Citation: Queens Co. Const. v Currie Date: PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

Transcription

1 Citation: Queens Co. Const. v Currie Date: PESCTD 69 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: AND: QUEENS COUNTY CONSTRUCTION LTD. AUDREY CURRIE PLAINTIFF DEFENDANT BEFORE: HER LADYSHIP MADAM JUSTICE JACQUELINE R. MATHESON Both parties present in court on their own behalf Place and Date of Hearing: Charlottetown, Prince Edward Island June 4, 2001 Place and Date of Judgment: Charlottetown, Prince Edward Island July 26, 2001

2 Citation: Queens Co. Const. v Currie Date: PESCTD 69 Docket: GSC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: AND: QUEENS COUNTY CONSTRUCTION LTD. AUDREY CURRIE PLAINTIFF DEFENDANT Supreme Court of Prince Edward Island - Trial Division Matheson J. Date Heard: June 4, 2001 Date of Judgment: July 26, 2001 (5 pages) MECHANICS LIEN - Waiver of Lien - Effect of Waiver of Lien Cases Considered: Custom Glass Ltd. v. Waverlee Holdings Ltd. et al. 61 DLR (2d) 413 (affirmed 67 DLR (3d) 762); Winnipeg Supply & Fuel Co. Ltd. v. Genevieve Mortgage Corp. Ltd. et al., 23 D.L.R. (3d) 160 Statutes Considered: Mechanics Lien Act, R.S.P.E.I Chap.4 s. 48 Both parties present in court on their own behalf

3 Matheson J.: [1] The plaintiff company, Queens County Construction, entered into a contract with the defendant on June 2, 1996, to:...supply labour only to construct home as per plans and specifications given. Price includes factory lumber, not mill run lumber. Exterior cover with wood siding, interior trim and finish complete, and hardwood floors installed... If after foundation is dug and it is discovered that the soil is not compacted sufficiently there may be additional charges to compact properly. This home is registered under the Atlantic New Home Warranty, R Method of payment is to be in quarterly intervals: start of framing; exterior ready for siding; interior ready for finish; final payment at completion. [2] The plaintiff commenced work and early in July, 1996 the defendant indicated she wished certain changes to be made, to conform to the requirements of a 3-star bed and breakfast. These included fill and compact portion of the foundation; dig trenches for water pipes for three extra bathrooms on main floor, and compact; install four skylights, including framing, insulating and dry walling around all four; install two garden doors and two windows; change an existing one-foot to a four-foot rake-over on the west side of the house; install parting and drip cap; change hardwood floor from 1 by 6 to 1 by 2 and 1 by 2 1/4 and 1 by 3 1/4; and enlarge the furnace room. [3] Mr. Edward Younker, the principal of Queens County Construction, testified that the changes requested by the defendant were incorporated into the construction, along with the original work. He was paid in quarterly installments by the defendant, and on September 25th he was paid a fourth installment of $9,754.12, although the house was not finished. At that time, the defendant requested the plaintiff cease work, along with the sub trades, so she could move into the building and have it inspected to establish her eligibility for an ACOA grant. Mr. Younker agreed and work was stopped, but resumed on October 21, at the defendant s request. When Mr. Younker received payment, he signed a waiver of lien, as did the other sub trades, at the request of the defendant so she could obtain advances on her mortgage

4 Page: 2 financing. Mr. Younker told the defendant at the September meeting that he would charge $22 an hour for the remainder of the work. His original contract price was also based on a rate of $22 an hour for his carpenters. [4] Queens County Construction returned to the site on October 21, 1996 and worked from October 21 to November 4 to finish the job. Mr. Younker then presented the defendant with a bill for $4,660.92, which she refused to pay. Consequently, the plaintiff registered a mechanic s lien under the Mechanic s Lien Act, R.S.P.E.I. 1988, Cap. M-4 on the defendant s property on December 23, 1996, and subsequently commenced this action on February 25, 1997,. [5] The defendant denies she owes the plaintiff any money and relies on the waiver of lien signed by the plaintiff. She states that she paid him in full and he is overcharging her. She also counterclaims against the plaintiff for damages for negligent installation of the vapour barrier around the windows, and damages for distress, vexation and anxiety suffered by the defendant as a result of the plaintiff s gross over billing and substandard workmanship. [6] Mr. Younker testified that his company performed all the work requested by the defendant as outlined above. Because of the change in plans by the defendant, some of the work specified in the original plans was not done. Mr. Younker estimated this work would have cost approximately 4 man hours. The defendant listed additional original specifications which had not been completed but she did not put a value on these items. [7] There are two issues in the matter: A. The effect of the mechanics lien waiver B. The value of the work done by the plaintiff. A. The Effect of the Lien Waiver: [8] The nature of a lien claim is a right given by statute to a person, who performs work or service or provides material which enhances the value of property, to recover its value from the owner of the property on which the work is done or for which the materials are supplied. The lien is limited to the amount presently owed, and may be waived by the contractor. In this case the plaintiff executed a waiver of lien which reads:

5 Page: 3 Waiver of Lien We, the undersigned, hereby waive any lien or right of lien which we may have upon the building erected and now in course of completion upon all that piece or parcel of land, more particularly described as follows: See attached Schedule A attached hereto. And upon the said land upon which the said building is situated and the appurtenances thereto, or any work done or to be done or materials supplied or to be supplied in connection with the erection and completion of said building or any alternations in connection therewith. And we hereby release the said building, work, land and appurtenances from any and all liability for any money due or owing or to become due and owing to us in respect thereof.. [9] This waiver of lien applies to work done prior to September 26, 1996, but the question is whether it also applies to work done subsequent to that date at the request of the defendant. In Custom Glass Ltd. v. Waverlee Holdings Ltd. et al. 61 DLR (2d) 413 (affirmed 67 DLR (3d) 762), the Appellate Division of the Alberta Supreme Court held that a wavier of lien containing similar wording prevented a registered lien from ever becoming operative, in spite of the fact the waiver included the statement that the waiver was given to permit the owners to obtain a mortgage. Similarly in Winnipeg Supply & Fuel Co. Ltd. v. Genevieve Mortgage Corp. Ltd. et al. 23 D.L.R. (3d) 160, a waiver of lien referring to any work done, services rendered or to be rendered, or materials supplied or to be supplied... was held to be a valid waiver of lien. [10] In this case the wavier is not expressed to be limited to work done up to September 26, 1996 and in fact refers to future work. In light of the unambiguous wording of the waiver it must be held to be valid. Accordingly, the lien on the defendant s property must be discharged. [11] However, this does not of itself dispose of the plaintiff s case. Section 48 of the Act reads: Where any claimant fails for any reason to establish a valid lien, he may nevertheless recover in the action a personal judgment against any party to the action for such sum as may appear to be due to him and which he might recover in an action in contract against such party.

6 Page: 4 [12] The wording of this statement of claim is broad enough to encompass a claim in contract, and I will deal with the plaintiff s claim in that manner. B. Value of Work: [13] Mr. Younker testified that both the originally contracted work and the extras were done as the building progressed and, in his bills to the defendant, he did not differentiate between the two. However, he did keep a record of the time spent on extras. Of the 218 hours of work at $22/hr. involved in this claim, at least 100 hours was performed before September 25, The balance of the hours charged as extras were done between October 21 and November 4, [14] The defendant admits she was aware that extra work needed to be done to convert her house to a B&B. She agreed Mr. Younker told her he would keep track of the hours, but denied he told her, in July, the rate would be $22/hr. However, as this was the rate on which the original contract was based, it is not unreasonable for the plaintiff to apply the same rate to the extras. [15] The defendant testified there were so many eliminations from the original specifications, she felt the extras would even out the price. However, at trial she did not establish the value of the omissions. In addition to the items specifically referred to in the lien claim, Mr. Younker testified he installed a trapezoidal window, constructed a closet under the stairs with shelving and boxed in piping, constructed and framed two doors for the bedroom and built shelving over the washer and dryer. [16] Upon hearing the evidence of Mr. Younker, the defendant and Kevan MacLean, a contractor who testified for the defendant, and in particular the latter s cross-examination, I have no doubt Mr. Younker performed the work he is claiming for, including ordering materials on behalf of the defendant after she released her general contractor. The fact that he did not bill separately for the extras and the original contract work was confusing to the defendant, because it was not clear to her as to what amounts were charged as extras and what amounts referred to the original contract. However, the plaintiff has established that it did actually perform all the work it billed for. Accordingly, the plaintiff s claim is allowed.

7 Page: 5 Counterclaim: [17] The defendant counterclaims for the sum of $2,880, plus GST, as the cost of installing a vapour barrier around the windows. Mr. Younker testified that he did not install a vapour barrier around the windows, but did use the spray foam insulation method, as required by the National Building Code. Only R-2000 homes were required to have a vapour barrier around the window. [18] The defendant called Kevan MacLean of Southern Kings Construction, who had been requested by the defendant to check the windows in her house for drafts, a few days before January 21, He found the windows to be very drafty and attributed the drafts to the location of the house, the type of siding used which permitted wind to blow between the insulation and the frame, and the lack of vapour barriers around the windows. Mr. MacLean testified that it is standard practice to add a vapour barrier around the windows. When he put a vapour barrier around some of the windows in the plaintiff s home, the drafts ceased. [19] The defendant entered a video tape showing drafts around the top and edges of her livingroom windows. Beverley Ellis testified she visited the defendant s home at New Years 1996 and saw and felt the drafts in the window area. A letter from Norman Finlayson to the defendant stated that he had done an air leakage report on the defendant s house at her request. His report reads in part: The test indicated a forced air change rate of 2.38 air changes per hour (ACH) at 50 Pascals pressure. The R-2000 standard requires an ACH of less than 1.5, while typical new non R-2000 homes are in the range of 2 to 4 ACH. With the intentional openings sealed, there was a measured total leakage area 79 square inches. This is the hole that would be formed by combining all the leaks in the building envelope. Observations with a smoke pencil while the house was depressurized indicated that almost all the leakage was occurring around the windows, and most of this at the window corners. Other areas which are typically drafty in houses such as baseboards, electrical outlets, switches and ceiling fixtures did not appear to have significant leakage.

8 Page: 6 [20] The plaintiff argued that as the insulation used was sufficient to meet the National Building Code requirements of a house that was not an R 2000 house, he did not have to install vapour barriers. He also argued that the drafts originated from the manner in which the windows were constructed. However, he did not call any evidence to support this position. [21] As the plaintiff has not established another origin for the window drafts, I accept the evidence of Mr. MacLean as to the nature and remedy for the drafts and allow the defendant s counterclaim. The defendant has had vapour barriers installed around some windows at a cost of $1, Mr. MacLean s estimate to install vapour barriers around the remaining windows is $1,009. The defendant has not proven her counterclaim for general damages due to distress, vexation and anxiety. Summary [22] The plaintiff s lien is discharged. The plaintiff s claim is allowed in the amount of $4, The defendant s counterclaim is allowed in the amount of $2,880, to be set off against the plaintiff s claim, giving the plaintiff judgment for $1, against the defendant. Each party shall bear his/her own costs. July 26, 2001 Matheson J.