Superior Court of Justice

Cour Superior de Justice File # SC-11-00002176

London Small Claims Court

BETWEEN

PETER MASUCH

Plaintiff/Defendant by counter-claim

And

EVELYN MINCHILLO

Defendant/Plaintiff by counter-claim

Peter Masuch represented himself

Evelyn Minchillo represented herself

(heard July 26 and December 13, 2012)

Reasons for Judgment

Introduction.

The defendant, Evelyn Minchillo hired to Plaintiff Peter Masuch to perform a complete kitchen renovation at the rear of her home in August, 2011. After seven weeks of work, unfortunately, the cabinets, counters and sink had not been installed and their good working relationship had broken down. She had wanted him to start right away; he started the day after he gave his estimate.

Background.

The defendant’s home located at 54 Eastman Avenue, London was likely built in the 1940s, perhaps earlier. No one was able to estimate its age. The interior walls were lath and plaster and there was extensive knob and tube electrical wiring installed throughout the home. Minchillo purchased this bungalow with an advertised master bedroom "loft" upstairs. The kitchen is at the rear. Two bedrooms, living room etc., are at the front of the house.

The evidence clearly established that someone had done renovations and made structural changes to the home before Minchillo purchased it several years ago, Minchillo hired a home inspector when she bought. She told Masuch that she had successfully sued the home inspector – apparently for negligence – but she collected nothing as he had gone bankrupt. Minchillo reluctantly acknowledged, too, that she had been told by an engineer the structure of the ceiling was unsafe. The engineer was her daughter' s employer. She knew the home had serious deficiencies.

Masuch has over 30 years experience renovating homes as a general contractor. He was recommended for the job by the witness Ed Rosloski.

In August 2011, Minchillo asked Masuch to estimate the cost of the proposed kitchen renovation. She was anxious to start right away. He started the next day. She was to make all of the decisions for the project. One of her principal complaints at trial was that the job took too long.

Issues to be decided.

Is the plaintiff, Masuch entitled to be paid for the work done as "extras"? If so, how much?

Is the defendant, Minchillo entitled to any money damages on the defendant’s claim she made? If so, how much?

The evidence.

The documentary evidence was scant and consisted mostly of hand-written notes made by Masuch. Those photographs tendered by Minchillo which were admitted into evidence were largely unhelpful. Large numbers of photographs were taken by the adult plaintiff’s son, Robert Rochon. Many photos were specifically directed by Masuch. Of the many photographs taken by Rochon none were tendered to show the work in progress nor the structural and other defects Masuch found during the work. The few photographs admitted as exhibits were taken at such a narrow angle and so close to the photo subject that they revealed almost nothing of assistance to me. There were no shots of the whole room or a whole wall, for example. There were no shots of ceiling rafters showing their dimensions and the lack of bracing found by Masuch to be a danger.

The plaintiff, Masuch gave evidence and called two other witnesses. The defendant, Minchillo gave evidence and called three witnesses.

Masuch gave his evidence in a clear and straightforward manner. His evidence was detailed and his recollection of events was good. Evidence given by other witnesses was generally supportive of Masuch's evidence. His employee Bill MacKay gave his evidence in a clear and straightforward manner. I accept his evidence and find that it was not biased in favor of either litigant. He did not remember every detail of the work he performed but his evidence was most helpful. He explained the condition of the electrical wiring he found and the work he did to replace it. He explained why in some instances the wiring was in a dangerous state when he got there. The plaintiff also called Ed Rosloski as the person who recommended Minchillo hire Masuch. His evidence was of little assistance on the main points in issue.

The defendant, Minchillo gave evidence. For the reasons which follow, I found her evidence unpersuasive and, at times evasive. On the one hand she was unusually particular and precise answering some questions and on the other hand remembering little or nothing of the significant events and conversations. She remembered giving virtually no instructions to Masuch, nor actual steps during the renovations nor even meetings to discuss next steps. I understood her to say that during the seven weeks of the renovations she never went into the kitchen area to inspect the ongoing work, i.e., she did not know what work was being done. That seems to me highly unlikely. She denied meeting Masuch at the house in the evenings but finally conceded there were, maybe two meetings. And she finally conceded that she went to the house at the request of Masuch twice. In contrast, Masuch’s evidence, which I accept, was that he saw her almost daily at the house. Given the cost of the project and the disruption to hers and her son's life for seven weeks, I find surprising and unpersuasive her lack of memory of events, discussions with and instructions to Masuch.

Further, the evidence of other witnesses clearly establishes that Minchillo was wrong in her evidence in several particulars. For example, she was adamant that an electrical plug in her bedroom wall was “live”. In fact her light and clock were connected to a power bar plugged into another socket. Masuch remedied that for her. She was wrong asserting that Masuch wrongly installed a damaged or discoloured electrical plug in the kitchen (photograph Exhibit 12). In fact, the socket in question was in the living room wall and not worked upon by Masuch. She was wrong when she claimed that she required the kitchen ceiling beam be concealed with drywall. There is clear evidence that she instructed Masuch to clad the beam in pine.

Minchillo’s second witness was Peter Myers. Meyers is licensed to install sliding doors, exterior siding and the like. Minchillo made no attempt to qualify him as an expert in construction nor did he claim to be one. Therefore his opinion on the quality of or faults in the work of Masuch is not admissible evidence. But I did find helpful his evidence about the requirements to obtain building permits. Minchillo opted not to apply for a permit. She was in a hurry to complete the kitchen. One of her principal complaints was that the construction took too long. Meyers explained his experience securing many building permits. In particular he explained the cost of (up to $2,000) and the process of procuring a Building Permit (3 to 4 weeks delay), and the further delays for City inspectors to come to the house at specific stages of the project.

She called her adult son, Robert Rochon. Although he was living in the house and he was present during much of the construction, he gave no evidence about the defects found by Masuch which he had photographed -- many he took at the request of Masuch. In cross-examination he conceded there were many structural defects and a lot of mold found in the basement too. Nor did he give any evidence about discussions between Masuch and his mother stating that he was not present in the room with them. But he clearly could have given much more information about the state of the home, the progress of the work and the work performed. He chose not to. I did not find convincing, either, the evidence he gave about the electrical circuits installed by MacKay.

Minchillo’s stepfather Bruce Birkinshaw gave his evidence in a forthright and precise manner. A retired plant worker, he spent many weekends after September 24 working for his step daughter, Minchillo. Work stopped on September 24th. Birkinshaw helped her by installing cabinets, counters, sinks, flooring and the like in order to provide Minchillo with a working kitchen. He and Rochon did the work together. He agreed with Masuch that the two of them spent approximately 1 ½ days total time completing the kitchen installation. They did not install trim or baseboards. They did not charge Minchillo for their work. I accept Birkinshaw 's evidence as most helpful.

In summary, I accept the plaintiff's evidence as to the agreements and events. Where the evidence of Minchillo disagrees with the evidence of Masuch, I prefer and accept his evidence in preference to hers.

Analysis.

This case must be decided on the findings of fact which follow. The person making the claim is required to establish on a balance of probabilities [it is more likely than not] that he or she has suffered a financial or other compensable loss.

a) The agreement

I find as a fact that the parties came to a verbal agreement to renovate the kitchen for an initial estimate of $12,000 reflected in Exhibit 1. The project commenced on August 9, 2011. Work stopped on September 24, 2011. At September 24th, the project was incomplete: cupboards, counters and sink had not been installed, drywall was not complete, flooring, trim and baseboards had not been installed.

I find that by her statements and conduct, Minchillo terminated the agreement prematurely on or about September 24. She had no reasonable grounds for doing so. Indeed, she gave no satisfactory explanation for why she sent Masuch and his workers away. Her evidence was "I'm done. I can't do this anymore." After September 24 she refused any overtures by Masuch to rebuild their relationship and complete the work. Again, she gave no reasonable explanation.

I find that Masuch clearly explained to Minchillo at the outset that there might be extra costs (extras) over and above the $12,000 initial estimate. I further find that during the course of the seven weeks of work, Masuch on several occasions explained to Minchillo and actually showed her both extras done and to be done and the underlying safety reasons for the work. Exhibit 1 represents no more than a rough estimate in the most general terms of the work to be done, a tentative price and the payment schedule.

I accept the evidence of Masuch that he found the kitchen ceiling to be structurally unsafe and a danger which needed to be remedied. I note, as well, that the kitchen ceiling was also the floor of the loft where Rochon was sleeping. Masuch would have been negligent if he had failed to show Minchillo the structural defects and to obtain her consent to rebuilding the damaged rafters/joists. I find that he discovered the structural faults in the ceiling after the work commenced. To enlarge the room, he removed an existing wall and moved it over one foot. That was how he discovered the ceiling rafters to be only 2x4” and some of them flat (rather than on their edge) making them weaker. I find that he showed Minchillo the danger, he explained it and he properly obtained her authorization to shore up the ceiling and install an 11 foot supporting beam.

I accept the evidence of Masuch that when making his initial estimate, he gave to Minchillo the option of securing building permits and the requisite city inspections. He would have explained to her the delays and expenses arising. I find that she chose not to secure a building permit to save both time and cost. She was impatient to start. The witness Myers estimated the cost could be up to $2000 extra and the time would amount to several weeks delay. It does not therefore lie in the mouth of Minchillo to complain, at trial, that Masuch failed to have inspected the roof beam, electrical wiring and gas line. She cannot have it both ways.

I find that Minchillo bought unassembled kitchen cupboards from Home Depot on August 16th . She made the purchase without help from Masuch. With the assistance of Masuch she had an employee of Home Depot create an accurate schematic floor layout for the new kitchen. This layout was filed as Exhibit 15. Masuch properly relied upon the dimensions in the layout when building the new kitchen wall.

b) The work

I do not accept the evidence of Minchillo that she was unaware of the ongoing work and the extra work. She admitted to ordering only 3 extras. In my view she ordered all of the extras listed in Exhibit 5. Her son Robert was at the house as was Terry who was also living there. The latter was not called as a witness. But Masuch said that he had discussions with Terry on several occasions. It is reasonable to conclude that Minchillo must have also discussed with Terry and Robert frequently, if not daily, the project causing so much disruption to their lives. It is also reasonable for me to draw a negative inference against Minchillo for failing to call Terry. Likely, his evidence would not have supported her assertions.

To remedy the structural danger in the kitchen, the plaintiff installed in the kitchen ceiling 22 floor joists (2x 8”), two longer 2x 8s, and two laminated 11 foot beams all purchased at Copps Lumber. I accept the evidence of Masuch and Rochon that this work took three men 2 to 3 days to complete. The $3500 charged for this work is reasonable.

I accept that MacKay found the knob and tube wiring throughout the basement in a terrible state. In one instance the wiring to a socket was installed with two lines which delivered 220 volts, a clear danger. He found, as well: superfluous junction boxes – of 9 boxes, 6 were obsolete, wires simply cut, a single socket connected to a panel breaker and so on. To quote him: “I eliminated stuff that did not need to be there.” And later: “I could not work on the bedroom wiring without re-wiring the entire front of the house.” Believing that he would be asked to complete the wiring at the front of the house he was far from finished at September 24th .

I would be remiss if I failed to remark that Minchillo made many complaints about the replacement of knob and tube wiring. She complained that circuits did not work and were overloaded. She called no expert evidence to support this assertion. Rochon’s evidence on this point was far from persuasive. I accept the evidence of MacKay that when he was doing the work he was also fixing safety hazards he discovered. He was also operating on the understanding that further work would be required on the other wiring at the "front" of the house.

c) Payments

Exhibit 1 specifies three $4000 payments to be made on August 8, 15 and 20, 2012. Minchillo gave Masuch four cheques, though. With one exception (Exhibit 3), in the case of each payment, the cheque was accompanied by $500 in cash. I find that Minchillo paid $4000 on August 9, and August 16. On August 18, Minchillo again paid Masuch $3500. She gave him $3000 by cheque plus $500 cash. This $3500 was paid only two days after she had paid him $4000. I find that Minchillo intended that $3500 paid August 18th cover the cost of the structural ceiling repairs completed by Masuch.

The final payment due on August 20th occurred differently. The final payment was made a month late. On September 23 at the noon hour the parties met at the bank. Minchillo handed Masuch $500 cash and told him to come to her house that evening to collect a cheque for $3500. He picked up the cheque, Exhibit 3, post dated for September 26th ; she stopped payment on it.

Even if I am wrong in reaching the conclusion in the preceding paragraph, Masuch is still entitled to judgment for $3500 on Exhibit 3, the cancelled cheque. The cheque is in itself an admission of debt to Masuch on which he could successfully obtain judgment.

d) The claim for extras

I have already discussed the first component of Masuch’s claim for $3,500 for shoring up the kitchen ceiling.

The second component of the plaintiff's claim is $1,590.00 for "extras" excluding the structural repair. There are eleven items listed as completed “extras”. In my view, Minchillo ordered the "extras". The charges for each of the 11 items listed in Exhibit 5 are reasonable. None of the amounts were successfully challenged by Minchillo.

In fairness, Minchillo did acknowledge specifically requesting Masuch install a patio door. His charge of $600 for this extra is reasonable. She also acknowledged Masuch did not need to re-frame the stairwell to the loft. Her attempts to undermine the claims for installing a porch light, installing a vent stack for the kitchen sink, removing kitchen cabinets and several others were unpersuasive.

Minchillo complained her gas stove stopped working properly. She blamed Masuch alleging that he bent the gas line. She called no expert evidence to support this theory; she filed a photograph, Exhibit 14. Curiously, instead of getting a gas fitter to come and remedy the problem, she purchased a new electric stove and hired an electrician to install an electric feed for the stove.

Birkinshaw installed the new cabinets. Minchillo had purchased two complete sets of cabinets without help from Masuch. Masuch installed the first cabinets and removed them for return to Home Depot. As usual, one cabinet was fitted above the fridge. I found it curious that after the kitchen was competed Minchillo purchased a new, much wider fridge. The new, wider fridge protrudes past the end of the new kitchen wall which Masuch had constructed according to her floor plan Exhibit 15. The cupboard over the fridge will be too narrow as a result.

Minchillo's claim

Minchillo claims $5,000 for damages against Masuch. There is no explanation in the claim as to the legal “head” or type of damages. I take this to be a claim for damages to repair alleged defects and finish the job. In addition or in the alternative she claims $5,000 compensatory damages because Masuch failed to complete his work.

She called no evidence to support a claim for her cost to repair alleged defects and finish the job. It is her obligation to establish that she suffered a monetary loss in order to succeed. Although she paid $500 to Myers to reinstall the patio door she said that she was not claiming to recover that money. She has incurred no other related expenses. As I said earlier, I am not satisfied that she established Masuch’s work was defective or substandard. In fact, she refused him the opportunity to complete his work.

I accept, however, that she feels she should be compensated somehow. I disagree. Because she terminated her contract with Masuch prematurely and without good cause, her claim against him must fail.

The defendant has failed in her obligation to establish she is entitled to damages of either kind.

Conclusion

I have found that the defendant Minchillo wrongly terminated her contract with the plaintiff Masuch. I have found that his claim for extras was reasonable and supported by the evidence.

As a result, there will be Judgment for the plaintiff Peter Masuch for $5,090.00. He is also entitled to pre-judgment interest at the rate prescribed in The Courts of Justice Act from the date he filed his claim, November 18, 2011 to the present date together with post-judgment interest at the same rate. The plaintiff shall have his costs of this action to include an appearance fee of $600.00 for two full days of trial plus his assessable disbursements.

Evelyn Minchillo’s claim as a defendant is dismissed, without costs.

Dated at London, Ontario this 19th day of December, 2012

S.R.R. Davies, Deputy Judge.