nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 464 Date: 2010 12 17 Docket: Q.B.G. No. 1553 of 2008 Judicial Centre: Regina BETWEEN: GEORGE ROBERT LAWSON and VINCENT THOMAS McKAY Appearing: William J. Herle for the plaintiff Vincent Thomas McKay appearing on his own behalf JUDGMENT WILSON J. December 17, 2010 [1] The defendant, Vincent McKay, contracted with the plaintiff, George Lawson, for the supply and installation of eavestroughing, soffit and facia together with two downspouts, capping of three garage doors and capping of wooden trim, all to be installed on a new garage building located on Mr. McKay’s land. [2] Mr. Lawson completed work on Mr. McKay’s garage and presented written invoice to Mr. McKay in the sum of $2,800.00. Mr. McKay has not paid Mr. Lawson’s account. Mr. McKay was dissatisfied with the work of Mr. Lawson. Mr. McKay hired others to repair the work. He takes the position that Mr. Lawson’s claim should be dismissed. [3] On October 14th, 2008, Mr. Lawson caused to be registered at the Land Titles Registry, Province of Saskatchewan claim of lien under The Builders’ Lien Act, S.S. 1984-85-86, c. B-7.1, as am. Mr. Lawson then issued a statement of claim in this Court seeking judgment against Mr. McKay in the sum of $2,800.00 and an order that Mr. Lawson is entitled to a lien under the provisions of The Builders’ Lien Act. [4] In July of 2009, Mr. Lawson brought motion seeking leave to enter final judgment against Mr. McKay, in the sum of $2,800.00, with interest to date of judgment, and judgment entitling Mr. Lawson to maintain his lien under the provisions of The Builders’ Lien Act. On August 6th, 2009, Zarzeczny J. made an order that this action be set down for summary trial with no examinations for discovery or pre-trial conference. Zarzeczny J. ordered that the procedure at this summary trial would be the procedure for simplified trial as set out in Saskatchewan, Court of Queen’s Bench Rules, rule 494. It was further ordered that the affidavits that were filed in the proceeding would be the evidence-in-chief of the witnesses and that the witnesses were to be made available for cross-examination at trial. [5] The following affidavits are evidence in the matter before me: 1. The affidavit of George Robert Lawson sworn June 22nd, 2009; 2. The supplementary affidavit of George Robert Lawson sworn July 24th, 2009; 3. The affidavit of Vincent T. McKay sworn July 9th, 2009; 4. The supplementary affidavit of Vincent T. McKay sworn July 30th, 2009; 5. The affidavit of William Borbely, filed on behalf of the defendant, Mr. McKay, sworn July 9th, 2009; and 6. The affidavit of Keenan Young, filed on behalf of the defendant, Mr. McKay, sworn July 10th, 2009. [6] At the trial of this matter both Mr. Lawson and Mr. McKay testified. In addition, Mr. Young and Mr. Borbely testified. THE EVIDENCE [7] In August, 2008, Mr. McKay constructed cottage roof garage on his property located at Boggy Creek, Saskatchewan. After completing the concrete, framing, brick work and roofing, Mr. McKay began search for contractors to supply and install eavestroughing, soffit and facia, as well as other items, on his new garage building. Mr. McKay phoned several contractors who were unable to do the job immediately. He then contacted Mr. Lawson who advertised in the phone book as Midwest Eavestroughing operating out of Lumsden, Saskatchewan. [8] Mr. Lawson and Mr. McKay met at Mr. McKay’s home on September 3rd, 2008. After reviewing the garage, Mr. Lawson provided Mr. McKay with quotation for the supply and installation of eavestroughing, soffit, and facia materials on the garage. More specifically, Mr. Lawson agreed to supply and install approximately 140 linear feet of eavestroughing, soffit and facia together with two downspouts, capping of three garage doors and capping of wooden trim, for the total price of $2,800.00 including goods and services tax. Mr. McKay acknowledges that he agreed to contract price of $2,800.00. However, he says he wanted written contract confirming particulars and price which he never received from Mr. Lawson. Mr. Lawson says that Mr. McKay never requested written contract after accepting the verbal quotation in the sum of $2,800.00. He said it was not his practice to prepare written contracts on jobs of the size in issue and that he would simply present an invoice after the work was completed. [9] Mr. Lawson worked on Mr. McKay’s garage for three days in early September, 2008. On September 6th, 2008, Mr. Lawson provided Mr. McKay with his invoice in the sum of $2,800.00. [10] Mr. McKay had significant concerns with respect to the work done by Mr. Lawson. Mr. McKay alleged the soffitting was not installed correctly on the west wall causing installation of the siding to be bowed on the last row. In addition, he says the corner areas were not cut into 45° angle. As regards the facia, Mr. McKay says that the facia installed on the west and east walls was rippled and overlapped in the wrong direction. As regards the capping on the three garage doors, Mr. McKay says that the capping was not placed flush before screws were used. In addition he complained that silver screws were used on the capping which showed up badly against the white capping. [11] Capping was also required on four small pieces of wood. Mr. McKay says the capping ordered and supplied by Mr. Lawson did not fit as it was not wide enough. It is not disputed that Mr. Lawson installed two of the four caps his first day on the job, but that on the second day of the job Mr. McKay had his electrician, Mr. Borbely, remove the caps that did not fit and arranged for four new caps to be made. Mr. Borbely installed the four new cappings after removing the two installed by Mr. Lawson. [12] With respect to the vertical siding installation above the garage doors, Mr. McKay says that no drip cap was installed, no caulking was done, pieces of building paper were missing and the siding was stapled across in visible lines with dark staples. Finally, as regards the eavestroughing and two downspouts, the eavestroughing, according to Mr. McKay, had roller marks throughout and no downspouts were ever installed. [13] By letter dated September 18th, 2008, Mr. McKay detailed his concerns regarding Mr. Lawson’s work. After receiving the letter Mr. Lawson attended at Mr. McKay’s property, on September 23rd, 2008. Mr. Lawson says he observed some very minor correction work and offered to do repairs. In addition, Mr. Lawson said he was prepared to install the two downspouts which he had not completed. It is not disputed that Mr. McKay did not agree to Mr. Lawson making any repairs. [14] Mr. McKay contacted Mr. Young and Mr. Borbely to review the work done by Mr. Lawson. The decision was made to remove the soffit, facia and eavestroughing installed by Mr. Lawson. Mr. Keenan replaced all the work in mid October, 2008 and provided bill to Mr. McKay in the sum of $1,785.00 taxes included. Mr. McKay prepared full cost list which includes additional costs for work done by Mr. Borbely in the sum of $426.60 and supplies from Home Depot and Wayne Building Products in the sum of $158.82. Finally, the cost list includes $350.00 which Mr. McKay says would cover work Mr. McKay performed and his cost to pick up supplies. In total, Mr. McKay says the amount required to fix the installation work of Mr. Lawson, was the sum of $2,720.42. ANALYSIS [15] The issue before me is whether Mr. McKay is liable to pay Mr. Lawson’s outstanding account. Mr. McKay’s concerns are with respect to the installation of the soffit, facia and eavestroughing and no evidence was led to indicate the products used in the installation were defective. Mr. McKay has not specifically argued breach of contract regarding the installation. However, his position that he is not liable to pay Mr. Lawson’s account must be based on breach of contract. [16] find as fact that Mr. Lawson and Mr. McKay entered into an oral contract for the supply and installation of soffit, facia and eavestroughing. There is clear evidence in the affidavit filed by Mr. McKay that after Mr. Lawson provided quote for his services in the sum of $2,800.00, taxes included, Mr. McKay agreed to the contract price. Mr. McKay’s evidence regarding his desire to have the terms of the oral contract set out in writing is, even if true, irrelevant. [17] There is an implied term in the contract for the performance of services that the work will be carried out in “proper and workmanlike manner”. This legal principle is summarized by Dawson J. in Maisonneuve v. Burley 2001 SKQB 407 (CanLII), [2002] W.W.R. 111 (Sask. Q.B.), where she states as follows in paras. 26 The contract between the plaintiffs and the defendant was contract to do work and supply materials. The governing law is set forth in Mack v. Stuike (1963), 1963 CanLII 332 (SK QB), 43 D.L.R. (2d) 763 (Sask. Q.B.). At p. 771 of Mack, supra, Balfour J. quotes from Halsbury’s Law of England, vol. 3, 3d ed. (London: Butterworths, 1953) at 435, para. 818 as follows: ... contract to perform any work, in the absence of any stipulation as to the manner in which it is to be carried out, implies condition that the work shall be done in good and workmanlike manner, and the workmen employed on the work must be possessed of the ordinary amount of skill possessed by those exercising the particular trade. ... 27 As stated in Goldsmith on Canadian Building Contracts (looseleaf; (Rel. 2) 1998) (Toronto: Carswell, 1988) at pp. 5-11 through 5-12: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of such specifications, is not of reasonable workmanlike quality, is not proper compliance with the contract and constitutes breach. Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were prepared by him and are deficient, even if they were approved by the owner. Whether work, or material supplied, is defective or not is, in each case, question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none. Where contract, either expressly or by implication, contains particular standard for the work to be done, an owner is not entitled to insist on work of higher quality. For example, an owner who contracts for the construction of bush road is not entitled to insist on standard of construction applicable to provincial highway. [18] In the matter before me there is no evidence that Mr. McKay instructed Mr. Lawson to perform the installation services in particular manner. Thus, in the absence of any specifications, must determine whether the services rendered by Mr. Lawson were done in good and workmanlike manner. The test for compliance with the workmanlike standard is fitness for purpose (see: Vogel (Al) Construction Ltd. v. Forbes, (1998), 1998 CanLII 13367 (SK QB), 174 Sask. R. 236, [1998] S.J. No. 696). The purpose for the contract in the matter before me was to install eavestroughing to provide adequate drainage of water off the roof of the garage and keep water from entering the walls of the garage. [19] Mr. Lawson testified at trial that the work he did for Mr. McKay was done to industry standards. Mr. Lawson takes the position that many of Mr. McKay’s complaints were regarding minor aesthetic issues, as opposed to any significant problem with Mr. Lawson’s work. For example, the use of silver screws as opposed to white and the facia overlapping so as to be unsightly to pedestrians approaching the garage. Mr. Lawson says he would have done minor repairs, finished the job by installing the downspouts, and replaced section of trough that had rippling, but that he was not allowed by Mr. McKay to remedy the problems. [20] Mr. McKay takes the position that the work was so “shoddy” that the entire job had to be redone. Mr. McKay called two witnesses to support his position. [21] Mr. Borbely is an electrician who Mr. McKay hired to install perimeter lights on the garage. In his affidavit filed in this matter Mr. Borbely said that he noticed the capping over the pseudo-like pilasters installed by Mr. Lawson did not fit well. Mr. Borbely said he wanted the surface to be flat in order to prevent water from getting into perimeter lights that would be mounted on the pilasters. Under cross-examination at trial he acknowledged that it was not “his call” to say whether or not the capping had to be redone. Mr. McKay asked him to replace the capping. In addition to the capping, Mr. Borbely says that he noticed the eavestroughing had ripples and that mitred corners had not been installed. Mr. Borbely was of the view that because some of the soffitting material had been installed askew it would be very difficult to retrofit mitred corners. [22] Mr. Young also testified for Mr. McKay. Mr. Young is involved in the exterior construction business, both as worker and an owner. Mr. Young was known to Mr. McKay as Mr. Young had in the past worked for Everflow Eaves and Exteriors Inc. Mr. Young was called by Mr. McKay to attend at the site and review the work done by Mr. Lawson. [23] Mr. Young says he noticed unsightly roller marks. He further noticed that the facia on the east and west sides were not overlapped south to north creating unsightly overlaps. He saw that the soffitting on the west side was bowed and would have to be removed and lowered in order to level the siding and soffit. Upon inspecting the corners, Mr. Young says the corners were leaking and rust appeared on the northwest and southwest corners. He observed silicone like caulking floating in the eavestroughs. Finally, he noticed that the soffitting on the corners was not coming in square. It appeared that the soffitting was not locked in and ran at an angle in several places. According to Mr. Young this would cause the corner soffitting to be off square and the soffitting would eventually fall down. During his testimony at trial Mr. Young testified about the installation of the facia. He indicated it was industry standard to overlap the facia in such way that pedestrian traffic would not notice the overlap. It was Mr. Young’s view that the work could not be repaired, particularly the roller marks/dents. [24] Having reviewed all of the evidence, find that number of complaints made by Mr. McKay relating to the work performed by Mr. Lawson relate to aesthetics. However, there is enough evidence of significant problems for me to conclude that the central purpose of the contract for installation was not achieved and that, therefore, there has been a breach of the implied condition of the contract that it would be performed in a workmanlike standard. Specifically, Mr. Lawson’s failure to install drip capping, mitred corners, properly caulk, and lock in the soffitting, appear to be critical for proper drainage of water away from the garage. For that reason conclude that Mr. Lawson did breach the oral contract as the quality of installation was of such standard as to amount to poor workmanship. [25] Having found breach of contract, Mr. McKay is entitled to damages. In Maisonneuve, supra, Dawson J. states at para. 41 Whether one considers damages for breach of contract or damages in tort, the damages will usually be the reasonable costs of remedying the defects. However, an owner is entitled only to have such defects remedied to such extent as to conform to the requirement of the contract, but not to require additional work or work of higher quality. [26] In this matter the cost of repair, as set out on the cost list prepared by Mr. McKay, is slightly less than the cost quoted by Mr. Lawson for the job. Mr. McKay cannot be said to have decided to proceed with additional work or to have work done of higher quality than the work expected to be performed by Mr. Lawson. am, therefore, setting off the damages as against Mr. Lawson’s claim. CONCLUSION [27] As set out above, I have concluded that Mr. Lawson’s workmanship constitutes a breach of contract, and Mr. McKay’s damages are set off against the claim. Mr. Lawson’s claim is therefore dismissed. [28] There shall be no costs in this matter. J. D. L. Wilson
The defendant contracted with the plaintiff for supply and installation of materials. The defendant was not satisfied with the plaintiff's work, hired a third party to fix the plaintiff's work and refused to pay the plaintiff. The plaintiff sued for payment of the outstanding account HELD: The plaintiff's claim is dismissed. The Court found enough evidence to conclude that the central purpose of the contract for installation was not achieved and that there was a breach of the implied condition that it would be performed in a workmanlike standard. As the plaintiff's workmanship constitutes a breach of contract, the defendant's damages are set off against the claim.