Johnson v. Olson, 2023 NSSM 63

Small Claims Court OF NOVA SCOTIA Citation: Johnson v. Olson , 2023 NSSM 63 Date: 20231012 Docket: 523135 Registry: Yarmouth Between: Joseph Johnson Claimant v. Ryan William Olsen Defendant Adjudicator: Andrew S. Nickerson, K.C. Heard: September 14, 2023, in Yarmouth, Nova Scotia Decision: October 12, 2023 Appearances: Joseph Johnson, Claimant, self-represented Ryan William Olsen, Defendant, self-represented By the Court: [ 1 ] I wish the parties to know that I have carefully reviewed all 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. Facts [ 2 ] The Claimant testified that in July 2022 he obtained a quote from the Defendant to redo his roof. The job was started on August 19, 2022, and completed in late August. The Defendant was paid the sum of $8,605.49 which was the quoted amount. By October 2022, the Claimant began to notice wet spots on the ceiling. He stated that there had been no leaks prior to that.

He contacted the Defendant who assured him that there was no rush to fix it, and that the roof would be okay. The Defendant visited the site a number of times and attempted repairs. The ceiling insulation was wet, and the Defendant removed the wet insulation and installed new insulation and replaced the ceiling. This remediation was ineffective. After two months of further leaking, the Defendant said that he had to get another company to use rolled roofing on a portion of the roof, because he did not have sufficient experience with that type of material.

Even after those repairs were done by the other company, the ceiling continued to leak, and the insulation continued to get wet. At that point, the Defendant refused further contact or involvement. The Claimant says he had to get another roofer to redo the entire job at a cost of approximately $12,000. [ 3 ] Joeanne Currie-Redmond, who I understood to also resided, at the Claimant’s residence testified that the ceiling did not leak before the Defendant’s work. She reiterated the Claimant’s description that the Defendant attempted to repair the work. She also pointed out that the carpet was also damaged.

She states that the Defendant assured the Claimant that the rolled roofing would resolve the problem. She also confirmed that the wood, ceiling tiles and insulation in the attic were wet. [ 4 ] The Defendant states that he started work on August 19 and completed on August 25. He says he was paid by Internet transfers and there remained approximately $400 owing which of was eventually paid. He says that in late October 2022 he went to look at the work and went back several times to do caulking and other attempts at remediation.

He says he was called back again in January at which time he replaced the insulation and ceiling tiles. He confirmed that he did engage another company to do the portion with the flat roof. He says that by March 10th of 2023 he was called again but was not prepared to come back unless further payment was made to him. He alleged that the dampness in the ceiling had occurred prior to his work and that the boards were already black in the ceiling. He blamed the leaking on the faulty flashing of the chimney in an area where he did not do any work.

He asserted that the roof was okay after the other contractor had completed his work with the rolled roofing. [ 5 ] Logan White, William Cottrell, and Christopher Olson, all testified. These individuals helped the Defendant during the work, but none of them had extensive experience in roofing and really were not able to contribute much that was of assistance in determining this case.

Position of the Parties [ 6 ] The Claimant states that he just wanted the roof to be done properly and was assured by the Defendant that he had the experience and knowledge to do the job. [ 7 ] The Defendant alleged that the Claimant does not require a whole new roof and offered to fix the “inside stuff”. Analysis [ 8 ] The Nova Scotia Consumer Protection Act . R.S., c. 92 provides the following provisions: 26

(1) In this

Section and

Section 27, “consumer sale” means a contract of sale of goods or services including an agreement of sale as well as a sale and a conditional sale of goods made in the ordinary course of business to a purchaser for his consumption … …

(5) There shall be implied in every consumer sale of services a condition, on the part of the seller, that the services sold shall be performed in a skilful, efficient and competent manner. [my emphasis] [ 9 ] I believe that this provision applies, and in addition, the basic principles of contract law make it necessary that the Defendant actually provide the services that he had contracted to deliver. [ 10 ] The essential function of a roof is to prevent water from entering the house. The essential function of shingles or other roofing materials is to prevent water from entering the house.

Of necessity the fulfillment of the contract required a watertight roof. [ 11 ] I conclude that the Defendant failed to meet the terms of this contract, and that he has not performed work in a skilful efficient and competent manner. If he did not have the ability to complete the work as contracted, he should have not entered the contract. Judgement will be granted to the Claimant. [ 12 ] As to the matter of damages, the Claimant alleged that he had spent over $12,000 and that it would cost him an additional $3,400 to repair the interior.

Regrettably for the Claimant, I can find no invoices, estimates or other proof of these amounts in the file material, other than the Claimant’s own handwritten notes. I am therefore not satisfied that the Claimant has in fact proven these amounts. I had expected quotes from other contractors or something more substantial to establish this loss. [ 13 ] On the other hand, I am satisfied that the Defendant has completely failed in the performance of his contract and that therefore the Claimant has undoubtedly lost the $8605.49 which he paid to the Defendant.

Judgement will be awarded in that amount plus costs in the amount of $199.35. Andrew S. Nickerson K.C., Small Claims Court Adjudicator