Superior Court of Justice

Cour Superior de Justice File # SCC-12-1947
London Small Claims Court

BETWEEN

CAVALLO REALTY GROUP INC.

Plaintiff

And

ASEAL ROOFING AND SHEEET METAL LTD.

Defendant

(heard July 11, 2013)

B.T. Hodge, counsel for the plaintiff

J. Pitblado, counsel for the defendant

Reasons for Judgment

Introduction

The plaintiff seeks to recover the cost of repair of damage caused by a leak in the roof of its strip mall at 458 Southdale Road East, in London on October 11, 2010. The defendant resists payment because it did nothing wrong.

Cavallo Realty Group Inc. (Cavallo ) owns and manages commercial properties in southern Ontario. In September, 2010 the plaintiff Cavallo purchased a 20 year old strip mall located at 458 Southdale Road East, in London.

The defendant Aseal Roofing and Sheet Metal Ltd. (Aseal ) has been in business since 1994. The president of Aseal, Mr. Joe Oiveira has been in the roofing business for over 40 years and has done work for Cavallo and related companies for more than 17 years. Aseal worked for Cavallo and related companies in several cities. They continue to have an ongoing business relationship. Last year, Aseal was engaged by Vincent Cavallo to replace the roof at his home.

The evidence

The plaintiff called in evidence Vincent Cavallo and Lisa Kennedy. The former is the president of the plaintiff. The latter is an estimator for Lubnow Restorations Inc. and project manager for this particular loss. The defendant called Joe Oliveira. I have no hesitation in accepting the evidence of all three witnesses. The evidence was given by each witness in a clear and straightforward manner. As between Cavallo and Oliveira, there was no material contradiction in their evidence.

No expert evidence was called.

Facts.

Prior to making the purchase, Mr. Vincent Cavallo, the president of Cavallo, inspected the property including the roof. Vincent Cavallo was the manager of the strip mall. The mall was approximately 9,000 square feet in size and had three tenants. During the inspection Mr. Cavallo spoke to the three tenants specifically about the general repair of the mall. He also reviewed the maintenance record for the property during the preceding year. Only minimal work had been done and the three tenants complained of minor leaks through the roof during the winter. Mr. Cavallo saw that several ceiling tiles in Love Shop were water stained.

The tenants included Tony’s Pizza at the West end and beside it a variety store. Each occupied 25% of the mall. The Easterly 50% of the mall was occupied by Love Shop. The Love Shop is divided roughly in half by an interior wall. On the East side general merchandise is displayed; on the West side there are many racks of videos and the like. The photographs at tab 11 show the interior two sections. Between the two sections there is a wall with a large opening in the middle.

Within two weeks of the purchase, Cavallo hired the defendant Aseal to repair the roof. The roof was flat and covered with the usual tar and gravel. The work involved stripping off the existing felt tar-paper and underlying insulation, installing new insulation and recovering the entire roof. The job was estimated at $51,450.00 and would take about two weeks to complete.

Aseal went to the job site and prepared an estimate the day Mr. Cavallo called him to view the roof. The estimate was prepared and faxed to Cavallo on September 30, 2010. The estimate is at tab 3 of Exhibit A. Aseal took materials to the site on October 4, 2010. The work was completed in approximately two weeks and Aseal’s account was paid in full.

Mr. Oliveira described the roof of the mall as the worst flat roof he had seen. His evidence was that he said to Mr. Cavallo: “Vince, you got no roof.” The tar-paper was obviously old and had splits in a number of places. There was little gravel remaining. He was surprised to find that through some of the splits he could see the underlying old insulation. His workers applied temporary sealant to the cracks they saw.

On October 4th , Aseal installed safety fencing around the perimeter of the roof. On the East half of the mall it stored all of the new insulation and other materials required for the job. Plywood walkways were laid on the roof for workers and stored materials were placed on plywood decks. The workers covered the new materials with tarps to keep them dry. Mr. Oliveira explained that if his new materials got wet before installation they would have to be replaced with more new material. The materials mostly consisted of pallets of rigid 1.5inch ISO foam insulation and were not heavy. Aseal did not use tarps to cover the roof during the work.

Aseal commenced work on October 7th by opening up the roof at the West end above the Pizza shop. They worked for two days at the West end. Aseal removed as much of the existing roof as they could replace the same day. At days end with the roof closed up, Aseal applied a temporary seal to prevent leakage between the new material and the remaining old roof.

First thing Monday, October 11th Vincent Cavallo got a call from Samantha, owner of the Love Shop who complained that there was water leaking through the roof into her store. Cavallo called Oliveira who was already on his way to the job site. Overnight there had been a heavy rainfall. The Environment Canada Data report for October 11th (at Tab 6) shows 8.4mm of rain on that day and none for the preceding three days. It also shows on October 13th 5.7mm and October 14th 19.2mm of precipitation respectively. This evidence was admitted without objection. I note that there were no complaints of roof leaks after October 11th.

There are two separate claims advanced by the plaintiff.

a) the laminated floor and ceiling tiles:

Mr. Oliveira went into the Love Shop on the morning of October 11th. He saw water stains on a number of ceiling tiles and some water on the floor. The water pooled approximately around the opening between the two store sections. It is noteworthy that when Mr. Oliveira returned to the Love Shop in early Spring 2013 he saw large amounts of snow and slush had been tracked onto the floor by customers. The water from melting snow/slush covered more of the floor than the water he had seen following the rainfall of October 11, 2010.

After visiting the Love Shop, Mr. Oliveira went immediately onto the roof to look for the cause of the leak. He saw no obvious explanation but found a pool of water above Love Shop. His crew cleared that away and discovered a narrow split in the tar-paper about half a metre long located more than 10 metres distant from the stored new materials and the plywood walkways. His workers applied a temporary seal to the crack. Aseal then continued work until it had completed the job. There have been no complaints of leaks since the work was completed. No other tenants had complained of a leak on October 11th .

Although I accept her evidence as truthful, the evidence of Lisa Kennedy, project manager for Lubnow Restoration Inc., was of little assistance. She was engaged March 16th, 2011. Her estimate of the damage (at tab 10) was prepared the same day. The water had long since dried up. It was not possible for her to determine what damage had been caused by the roof leak except to the extent that Samantha described to her where the leak had occurred five months earlier. Samantha did not give evidence. The floor was already 20 years old and the ceiling tiles likewise. No evidence was called to describe the condition of the floor before the leak.

Ms. Kennedy took photographs on March 16th, 2011. They are at tab 11. She explained that the purpose of the photos was to demonstrate the huge amount of inventory and shelving which filled the premises. She did not focus on the ceiling nor the condition of the floor. Her estimate of the cost was based upon the premises being empty to do the restoration work. She estimated the cost of repair at $37,089.72 plus several thousand dollars to set up and take down scaffolding during the work. Lubnow Restoration Inc. did not perform the work.

Ms. Kennedy’s evidence was that the laminate floor was buckled and seams separated in the general area of the opening in the middle of the store. This is consistent with Mr. Oliveira’s evidence. Approximately 25-30% of the floor area was affected. Ms. Kennedy stated that photograph #6 shows the most damaged floor area. I see little damage in the photo.

The ceiling tiles were yellowed and some were water stained. In the 7 photographs at tab 11 only photo #2 shows stained ceiling tiles. The quality of the photocopies is poor. The photographs show an absence of ceiling tiles in the video section. On photo 2, I can see five stains in one section and one stain three tiles to the right. Significantly, none of the stained tiles is close to the opening to the video section where Mr. Oliveira had seen water pooled on the floor. The main store entrance is visible in photo #3, at mid page on the left edge, and the opening to the video section shows directly across the photo on the far right side. Many ceiling tiles are visible but no stains are apparent.

I also find it significant that in the Spring of 2013, Mr. Oliveira visited the Love Shop and observed that the flooring and ceiling tiles had not been repaired or replaced. That puts into question the significance and, correspondingly, the cost of repair to the damage allegedly caused by the leak in October 2010.

b) the gas pipe fitting to the HVAC

The plaintiff claims, in addition to the water damage, the sum of $1,462.83 for repairs to the gas valve connected to the HVAC (heating/air conditioning unit) on the roof of the mall. In support of the claim it filed an invoice from Comfort Zone Services Inc. dated October 21, 2010. The invoice is at tab 9. I admitted this invoice and, subject to the weight to be accorded to this document , a letter from comfort Zone to the plaintiff dated November 1, 2010 (found at tab 8). The letter clearly contains hearsay opinion and can be accorded no weight whatsoever. The invoice, likewise can be given no weight.

No witness was called from Comfort Zone. With respect to the invoice, at best, it demonstrates an aged HVAC unit which required a major overhaul including defective fan pilot relay, fan belt, ignition module, gas valve and the like. The parts alone are itemized at $696.54. The gas valve alone cost more than 50% of the parts supplied. There was no evidence the valve was damaged by Aseal. Indeed, no evidence was called which detailed the extent of any damage Aseal might have caused. No cost breakdown was given concerning the actual cost of repair of the connection to the gas valve. The plaintiff failed to establish that the defendant caused the damage to the gas pipe and valve.

Summary of facts

I find the following facts to be material to the issues:

• The roof of the mall was ancient and had a number of small splits at October 4, 2010.

• Aseal took control of the roof area effective the same day.

• Aseal did not cover the roof with a tarpaulin. This accords with industry practice.

• The storing of new materials on the roof above Love Shop and the use of plywood walkways did not cause further damage to the roof during the repairs.

• There were no complaints of leaks following rainfall during several months before October 11th.

• The rainfall overnight on October 11th was unusually heavy. But much heavier rainfall on October 14th created no roof leaks.

• The ½ m. split found by Mr. Oliveira was spontaneous (not caused by Aseal) and was found only following a careful inspection to locate the possible source of the water leak.

• The water leak did not occur at the temporary seal above Tony’s Pizza where Aseal had worked October 7 and 8th .

• There is no clear evidence as to the amount of damage caused by water leakage onto the floor nor on ceiling tiles on October 11,2010. There were existing stains on ceiling tiles. The flooring was 20 years old and had water tracked onto it by customers. The tenant chose not to replace the floor or ceiling.

Analysis

In order to succeed the plaintiff must establish not only negligence in the performance by Aseal of its work in October, 2010, but also that such negligence, caused the damage for which the plaintiff seeks recompense.

I must determine the standard of care to be applied on the facts of this case. In making my determination, I must consider whether Aseal’s conduct met the applicable standard. The Supreme court of Canada sets out the test in

Ryan v. Victoria (City) 1999 CarswellBC 79. Major, J.A. sets out the test at paragraph 28 as follows:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends upon the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm and the burden of cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct such as custom, industry practice, and statutory or regulatory standards.

In my view there is no question that Aseal met the standard of care “of an ordinary, reasonable and prudent person” in the circumstances of this case. I am satisfied that the use of a temporary seal prevented any water leaks in and around roof work above Tony’s Pizza. I am satisfied, accordingly, that water could not have migrated under the roof to discharge in the middle of the Love Shop. Aseal was not told of any recent water leaks before commencing the work. I am satisfied that Aseal followed industry practice when it spread no tarpaulins over the entire roof surface when away from the job site. In my view Aseal did not breach the standard of care applicable in the circumstances.

I should also address the issue of causation. The plaintiff urges me to apply the “but for” test and, accordingly, to find Aseal liable for the damage. Counsel relies upon the decision of the Supreme Court of Canada in Clements v. Clements, 2012 CarswellBC 1863. I find helpful the statement of the Chief Justice in paragraph 6 of the decision:

On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of standard of care) caused the injury. That link is causation.

On a balance of probability, the plaintiff failed to establish that the work of the defendant caused the escape of water into the Love Shop. The defendant used reasonable care to prevent damage by its workers. This includes the storage of new materials on the roof. Aseal did not cause the split discovered by Mr. Oliveira on October 11th. I have found that the split which likely allowed water into the shop was spontaneous. An explanation for the leak has been found. Therefore, the “but for’ test does not apply in the circumstances. It follows that Aseal cannot be held liable for causing the loss.

Damages

The plaintiff claims $25,000. The insurer paid $26,055.80 by cheque found at

tab 13. Mr. Cavallo stated that the cheque was paid to the tenant, Love Shop. Lubnow Restoration estimated the cost of replacing the floor and the ceiling tiles at more than $37,089.72.

For the alleged damage to the gas supply to the HVAC, the plaintiff claims $1,462.83.

With respect to the damage to ceiling tiles the plaintiff failed to establish what tiles were damaged by the roof leak in question. I accept the evidence of Ms. Kennedy that one cannot match the colour of new tiles to existing tiles. But is it reasonable that the defendant bear the full cost of replacing all tiles? Secondly, what was the portion of the $26,055.80 paid by the insurer which is attributed to the October event? As between 25% and 30% of Love Shop was wet, is this not a more reasonable measure of the damages? For lack of any better measure, I assess the damage to the ceiling at 30% or $7,816.74.

I allow no amount for the alleged damage to the old laminate wood flooring. I am not satisfied that the plaintiff established any material damage to the floor. Certainly, the tenant did not consider there was sufficient damage to warrant repair of the floor.

The other element of the plaintiff’s claim is for alleged damage to the gas pipe connected to the HVAC. As I indicated earlier, the plaintiff failed to establish the damage was caused by the defendant. It also failed to show how much of the invoice for $1,462.83 applied to the alleged break on the gas pipe or valve. That portion of the claim is dismissed.

Conclusion

In summary, the plaintiff’s claims for damages are dismissed with costs. The claim is for $25,000. I fix the costs at somewhat less than 15% because the matter was heard in less than one full day and decision was largely fact driven. I fix the defendant’s costs at $3,000 plus taxable disbursements.

I am indebted to both counsel for their assistance in this matter. Their presentation was kept focused and the briefs filed were of great assistance.

Dated at London, Ontario this 15th day of July, 2013.

S. R. R. Davies, Deputy Judge