Court File and Parties
CITATION: LaFarge Canada Inc. v. Classy Chassis & Cycles Inc., 2016 ONSC 2283
COURT FILE NO. 69/13 (Peterborough)
DATE: 20160404
SUPERIOR COURT OF JUSTICE - ONTARIO
Between: LaFarge Canada Inc., Plaintiff
- and -
Jon Burman and Classy Chassis & Cycles Inc., Defendants
And Between:
Jon Burman and Classy Chassis & Cycles Inc., Plaintiffs by Counterclaim
- and –
LaFarge Canada Inc., J&S Concrete Flooring and Construction, and John Wilbert Reed, Defendants by Counterclaim
BEFORE: Bale J.
COUNSEL: Christine Arcari, for LaFarge Canada Inc. Jon Burman, in person, and for Classy Chassis & Cycles Inc. John Reed, in person, and for J&S Concrete Flooring and Construction
HEARD: November 23 and 24, 2015
ENDORSEMENT
[1] LaFarge Canada Inc. (“LaFarge”) registered a claim for lien against property owned by Classy Chassis & Cycles Inc. (“Classy”), and then commenced this action to recover the sum of $6,698.64, being the outstanding amount owed to it for concrete supplied to Classy. Jon Burman is the president, and owner, of Classy.
[2] While acknowledging the unpaid amount, Classy counterclaimed against LaFarge, and added John Reed and J&S Concrete Flooring and Construction, as defendants to the counterclaim. LaFarge had supplied the concrete for a new floor in the Classy showroom, and Mr. Reed had installed the floor. The amounts claimed are $49,000 for breach of contract and negligence, and $25,000 in punitive damages.
Background facts
[3] In December of 2012, Mr. Burman decided to upgrade the floor in the Classy showroom. He wanted a coloured, and marbled, floor surface. According to his evidence, he contacted LaFarge, and spoke to a manager, Chris White. White questioned him about the square footage, the foundation, and the condition of the existing floor. White then advised that the concrete “topper” (i.e. the concrete overlay to be poured over the existing floor) should be about three and one-half inches thick. White gave Burman the names of three installers that White “would work with” to ensure that the desired result was achieved. After speaking with one of the three, John Reed, Burman called White back, and was told that White would work with Reed to ensure the desired result. White did attend at the Classy premises, with Reed, before the concrete was poured.
[4] The concrete topper was poured in early January 2013. The result was not to Mr. Burman’s satisfaction. Concrete had been slopped on the stamped-concrete walk outside the front door, the colouring of the concrete was incorrect, and the overall appearance of the floor was unsatisfactory. He called Mr. White to complain. White attended at the site with a second person, the two of them looked around, and then suddenly left without speaking with Burman. When contacted by telephone, White told Burman that “there is nothing that we can do.” Burman then contacted VISA and arranged for his payment to LaFarge to be stopped.
[5] Photographs of the floor show inconsistent colouring, inconsistent depth (as little as one and one-half inches of new concrete in places), significant cracking, and separation of the concrete topping from the existing floor. In some places, it is coming apart in chunks.
[6] Joel Kimmett, P.Eng., was qualified as an expert witness to provide an opinion with respect to the quality of the concrete topper, and the cause of the defects. Mr. Kimmett is the Senior Engineer at GHD Limited, with nineteen years of experience as a consulting engineer. In his current position, his responsibilities include quality assurance testing services for all construction projects undertaken by the City of Peterborough, including field and laboratory testing of soil, aggregate, asphalt, concrete and other construction materials. Between 2013 and 2015, he provided similar consulting services for the Ministry of Transportation, and the Regional Municipality of Durham.
[7] At the time of his visit to Classy, Mr. Kimmett observed numerous cracks throughout the concrete topper, with more concentrated cracking near the exterior and side doors. The appearance and texture of the finished concrete surface was quite variable across the limits of the floor. Core samples disclosed that the thickness of the concrete topper varied between 60 and 89 millimetres (2.4 and 3.5 inches), and that the topper was fully independent of (not bonded to) the pre-existing concrete slab.
[8] Mr. Kimmett’s opinion was that the cracks in the concrete overlay are the result of “plastic shrinkage”. Plastic shrinkage occurs when excess water in the mix evaporates as the concrete sets. It is a common event, and can normally be controlled by installing or cutting control joints. These joints allow for the shrinkage stresses to be released at defined locations, with visually pleasing linear joints, as opposed to random cracks. In the present case, Mr. Kimmett found that the spacing between the control joints did not meet the applicable Canadian Standards Association specifications, and was inadequate to control cracking in the overlay.
[9] Mr. Kimmett also testified that the inconsistent visual appearance (he found the colour and texture to be highly variable) would be a result of either inconsistency in batching (i.e. inconsistency in the ingredients in the mix at the LaFarge plant), or inadequate mixing in the truck before delivery to the site.
Analysis
[10] On behalf of Classy, Mr. Burman argues that both LaFarge and Reed are responsible for the poor quality of the new floor. His theory with respect to the liability of LaFarge for the installation of the floor is that he approached LaFarge and explained the desired result, and that Chris White represented to him that if Classy purchased the concrete from LaFarge, and used one of the three recommended installers, White would work with the installer, and ensure that the desired result was achieved. Classy did purchase the concrete from LaFarge, and did use one of the recommended installers, but the result was far from the desired one. Burman’s evidence was that he would probably not have gone ahead with LaFarge, had he not received the assurance from White.
[11] The position of LaFarge is that there were two separate contracts – one between Classy and LaFarge for the supply of concrete, and one between Classy and Reed for the installation of the concrete – and that therefore, LaFarge cannot be held responsible for defects resulting from improper installation, and in particular, for the failure of Reed to properly space the control joints, or to ensure an adequate thickness throughout the limits of the floor. Counsel argues that Chris White would never have entered into an agreement with Burman that would result in LaFarge assuming responsibility for the work of an installer – whether recommended or not.
[12] While I agree that it may not be common for someone in White’s position to enter into such an agreement, I accept that Mr. Burman’s understanding, after speaking with White, was that if he purchased the product from LaFarge, and used one of the recommended installers, White would instruct the installer with respect to the use of the product, and ensure that the desired result was obtained. LaFarge called no evidence on this issue, and in particular, it called no evidence with respect to the discussions between White and Burman, or the discussions between White and Reed. In fact, LaFarge called no evidence on any of the facts in issue. The only witness called for LaFarge was Mark Lippert who knew nothing about the case other than that the accounts receivable records of LaFarge showed an amount of $6,698.64 to be owed by Classy - a fact that was never in issue.
[13] John Reed’s position is that there was nothing wrong with the installation. He gave evidence that Chris White never told him that the concrete topper should be poured to a depth of three and one-half inches, and that he poured it to the depth a carpenter working at the site told him to do; that his invoice excludes liability for cracks; that he put his saw cuts (control joints) in the same location as the joints in the original floor; and that the colouring of the concrete supplied by LaFarge was blotchy. During final argument, he said that he did not agree with Joel Kimmett’s opinion with respect to the proper spacing of the control joints, and that he didn’t think that Mr. Kimmett had taken into consideration the location of the control joints in the original floor. For the following reasons, however, I do not accept Mr. Reed’s position.
[14] First, he either ought to have known what depth to pour the topper, or asked for clarification from Chris White, and not relied upon anything said by a carpenter working at the site. Second, I accept Joel Kimmett’s opinion with respect to the proper spacing of the control joints, and that the inadequate number of control joints was one of the primary causes of the defects. Third, the fact that he matched the control joints in the original floor is not a sufficient excuse – if the spacing of those control joints was inadequate for the topper, then additional control joints could have been cut into the original floor. Fourth, Mr. Reed’s theory with respect to the spacing of the control joints was not put to Mr. Kimmett during cross-examination. Fifth, while his invoice says “Work Guaranteed 1 year Except Cracks”, this cannot be held to exclude liability for the substantial damage which occurred as a result of his failure to properly install the topper.
Damages
[15] In order for the floor to be repaired, the existing topper will have to be removed, and a new topper poured. This will necessitate the emptying of the showroom, with the result that Classy will be out of business for a period of time, and will incur the costs of storing its inventory and equipment off-site. The amount claimed by Classy to cover these items is $49,000.
[16] Mr. Burman called John Trotter to give evidence with respect to the cost of repair. Mr. Trotter quoted $9,900 for the removal of the defective topper, and $14,000 to install a replacement topper, resulting in a total project cost of $27,007 (inclusive of HST). With respect to the removal, I accept Mr. Trotter’s quote which he based on the number of workers who would be involved, the time it would take, and the rental value of a jack-hammer mounted on a mini-excavator or skid-steer. While I am not without reservation concerning the $14,000 quoted for the replacement floor, the only evidence I have is the evidence of Mr. Trotter - neither LaFarge nor John Reed called any evidence with respect to damages.
[17] No evidence was called by Classy to support its claims for loss of profit, or off-site storage. Accordingly, there will be no award for those heads of damages.
[18] In addition to compensatory damages, Classy claimed punitive damages of $25,000 against LaFarge. I do not accept this claim. The basis of the claim is that after Mr. Burman stopped the VISA payment, LaFarge contacted the police, resulting in an embarrassing police attendance at the Classy showroom. However, while I do not approve of LaFarge’s action in calling the police, I do not believe that the report was made with the intention of harming Classy’s reputation with its customers, and something more than mere embarrassment, on the one date that the police attended, would be necessary to support the claim.
Disposition
[19] In the result, John Reed and LaFarge Canada Inc. will be jointly and severally liable to Classy Chassis and Cycles Inc., for the amount of $27,007. As between Reed and LaFarge, liability will be split 75/25 (i.e. $20,255.25 will be the responsibility of Reed, and $6,751.75 will be the responsibility of LaFarge). Against the amount owed by it to Classy, LaFarge will be entitled to set off the unpaid amount of $6,698.64, owed to it by Classy.
[20] LaFarge’s lien will be discharged, and the registration of its certificate of action will be vacated.
[21] If the parties are unable to agree on costs, I will consider brief written argument provided that it is delivered to Superior Court Judges’ Reception, 150 Bond Street East, Oshawa, Ontario L1G 0A2, no later than May 9, 2016.
Date: April 4, 2016 “Bale J.”