.

In my experience as an adjudicator, parties usually provide two or more quotes for any substantial work that needs to be done, and the court is often invited to accept the lower quote or perhaps the mid-point between two quotes, as the basis for damages. [ 42 ] The obtaining of more than one quote is tied to the duty of mitigation. An injured party is legally obligated to act reasonably, which might well be to adopt the least expensive method of repairing damage.

It is well known that any single quote for work may be an outlier, and it is reasonable to obtain multiple quotes to guard against that possibility. [ 43 ] One counterbalancing factor is that the invoice from HRM Quality Craftsmen is not just a quote. The Claimants have actually spent that money, and there is an inference in their favour that they would not lightly have thrown money away. A “mere” quote is flimsier evidence since there is no obligation to actually spend that money.

But the serious question still remains as to whether the Claimants might have had the work done for a more reasonable cost. [ 44 ] I was not provided with any actual contract. I infer that it was a verbal quote only, followed by an invoice. The invoice itself is somewhat informative, but in a limited sense. It is dated June 22, 2021, and reads as follows:

On Monday May 17, 2021 after meeting Jen on site we took on project to bring the yard back to the way it should be. A “contractor” had been hired before us, but his “French Drain” only consisted of about 30' of big “O” pipe - no 1" stone - no Geotextile - (landscaping cloth). We used about 60 cubic yards of 1" stone, 300 ft of big “O” pipe with sock, 600 ft of Geotextile, 24 cubic yards of 4" X 6" surge. His was 6" deep - ours is 4 ft deep! Property is now ready for soil & sod.

Breakdown of cost: Machines & Operators 11,950.00 Man hours - labour 1,900.00 Materials 2,505.13 Total 16,355.13 PAID IN FULL [ 45 ] One inference I draw from this invoice is that the contract was on a time and materials basis.

There was no explanation by the Claimants as to why they were willing to take the risk of an open-ended contract like this, rather than insisting on a fixed quote which could then be compared to other quotes. [ 46 ] Another inference that I draw is that HRM Quality Craftsmen defined the scope of their work differently from the Defendant or, more accurately, there is no reason to conclude that the scope of the two projects match up.

While a 6 ft French Drain might be desirable, there is nothing to indicate that the Defendant ever obligated himself to provide a French Drain of that dimension. [ 47 ] Just because the Claimants spent $16,355.13 does not mean that this is the correct measure of their loss. I find that the best available evidence of the cost of the project is not the HRM invoice but is the Defendant’s original quote. In other words, the remedial work should not have cost more than $9,000.00 to complete, and arguably less, to give the Claimants the benefit of their bargain.

The cost would arguably be less if the Defendant’s incomplete work had any enduring value. [ 48 ] On the evidence, it is hard to see much value in what the Defendant left behind. Presumably the fill that he brought in was used. And some of his excavation might have had some value, though this would have been a productive area of cross-examination had Mr. Currie been called as a witness.

I believe it is fair to ascribe $1,500.00 in value to the work left behind when the Defendant abandoned the contract. [ 49 ] The damages that I allow are accordingly: Notional value of contract for remedial work $9,000.00 Paid to Defendant $5,500.00 Credit for value of work done by Defendant ($1,500.00) Paid for street cleaning $287.50 Estimate to repair neighbour’s driveway (Dr. Driveway) $862.50 Estimate to repair siding, clothesline, sodded area, fencing (Blue Quartz Construction and Landscaping) $1,561.61 Less contract price with Defendant ($9,000.00) $6,711.61

[ 50 ] The Claimants also submitted a request for costs in the amount of $487.45. Included in this total are the obviously allowable cost of issuing the claim ($99.70) plus the cost of service ($115.00). They have also asked for costs of enforcing a judgment by registering it under the PPSA and in the Property Online system.

These are not allowable at this stage but would be potentially collectible under an execution order. [ 51 ] The Claimants have also asked for $100.00 general damages, which I do not allow as such damages are rarely awarded in commercial contract cases, absent some egregious element that I do not find present here. [ 52 ] In the result, there will be judgment for the Claimants against the Defendant for $6,711.61 in damages plus $214.70 in costs, for a total of $6,926.31. Eric K. Slone, Adjudicator