SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: Woods v. M.C. Hammer Construction Ltd., 2013 PESC 17

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Woods v. M.C. Hammer Construction Ltd., 2013 PESC 17 Date: Docket: S1-SC Registry: Charlottetown Between: GERARD MICHAEL WOODS Plaintiff And: M.C. HAMMER CONSTRUCTION LTD. Defendant Before: The Honourable Justice Benjamin B. Taylor Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island February 22, 2013 & March 8, 2013 Charlottetown, Prince Edward Island September 6, 2013 Appearances: Gerard Michael Woods, appearing on his own behalf Matthew Darrach, appearing on behalf of M.C. Hammer Construction Ltd.

2 Page: 2 AREA OF LAW: CONTRACT - building contract - breach - mitigation - proof - expert evidence. Small Claims - reducing amount of claim to meet the small claims maximum. STATUTES REFERRED TO: Extra Provincial Corporations Act, R.S.P.E.I. Cap. E-14 RULES REFERRED TO: Rule 18 of the Small Claims Rule, Rules of Civil Procedure, Prince Edward Island TEXT REFERRED TO: Fridman, The Law of Contract in Canada, Thomson Canada Limited, Toronto, 2006 Taylor J.: Introduction [1] This decision follows a trial in the Small Claims Section of the Trial Division of this Court between the Plaintiff Gerard Michael Woods ( Mr. Woods or the Plaintiff ) and the Defendant M.C. Hammer Construction Ltd. ( M.C.H. ). Mr. Woods claimed damages of $8,000 from M.C.H. for breach of the 2011 contract between Mr. Woods and M.C.H., under which contract M.C.H. agreed to do major renovations to the existing home of Mr. Woods for a total price of $18,100 (originally). Mr. Woods claims M.C.H. did not complete the work, and the work that was completed was substandard. Mr. Woods says he paid M.C.H. $12,600, and had to hire others to complete the work. For the reasons set out hereunder, I find against the Defendant M.C.H. in the amount of $5,000, and decline to award costs to Mr. Woods. Background [2] The parties entered into a detailed Renovation Contract which appears to be a standard form, fill-in-the-blanks contract. The contract was to do work to Mr. Woods cottage/home. The contract was signed on June 17, 2011, and specified work was to commence on or before June 22, 2011 and be completed on or before August 24, The work consisted of changes/additions/renovations to an older cottage/home and installing siding and shingling on the home. [3] The work got off to a bad start because the contractor Mr. Woods had hired to pour a foundation did not do so on time. The delays piled up because Mr. Woods did not get siding, windows and doors on time. As well, Mr. Woods and his family decide to live in the cottage/home and M.C.H. had to work around them, and Mr. Woods changed his mind multiple times about the location and layout of the bedroom, bathroom and closets and the type of materials to be used (siding, doors,

3 Page: 3 windows). In August the work was delayed by a lengthy rainy spell. I expect there were also delays attributable to M.C.H., but any such delays are not well defined. [4] The wife of Mr. Matthew Darrach (Project Manager for M.C.H.), was pregnant during the construction time, and was scheduled for a caesarean section at the end of August or the first part of September. Mr. Darrach stayed with his wife and child after the birth, and was not back at the work site for the next few days. Within a few days (Mr. Woods said seven working days), Mr. Woods threatened to sue M.C.H. - Mr. Woods said he did this on September 14, Since then neither Mr. Darrach nor any other worker for M.C.H. has returned to the work site. [5] The work was not complete at the end of August, By September 16, 2011, Mr. Woods had hired a Mr. MacDonald to continue the work. Mr. Woods subsequently hired other contractors. [6] Defendant and Style of Cause [7] In the Plaintiff s claim, the Plaintiff names the Defendant as Matthew Darrach operating as M.C. Hammer Construction Ltd., but begins his Reasons for Claim and Details by stating, I have a contract with M.C. Hammer Construction Ltd., (Matthew) Darrach... At the bottom of the first page of the Claim, the Plaintiff states: Defendant operating as a business which was not registered at time of contract signing. I discovered this recently. However, he has both business name as well as his own on contract. It is signed by Mr. Darrach. [8] The Defence, which identifies the Defendant as M.C. Hammer Construction Ltd. says in part: We would like to start our defence by stating that before we acquired the job that Mr. Woods hired us for we asked him to sign a contract. We refused to take the job until a contact was signed. To our knowledge, our extra-provincial registration was in good standing. [9] The contract is between M.C. Hammer Construction Ltd. and Mr. Gerard Woods. Matthew Darrach is identified only as Project Manager, not as a party to the contract. [10] Mr. Woods errs in attempting to sue both M.C.H. and Mr. Darrach by saying, Matthew Darrach operating as M.C. Hammer Construction Ltd. Mr. Woods confuses limited liability companies and corporations (hence the abbreviation Ltd. ), with partnerships or sole proprietorships, which are commonly described as (for instance): John MacDonald, doing business as XYZ ; or Marie Gallant, operating as

4 Page: 4 XYZ ; or Benjamin Haddad and Joseph Smith, doing business under the firm name and style of XYZ. [11] It was not shown M.C. Hammer Construction Ltd. had failed to register as an extra provincial corporation, but even if it had failed to register under the Extra Provincial Corporations Act, R.S.P.E.I. Cap. E-14, that would not cause Mr. Darrach to be substituted, or added as a party to the contract. [12] I find Mr. Darrach is not a party to this contract and order the style of cause be amended to name M.C.H. as the sole defendant. Reducing Claim to Meet Small Claims Maximum [13] Mr. Woods asserts his damages amount to $33,499.70, but claims only $8,000 in this claim, which is the Smalls Claims limit. The Plaintiff implicitly accepts the entire claim now has a maximum limit of $8,000 and he may not pursue the claim in whole or in part in any other court proceeding. [14] This discounting of bigger claims puts cases in Small Claims Court which really do not belong there, tried by self represented people who do not know what they have to prove or how to prove it. [15] With little or no idea of what evidence will be telling, litigants in cases like the present one rely on s, photographs and bills - in other words, the evidence they can present without incurring any cost. [16] In the present case, Mr. Woods claim is for damages resulting from breach of contract consisting of: 1) negligent work, and 2) failure to complete the job. The claim must be supported by evidence of negligence or failure to do the work. Mitigation [17] Fridman, The Law of Contract in Canada, Thomson Canada Limited, Toronto, 2006, states at paragraphs : a) The duty to mitigate The innocent injured plaintiff, who claims damages for breach of the contract, is not entitled to sit back, after the breach, and place all the blame on the defendant for what happens thereafter, even if it comes within the Hadley v. Baxendale principles. The plaintiff is under an obligation which has both positive and negative aspects. The fundamental principle of compensation for pecuniary loss flowing from the breach of contract is

5 Page: 5 qualified by a second, which imposes on the plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming in respect of any part of the damage which is due to his neglect to take such steps. In Yetton v. Eastwoods Froy Ltd., it was said (t)he basic principle of damages is restitutio in integru: the plaintiff should have what he has lost through the defendant s fault; but of course, if a plaintiff in fact, in the case of a contract of service, earns something elsewhere through being at liberty to do so, then he has lost that much less as the consequence of the default. Morever if he can minimize his loss by a reasonable course of conduct, he should do so, though the onus is on the defaulting defendant to show that it could be, or could have been, done and is not being, and has not been done. Laskin C.J.C., in Red Deer College v. Michaels posed the issue thus: has the plaintiff taken reasonable steps to avoid their [that is, his losses ] unconscionable accumulation. The plaintiff may not be able to claim from the defendant all the loss which he alleges flows, naturally and probably, from the latter s breach of contract. The onus of proving failure to mitigate is on the defendant. While the onus on the defendant of establishing a failure to mitigate, in accordance with the duty, is a heavy one, if it is discharged, then the defendant is relieved of liability for such damages as can be traced to the plaintiff s own inactivity, or his conduct which exacerbates, rather than mitigates his loss. Morever it has been held that the plaintiff is not relieved of this duty to mitigate by any impecuniosity from which he suffers, unless, possibly it was reasonably foreseeable by the defendant that the plaintiff would have insufficient funds to mitigate his loss following the breach of contract (which seems to raise the issue of causation). However, the plaintiff will be relieved of the duty to mitigate if it is unreasonable to expect him to do anything, or if what the defendant alleges he ought to have done was totally unreasonable. The duty to mitigate applies to all kinds of contracts... [18] In the present case, if the Plaintiff suffered damages as a result of the negligence, breach of contract or failure to complete the contract by the Defendant, the Plaintiff has a duty, promptly and economically, to take steps to minimize the damages, and to prove it did so. Shingles [19] Mr. Woods presents pictures of the shingles on his roof, with some shingles missing. Mr. Woods claims M.C.H. was negligent in installing the shingles, and at the time of installation, ought to have applied adhesive to the shingles in addition to the

6 Page: 6 factory-installed sealing strip on the shingles. Mr. Woods says he was told by another builder that he always applied additional adhesive. I do not accept this verbal hearsay as expert opinion. Mr. Woods claims $15,000 as roof replacement estimate. No written estimate was filed with the Court. The Plaintiff s claim dated January 2012 says the roof which MC Hammer shingled will need to be redone at a verbal quote of $15, It has cost me $1, to this point [and] there are more shingles blown off. At the trial in February, 2013, Mr. Woods stated he had not replaced, he just repaired. Mr. Woods did not identify any $1, expenditure for re-shingling or shingling repair in the documents filed with the Court. The Plaintiff did not identify any roof areas in his photos which had been repaired and I saw few problem areas in the photos. [20] The Defendant entered as Exhibit D-2, the IKO Limited Warranty Information for Asphalt Shingles, the shingles the Defendant installed. The Warranty specifies the shingles contain a self sealing strip and must be subjected to direct sunlight and warm temperature for seven days before full sealing will occur. I could not find a definition of warm temperature, but the Warranty also cautioned installation in fall, winter or in cool weather and cool season or weather. All shingles installed by M.C.H. were installed in the summer - PEI s and Canada s warm season which by convention ends no earlier than Labour Day, and M.C.H. stopped working after August 30, M.C.H. also provided, as D-3, Environment Canada 2011 weather data for Charlottetown, PEI, for the months of June through September with shingles written beside August 11, The report for August 2011 shows the high temperature for every day from August 12, 2011 to August 31, 2011 was above 20 degrees Celsius, which I would call warm. The Warranty also has a chart showing the Wind Speed Warranty for various types of IKO shingles. The Cambridge shingles used by M.C.H. with standard application are warranted for wind speeds up to 177 km/h with gusts up to 210 km/h. The Environment Canada weather report for Charlottetown shows only four days in August, 2011 when the maximum wind gust was 50 km/h or higher (three in the km/h range, and only one day, August 29, when the maximum gust was 70 km/h). In his testimony, Mr. Darrach stated no shingles were blown off or lifted as a result of 70 km/h wind gusts on August 29, In September, 2011, the maximum wind gust was 50 km/h. I note Mr. Woods house is at 1899 Kingston Road, not far from Charlottetown. [21] The Defendant asserts that it met and exceeded the installation instructions that come with the shingles by 1) putting in more nails than required and 2) installing the shingles at a time of the year when the temperature was sufficiently high to allowed proper adhesion.

7 Page: 7 [22] Based on this information about temperature and wind speed and the evidence and lack of evidence discussed above, I find it was not negligent of M.C.H. and not a breach of the contract to rely on the factory applied self sealing strip and to not provide additional manual sealing at the time of installation. [23] It is up to the Plaintiff to prove his shingles claim and he has not done so. As discussed below, a contractor says in a brief written statement there were various problems with roof shingling, but does not specify what problems. There are many shingle cases in the general division cases of Canadian courts, and they are decided based on specific evidence of what the builder did, what happened to tear off the shingles, an expert opinion of what was done wrong by the builder and evidence of what it cost to remedy the problem. There is none of that evidence in this case, and the court cannot assume negligence or breach of contract where neither negligence nor breach of contract is proven. For the above reasons and for lack of evidence by Mr. Woods, I dismiss the portion of the claim described as Roof Replacement Estimate: $15,000.00". [24] The other evidence and issues are fuzzier, but are broadly described as follows: 1) the Plaintiff assumed the role of general contractor and supplier, and seems to have done a very poor job of it - constantly changing plans or requirements or not making important decisions, and not providing materials in time; 2) Mr. Darrach, the Defendant s shareholder and employee, seems to have done some sloppy work or at least left work in a precarious state and should have squared things away before his wife gave birth; and 3) the Plaintiff was able to get workers in short time to redo or finish the job, but seemingly did so on a replace it all basis. He did not mitigate his damages. [25] There was no detailed evidence of what needed fixing versus what was not complete, or of what it cost to do the fixing or complete the original job. Mr. Woods filed the bills he received from the builders he brought in after August 2011, but the bills are not helpful - they only state hours worked times cost per hour. [26] The Plaintiff has failed to even say what happened to the shingles - was there a wind storm, an ice problem? When did it happen? At the end of the trial I asked the parties if there had been any testimony saying what happened to the shingles - there was not. Fasteners [27] Pursuant to the contract between the parties, the Defendant was responsible for the cost of all fastening (i.e. nails, screws, etc.). Some fasteners were charged to

8 Page: 8 the Plaintiff s account at the hardware store. The Defendant freely admitted his responsibility for the cost of the fasteners and stated he intended to either have the store make an adjustment or settle up with the Plaintiff. The amount is not large, only $ ( = ), and I find for the Plaintiff on that heading. The Plaintiff s Evidence [28] The Plaintiff did a poor job of presenting his evidence - he relied on photographs of problems and ignored proof of causation of these problems and proof his expenses/damages resulted from these problems. [29] The Plaintiff s evidence to a great part consists of saying the Defendant did sloppy work, he caught the Defendant in some improper accounting, the Defendant left and didn t come back, the shingles were somehow torn off, he hired expensive people to do exactly what he wanted at a much higher price, and then sued for the difference. He made no attempt to mitigate his damages. The Plaintiff constantly remade his plans - at trial, he actually came up with a final blueprint type plan, possibly the most recent plan. The Defendant claimed he had never seen this plan and the Plaintiff did not disagree. [30] The Plaintiff stressed some areas of the house were left open or propped up on a temporary basis. I see nothing wrong with temporary props, but M.C.H. should have returned to square away the house, either as soon as Mr. Darrach could leave his wife s bedside or as soon as someone else could be sent. Expert Evidence [31] An expert witness, in the broadest sense of the term, is a person who through education, training or experience has more knowledge of a subject than a jury or the Court. Because of this greater knowledge, the Court may declare such a person to be an expert, and upon such declaration, the expert is allowed to give opinion evidence about matters falling within the ambit of the expert s field of expertise. [32] Rule 18 of the Small Claims Rule - EVIDENCE AT TRIAL, states: Written Statements and Documents (1) A written statement or document described in subrule (2) that has been served on all parties at least 14 days before the trial date shall be received in evidence unless the trial judge orders otherwise. (2) Subrule (1) applies to the following written statements and documents:

9 Page: 9 1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person. 2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a bill, documentary evidence of loss of income or property damage, and a repair estimate. [33] The Plaintiff filed a handwritten letter dated November 10, 2011 from MacDonald Renovations Inc., signed by Mr. Ray MacDonald. The letter states: Nov. 10/2011 To Whom it May Concern: On or about Oct. 1 st 2011 we were approached to look at a renovation that had been ongoing from approx the first of July 2011 upon seeing the renovation we encountered a Number of things that were not up to standard. examples are No Bracing in trusses Floor not glued or fastened down Various problem with roof shingling Hangers not fastened Strong Backs Not in Place Double Plates Broken over window upstairs that held a Garden tress in Place. Hangers not attached Bearing Point not Blocked Strapping applied at 2 ft centers Sincerely Ray MacDonald [34] There is a stamp at the top of the above letter, which states: MacDonald Renovations Inc., followed by a Charlottetown address, home and business phone number, and GST number. [35] Mr. MacDonald did not attend to give evidence at the trial of this matter, and this Court knows nothing about Mr. MacDonald, except that in September and

10 Page: 10 October, 2011, his company did work for Mr. Woods, and copies of the bills for that work, which total $9,339.70, were filed with this Court. The Small Claims Rules envisage a generous and broad approach towards admissibility of evidence, and on that basis I will declare that a person like Mr. MacDonald, who apparently has a renovation business, knows more about home renovation than the Court, and meets the basic minimum requirements to give expert opinion evidence in Small Claims Court. [36] Having said that, the listing, without elaboration, of things not up to standard is difficult to deal with in a case where it is agreed by the parties that the work was not completed. The words various problems with roof shingling are no basis on which to make a finding of negligence or breach of contract, and the words no bracing on trusses, hangers not fastened and hangers not in place... stated by an anonymous expert without elaboration do not convince me this was anything wrong which would not be consistent with a work in progress. I recall the building of the Jubilee theatre in Summerside, constructed by a building expert, when the rafters all fell during a windstorm. I do not suggest that happened in this case; the simple point is that work may be vulnerable at certain stages of construction. A picture of a 2 x 4 holding something up is not evidence of negligence. Mr. Darrach s Evidence [37] In his testimony, Mr. Darrach conceded there were some deficiencies in the Defendant s work, but stated a great many of the deficiencies were a result of Mr. Woods not providing material for the Defendant to install. Mr. Darrach cited the following: 1) re the strong backs referred to in Mr. MacDonald s letter (I take it these are 2 x 8s) - no 2 x 8s were provided by Mr. Woods, 2) strapping applied at 2 foot centers - the Kent Building Supply ( Kent ) invoice dated August 11, 2011 (Exhibit P- 1, page 35) specifies only 40 pieces of strapping (i.e. 1x 4s) were provided. Mr. Darrach says this was not enough to do the job with 16 inch centers, it was only enough to do 2 foot centers, which he did. Mr. Darrach noted Mr. Woods to Kent dated September 25, 2011 (i.e. after M.C.H. was gone) ordered 44 more pieces of strapping, which were purchased in 10 and 14 foot lengths, 3) In correspondence between Mr. Woods and Kent dated July 22, 2011, it was said shingles would be available the first of the week, i.e. July 25, Mr. Darrach stated the shingles did not arrive until August 11, 2011, 4) Mr. Darrach noted the contract between Woods and M.C.H. was supposed to be completed (originally) by August 24, 2011, and then by October 21, 2011 (apparently by agreement), but per Exhibit P-1, pages 7-8, Mr. Woods was still ordering material well into the fall - doors on September 25, 2011, and doors and windows on October 3, and was still missing a door on November 2, 2011,(P-1, page 10). Mr. Darrach stated it would not be possible to do the siding without first doing the doors and windows. Mr. Darrach also noted an from Kent dated November 2, 2011, advising Kent now had the balance of your siding in stock.

11 Page: 11 Discussion and Findings [38] I am satisfied Mr. Woods was a demanding and micro-managing client who according to his testimony went to the hardware store every day that summer, required he be the one to approve every purchase of building materials big and small, changed his mind a great many times and consistently failed to place orders for nonstandard materials in timely fashion - a very bad combination. Perhaps he hoped his just-in-time ordering would save money, but it did not. I expect it was very frustrating to work for him, and I am confident his conduct delayed the job and detrimentally affected the quality of the work that was done. [39] It did not seem to me Mr. Darrach was a confrontational type of person. If he had been, this lawsuit might have been avoided - I note the contractors who came after did not sign any contract, provided a loose estimate at most, and seem to have basically billed their time. [40] In my view, Mr. Woods shares the responsibility for the problems with the construction job with M.C.H. and for not getting the job done properly, on time, or at all. [41] As well, it is clear the job that was eventually done by MacDonald Renovations Inc., Mr. Fralick, and New Century, together with the completely unproven Roof Replacement Estimate of $15,000, amounted to a very different, and much more expensive job than the bargain- basement-price job M.C.H. agreed to do. Mr. Woods asserts he had difficulty getting contractors to finish the job; but it looks like he got new contractors fairly quickly, but continued to have delays associated with material. In my view, Mr. Woods should be entitled to only a small fraction of his claim - considerably less than the Small Claims maximum of $8,000. [42] On the other hand, M.C.H. should not have quit the job after Mr. Darrach s wife gave birth. I accept there would be an unavoidable delay after a caesarean birth, but Mr. Darrach did not return at all, did not communicate further with Mr. Woods, and M.C.H. did not provide other workers. M.C.H. is liable to Mr. Woods for some level of damages. Conclusion [43] At the end of my assessment, I am left with the conviction M.C.H. ought to pay some damages, but not much. I find against M.C.H. in the amount of $5,000, plus $ for fasteners. As to costs, Mr. Woods did a poor job of presenting his case: 1) his presentation and evidence was scattered and frustrating: 2) his documents were disorganized and not numbered, 3) his photos were not even the same as the copies he provided to M.C.H. and the Court, 4) he consistently assumed the Court would

12 Page: 12 figure out what documents he was referring to, and 5) he was caught in a number of small falsehoods (esp. re his deck, grass, and machine). I decline to order any costs for the Plaintiff. [44] The Plaintiff will have judgment against M.C.H. in the amount of $5, September 6, 2013 J.