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Court File No. 190-03 |
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Ontario Superior Court of Justice
Small Claims Court - Goderich, Ontario
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Between: |
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Progress Aluminum & Insulation Ltd. |
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Plaintiff |
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- and - |
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Mark Petrie and Linda Parlardg |
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Defendants |
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Heard: August 18, 2004 and January 14, 2005
Submissions received February 14, 2005
Judgment: April 23, 2005
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Counsel:
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Andrew Phillips, for the Plaintiff
Sheryl M. Feagan, for the Defendants
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Reasons for Judgment
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Background:
The Plaintiff contractor was first hired by the Defendant homeowners
to install new windows in their home. The installation of the
windows was done and paid for. Originally there was a dispute about
the warranty for the windows. However, in her written submissions,
the Defendants' lawyer withdrew that part of the Defendants' Claim.
The Defendants later hired the Plaintiff to install siding on their
house.
The Plaintiff's bill remains unpaid. The Defendants say that they
were charged too much for a job that was not done satisfactorily and
which needs correcting.
Issues:
1. Agreement Between the Parties:
The first issue is whether there was an agreement between the
parties. The Plaintiff's position is that the contract was based on
time and material. The Defendants urge the court to find that there
was a fixed price agreed upon in advance of the work commencing.
Unfortunately, there is not a written contract between the parties
to assist the court in determining which position is correct. That
leaves us to examine the evidence.
The Defendants came to the Plaintiff's place of business wanting the
Plaintiff to install siding on the Defendants' house. Mr. Petrie did
not want anyone else to do it.
Harold Lingard attended at the Defendants' home to provide an
estimate of the cost. Harold Lingard testified that he told Mr.
Petrie that the price for the job (including taking the old siding
off, putting new siding on and installing eaves troughs) would be
between $ 5,000.00 and $ 6,000.00, with an amount to be deducted if
Mark Petrie assisted him.
Mr. Petrie testified that he showed Harold Lingard a quote that he
had from Hensall Siding in the amount of $ 6,497.30. According to
Mr. Petrie's evidence, Harold Lingard then said "I can do you a lot
better than Hensall if you can do the preparation yourself." Mark
Petrie said that Harold Lingard never stated a price and Mr. Petrie
never asked for one. Mr. Petrie testified that he assumed the price
would be a lot lower than the Hensall Siding quote. Mark Petrie's
evidence was that he and Harold Lingard never talked about labour or
material costs separately, or about the job being a time and
material one. He said that there was no agreement on price other
than what Harold Lingard said after he saw the Hensall Siding quote.
On the other hand, Harold Lingard testified that he did not see the
Hensall Siding quote when he visited the Defendants' home in advance
of doing the job. He denied saying that he could do it cheaper than
the Hensall Siding quote.
Gary Lingard, the son of Harold Lingard and the General Manager of
the Plaintiff, was not able to assist the Court on this issue
because he was not part of the discussions with the Defendants
regarding price. He said that he only learned about the conversation
that his father had with Mark Petrie regarding the $ 5,000.00 to $
6,000.00 "well after the bill was sent out."
The Plaintiff sent the Defendants an invoice for the siding job
dated August 21, 2002 in the amount of $ 12,069.72, the full amount
of which remains unpaid.
After Mark Petrie received the Plaintiff's invoice, he immediately
phoned the Plaintiff to complain about the amount. Harold Lingard
came back to the Defendants' house. Mr. Petrie testified that when
he reminded Harold Lingard that Mr. Lingard had said that he could
do a lot better, Harold Lingard said "I know I said that." Mr.
Petrie testified that Harold Lingard said "My son made a mistake
with the numbers. How does $ 7,000.00 sound ?" Then (according to
Mr. Petrie) Harold Lingard left.
Linda Parlardg said that when Harold Lingard came to the house, he
said that Gary Lingard had made an error in the invoice. Linda
Parlardg said that Harold Lingard said he would accept $ 7,000.00 in
payment.
I have examined closely the evidence of the parties regarding the
contract. Whose evidence do I accept ? If I accept Harold Lingard's
evidence, I would find that the job was to be done for $ 5,000.00 to
$ 6,000.00, less an amount to be deducted for Mr. Petrie's
preparatory work. But Mr. Petrie doesn't recall any such quote being
given to him. If I accept Mr. Petrie's evidence (which was confirmed
by Linda Parlardg), all I know about the price is that it was to be
less than $ 6,497.30 provided that Mark Petrie would do the
preparation work (which he did).
I conclude that there never was an agreement between the parties on
the terms of the contract.
2. Remedy When No Agreement Between the Parties:
Since I have found that there was not an agreement between the
parties, I now have to decide what the court should do under these
circumstances.
Ordinarily, I would apply the doctrine of quantum meruit where the
court will hold a person liable to pay a reasonable amount for work
performed for the benefit of that person. In support of that
statement, I rely upon Bruce Baird Construction Ltd. v. Guigues,
[1988] O.J. 2848 (Dist. Ct.), Alexander v. Morency, [1992] O.J. 1085
(Gen. Div.), Ivan B. Crouse and Son Ltd. v. Cameron, [1974] N.S.J.
168 (C.A.), Stevens and Fiske Construction Ltd. v. Johnson, [1973] N.S.J. 150 (Supreme Ct.),
Ram Industrial Equip. (Toronto) Ltd. (c.o.b.
Pioneer Ram Construction) v. Kolson, [1996] O.J. 3570 (Gen. Div.),
affirmed at [1998] O.J. 4531 (C.A.), Smith (c.o.b. Smitty's
Contracting) v. Rzasa, [2003] O.J. 755 (S.C.J.), Serafin v.
Johnston, [1977] P.E.I.J. 64 (C.A.).
As the Nova Scotia Court of Appeal said in Ivan B. Crouse and Son
Ltd. v. Cameron, supra, at paragraph 29, when applying the doctrine
of quantum meruit, there are several alternatives open to the court
as to how this can be done.
I find in this case that there is lack of proper evidence as to how
much time was spent on the project or how much material was properly
used. I attribute a big part of this to the fact that Harold Lingard
and Mark Petrie have been friends for over 10 years. In fact, at one
point in his evidence, Mr. Lingard said "I shouldn't have worked for
a friend !"
There was also considerable evidence about whether there were extras
requested by the Defendants. The burden of proof is on the Plaintiff
to prove that there were extras. After listening to all of the
witnesses, I am not satisfied that there were any extras in this
siding job, other than the foam backer board.
One of the options available when applying the doctrine of quantum
meruit is to consider the opinion of experienced siding installers
as to what a reasonable sum would be ( Ivan B. Crouse and Son Ltd.
v. Cameron, supra).
In this case, we heard evidence from two experienced siding
installers, being Herman Stryker and Henry Meinen. Each of them
provided the court with written estimates. Mr. Stryker said that the
foam backer board which the Plaintiff supplied would add another $
500.00 to his estimate. There was also the testimony of Harold
Lingard, as well as a written estimate from Hensall Siding. Thus,
the court has the benefit of the following four estimates:
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Harold Lingard
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$ 5,000.00 to $ 6,000.00 less an amount deducted for owner's prep.
work. |
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Hensall Siding |
$ 6,497.30 (being $ 6,072.24 + GST) (see Ex. 2 - Tab 3) |
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Herman Stryker |
$ 7,183.98 (being $ 6,714.00 + GST) (see Ex. 2 - Tab 8) |
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$ 535.00 (being $ 500.00 + GST for the foam backer board) |
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total - |
$ 7,718.98 |
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Henry Mienen |
$ 7,383.00 (being $ 6,900.00 + GST) (see Ex. 2 - Tab 7) |
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Applying the doctrine of quantum meruit, I find that if the siding
job had been done properly, a reasonable charge for the job would
have been $ 7,556.73 (including GST) (which is the figure from Mr.
Stryker for the foam backer board plus the average of the estimates
from Hensall Siding, Mr. Mienen and Mr. Stryker).
3. Workmanship:
The Defendants say that the job was not done satisfactorily and
needs correcting.
Mr. Petrie said that he complained three times to Harold Lingard
during the project about the workmanship. He said that Harold
Lingard promised that he would come back and finish the job. Mr.
Petrie said that is why he did not complain more often.
As part of the preparatory work, Mark Petrie nailed on the foam
backer board. Harold Lingard said that Mr. Petrie did not do a good
job. As a result, the siding was not straight. Should that have been
a surprise ? It was clear from the evidence of Harold Lingard and
Mr. Petrie that Mr. Petrie was not properly trained in how to put on
foam backer board.
But Harold Lingard decided not to take the foam backer board
off. Instead, Mr. Lingard tried to shim the siding on the front of
the foam backer board, instead of doing it from behind (which is
what he normally would have done). Mr. Stryker, one of the experts
who testified, said that if the preparation work was not done right,
then you do it right before you put the siding on. If that had been
done here, there would not have been as many problems.
Harold Lingard admitted that he had not finished the caulking. But
he said that Mr. Petrie had agreed to do it. Mark Petrie denies that
he was to finish the caulking.
Gary Lingard admitted that the job was not completed and said there
were deficiencies with the job. Gary Lingard said it was hard to
make a list of the deficiencies because he said that Mark Petrie was
responsible for some of the work and the Plaintiff was responsible
for doing the rest.
But I wonder why it was hard to list the deficiencies ? Once the
list was prepared, then it could be determined who was responsible
for doing what.
It is unfortunate that the parties could not agree on an independent
third party to look at the job and prepare a list of the
deficiencies.
Both parties said they tried to get an independent third party,
including someone through SAWDAC (the Siding and Window Dealers
Association of Canada), to look at the project. But there was
conflicting evidence about the difficulty of doing that.
Eventually two experts toured the property independently and
completed some paperwork. While their paperwork seemed to come to
the same conclusion, their oral evidence in court was considerably
different.
The Defendants called Herman Stryker, a contractor in the siding
business since 1971, to testify as an expert witness. I was
impressed with his qualifications.
Mr. Stryker attended at the Defendants' house and looked at the job
that the Plaintiff had done. He said that the Plaintiff did a good
job with the windows, but a poor job with the siding. He prepared a
very detailed list of the problems that he identified with the
siding installation. That list is found at Ex. 3 - Tab 1 and at Ex.
5. I do not propose repeating what the problems were that he
identified on that 1.5 page list.
There was only one area that Mr. Stryker's evidence in
examination-in-chief was disturbed on cross-examination. It had to
do with the size of the gap that was showing in Photos # 1 and # 2
of Exhibit 6. On cross-examination, Mr. Stryker conceded that the
gap was only ½ the size of what he had said in his
examination-in-chief. However, the gap was still larger than was
acceptable to Mr. Stryker for repairing with caulking. Mr. Stryker
also said there should not have been any gap there.
Mr. Stryker said "Overall, this is the worst siding installation job
that I've seen in my 33 years." Mr. Stryker's solution for fixing
the problems that he saw was to take everything off and start over
again, re-using material where possible. His estimate for doing this
was $ 6,714.00 plus GST.
Henry Meinen was the expert witness that the Plaintiff called to
testify. He has been in the construction business for 20 years and
the siding business for 10 years. I was also impressed with his
qualifications.
Mr. Meinen was first contacted by Mr. Petrie to come to look at his
house. Mr. Meinen said that Mr. Petrie wanted him "to give him a
price to straighten out the problem of the job that a friend had
done for him." At that point in time, Mr. Meinen did not know that
the "friend" was Harold Lingard or that the Plaintiff was involved.
In fact, Mr. Meinen did not find out it was the Plaintiff until he
received a letter from Mark Petrie's lawyer.
Mr. Meinen went out to the Defendants' house. Mark Petrie pointed
out to Mr. Meinen some of the things that Mr. Petrie was not happy
with. In addition, Mr. Meinen noticed a few deficiencies himself. In
court, Mr. Meinen said that to deal with the items that Mr. Petrie
raised would take one day with a couple of men. There was one
section where he would have to remove the siding. Mr. Meinen's best
estimate of the cost to bring it up to an acceptable standard was $
1,100.00 - $ 1,200.00 plus GST, including material and what I
interpret to mean to be two days of labour (one day times two
men).
$ 6,714.00 versus $ 1,200.00 - how do you reconcile those figures
from two well-qualified experts ? Each of the experts gave oral
evidence supporting their calculations.
Mr. Meinen testified that Mark Petrie asked him if he felt that the
siding should come off. Mr. Meinen said that normally he would
not take all the siding off to make it a satisfactory job
[emphasis is mine]. But Mr. Meinen said that he told the homeowner
that if Mr. Petrie wanted a superior job, the siding should come
off.
Mark Petrie, on the other hand, said that Mr. Meinen told him that
he would not attempt to fix it. Mr. Petrie said that Mr. Meinen said
there were so many errors that he would take everything off and
start from scratch.
Mr. Meinen testified that his written quote was not
just to repair the job, but was prepared on the basis of
taking all of the siding off and starting over [emphasis mine].
Mark Petrie said he never told Mr. Meinen that he wanted a price
based on the siding coming off. In fact, Mr. Petrie says that he
asked every contractor about a price for repairing. He says that he
did not tell them that he wanted a price based on taking the siding
off and doing it over.
Let us examine what Mr. Meinen's written quote (Ex. 2 - Tab 7) says.
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"Sept. 12, 2003
"MARK PETREE,
"To repair the siding on your home would include taking off the
siding to get it level, match corners and repair around the windows
and also soffit repairs and flashings.
"This job would consist of 8 days of labor to get a satisfactory
job.
"Quote: $6900.00 + GST
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Mr. Meinen further said in his evidence that Mark Petrie told him to
come in around $ 6,500.00 to $ 6,700.00 with his estimate. Mr.
Meinen said that Mr. Petrie told him that the other contractor had
come in around $ 6,500.00. Mr. Meinen then said that "I knew there
was something not right. So I went with $ 6,900.00." Later in
cross-examination, Mr. Meinen said "I upped my price because I
didn't think something was right"
But if Mr. Meinen thought something was not right, he had two
options. He could word the quote appropriately. Alternatively, he
could refuse to put anything in writing. No expert should compromise
his or her reputation just because a client wants something worded a
certain way.
Mr. Meinen said in his evidence that he didn't know that his
estimate would be used in court. That should not make any
difference.
I reject Mr. Meinen's explanation that he gave in court concerning
what his quotation really meant. Instead, I accept his written
quotation as being accurate when he said that "To repair the siding
…would include taking off the siding … to get a
satisfactory job. This job would consist of 8 days of labor
to get a satisfactory job."
In accepting Mr. Meinen's written quote and rejecting his oral
testimony where it was in conflict, I take comfort in the following:
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Mr. Stryker's list of deficiencies (Ex. 3 - Tab 1 and Ex. 5).
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Mr. Stryker was able to provide a detailed analysis in court of
the deficiencies with the assistance of the list that he
prepared and the numerous photographs (Ex. 6), which analysis
was mostly intact even after skilful cross-examination by the
Plaintiff's lawyer.
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Mr. Stryker was complementary about the job that the Plaintiff
had done installing the windows for the Defendants.
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Mr. Meinen's written quote of $ 6,900.00 for doing the repairs
was very close to Mr. Stryker's quote of $ 6,714.00. |
Result:
As I said under issue 2, if the job had been done properly, I would
have allowed the Plaintiff $ 7,556.73 (including GST).
But because of the repairs that the Defendants are facing, I allow
the Defendants a set-off in the amount of $ 7,283.49 (including GST).
That amount is the average of the written estimates of Mr. Meinen
and Mr. Stryker to complete the repairs.
It was suggested in argument that I give the Plaintiff credit for
the cost of the material used in the job. But other than the
allowance which I have given for the foam backer board, I do not
have any reliable evidence of the value of the material that can be
re-used when the repairs are done.
Hence, there will be judgment for the Plaintiff in the amount of $
273.24, being $ 7,556.73 less the set off-off of $ 7,283.49, with no
allowance for pre-judgment interest. Because of the way that I have
dealt with the claim, the Defendant's Claim is dismissed without
costs.
Costs:
Hopefully the parties can agree on the costs of this trial. However,
if they cannot, each of them may provide me with copies of any
written Offers to Settle and make and exchange brief written
submissions (no more than 2 pages in length), within 21 days of the
release of these Reasons.
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Norman B. Pickell, Deputy Judge
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Arbitration Decisions - Norman Pickell - Progress Aluminum v. Petrie
