ONTARIO SUPERIOR COURT OF JUSTICE
Windsor Small Claims Court
SC-12-45186
B E T W E E N
TONY MARINO
Plaintiff
- and -
UNIQUE ROOFING & DESIGNS
Defendant
BEFORE: Deputy Judge James Branoff
APPEARANCES:
Plaintiff, Tony Marino in person
Defendant, Fernando Munoz and Patricia Sasseville, partners
HEARD: July 18, 2013
REASONS FOR JUDGMENT
THE PLAINTIFF’S CLAIM
The Plaintiff is a homeowner who contracted with the Defendant, a roofing business, to install a new roof at the Plaintiff’s residence at 267 Elmgrove Drive, Tecumseh. The Plaintiff seeks to recover $10,763.73 which is described both as recouping what he spent on the roof and/or the cost to re-do the entire roof because the Plaintiff is not satisfied with the Defendant’s work and he has concerns with the quality of the roof.
The Defendant is roofing business, known as Unique Roofing & Designs. It is not incorporated, but it is a partnership between Fernando Munoz and Patricia Sasseville.
The relationship between the parties is governed, for the most part, by an undated Unique Roofing Contract (Exhibit #2). There is some difficulty with the use or application of this written contract too strictly as it is quite apparent that the parties varied the same verbally.
The written contract described the work to be done with some specificity, but there is no place for the price to be filled in. The Defendant confirmed that the Contract form consists of only 1 page. It is therefore left for the price to be written somewhere at the bottom. The handwritten price at the bottom of Exhibit #2 is $5,277, but there is some disagreement as to what this means or represents.
The Plaintiff indicates that $5,277 represents what he was to pay the Defendants for the labour in re-roofing his house with him supplying the material. The Plaintiff claims that he paid $2,000 in cash to Fernando Munoz on the basis that Mr. Munoz had specifically requested such a cash payment and there was no receipt provided and then on the evening that the job was done, he paid the Defendant a further $3,200 for which a receipt was provided. This does not account for the $77 balance.
The Defendant denies that there was any cash component, but indicates that the figure of $5,277 represented the initial material and labour price, but that when the Plaintiff decided to supply the material and pay for the material directly to Tamar Building Products, the price was reduced to the $3,200 that was paid by the Plaintiff to the Defendant on completion.
Regardless, the Defendant confirms that it has been paid in full and that there is nothing owing to it by the Plaintiff. There was no Defendant’s Claim made.
The written contract was never signed by the Plaintiff. Paragraph 20 states that the “Quotation includes material, labour, workers comp & bin.” If the parties did verbally modify the same so that the Plaintiff was to supply the material and the Defendant was only to supply the labour, the contract was not amended to reflect this by changing the price and/or scratching out the reference to “material” in paragraph 20. There was the price of $3,200 written with a different colour ink at the bottom, but this figure was scratched out. It may have been that the $3,200 reflected the revised contract price for labour only as the Defendant contends or it reflected the balance owing after the alleged cash payment as the Plaintiff contends and the Defendant denies. The Court does not need to determine which took place in order to dispose of this matter.
It is bothersome that there were no invoices rendered by the Defendant, that the only document from the Defendant was the Contract form and there is no reference or mention anywhere of the applicability of H.S.T., if H.S.T. is included or in addition to the price, if the Defendant was a registrant so as to be required to charge and remit H.S.T. and what the Defendant’s H.S.T. registration number was, if any. Once again, the Court does not need to determine this issue in order to dispose of this matter.
The Court accepts and finds that whatever the terms of the agreement were, the Defendant was paid in full for its work on the project.
The Plaintiff submitted 9 Delivery Tickets from Tamar Building Products representing the materials purchased (Exhibit #4). The tickets range from July 8, 2011 to August 20, 2011 and total $6,863.73. A review of the Tamar Tickets shows that the material included:
(a) 7 skylights (6 smaller and 1 larger);
(b) 3 skylight blackout blinds;
(c) 95 bundles of shingles + 10 bundles of shingles (bought separately);
(d) 1 roll of ridge vent being 30 feet;
(e) 4 aluminum vents;
(f) other general and miscellaneous roofing material.
It is unclear how the Plaintiff arrived at the Claimed amount of $10,763.73. Based on a material cost of $6,863.73 and a labour cost of $3,200.00 as the Defendant maintains, the total paid would have been $10,063.73, a difference of $700.00. Based on a labour cost of $5,200 as the Plaintiff maintains, the total paid would have been $12,062.73, a difference of $1,300.00.
The problems occurred early in the job. Once the Defendant started removing the shingles from the upper section consisting of 4 “pies” or triangular peaks, it was noticed that the roof was spongy and wavy. There was no rotting in the underlying plywood, but the condition was attributed by the Defendant to the roof trusses being 24 inches on centre and the plywood being 3/8 plywood. While 24 inches on centre is permitted, as opposed to 16 inches on centre which is common, whenever 24 inches is used, the practice seems to be to use thicker plywood measuring at least ½ inch, if not 3/4 inch.
This Court accepts as both logical and probable the Defendant’s evidence that when a separation between trusses of 24 inches is used and thinner plywood, such as 3/8 inch is used, there is a greater tendency or likelihood for the wood to sag between trusses and create a spongy or wavy effect. To avoid this, the initial construction ought to have used more trusses spaced 16 inch on centre or used thicker plywood. The discovered condition cannot be attributed to the Defendant in any way. It was pre-existing.
Once the issue was discovered, the Defendant suggested to the Plaintiff that the roof be re-sheeted with plywood in order to eliminate the spongy and wavy condition. It is not disputed that the Contract provided at paragraph 4 that “Deteriorated wood deck would be replaced for $1.85 per sqft if needed.” Paragraph 5 read: “Install 3/8 plywood fastened with ardox nails to areas specified if needed”, but the Defendant maintains that no area was specified or needed, and if the event it was, the cost would have been $1.85 per square foot. The Plaintiff requested an estimate for the same and this is where the evidence of the 2 Defendant partners differs from each other.
Patricia Sasseville indicates that when she was called by Fernando Munoz for a price for re-sheeting, she quoted an extra $6,000. The figure was determined based on the estimate that the roof would require 95 bundles of shingles x 32 square feet per bundle x $1.85 per square foot. This computes to $5,624. Even if H.S.T. was added, the total would be $6,355.12. It is unclear how the $6,000 figure was determined.
Fernando Munoz indicates that he estimated and quoted $6,216 for the plywood re-sheeting. The figure was determined based on the roof requiring 105 bundles of shingles x 32 square feet per bundle x $1.85 per square foot. This computes to $6,216, but the problem that the Court has with this evidence is that at the time that the re-sheeting estimate was called upon to be given, the roof had not been totally stripped and it was not known until much later in the project that 10 extra bundles of shingles were required, bringing the total from the estimated 95 bundles to 105 bundles.
What is clear is that the Plaintiff never accepted the extra cost and did not authorize the re-sheeting to be done and the Defendants therefore did not complete the same. The project proceeded without the re-sheeting and none of the plywood needed to be replaced as there was no rotting.
What is problematic is that once the Plaintiff chose not to pay for the re-sheeting, the project proceeded on a roof that was known to be spongy and wavy. The Defendant states that it had already started stripping off the old roof and it would not have been appropriate to stop and refuse to continue, but it did continue at the Plaintiff’s request. Recognizing the reason for proceeding, what the Defendant did not do was secure some form of waiver or disclaimer from the Plaintiff so as not to be potentially liable for any consequences or problems caused by completing the re-shingling on a spongy and wavy roof deck.
The Plaintiff anticipated getting:
(a) a roof replaced with 30 year shingles
(b) 7 skylights installed
(c) 4 vents to be installed
(d) 20 feet of hidden ridge vent
(e) an exhaust fan to be reinstalled
all of which was consistent with the terms of the written Contract.
Before dealing with the primary complaint of the Plaintiff, he claims that there are only 2 of the required 4 vents installed when he bought and paid for 4. He also claims that he only has 9 feet of ridge vent when he bought and paid for 30 feet of material and for 20 feet to be installed. According to the Plaintiff, the excess or unused material was not left on site. The Defendant maintains that as the Plaintiff suppled the material, the unused material ought to have been left on site. If it was not, it was either mistakenly taken, as it would be if the Defendant was supplying the material as well, or it was mistakenly thrown out.
The Plaintiff relies on Exhibit #1, being the Defendant’s business card, which states, “100% CUSTOMER SATISFACTION GUARANTEED”. Suffice it to say, the Plaintiff is not satisfied. And the Plaintiff relies on the Contract which states at paragraph 19, “Upon completion of the above roof system, we will submit a 10 yr warranty & A manufacturer’s warranty”. The Plaintiff claims that he relied on both of these representations or terms when selecting the Defendant to do the job.
Once the job was complete, the job looked good and the Defendant was paid. It was in the evening and it was not until the next day that problems or issues were visible. After some effort, the Plaintiff was able to contact Mr. Munoz with his complaints and arrange for Mr. Munoz to re-attend the site to view the areas with complaints.
Both the Plaintiff and his girlfriend, Lori Armstrong, confirmed the difficulty experienced with getting the Defendant to return and that once he did, he agreed that the roof “looked like shit”, that he would “take care of it” and “not to worry”.
Mr. Munoz confirms that he re-attended and agreed that it “looked like shit”. In response to the same, he came back, but not until 1 month later on a Sunday to do some work. His work focused on back section being described as a slope with 2 skylights and little space between. He removed some of the wave by replacing some of the plywood near the skylights due to there being some dry rot. He used 1.5 sheets of plywood and 3 bundles of shingles. He did not expect to be paid for this work which he did, but he did expect to be paid for the materials. The Plaintiff refused to pay for the material as he thought it was a warranty item and the Defendant chose not to press the issue for $100 worth of materials.
The Plaintiff was still not satisfied. His complaints consisted of:
(a) that he was entitled to be 100% satisfied and he was not;
(b) that the Defendant was not very responsive despite giving a 10 year warranty
(c) it took several calls to contact the Defendant;
(d) even after he acknowledged the problem, it took several calls and about 1 month to get him back to do any repair work;
(e) he is dissatisfied with the workmanship;
(f) only 2 vents were installed when it was agreed that there would be 4 vents;
(g) only 9 feet of ridge vent was installed the contract provided for 20 feet;
(h) the electrical exhaust fan was not reinstalled, but disposed of;
(i) he is concerned that the roof is compromised.
DAMAGES
The Plaintiff seeks to recoup all of the costs of the roof or to recover sufficient funds to re-do the entire roof.
The Court finds that the difficulty with this expectation of the Plaintiff is that his concern about the roof being compromised has not only not been proven by way of independent or expert evidence, but even if it does exist, it is very likely caused by the underlying issue of the truss distances and thin plywood which gives rise to the spongy and wavy condition. There was no evidence of the roof being compromised, only the Plaintiff’s speculation in this regard.
It was acknowledged that, but for the back section, the rest of the roof looks OK. This was attributed, by the Defendant, to the use of 30 year shingles which are a little thicker and helped to hide the wave.
The limitation of the problem to the back section is further confirmed by the estimates obtained and submitted by the Plaintiff. There were 4 such estimates from 3 different roofers (Exhibit #5). They are summarized as follows:
(a) Ziter Roofing (undated) includes 15 bundles of shingles and 15 sheets of plywood at a total cost of $2,456.00;
(b) Impact Roofing (August 15, 2012) indicates full felt entire deck, IKO Cambridge shingles and 25 sheets of plywood at a total cost of $3,575.96;
(c) Impact Roofing (August 15, 2012) indicates full felt entire deck, IKO Cambridge shingles and 5 sheets of plywood at a total cost of $3,055.96;
(d) Sure Seal Roofing & Siding (August 15, 2012) indicates new ½ inch plywood on back section of roof, new drip edge on eaves and gable ends, 2 whirlybird vents and other specified work at a total cost of $4,862.89.
The Sure Seal estimate states, “It is my suggestion to have the entire roof deck resheeted with ½" Plywood and Install proper venting on rest of roof also.” None of the estimating roofers were called to give evidence so as to be able to breakdown, explain or clarify their estimates. It is noted that the suggestion is for ½ inch plywood rather than the thinner existing 3/8 inch plywood. This is consistent with the Defendant’s recommendation due to the distance between trusses being 24 inches rather than 16 inches.
As a bundle of shingles covers 32 square feet, as does a sheet of plywood, the entire roof would require between 95 and 105 sheets, not 5, 15 or 25 as noted on the estimates. It is apparent to me that these estimates do not relate to the entire roof, but relate to the back section where the Defendant attempted to do some repair work.
I find that if the Defendant was called upon to pay for any re-sheeting, the Defendant would be paying for something that it was not hired to do and the Plaintiff would be getting something that he did not bargain for, something that he specifically did not authorize to have done when given a quote and opportunity for the same.
The damages being sought by the Plaintiff consist of an attempt to recoup what he spent on the existing roof or to recover what it would cost to re-do the entire roof. The problem with this is the lack of evidence that the entire roof need to be replaced as a result of the actions or inactions of the Defendant. There is no evidence that the work completed by the Defendant was of no value whatsoever and that the Defendant ought to return all of the money it was paid for the labour and to reimburse the Plaintiff all of the money he paid for material which included 7 skylights and 3 blinds. Furthermore, the cost of re-doing the entire roof in order to eliminate the concerns would include resheeting at a cost of approximately $6,000. This is not being claimed and could not be visited on the Defendant in any event.
CONCLUSIONS
I find that the problem lies with the area referred to as the back section. This is the area where repairs were done. This is the area for which the Plaintiff secured estimates. The Plaintiff says that the Defendant tried to fix it, but it is worse. There is no evidence of a specific problem with the rest of the roof, but only the Plaintiff’s concern that it is compromised.
The Plaintiff has not persuaded me that the work of the Defendant was defective so as to justify or require the entire roof to be replaced. The Plaintiff cannot therefore recoup what he paid for the existing roof or recover what he needs to re-do the entire roof.
The Defendant’s exposure is limited something that was paid for and not done plus the work that needs to be done to the back section. The underlying plywood in this area seems to be worse than the rest of the roof. The Defendant (Fernando Munoz), as a roofer with 24 years experience, ought to have realized this and taken extra steps to either ensure that the Plaintiff was aware of the need for this area to be re-sheeted or to obtain an express disclaimer or waiver if the Plaintiff insisted on the Defendant proceeding without new plywood on the back section.
The Sure Seal estimate confirms the need for additional vents. The contract called for 4 vents. The Plaintiff bought 4 vents. The only evidence the Court has in this regard is that there are 2 vents. It is not known where the other 2 vents have gone, but they ought to have gone on the roof. The contract called for 20 feet of ridge venting. The Plaintiff paid for 30 feet as that is the lowest amount that can be purchased, but only got 9 feet and it is not known where the excess ridge venting has gone.
This Court finds that the Defendant’s shortcomings for which the Plaintiff is entitled to relief consist of:
(a) only 2 vents were installed when there ought to have been 4 vents;
(b) only 9 feet of ridge vents were installed when the contract indicated 20 feet;
(c) the back section was so spongy and wavy that the shingles, particularly near the skylights, that extra precautions or effort ought to have been taken as described herein in paragraph 37 above;
(d) the repair effort, whether gratuitous for customer service reasons or under warranty was difficult to obtain and unsuccessful. The back section is still wavy and simply does not look good, unlike the rest of the roof which looks OK.
The Defendant also needs to appreciate that the words that it chooses to put on its business cards and Contracts are meaningful and not merely rhetoric. The chosen words that customers, including the Plaintiff, rely on must be given meaning. The business cards state, “100% CUSTOMER SATISFACTION GUARANTEED”. Paragraph 19, states, “Upon completion of the above roof system, we will submit a 10 yr warranty & A manufacturer’s warranty”.
Having found that the Defendant has culpability, the task is to determine the quantum of damages. With damages arising from a breach of contract the law strives to put the innocent party, to the extent that money can do so, in the same position as it would have been in had the breach not occurred. To accomplish this, the Plaintiff needs what it would take to remove what was done to the back section in order to allow resheeting to take place and then replace the removed material which for the most part will constitute ice & water paper, felt paper and shingles.
The Court does not have particulars of the size of the back section. The Court does not have particulars of how many bundles of shingles will be necessary. The Court must use whatever evidence it has to arrive at a fair and reasonable estimate of the cost. The only information that the Court can use for this purpose is the estimates found at Exhibit #5 which include re-sheeting and therefore more work than that which the Defendant is being held liable for. The Plaintiff cannot recover the cost of re-sheeting from the Defendant as it was not part of the contract.
Taking into account and considering:
(a) the amount that was paid for the whole roof (labour and material);
(b) the amount which was paid to the Defendant by the Plaintiff;
(c) the missing vents;
(d) the reduced length of ridge vent;
I find that ½ of the lowest estimate submitted by the Plaintiff, being the Ziter Roofing estimate in the sum of $2,456 represents a fair and reasonable approximation of the cost to strip the back section and then re-shingle it after it is separately re-sheeted. The Ziter Roofing estimate included 15 bundles of shingles for which the Defendant would be liable and 15 sheets of plywood for which the Defendant would not be liable. From the Tamar Tickets the cost of a bundle of shingles was $21.89 and the cost of each vent was $12.79. From the Impact Roofing estimates the cost of a sheet of plywood was $26.00. These particulars help support the reasonableness of the 50% that I have decided to award. As indicated previously, the lack of evidence from any of the roofers who provided an estimate does not give the Court the breakdown that would enable me to be more precise in quantifying the damages. The Defendant’s contractual warranty will remain intact as it relates to the roof, excluding the back section.
JUDGMENT
- There will be no pre-judgment interest as the repairs have not been done and the expense has not been incurred. Given the limited success of the Plaintiff as compared to the amount claimed, there will be no award for pleading preparation or any award for attendance or inconvenience. There will be Judgment in favour of the Plaintiff in the sum of $1,228 plus costs of $175 for a total of $1,403 plus post judgment interest pursuant to the Courts of Justice Act.
July 24, 2013 ____________________________
Deputy Judge James Branoff