No. 182/10

SUPERIOR COURT OF JUSTICE Lindsay Small Claims Court

Between:

ALLAN TERESCHYN

• and -

BLACKBIRD HOLDINGS LTD.

Alexander McLeod, for Allan Tereschyn Matthew Page, for Blackbird Holdings Ltd.

Heard April 11, 2012 and February 5, 2013

DEPUTY JUDGE BALE

Background

[1] In April of 2007, Allan Tereschyn contracted with Blackbird Holdings Ltd. for the construction of a dock at his cottage on Twelve Mile Lake. The dock was actually more like a water side deck, running parallel to the shoreline, and from which a removable dock, already owned by Tereschyn, extended into the lake. On the lake side of the new dock, there was skirting which extended from the surface of the dock down to the surface of the lake or at times of low water levels, to the beach.

[2] The contract price for construction of the dock was $9,964 and Blackbird guaranteed its material and workmanship for a period of five years.

[3] Construction was completed in late April or early May of 2007. There were no problems with the dock during the summer of 2007 or the summer of 2008; however, in May of 2009, after the second winter, it was no longer level. It sloped from the lakeside to the shoreline by about five inches over four feet and from side to side by about two inches over four feet.

[4] Tereschyn complained to Blackbird but Blackbird, in an e-mail following an inspection of the dock, took the position that it was not responsible for the problem because it was “caused by ice and flooding conditions and is similar to many other sites caused by the same unusual, unpredictable and unavoidable occurance (sic). Our Warranty relates to Material and Workmanship only and does not apply in this situation.”

[5] Tereschyn then partially disassembled the dock because he felt it to be unsafe and “aesthetically atrocious”. He stored the removed lumber under his cottage deck and took the removed steel to the dump. As of the commencement of trial, he estimated that sixty per cent of the dock had been removed. Blackbird’s estimate was that sixty per cent of the dock remained.

[6] Tereschyn now claims a refund of the contract price and Blackbird counterclaims for damages for defamation.

Analysis

Cause of the uplift

[7] The evidence with respect to actual construction of the dock was unsatisfactory. During his examination-in-chief, Andrew Brown, a son-in-law of Blackbird owner George Crowe and former employee, gave evidence of the construction methods used; however, under cross-examination, he admitted that his evidence was based upon “past experience” and that he had not been at the site during construction. He suggested that if there had been a deviation from the usual construction methods, the supervisor would have reported to Crowe and not to him. However, in his evidence, Crowe said that he monitored the site daily by getting information from Brown. The supervisor himself was not called as a witness.

[8] Glenn Wilcox, an architect, gave evidence upon behalf of Tereschyn. His opinion was that the uplift was caused by frost. He said that the steel posts supporting the dock were not driven into the lake bottom below the frost level and that there were no solid footings. As a result, the soil into which the posts were driven became frozen and expanded causing the dock to heave.

[9] Dennis Baxter, an engineer with whom Blackbird had consulted for thirty years, gave evidence upon behalf of Blackbird. His opinion was that the uplift was caused by the vertical movement of ice and that frost heave was not “a significant cause for the uplift of the deck.” He said that ice came into contact with the skirting boards and that as the water level rose, so did the dock.

[10] Tereschyn’s position is that whatever did happen happened within five years of the construction of the dock and that the warranty therefore entitles him to a refund of the price paid. Blackbird’s position is that weather and ice conditions during the months of December 2008 and January 2009 were extraordinary, that there were no defects in material or workmanship and that that the warranty does not cover ice damage or the suitability of the dock design.

[11] In giving his opinion that the uplift was caused by frost heave, Mr. Wilcox assumed that the material into which the steel posts were driven was clay. In rejecting this theory, Mr. Baxter assumed that the material into which the steel posts were driven was granular and therefore frost free. However, neither of the two attended at the site and Mr. Baxter acknowledged that without a sieve analysis of the soil, any conclusion as to the composition of the material would be speculative. As “speculative” in this context means not based upon fact or investigation, I am unable to come to a conclusion as to the composition of the material or the extent to which frost heave may have contributed to the uplift of the dock.

[12] The skirting on the lake side of the dock was originally to have been four rows which would take it approximately two feet down from the surface of the dock. During the course of the construction, Tereschyn sent an e-mail to Blackbird in which he questioned the depth of the skirting:

I am wondering if the skirt could or should be extended right down to the sand level (the sand is about a foot below the current water surface level; it’s all beach in the summer). I note that you have provided for approximately 2’ down, and I have concerns about how that will look.

[13] As built, there were seven rows of boards rather than four with the result that the skirting extended down to the sand. Brown said that after receiving the e-mail, he discussed the skirting depth with Tereschyn and warned him of the possibility of ice damage. He said that Tereschyn was a difficult client who, for aesthetic reasons, wanted the dock built “his way; no other way”. In his evidence, Tereschyn said that he did not recall receiving any such warning. As, in these circumstances, one would have expected Blackbird to put the warning in writing, I am not satisfied that a warning sufficient to avoid liability was, in fact, given.

[14] Photographs taken in June of 2009 suggest that any time that the lake level exceeded about 1.736 metres, water or ice would be in contact with the skirting boards. Records kept by Parks Canada indicate that the water level rose above 1.736 metres on December 20, 2008 and remained above that level until January 21, 2009, rising to a high of 1.887 metres on January 8, 2009.

[15] However, ice conditions on the lake as the water level rose are unknown. David Ness of Parks Canada gave evidence that in December of 2008 and January of 2009 there was an “especially significant event across the Trent Severn Waterway with heavy rainfalls and unusually warm temperatures.” He said that there were three inches of rainfall in December and January with a rise in lake level of 11 or 12 centimetres per day and that it was the first time that he had seen an event like that at that time of year. Following the rapid rise in lake levels, it turned “fairly cold” with “significant ice jams downstream.” Based upon this evidence, I am unable to reach any conclusion as to the thickness of the ice or even whether there was any ice at all as the lake level rose in December of 2008 and January of 2009.

[16] In rejecting Mr. Baxter’s opinion with respect to the cause of the uplift, Mr. Wilcox said that had the uplift been caused by ice, the skirting boards would have been damaged. However, neither had done any calculations based upon the strength of the boards and the weight of the structure and accordingly, I am unable to come to a conclusion as to whether the fact that the boards were not damaged supports one party’s theory or the other.

[17] Blackbird submits that the burden is on Tereschyn to prove that what happened was within the scope of the warranty. Tereschyn says that he paid for “a result” that was not achieved and that it should not be necessary for him to point to the specific cause of the uplift. I agree with Tereschyn. Whether there was a warranty or not, both parties to the transaction surely expected that the dock would function for more than two years. In these circumstances and in the absence of any exculpatory explanation for the failure of the dock, Tereschyn is entitled to damages.

Damages and Mitigation

[18] Tereschyn claims a full refund of the price paid for the dock without any allowance for the use of the dock or the value of the materials that were removed or that remain in place. However, if the dock was susceptible to repair, the damages to which he is entitled are limited to the reasonable cost of repair.

[19] Crowe gave evidence that Blackbird had repaired docks in similar circumstances and that had Tereschyn’s dock been repaired, it would still be in use. In an e-mail to Tereschyn following an inspection of the damage, he wrote: “Some home owners insurance covers ice damage may be included in your coverage, we have done many repairs that are funded by Insurance and would be advisable for you to check your policy.”

[20] Tereschyn did not respond to this e-mail nor did he contact any other contractors in order to determine whether the dock could be repaired or the cost of repairing it.[^1] He said that he thought that if there was an easy or cheap way to fix the dock that Blackbird would have fixed it and that he thought it was obvious that the design wasn’t working and that to try and fix it using the same design seemed ludicrous.

[21] Tereschyn’s position was supported somewhat by the evidence of Mr. Wilcox who expressed the opinion that a repair of the dock was unlikely to be worthwhile and that the dock should be removed and replaced with a more permanent or removable structure. However, his preference for a different design does not speak to the possibility of repairing the dock and his opinion that a repair was unlikely to be worthwhile was not based upon any real analysis of what would have to be done and the cost of doing it.

[22] In the absence of any concrete evidence that a repair of the dock would have been impossible or impractical, I accept the evidence of Crowe and Brown to the effect that the dock could have been repaired and that they had effectively repaired docks in similar situations. The only evidence of the cost of repair was that of Brown who said that the cost would have been approximately $800 for labour and $200 for material. However, as this evidence appeared to have been given somewhat off-the-cuff, there should be some allowance for contingencies and I therefore find that the damages to which Tereschyn is entitled are in the amount of $1,250.

Defendant’s claim in defamation

[23] Blackbird claims damages from Tereschyn for defamation.

[24] The dock was originally to have been built in the fall of 2006. In late December of 2006, a disagreement between the parties with respect to the timing of the construction led Tereschyn to send the following e-mails to Blackbird:

December 22, 2006

Whatever, but if you choose to default you’ll be liable for any damages resulting from default and I’m not someone who is likely to let that slide. Further, absolutely everyone on the lake that I meet would hear about it. It might even be the – a topic of discussion at the Annual Cottagers’ Association Meeting. The only way to avoid any of the above is to have your crews there next week. The choice is yours.

December 23, 2006

I tell you again, I will be at my cottage from Boxing Day to New Years day; I expect your crews there at that time. Failure to live up to your contract will result in my commencing an action for the recovery of costs to date, for the costs of my finding a replacement contractor to complete your contract, and punitive damages for my time and trouble.[^2]

[25] Blackbird did not start the construction as “expected” by Tereschyn but rather took the position that the deal was off and returned his deposit. Based upon the attitude expressed in the e-mail and the fact that it received no inquiries and secured no work on Twelve Mile Lake between 2007 and 2011, Blackbird asks the court to conclude that Tereschyn was responsible for a loss of business valued at $41,467.

[26] However, there was no evidence that Tereschyn had, in fact, defamed Blackbird, no evidence of any dock-building on the lake by other contractors and anyone who had seen Tereschyn’s dock and knew who had built it would have been discouraged from contracting with Blackbird in any event.

[27] With respect to damages, under cross-examination, Crowe said that since his experience with Tereschyn, Blackbird “changed its procedure” and now makes more money with less volume. He said that he has all the business he wants and turns jobs down. In the result, it is clear that the damages alleged by Blackbird are illusory.

Disposition

[28] For the reasons given, the plaintiff will have judgment against the defendant for the sum of $1,250 and the defendant’s claim will be dismissed.

[29] If the parties are unable to come to an agreement with respect to costs and prejudgment interest, I will consider brief written argument provided that it is delivered to the court clerk at Oshawa no later than September 6, 2013

August 12, 2013

Stephen Bale
Deputy Judge

[^1]: In the plaintiff’s claim, Tereschyn pleaded that “initial discussions with other contractors indicate that the costs of repair may well exceed the price originally paid for the deck”; however, he admitted in evidence that there had, in fact, been no such discussions.

[^2]: Tereschyn mellowed somewhat over the winter and a new contract was signed in April of the following year.