ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-4742-SR (Kitchener)
DATE: 2013-12-06
B E T W E E N:
CORA PATRICIA HOFFMAN
Jarvis K. Postnikoff, for the Plaintiff (Defendant by Counterclaim)
Plaintiff (Defendant by Counterclaim)
- and -
RYAN SUBJECT, carrying on business as SUBJECT WOODWORK & TRIM
Self-Represented, for the Defendant (Plaintiff by Counterclaim)
Defendant (Plaintiff by Counterclaim)
HEARD: June 24 and 25, 2013 at Kitchener, Ontario
REASONS FOR JUDGMENT
PARAYESKI J.
[1] The subject matter of this action is a kitchen renovation “gone bad”, as it was aptly described in the plaintiff’s opening.
[2] Unfortunately, the facts are nearly as chaotic as was the project. The plaintiff and defendant were both poor witnesses, being equally self-serving and more interested in providing denials, explanations, and rationalizations than answering the questions put to them. Even the pleadings are, or at least were, confusing. On September 11th, 2011, the plaintiff personally commenced a Small Claims Court action for the return of a $5,600.00 deposit on some windows, the providing and installation of which were part of the project, or at least an add-on. One day later, this time with counsel, the plaintiff commenced the present action. The Small Claims Court action was eventually transferred to this court and consolidated with this action.
[3] The plaintiff wanted to renovate her kitchen. She had heard good things from a co-worker about the defendant’s work, and the two of them met. Together they cobbled a series of contracts over the course of the project. These contracts are singularly unclear and reflect, to limited degrees, changes in the scope of the work as the project evolved. Adding to the confusion were a number of unwritten agreements that involved some of the work being undertaken by the plaintiff and her boyfriend themselves. In addition, it appears that the defendant was either not involved, or was minimally involved, in design discussions between the plaintiff and the cabinet supplier. As well, the plaintiff called in the defendant’s subcontractor plumber directly to do some work which she says was not being done under the defendant’s direction, and which needed to be done.
[4] Both sides acknowledge that the written agreements do not contain all of the items they now disagree upon.
[5] Like most renovation projects, this one changed as the work progressed. Some of the changes were brought about by problems or opportunities that arose. Some were choices to increase the scope of the initial plans, for example the replacement of the existing cabinets with new ones, and the replacement of some windows.
[6] It appears to be common ground that, excluding the new windows, the agreed upon price for the materials and labour was $51,005.06. The plaintiff has paid $49,992.27 toward that figure.
[7] The plaintiff’s complaints are numerous. Some are aesthetic and some are far more serious. The plaintiff called as an expert witness engineer Tim Beattie to give evidence regarding some of the more substantial issues, which I shall address separately. They were:
the floor being ‘out of level’;
related and separate problems with the kitchen cabinets;
a lack of structural support in the roof/ceiling; and
ventilation and barrier issues in the ceiling.
1. The floor not being level.
[8] The floor is unlevel to varying degrees, with the worst area being 2.25 percent off of level. The defendant acknowledges that the floor is not level. He blames this on structural problems caused in part at least by a sinking column holding up the floor from below in the basement. While one of the written contracts calls for the defendant to “level and install new sub-floor for prep”, the defendant says that this was only ever intended to address an unevenness in the thickness of the sub-floor, and not structural issues relating to the entire kitchen. I agree with the defendant’s interpretation of that part of the agreements. Although engineer Beattie speculates in his report of September 21st, 2012 that “much of the sloping floor could have been readily remedied by adjusting the floor elevation at …[the] post support” in the basement referred to above, the plaintiff has not provided a quote which suggests that this would:
a) Have been capable of being done at a cost which could reasonably be said to be part of the overall contract price, or;
b) Have resolved the problem to her satisfaction.
[9] Mr. Beattie did not elaborate upon what he meant by “much” of the problem or “adjusting the floor elevation”. If the post is sinking, as was the evidence, permanent repair of that would have to entail more than just adding to its height.
2. Related and separate problems with the cabinets.
[10] The cabinets themselves are not level for the simple reason that they were installed on a floor which itself is not level. Similarly, the appliances are out of level. While plainly a problem, I do not blame the defendant for this as previously explained. Of course, it could be argued that the defendant should have noticed the problem and specifically told the plaintiff about it before installing the cabinets and appliances. Rectification, of course, would have involved extra cost, the amount of which is unknown.
[11] In addition, Mr. Beattie observed that the bottom and back of the cabinet under the sink was “sloppily cut-open to facilitate the plumbing after its installation”. He speculates that this cabinet was likely installed before the necessary plumbing work was done rather than afterward, which is more in keeping with “acceptable Industry Standards”. While less than attractive to someone examining the interior of the cabinet below the kitchen sink, I am of the view that this issue is adequately addressed by the legal doctrine of de minimus non curat lex.
3. A lack of structural support in the roof/ceiling.
[12] Part of the project involved removal of the kitchen’s original ceiling to expose the underside of the roof, creating a “vaulted ceiling”. The rafters were to be insulated and covered with pine v-groove boards. Removal of the ceiling entailed removal of the ceiling joists. They would have tied the bases of the roof rafters together, thus providing them with lateral support. Absence of that lateral support is problematic. The roof has started to sag, as is apparent from a photograph contained in Mr. Beattie’s report.
[13] Mr. Beattie stated that this problem could have been eliminated by the installation of a roof beam (in the absence of ceiling joists). He testified that the absence of both a ridge beam and ceiling joist is in violation of the Building Code.
[14] The defendant acknowledges that he did not install a roof beam after removing the ceiling joists. Instead, he “sistered” 2 x 10 boards to the rafters on the advice of staff at a supplier called “Fairway Lumber”. The defendant testified that the staff member was an “engineer”, who was said to have come out to see the exposed rafters before giving that recommendation.
[15] The defendant did not call that person as a witness to testify as to his expertise or the basis of his recommendation. Neither did the defendant commence third-party proceedings against that advisor.
[16] Mr. Beattie is of the opinion that the “sistering” of the rafters is insufficient to address the problem.
[17] On the basis of the trial evidence, I agree. What the defendant did is not working. I accept Mr. Beattie’s view that the Building Code has been breached.
[18] Although I have commented at length regarding the largely unfathomable terms of the evolving agreements between the parties, I do note that one part of one written contract does call for the roofline to be reframed “to Code standards”.
[19] If I understand the evidence of the parties, there was, at some point, an agreement that a cupola would be installed through the vaulted ceiling and roof. When this proved to be impossible, or at least difficult in terms of placement, a gable wall window was to be substituted. Neither was done by the defendant.
4. Ventilation and barrier issues in the ceiling.
[20] Mr. Beattie inspected the kitchen on August 27th, 2012, which is after the ceiling assembly was in place. He did not remove any of the ceiling assembly, and so his ability to see into the area above that assembly was restricted. From what he was able to see through knotholes in the v-groove planks, he concluded that there was no drywall or polyethylene installed behind that planking. He is of the opinion that the absence of these materials is in violation of the Building Code and industry standards.
[21] In his report, he indicates that he was told by the plaintiff that another contractor called in by her had said that there was inadequate air space between any insulation and the roof sheathing and that soffit vents had not been installed by the defendant. He also observed that there were no roof vents in place.
[22] For his part, the defendant simply denies that the roof/ceiling was inadequately vented or that it lacks a vapour barrier (presumably in the form of properly installed polyethylene).
[23] While I am satisfied that the defendant did not install roof vents along the ridgeline of the roof, as is apparent from the photograph attached to Mr. Beattie’s report, I am not satisfied that the plaintiff has met her evidentiary onus of proving the balance of the shortcomings described under this heading. There is before me no explanation as to why Mr. Beattie did not simply remove a part of the ceiling assembly to make a fulsome observation, rather than peeking through knotholes. In addition, the plaintiff chose not call the contractors she says she had called in to address insulation and soffit vent issues. That contractor’s firsthand observations and rationalizations for the work it did would have been helpful, but are missing.
[24] The plaintiff has numerous complaints about the kitchen cabinets (beyond the under-sink issue discussed above) for which she blames the defendant. Some are plainly installation issues, which do rest with the defendant. Some, however, are design issues. For example, the plaintiff finds the pantry cupboard to be too narrow and too small for her needs. She complains of the wrong kind of glass being used in one or more of the cupboard doors. At the same time, she does not deny the defendant’s explanation that he left the designing of the cabinets to the plaintiff and the supplier. The plaintiff has not sued the supplier, for unstated reasons, nor did she call the supplier as a witness.
[25] There are further unexplained acts on the part of the plaintiff which colour her testimony and overall position. The evidence is that the plaintiff was dissatisfied with the paint which the defendant applied to the v-groove planking in the ceiling. It was not in accordance with what she believes had been agreed upon. The defendant offered a compromise solution as follows: he would remove the planking and supply new wood. The plaintiff would apply the paint or finish she wanted to the new planking, and the defendant would install it. The defendant supplied the new planking, but rather than painting it, as it appears she had agreed to do, the plaintiff simply let the wood rot in her backyard.
[26] Sometime after the plaintiff had become disillusioned with the defendant’s work and his failed promises to attend and either rectify or continue his work, she sent him a quite complimentary message encouraging him to complete the job. She described this as the application of “reverse psychology”. It appears to have worked, albeit on the wrong subject. Instead of influencing the defendant to get on with the job, the message served to restart discussions, which led to the defendant talking the plaintiff into buying some new windows. The price for those windows was either $9,600.00 or $9,800.00, which difference is presently immaterial. The plaintiff paid a $5,600.00 deposit on November 5th, 2010. The defendant acknowledges that he has neither provided nor installed the windows or returned the deposit.
[27] The defendant acknowledges that he did not return to complete the whole of the project. He says that he did not so because he was threatened by the plaintiff’s boyfriend. The boyfriend was not called as a witness by the plaintiff to refute this.
[28] I am satisfied that the plaintiff has proven some, but not all of her allegations against the defendant. He either breached part of his contracts with the plaintiff or performed his obligations thereunder in a negligent fashion. That said, the contracts were for both the supply of materials and the performance of services. It would be wrong to say that the breaches, while not insignificant, were so fundamental that the defendant has repudiated the contract, thus entitling the plaintiff to choose rescission. Without having the right to rescind, the plaintiff cannot simply demand the return of all of the money she has paid to the defendant. That would leave him unpaid for the goods he has supplied and for the services which he did perform adequately at least in law.
[29] Without being able to rescind the contract, the plaintiff must prove her damages strictly. In these circumstances, a plaintiff is not entitled to a judgment for the payment of money unless he or she has proven all of the three following elements:
liability (in contract, or tort, or both);
the existence of damages;
the cost of repairing or undoing those damages.
[30] The plaintiff in this case, with one exception that will be addressed below, has only proven the first two factors with regard to some of the supplies and work agreed upon. Those two factors, without the third, are inadequate to entitle her to a judgment requiring the defendant to pay her money. For the most part, the plaintiff has not remediated the shortcomings and thus presented no evidence of the cost of so doing. It is inadequate to simply say that she was quoted “approximately $56,000.00” for rectification. The plaintiff did not put into evidence that estimate or those estimates leading to that number, nor did she call the author or authors thereof. She did not break the figure down into its materials and services components, nor indicate whether any of the originally supplied materials were to be reused or, if not, why not.
[31] The only damages proven by the plaintiff to the standard required in law has to do with the $5,600.00 deposit paid relative to the windows. The plaintiff shall have judgment for that amount, plus prejudgment interest at the statutory rate from the date of payment. The balance of the plaintiff’s claims are dismissed.
[32] The defendant led no evidence on his counterclaim, nor did he raise it in argument. It is dismissed.
[33] If the parties are unable to agree with respect to costs of this trial, they may make brief written submissions in that regard to me. Each set of such submissions, if any, shall be no more than three typewritten pages in length, not including a costs outline. The plaintiff’s submissions are due on or before January 31st, 2014. The defendant shall have until February 28th, 2014 to reply. The costs submissions, if they are being made, shall be sent to my attention at the John Sopinka Court House at Hamilton.
Parayeski J.
Released: December 6, 2013
COURT FILE NO.: 11-4742-SR (Kitchener)
DATE 2013-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CORA PATRICIA HOFFMAN
Plaintiff (Defendant by Counterclaim)
- and –
RYAN SUBJECT, carrying on business as SUBJECT WOODWORK & TRIM
Defendant (Plaintiff by Counterclaim)
REASONS FOR JUDGMENT
PARAYESKI J.
MDP/mw
Released: December 6, 2013