Gillespie (Gillespie Horticultural Services) v. Zakresky, 2023 NSSM 49

Small Claims Court OF NOVA SCOTIA Citation: Gillespie (Gillespie Horticultural Services) v. Zakresky , 2023 NSSM 49 Date: 20230814 Docket: SCAR No. 518868 Registry: Annapolis Royal Between: MICHAEL GILLESPIE doing business as GILLESPIE HORTICULTURAL SERVICES Claimant v. LAURIE LYNN ZAKRESKY and MELISSA DAWN ZAKRESKY Defendants Adjudicator: Andrew S. Nickerson, K.C.

Heard: July 26, 2023 Decision August 14, 2023 Counsel: Eric White, for the Claimant Laurie Lynn Zakresky and Melissa Dawn Zakresky, self represented Defendants By the Court: [ 1 ] I wish the parties to know that I have carefully reviewed all of the written material supplied and my notes of the oral evidence.

If I do not mention a particular piece of evidence in this decision it is not because I have not considered it, but because I have found it does not directly bear on my decision. [ 2 ] The common ground between the parties is that the Claimant was engaged to do various renovation work at the premises owned by the Defendants. The Defendants complain that the Claimant did not perform the work in an adequate and workmanlike manner. There does not appear in the evidence any fixed contract price or formal construction agreement.

EVIDENCE [ 3 ] The Claimant says that he was initially called to cut trees, but that the job grew over time. He says he was requested by the Defendants to perform work with respect to siding and the installation of windows. He states the relationship was good, and no serious complaints were voiced to him or defects pointed out to him. He says that there was no problem until the Defendants reported to him that they were running low on funds, and intended to have the house listed for sale.

He states that he was repeatedly assured that funds would be available for the payment of his accounts. [ 4 ] The Claimant presents to the court an invoice dated September 30, 2021 in the amount of $19,667.65 and an invoice dated September 9, 2021 in the amount of $2, 663.88. His statement of claim seeks the sum of $22,331.53. [ 5 ] The Claimant was presented with the report of the local building inspector. That report, significantly, indicates the steps were not built properly to code and expresses concern about joist hangers and certain overhang on beams.

The Claimant states that those steps were never intended to be permanent and were only there on a temporary basis. As to the point about the joist hangers and a brace, the Claimant says that he can easily get an engineering opinion at a cost of about $300 plus HST to confirm that they are appropriate. With respect to the railing, he says this was not installed because the intention was that the soil would be backfilled to a sufficient height that it was not required.

With respect to the deck gates, he says that these were designed by the Defendants and constructed in accordance with her instructions. [ 6 ] With respect to the compliant of the white colour of certain windows he says that these were exactly as requested. [ 7 ] There are several minor defects, particularly relating to a window that the Claimant says he has repeatedly offered to correct. In response to a complaint about a charge for the use of a lift he states that the provision of labour does not include the provision of the necessary equipment.

The Defendant acknowledged that he still had approximately 14 or 15 boxes of flooring ordered for this job and was prepared to provide those to the Defendants. [ 8 ] As to any complaints about the siding or the windows he says that he was always prepared to return and make the necessary repairs and adjustments. He says that he reached out to the Defendants to address this but they never called him back. He says he is still prepared to make the repairs.

[ 9 ] Laurie Zakresky testified on behalf of the Defendants. She described the initial contact with the Claimant that related to the removal of trees. She alleged that this was not done in the manner that had been agreed, but I decline to go any further with that because that was not the subject of this action and that bill had been paid. [ 10 ] She complains that the Claimant had initially suggested the siding and other work would cost approximately $100,000.

She says that the cost is now $135,294.72. [ 11 ] She has many complaints about the manner in which the work was done, particularly about the employees of the Claimant. She claims that the siding was delayed in its installation. She claims that the windows, when opened, can fall on one’s head. She complains that the flooring had to be redone several times and alleged that this resulted in 25% waste.

She points out that there are some defects in one window that have not been repaired. [ 12 ] She alleges that the railing was in fact designed by one of the Claimant’s workers. [ 13 ] She states that the steps should have been completed in accordance with the building inspector’s report. She states that there was some defect in the installation of the siding at the back of the house and that she had paid $500 to have that repaired. [ 14 ] She claimed that one of the stairs in the interior of the house was broken due to insufficient support provided by the claimant.

ANALYSIS [ 15 ] I am satisfied that both parties gave their evidence with the intent to present to the court for perspective, and I do not perceive any fabrication in any party. Perspective and memory can affect what a witness honestly believes is true. Having said that, it is always a challenge for court to determine the facts where there is conflicting evidence. This is not a perfect science and inevitably involves a certain amount of judgement.

It is also a fundamental legal principle that the court may accept or reject all or any part of any witness’s evidence. [ 16 ] It is fundamental to any legal proceeding that the party who makes any allegation must produce evidence to support that allegation. This is particularly concerning in this case. The building inspector was not called as a witness. As a result, the Claimant had no ability to challenge or question the observations of the building inspector or to inquire about consequences and remedies.

Perhaps even more concerning is the fact that the Defendants did not call any contractor, engineer or other knowledgeable person to provide the court with evidence about whether or not the defects complained of were accurate, met industry standards, and establish the cost of remediation of any alleged defect. [ 17 ] In a civil case the standard of proof is what is called “the balance of probabilities”. This means to be successful a party must establish that it is more likely than not that their position is correct.

It has been described as the scales being, no matter how slightly, tipped in favour of one party or the other. [ 18 ] In a legal action, the Claimant must first establish what is known as a prima facie case. That means, on the face of it, without hearing from the Defendants, the Claimant has established a valid claim. I find that the Claimant has done so. That of course is not the end of the matter as the court then must consider the evidence and submissions of the Defendants. [ 19 ] As indicated above the burden then shifts to the Defendant to establish the allegations that the defence has made.

Without evidence from a knowledgeable person, the court is left to assess the observations and perceptions of the Defendants. I have concluded that this is insufficient to meet the Defendants’ burden of proof. I am not saying that all of the allegations made by the Defendant are not correct. They may be, but they have not been proven to the necessary standard.

Where the evidence differs I prefer the evidence of the Claimant. [ 20 ] I will allow as a credit to the Defendants the cost of obtaining the engineering opinion in the amount of $300 plus HST or $345 and the $500 paid to repair the siding on the Defendant’s property. A credit of $845 will be given against the claimant’s claim. [ 21 ] The Defendants upon payment the Defendants are entitled to the flooring in the possession of the Claimant and I will direct him to deliver it to the Defendants upon payment. [ 22 ] I will allow this claim in the amount of $21,486.53.

I will allow us cost the filing fee of $199.35 and the service cost of $234.80. I grant judgement to the Claimant in the amount of $21,920.68 in total. Dated at Annapolis Royal this 14th day of August, 2023. Andrew S. Nickerson K.C., Adjudicator