Supreme Court

Supreme Court of Nova Scotia

Citation: E. Weyman Construction (1989) Limited v. Tutty, 2018 NSSC 328

Date: 20181127

Docket: Syd. No.  416121

Registry: Sydney

Between:

E. Weyman Construction (1989) Limited

Plaintiff

v.

Daniel Wayne Tutty and Cindy C. Strong

Defendants

v.

MacLean Concrete Construction Limited

Third Party

 

 

Judge:	The Honourable Justice Patrick J. Murray
Heard:	May 28, 2018 to June 7, 2018, in Sydney, Nova Scotia
Written Decision:	November 27, 2018
Subject:	Builder’s Lien Act; New home construction; claim under construction contract; claim for deficiencies.
Summary:	Plaintiff contractor seeking builder’s lien for construction of new home.  Homeowners counterclaim alleging unlevelness of floor (concrete slab).  Plaintiff filing third party claim against subcontractor for floor issue.
Issues:	Issue 1 – The levelness issue – The Slab Issue 2 – Liability for the condition of the slab. Issue 3 – Tutty and Strong against Weyman – Liability in negligence Issue 4 – Third Party claim - Weyman v. MacLean Issue 5 – Builders Lien - Calculation and Deficiencies
Result:	Issue 1 – Court accepting evidence of expert, and other witnesses in concluding floor not level. Issue 2 – Weyman liable in contract to Tutty and Strong for condition of concrete slab. Issue 3 – Weyman found not liable in negligence to Tutty and Strong. Issue 4 – Third Party MacLean found liable in contract and negligence to Weyman Construction. Issue 5 – Court assessing and calculating various claims by homeowners regarding deficiencies and claim by Weyman under Builder’s Lien Act.
Cases Cited:	Bidart Estate v. Portage La Prairie Mutual Insurance Company, 2018 NSCA 58; Stevens & Fiske Contractors Ltd. v. Johnston (1973) 9 N.S.R. (2d) 608, by Gillis J. at p. 626; R v. Villaroman, 2016 SCC 33; Connolly v. Greater Homes Inc., 2011 NSSC 291; Musgrave v. Ford, 2016 NSSC 157; R v. Graat, [1982] 2 S.C.R. 819; Urquhart v. MacIsaac, 2017 NSSC 313; Jeffrie v. Hendriksen, 2018 NSCA 77; Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120; Saadati v. Moorhead, 2017 SCC 28; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

 

SUPREME COURT OF Nova Scotia

Citation: E. Weyman Construction (1989) Limited v. Tutty, 2018 NSSC 328

Date: 20181127

Docket: Syd. No.  416121

Registry: Sydney

Between:

E. Weyman Construction (1989) Limited

Plaintiff

v.

Daniel Wayne Tutty and Cindy C. Strong

Defendants

v.

MacLean Concrete Construction Limited

Third Party

 

Judge:	The Honourable Justice Patrick J. Murray
Heard:	May 28, 2018 to June 7, 2018, in Sydney, Nova Scotia
Oral Decision:	November 27, 2018
Counsel:	Ralph Ripley for the Plaintiff Liam Gillis, for the Defendants Wayne Francis for the Third Party

 

 

By the Court:

Introduction

[1]               In September, 2011 the home of Daniel Tutty and Cindy Strong at 30 Victory Road, Glace Bay was destroyed by fire.  It had been Mr. Tutty’s family homestead.  The fire was devastating for them and their three children.  They stayed for a month or so, at the Cambridge Suites in Sydney, then moved into the garage (which had a furnace and a loft) for the winter, and then placed a trailer on the property.  The saving grace was that the home was insured.

[2]               The homeowners retained Mr. Earl Weyman as general contractor to help them with their reconstruction.  He drafted plans and a proposal for the house they would rebuild.  Initially they were going to build a house similar to the original one.  As things unfolded, they decided to make this the home they always wanted, consisting of 3,600 sq. feet.  It would be built on a concrete slab or “slab on grade”.

[3]               This home would be far more expensive.  Again, a proposal and plans were prepared by the general contractor, E. Weyman Construction Ltd.  The plans were presented to the homeowners for their approval.

[4]               Mr. Tutty’s response to Mr. Weyman was “when can you start?”  Ms. Strong assumed an integral role in the construction.  On behalf of herself and her husband she assumed most of the responsibility with the main contractor.

[5]               Mr. Weyman hired an experienced concrete contractor, MacLean Construction to install the foundation and pour the concrete floor, also referred to as the “concrete slab”.

[6]               Unfortunately, what was to be their dream home turned out to be anything but that for the homeowners.  This case is about problems experienced during construction, problems with payment and financing the home, and problems regarding the quality of work, as alleged by the parties.

[7]               A major issue is the levelness of the concrete floor throughout the house.  Also at issue are numerous deficiencies alleged by the homeowners.  Among other things, the homeowners say that the plumbing, the kitchen, the vanity, and the lighting fixtures were not completed.

[8]               Mr. Weyman claims his company, the Plaintiff, is properly due the amount claimed in the builder’s lien registered against the property.  He says he did the best he could to address the problems experienced by the homeowners which, included significant changes and alterations sought by Ms. Strong, in particular.

[9]               The Plaintiff states there was an issue with dips in the floor but he addressed this in a reasonable manner.  He retained a well respected contractor to “even out” the problem by using floor leveller.  He says this was both an acceptable and agreed upon solution.

[10]           If he is at fault, which the Plaintiff denies, his company looks to MacLean Concrete, who have been named as a Third Party in this lawsuit.

Parties

[11]           The Plaintiff/Defendant by Counterclaim, E. Weyman Construction (1989) Limited, is a body corporate incorporated under the laws of Nova Scotia, with its registered office at 30 Bay Street, Glace Bay.  At all material times, it was involved in the business of a general contractor for residential home construction and renovations (referred to as “Weyman”).

[12]           The Defendant/Plaintiff by Counterclaim Daniel Wayne Tutty is the husband of Cindy C. Strong, and resides at 30 Victory Road, Glace Bay, Nova Scotia (referred to as “Tutty”).

[13]           The Defendant/Plaintiff by Counterclaim Cindy C. Strong is the wife of Daniel Wayne Tutty, and resides at 30 Victory Road, Glace Bay, Nova Scotia (referred to as “Strong”).

[14]           The Third Party, MacLean Concrete Construction Limited, is a body corporate incorporated under the laws of Nova Scotia, with its registered office at 67 Maple Street, Scotchtown.  At all material times it was involved in the business of concrete construction including the excavation, site preparation, preparation of forms for foundations, supply of concrete and completion of concrete construction (referred to as “MacLean”).

Background

[15]           On September 4, 2011, the Defendants’ residence located at 30 Victory Road, Glace Bay, Nova Scotia, caught fire.  It was a total loss.

[16]           The residence was insured.  Rather than rebuild a house of similar kind and quality to their destroyed residence, the Defendants opted to build a house of superior quality that would be financed partially with the insurance proceeds.

[17]           On November 27, 2011, the Defendants contracted with Weyman who would be the general contractor to construct their new home.  The purchase price was $399,400.  The total price was $493,310, inclusive of HST.

[18]           The contract called for a down payment of $45,000 before any work commenced, but Weyman began construction prior to receiving the down payment.  It was his intent to assist the homeowners.  It was wintertime.

[19]           In 2012, concerns arose about the “dips” in the concrete slab and the height of the concrete frost wall.  Mr. Weyman phoned MacLean, who had poured the concrete slab.  A MacLean employee returned to the property and grinded down the concrete frost wall to floor level.

[20]           Mr. Weyman knew the problem would have to be further addressed.  He again contacted MacLean, he said, but there was no response.  He then directed the floor installer Mr. Hanson to address the problem. 

[21]           On several occasions Weyman stopped work on the house for non payment.  On the other hand, the homeowners say they raised a number of deficiencies that were not rectified.

[22]           The homeowners say because of a lien filed against their property by Weyman, they had no means to access the necessary financing to complete the house or effect repairs.

[23]           The Defendants, seeking to finish the house spent significant funds to retain other contractors.  They say there still remains work to be done.

The Contract

[24]           In evidence at Tab 6 of Exhibit 1 is the proposal for the construction of 30 Victory Road, prepared Weyman for Mr. Tutty and Ms. Strong.  It is dated November 27, 2011, but was not signed by the homeowners until months later.

[25]           The contract calls for the construction of a two story house (3,600 square feet) with covered verandas.  The contract encompasses aspects of the construction including the foundation, the floor systems, interior and exterior walls, heat, plumbing, roof and windows.  There are specifications for each category of work and allowances built into the contract in terms of price.  For example, the kitchen cabinet and vanity allowance was $14,000.

[26]           In addition, the contract describes the work to be done.  For example it reads: 

Foundation:  4 ft concrete walls, digging, rough backfilling, 6 mill. ultra vapour barrier & 2” SM under concrete floor;

 

Exterior walls:  2” X 6” KD at 16” centres with 2” x10” KD window & door headers covered with 1/2” OSB, house wrap & vinyl siding Pastel shades only, (color of siding home owners choice).

[27]           The contract refers to the Plans.  For example it states:

Windows:  All windows solid vinyl (Kohler Supreme) one over ones with grills, low E & argon gas, as per plans provided;

 

Exterior doors:  All doors to be as plans provided;

 

Steps.  Covered verandas as per plans.

[28]           Ms. Strong obtained some original plans on the internet for the style of house she wanted.  She gave them to Mr. Weyman with certain changes to be made in the design.  For example, she wanted the layout “reversed”, with changes and additions, mostly to the second floor.  The original plans for the second floor contained one bedroom.  She added a second bedroom, a bathroom, and a closet.  The original plans called for a vaulted or cathedral ceiling, a fireplace, and a spiral staircase.  The revised plans did not contain these items.

[29]           Mr. Weyman had the new plans drawn up by his draftsman, Tyler Baxter.  A full set of these plans, (also called blueprints), were delivered personally by Mr. Weyman to Mr. Tutty.  They were “rolled up”, he said.   He left the plans for a period of two weeks, to allow time for the homeowners to review them.

[30]           The contract, which is the signed proposal, sets out the payment schedule and describes the various stages of completion by overall percentage. 

[31]           According to Weyman work stopped on the project following a telephone conversation on March 22, 2013.  That was the last date that Weyman provided labour and service to the homeowners.  Details of that conversation will be referred to later in this decision.

[32]           Weyman filed a builder’s lien two months later on May 31, 2013.  The amount claimed as owing under the contract price is $158,137.42.

Position of Weyman Construction (1989) Ltd.

[33]           Weyman maintains it is entitled to a lien under the Builders Lien Act in the amount of $158,675.93.  This sum was adjusted at trial to allow for certain credits.  Weyman insists it has met the requirements of the Act, in registering the lien and filing the lis pendens.  As such, it submits, the lien is a valid claim on 30 Victory Road.

[34]           Mr. Weyman maintains that once it was determined what style and type of house the homeowners wanted, he had plans professionally prepared.  He then met and provided the plans to them.  He had previously worked on “insurance rebuilds”.

[35]            Weyman also prepared a proposal which set out the price and specifications for the rebuild.  This contract included allowances for things like flooring, kitchen cabinets, and plumbing.  This provided the homeowners with flexibility while allowing them to remain within a budget for their new home.

[36]           It was agreed the house would be built on a four foot concrete slab.  As per the proposal there would be 1) a down payment of $45,000 upon signing; thereafter the payments required were 2) 41% at the weather tight stage ($124,485.39); 3) 20% when ready for drywall ($82,675.80); and 4) 39% upon completion ($161,217.81).  These payments would be less the 10% holdback - $45,931, which the contract required to be paid sixty days after completion.   

[37]           Unfortunately, problems were encountered in several areas: 1) the concrete slab; 2) the financing of the home; and 3) the numerous deficiencies alleged by the homeowners.  According to Weyman the home was substantially completed when Ms. Strong told him not to return.

[38]           Also it is Weyman’s position that it hired an experienced and well respected concrete construction firm to construct the foundation and lay the slab.

[39]           Weyman says its own work on the home at 30 Victory Road was completed in a competent and workmanlike manner.  Further, it understood and was sympathetic to the situation of the Defendants. 

[40]           Acting in good faith, Weyman argues it made allowances and attempted to be cooperative in addressing the problems that arose.  This included hiring Ken Hanson with respect to the floor.

[41]           Weyman introduced expert evidence at trial to show that the concrete floor is not level.  As such, Weyman looks to the Third Party, MacLean, for contribution and indemnification for any amount due to the homeowners by Weyman.  In short, Weyman says the slab was MacLean’s responsibility.

Position of the Defendants/Plaintiffs by Counterclaim, Mr. Tutty/Ms. Strong.

[42]           The Defendants maintain they were two hard working parents, attempting to provide for themselves and their three children.  They are unsophisticated in construction and needed Mr. Weyman’s firm to help them reconstruct after a fire destroyed their home.  They relied upon Weyman Construction’s expertise.

[43]           The Defendants state that they have always been prepared to pay Weyman, provided the deficiencies are accounted for. Mr. Weyman was familiar with “insurance jobs”.  They selected him because of his experience and reputation.

[44]           The crux of the Defendants’ position is that they did not get what they bargained for.  Weyman had a duty of care to them to complete their home in a skilled and workmanlike manner.  This included a responsibly as General Contractor to oversee the sub-contractors hired to complete various aspects of the construction, including completion of the concrete slab by MacLean Concrete.

[45]           Further, the Defendants say Weyman is liable to them in contract and negligence for damages suffered by them, for which they have counterclaimed.  In particular, they say Ms. Strong did not terminate the contract with Weyman.  They agree there was a dispute over various aspects of the fixtures, particularly the kitchen cabinets, which Ms. Strong bought and paid for from Mill Creek.  They had just financed a mortgage for a substantial sum ($104,000) and given it to Weyman.  He was expected to return to complete the job.  He did only for a short time.  A month later he filed the lien, say the owners.

[46]           Further the Defendants argue that the significant experience of MacLean led to significant complacency.  The expert opinion of Mr. Tupper shows a high probability of negligence in the pouring of the concrete slab, they claim.

[47]           The Defendants say Weyman has not discharged its onus of proving the cost or value of the labour and materials provided.  Instead, they submit, he has attempted to “work backwards” by deducting items from the overall contract price.

[48]           The Defendants say these events have been tragic for their family and they have suffered great strain mentally.  It has taken a toll on them physically and in their relationship.  An unlevel floor has ruined their expensive dream home.

[49]           The costs of remediation are significant.  The Defendants ask the Court to accept the evidence of Craig Beazley as to the costs of rectifying the unlevel slab.  This is needed to return their home to the condition it should have been in, with a level floor, upon completion of the contract.

Position of the Third Party – MacLean Concrete Construction Limited

[50]           The position of MacLean is that Weyman has not met the onus upon them of establishing that MacLean is liable to it in damages for the concrete slab.

[51]           MacLean argues there are serious flaws in the report of Mr. Tupper.  There is no evidence the floor was even properly measured.  MacLean submits that Mr. Tupper’s experience is in commercial and not residential construction.

[52]           Instead, MacLean says the Court must look to the evidence of the MacLean employees, including its owner, Leo MacLean.  In particular, MacLean refers the Court to the evidence of Robert MacLean, the lead foreman.  His work, says Leo MacLean, is careful and meticulous.

[53]           MacLean argues that there are numerous problems with the expert evidence.  Without this, they say Weyman has not made out its case against it.  MacLean submits the burden has not been discharged either in contract or negligence.

Issue 1: The levelness issue – The Slab

[54]           The concrete slab was poured by MacLean Concrete on January 3, 2012.  The cement mixing trucks arrived from Municipal Ready Mix and, according to the evidence of Robert MacLean, a full crew (five or six men) was on hand to complete the foundation that day.  The pour was larger than normal for a residential slab.  

[55]           At that point the proposal had not yet been signed, but the frost walls had been poured in December 2011.  The plans set out the type of the footer and approval from the building inspector for it was received on December 7, 2011 (Tab 8a).  The walls had also been inspected and backfilled.  That approval was received from CBRM on December 14, 2011.  The underground plumbing was then “roughed in”.  The CBRM Inspector, Greg MacPhee, issued that Report on December 23, 2011, granting approval.

[56]           MacLean performed a site inspection.  Mr. Dan Wheaton the general manager, attended the site along with Leo MacLean.   A contractor named Joe Parsons had demolished the old foundation and filled in the hole.  They were aware of the previous Tutty home and foundation, and that a portion of the new home would be built over the old foundation.  This provided a heightened awareness for Mr. Wheaton and Mr. MacLean.  They had done this before.  They made sure their excavator, Leo MacLean Jr., was aware of this in his preparation of the site.

[57]           The other issue mentioned by Robert MacLean was they had run into some bedrock, which they dealt with when pouring the footer and levelling the frost walls.  The concrete slab is poured to meet or join up with the top of the frost wall, both on the same level.

[58]           In the case of 30 Victory Road, the contract called for the house to contain in-floor heating, the piping for which had to be added before the slab was poured.  The contract reads in part:

We hereby submit specification and estimates for: construction of a Two Story House (3600 sq. ft.) with covered Verandas.

 

Foundation: 4 ft. concrete walls, footings, digging, rough backfilling, 6 mill. Ultra vapour barrier & 2” SM under concrete floor.

 

Floor System:  Second floor of 16” TGI;s at 16” centers supported by bearing walls covered with ¾ K&G Edgegold, glued and screwed.

 

…

 

Heat: Electric hot water furnace with in-floor heat, second floor to be in-joist.   

 

                                                                        Date: November 27, 2011

[59]           Laid underneath the floor, before it is poured is two inch styrofoam (SM) insulation and a vapour barrier.  Wire mesh is placed down over this set-up before the cement is poured.                   

[60]           Mr. Weyman asked Mr. MacLean to quote on the job at 30 Victory Road.  The estimate provided on October 4, 2011 refers to the labour and materials to:

Install a new foundation approximately 48’ X 39’ as per the drawing provided.

[61]           The quote also specifies the type of floor:

Concrete floor with gravel base and includes: ‘Excavation and Rough Backfill’.

[62]           There is a reference to “compaction gravels or fill extra if required”.  There is a reference to 7’- 9’’ walls, which is in error.

[63]           The estimate quoted by MacLean for labour and material was $27,172, plus HST of $4,075, for a total of $31,247.

[64]           Mr. Weyman testified that the contract was not signed immediately by Mr. Tutty and Ms. Strong.  However, he understood they accepted it when Mr. Tutty  asked him, “when can you get started ?”  After that, Mr. Weyman said, the first thing to be done was the foundation.  He contacted Mr. Wheatley, and thought it was Leo MacLean who “made up the price for the foundation”.

[65]           MacLean initially quoted on the first plan for the old home (Tab 5 of Ex. 1), which was a basement of 832 sq. ft.  This quote was dated September 28, 2011.  It included a provision for an “Alternate heat source: Brick fireplace with insert”.

[66]           As stated, Weyman had Mr. Baxter prepare a working set of plans for the interior and exterior of the home, including the foundation.  These were required to obtain the building permit.  Mr. Weyman said the plans must be reviewed by CBRM, for “structural solidness of the layout, design, and specifications”.

[67]           The plans that were provided to the homeowners were entered in evidence at trial as Exhibits 3, 4, 5, 6.  The layout shown on each of them is as follows:

Plan No. 1 – House, first and second floor, veranda.

 

Plan No. 2 – House, front and left side.

 

Plan No. 3 – Back and right side, floor joists right.

 

Plan No. 4 – Floor, joist layout left and foundation layout.

[68]           There is writing on these to note specifications for each area of construction.  Note three states that, “All work to be carried out according to the national and local building codes”.  Note six states that, “All property issues regarding building setbacks and soil conditions are the responsibility of the homeowner”.

[69]           Mr. Weyman testified about giving these plans to the owners.  He rolled them out, showed them the changes requested, and left the plans with them.  They didn’t seem to look at them closely as some people do, he said.  He pointed out to them that there was an L shaped stairway with a landing and steps (Plan No. 3).  He pointed out the extra bedroom on the second floor.  There was no fireplace and the pillars in the dining area were gone.  The plans made a variation for a bathroom to be added on the second floor.  Overall, the house looked similar to the one shown in the pictures provided by Ms. Strong, but Mr. Weyman could not say it was identical.

[70]           With respect to the foundation, Mr. Weyman testified that it was Mr. Tutty who made the decision, “right from the first meeting” to build a “slab on grade” foundation.  He accepted MacLean’s quote of October 4, 2011.  Mr. Weyman called Mr. MacLean and told him he wanted his firm to do the work.  Mr. MacLean was given the plans and specifications for the job.  

[71]           They could not get started until the building permit was issued.  Mr. Weyman made application for the building permit.  According to Mr. Weyman, MacLean’s crew began by digging the trench to place the footer for the foundation.  Forms would be built using planks to “hold the footer square”.  Once formed, the concrete would be poured and inspected.  The same process would begin for the walls.  The footer forms were removed and the forms for the walls put up; the concrete would be poured, then inspected.  The process for the pouring of the floor/concrete slab would begin, as earlier explained.  It would then be time to pour the slab.  It should be noted, there is no inspection after the concrete floor (the slab) is poured.

Mr. A. Douglas Tupper,  P.Eng.

[72]           Mr. Tupper was the only expert witness to give evidence.  He has been a Professional Engineer for 54 years, having received his Bachelors’ Degree in Chemical Engineering in 1964.  He had been qualified many times to give evidence in the Supreme Court in Nova Scotia and in other provinces.

[73]           The Plaintiff tendered Mr. Tupper’s report under Rule 55.  The Third Party did not object to the report, but did object to Mr. Tupper’s qualifications.  A voir dire was held to determine its admissibility.  One of the main objections was Mr. Tupper’s lack of experience in residential construction.  I ruled that Mr. Tupper’s qualifications would be accepted, given his vast experience in construction, and in dealing with large projects involving concrete.  His qualification under Rule 55.09 as accepted by the Court is as follows:

Allison D. Tupper be qualified as an Expert in the filed of construction, concrete and structural engineering capable of giving Opinion Evidence on the subject of the concrete construction and the existence of, and the cause of deficiencies in the Concrete Construction in the residence constructed at 30 Victory Road, Glace Bay, Nova Scotia, as well as recommended methods of remediating or correcting such deficiencies.

[74]           Mr. Tupper attended at 30 Victory Road to assess the slab on November 10, 2016.  Prior to that he sent an email (Exhibit # 10) to Mr. Ralph Ripley, seeking information.  Mr. Tupper walked the floor and inspected the house.  He took photographs, which are attached to his report. 

[75]           It is Mr. Tupper’s opinion that the slab as poured is not level.  In his report he concluded that:

1.  Sections along the south and east edges of the slab were about 1.25 inches below level of a datum point on the floor in the passageway at east side of the kitchen. (p. 20)

 

2.  The slab in front of the master bedroom door was about 1.5 inches lower than the datum.

 

[76]           The photos at D9 and D10 are near the master bedroom.  These show a significant gap evidenced by a cracked tile and a large “sunken” tile.  As has been pointed out by MacLean’s counsel, no one has “pulled” these tiles up.  MacLean says this assessment is occurring some 4 -5 years after the floor was poured and the tile was laid.

[77]           In section 15.1 Mr. Tupper refers to the uneven way in which the slab was poured.  He testified, “many of the doors would scrape the floor when opened”.

[78]           Mr. Tupper points to two reasons for the slab not being level: 1) the placement of the slab and 2) the preparation of the site, meaning the placement of materials under the slab.

[79]           MacLean argues there are serious problems with the expert evidence.  They say there was lack of preparation, stating, for instance, that Mr. Tupper did not even bring a level.  Instead, they say, he relied on Mr. Tutty’s nephew, a Darrel Hill who “happened by”, and actually performed the measurements.  The report says Mr. Tupper did, but MacLean says he changed that in his evidence at trial.

[80]           MacLean says, in effect, that Mr. Tupper made one visit, took some pictures, and performed a visual assessment.  What we are left with, says MacLean, are two cracked tiles, three-and-one-half years after installation.  Mr. Weyman and the homeowners had control of the slab during that period.

[81]           A further flaw in Mr. Tupper’s report, says MacLean, is the lack of an elevation survey.  They submit in his report, Mr. Tupper recommended that a formal elevation survey be done.  Neither of the reports referred to by Mr. Tupper, the Dillon Report or the Kennedy Report, were entered into evidence.

[82]         In his report Mr. Tupper states:

I did not conduct a detailed elevation survey of the slab.

[83]           He did a couple of “spot checks”, says MacLean.  They submit that if he did not perform the measurements, he cannot offer an opinion.  Further, even if the slab is not level, MacLean argues that there is no proof MacLean did anything wrong.  The best evidence they say, is that of their employees, who actually performed the work.

Robert MacLean

[84]           Robert MacLean is a sixteen year employee and is a lead hand in the pouring of concrete slabs for MacLean.  At the outset, I will say Mr. MacLean gave evidence in an earnest and straightforward manner.

[85]           Mr. MacLean testified that he had a specific recollection of pouring the concrete slab at 30 Victory Road on January 3, 2011.  It was sunny and cold that day.  He explained the process involved in pouring a concrete floor.  There were five or six men.  After the concrete trucks arrived they began pouring, starting at the end farthest from the truck.  There would be two men with wheelbarrows carrying the cement to where the floor would begin to be poured.  It was poured in sections and as they went along they would “rake it off ” using a “darby” to get it level.  He explained that the object is to bring the floor level with the top of the frost wall.  To do this they would use a laser level.  The laser level would “beep” and then “sound” when levelness was achieved.  A person or persons would be “tasked” with operating the laser level.  He did not remember specifically who was tasked on the day in question.  He said it could have been him.  They sometimes use more than one level.

[86]           In terms of working for MacLean and the importance of building a level foundation and pouring a level floor, Robert MacLean testified as follows:

Q:         Do you yourself because of being experience have your own set of standards that you say look if I look at its out by this amount of tolerance I’m not going to accept I’m going to go back and fix it or I’m going to fix it before I leave the site.

A:         No that’s one thing we, we got a pretty good bunch of guys.

Q:         Yes.

A:         Who work for Leo and we try to do the best job we can.

Q:         And so as a result in doing so when you look at it before you leave the job you want to be satisfied…

A:         Always.

[87]           In terms of the work completed that day Mr. MacLean testified as follows:

Q:         Okay so in terms of moving to the process the last thing that you say you remember for the work on the project was the pouring of the floor itself? Do you remember being there for that pour?

A:         Yeah.

Q:         Would you have been on site the entire time that the pour was being conducted?

A:         Yes.

Q:         Do you have a recollection as to what the weather was like that day?

A:         I think it was sunny.

Q:         Okay do you remember what time the pour started:

A:         I’m gonna say around probably 9 o’clock in the morning, we usually get with the start early.

Q:         Okay now you say that you’re gonna say that, do you have actual memory of what time you started on that date or are you just guessing?

A:         I’m going to say I’m pretty confident in that, because there is very several times that we’d ever start pouring a floor like in the middle of the afternoon, it’s just too hard.  We always to try to get it done earlier in the morning.

Q:         Okay, now how many men would you have had on site that day for that pour for MacLean Concrete.

A:         I’d probably say probably 5 or 6 guys.

Q:         Okay would that be the normal size of crew for a pouring of slab.

A:         Well that size yeah we’d probably send out that many guys.

Q:         Okay, so in terms of the crew the 5 or 6 men that are there on site, do they each have assigned jobs, how, how did it work?

A:         Yeah pretty much, we like to keep maybe 2 guys on the wheel barrow, two guys wheel barrowing.

…

 

Q:         Okay and what about the other guys, what other jobs would have been assigned?

A:         They’d probably be one or two guys raking the cement.

Q:         Okay and when you say raking, what do you mean?

A:         Once the, once some of the concrete is placed we’ll rake it off close to grade and then we’d have another guy going around behind us or in front of us with a grade stick with the laser and checking our the top of that cement to see if it’s on grade or not, like level.

Q:         Alright so is that all of the jobs that would be assigned during the day:

A:         Yeah pretty much and we’ll switch you know sometimes back and forth you know.

Q:         Take turns.

A:         To do other things also, we have to still darby the cement.  Maybe the guy on the laser might stop for a minute and darby the cement.

Q:         Right.

A:         Just to get it flat.

[88]           Mr. MacLean further described the process involved in pouring the slab:

Q:         Okay so just, just kind of for those of us who’ve never been on the site for the pour when this is happening, can you just kind of give us a visual in terms of what the men are doing how the wheel barrow gets from one side to the other.  What’s going on when the truck comes with that first load?

A:         Truck comes, they driver got all the shoots ready to go, he starts pouring, he’ll pour the cement in a wheel barrow and the guy on the wheel barrow will wheel to where we’re at on the other side of the slab and he’ll dump the cement…

Q:         Yeah.

A:         …and we`ll rake the cement off, we got something to go by, it’d be the top of the wall, because that’s where we want our the height of that cement so we’ll start raking the cement off to the height of the top of that wall and they’ll be someone there checking it with, one of the guys will be checking it with the laser, the cement got to come up we’ll dump a little bit more cement there and well rake it off.

…

 

Q:         Okay now in terms of trying to get everything level and finished off is there certain jobs that are left until the end?  And you do it all together, or do you get each section perfect before you more to the next section.

A:         What we’ll do, we’ll pour a section of cement that we’re comfortable that we can finish.  So we’ll pour so much cement and we’ll, we’ll darby, the darby I was telling you about that board about 3 - 4 feet long and wide and run it back and forth over the top of the cement…

Q:         Yes.

A:         … to get a finish on it.

Q:         Right.

A:         Once that gets done then we’ll just continue on pouring until we do another section.

[89]           Mr. MacLean was asked how the process flowed that day.

Q:         Okay and earlier you described for us the process of, of multiple concrete trucks on site, do you remember how many truck loads of concrete were delivered to do the slab on this project.

A:         Um there would probably be at least 2 or 3 for that size slab.

Q:         Okay and do you have any recollection on how the flow of the trucks went that day, if everyone was on time, you know where you waiting, did things get delayed, what’s your recollection?

A:         I think things went fairly well because it was still daylight by the time we left so everything probably went good.

[90]           Mr. MacLean testified that he remembered seeing the floor after it was poured:

Q:         So do you remember seeing, being on site that day when the slab was poured and seeing the finished product?  Do you remember that?

A:         Yeah.

Q:         What did it look like?

A:         It looked pretty good actually.

[91]           Mr. MacLean said he remembered being asked to return to grind down certain areas of the floor, “humps”, he said, that were high in certain areas.  He described these areas as being at or around “the doorways”.  He looked at the floor then said except for a couple of spots, “it seemed fine”.

[92]           Mr. MacLean was asked about his return to the site in cross-examination by Mr. Ripley:

Q:         Now you’d agree with me that you testified to Mr. Francis in direct examination that when you left on the 3^rd of January you looked at that slab, that that looked fine to you. 

A:         Yeah.

Q:         Correct that’s what you said?

A:         Yeah.

Q:         You’d agree with me that you went back in some point in time and the slab or the floor wasn’t so good, correct?

A:         It wasn’t the floor itself, it was the bearing walls.

Q:         But when you say the bearing walls you’re pouring the slab to come up and meet the bearing walls aren’t you?

A:         Yes but the concrete didn’t come over the top of the bearing walls, the bearing walls stuck up a little tiny bit higher.

Q:         With so that when the cement was put in it did not come up to that level did it?

A:         Yes as we poured it it did.

Q:         When you say as you poured it did, well then something must’ve had to happened to it then?

A:         Cement does shrink…

Q:         Yes.

A:         As it cures… it mighta dropped it maybe a little tiny bit maybe it’s possible.

Q:         So let me just clarify then, so you’re taking the levels as you’re putting it down.

A:         Yeah.

Q:         But as you’ve indicated that the cement will shrink.

A:         Yes.

Q:         Correct?

A:         Maybe to a point.

[93]           Further, Mr. MacLean was asked in cross-examination by Mr. Gillis about who took the measurements:

Q:         Right, so it’s fair to say that again when you’re speaking about how there’s someone tasked with taking various level measurement a the cement is poured, this is what occurs in a normal circumstances.

A:         Yeah.

Q:         But you’re not… you don’t have a specific recollection of that occurring on this particular project?

A:         It was checked but probably more than one fella was checking it at the time of the pour because it was you know.

Q:         Okay so probably more than one fella.

A:         Yeah.

Q:         Again with the use of the word probably are you saying that you know in the normal course there would be probably more than one fella or in this case there was more than one fella?

A:         Yeah I say there was cause the amount of the cement we probably had to stop and one guy would probably have to do his job so we continue pouring as he was maybe finishing cement.

Q:         Okay so do you have a specific memory of that occurring in this case?

A:         Yes.

Q:         Okay so you can picture it in your mind that there were various stages where guys stopped…

A:         Yeah.

Q:         …had to maybe take the hand trowel…

A:         Do other tasks yes.

Q:         …had to take the hand trowel…

A:         Yes.

Q:         …and another guy had to pick up the level the laser level and take a level measurement.

A:         Yes.

Q:         You can see that image in your mind.

A:         Yes.

Q:         Okay so who was that?

A:         It might have been me, I might have stopped and used… checked the laser.

Q:         Right but you have the image in your mind.

A:         Yeah.

Q:         And I’m asking who’s in the image, and now you’re saying it might have been you.

A:         Oh the image of who was actually holding it?  No I don’t.

Q:         Okay so then you don’t have the specific image in you mind…

A:         No I don’t know.

Q:         … of someone using the laser level.

A:         No.

Q:         Okay it’s just, just your evidence that you think that it occurred…

A:         Yeah, yeah.

Q:         But you can’t remember who did it.

A:         Usually every floor you know we just multitask, and just keep rolling along…

Q:         Right.

A:         … you know well like the guys usually have their main job but if they have to stop for a minute to help somebody else out they, they will.

Q:         Okay I understand then, but there is no specific image in your mind about which guys did that in this case?

A:         Which guy… no.

Q:         Okay and there’s no specific image in you mind of you doing that in this case?

A:         No.

Q:         Okay so you don’t recall if you took any level measurements during this project at 30 Victory Road.

A:         Exactly yeah.

Q:         …with respect to the pouring of the slab.

A:         Exactly.

[94]           Mr. MacLean gave further evidence in cross-examination that no final measurement of the floor is taken to determine whether it is level.  It is something that occurs during the process of pouring the floor.

Q:         Okay but I think in your earlier testimony, and maybe I’m not characterizing it correctly, but I believe what I heard was after the cement had been poured and filled to the height of the walls.

A:         Oh okay after it was poured okay yes.

Q:         Yeah.  That you didn’t use a laser level, do you recall stating that?

A:         To double check?

Q:         Yes.

A:         Yeah well we couldn’t get back on to the floor to check it.

Q:         Right because…

A:         … it was just poured.

Q:         …because it hadn’t completely set at that…

A:         Set yeah.

Q:         Right.

A:         Not, not to walk on.

Q:         Right so, so you didn’t use a laser level at that stage?

A:         No, no.

[95]           Mr. MacLean stated that, in his view, a tolerance of an inch and one half would not be acceptable.

[96]           One of the allegations here is that no power trowel was used.  Although the evidence is not entirely clear, it is alleged the use of calcium chloride caused it to set quicker, thereby requiring power troweling.

[97]           Mr. MacLean commented on the use of power troweling.  It is used when the concrete sets quicker, such as in warmer weather.  He said they use it most often in the summer.  Mr. MacLean was asked in direct:

Q:         Okay and why was the power trowel not used at that slab?

A:         I know it was cold out that day, and we would have had to wait too long for that concrete to harden to put that trowel on the floor or it just would have sank through the cement.

Q:         Okay, would there have been a power trowel on site?

A:         Yes I always keep the power trowel in the truck just in case you know, it’s cement anything can happen with cement.

Q:         Right but to your recollection one was not used on that project.

A:         Nope but there was one there though.

[98]           Finally, in terms of levelness and his return to grind certain spots, Mr. MacLean gave evidence on the ability or tendency of concrete to “shrink”.

Q:         Okay, but maybe it’s better to phrase the question with specific reference to the job as a whole.  The goal in doing that in grinding down those walls was to ensure there was a level surface.

A:         Yes.

Q:         Right.

A:         Yes.

Q:         And so certainly when you attended on that day, you became aware that the surface was not perfectly level.

A:         It wasn’t that it wasn’t level it wasn’t… it was rough the top of the… the top of that section was a little… the concrete was rough.

Q:         Right it was, it was high… it was higher than the floor.

A:         Yeah.

Q:         So they did not meet on a level on a level plain.

A:         Yes.

Q:         Okay and so certainly at that stage, you had some indication that where the wall and the floor met there wa… there was not perfect levelness there was there?

A:         Not perfect no.

Q:         Okay and so on that day faced with this information you didn’t take laser level and ensure that it was level across the whole slab did you?

A:         No.

[99]           Mr. MacLean gave credible evidence.  He points out that “anything can happen with concrete” and that there are certain tolerances that are unacceptable.  They work meticulously to ensure their work results in a level slab, maybe not perfect, but level.  Many of Mr. MacLean’s recollections reflect what probably happened as opposed to a specific recollection.  This makes him more credible, MacLean’s counsel submits.  He also said that usually one person is tasked with using the laser level.  In this case he seemed to suggest they were multitasking.  No final measurement was taken of the slab, and this is normal as they level it in sections.

Ken Hanson

[100]       Mr. Hanson is an experienced floor tile installer.  He is 65 years of age and has been installing floors for 50 years.  In the last 25 years he has limited his work to installing just ceramic tiles.  In the last 15 years the most common surface he works off of are concrete slabs and/or concrete overpours.

[101]       Mr. Hanson was asked to install ceramic tile on the floor at 30 Victory Road.  He said he does a lot of new homes, but also a lot of renovations.  Before tiling a floor he assesses the slab for flatness.  He explained the process he has been following for the past 25 years.

Q:         And, and when you place ceramic tile on, on a slab, what process do you go through in terms of placing them on a slab?

A:         Well first of all we have to check the slab for flatness; level is… level is not always our main concern, we deal with getting the floors flat.

Q:         Yes.

A:         And we use self-levellers, if it’s only minor deficiencies in the floor we’ll use a product called platapatch, but if it’s big dips and dives and high spots we use the self-levellers.

Q:         Now with respect to a slab, how much experience would you have in placing tiles on slabs.

A:         I’ve been doing it for years.

Q:         Just a rough idea how many houses would you do a year

A:         I’m probably in close to 30 different projects a year, houses, renovations, bathrooms, those types of things.

[102]       Mr. Weyman asked Mr. Hanson to “come out and give him a price on doing the job”.  He explained his first step; “we’ll go out and measure.  Square footage is basically how we work”.  He testified he will “inspect the floors as best we can”, before giving a price.  Mr. Hanson stated he will pull a string tight from side to side, (it depends on the amount of clutter), to see how good or how bad the slab is.

[103]       With this floor, Mr. Hanson said, it needed “major patching”.  He could tell by walking on it that it needed work.  “I could feel the low and the high spots”, he said.  Mr. Hanson said the first time he looked at the floor he really could not see how bad it was.  When he began to lay it after he had the contract, he said, “that’s when we determined how bad it was”.  In his evidence he said:

Q:         And when you say how bad it was how would you compare it to others that you have worked on?  That is other slabs.

A:         It was right at the top of the list as being one of the probably the worst ones I’ve seen in a long time.

Q:         And what was it about it that you observed that suggested that to you?

A:         Well the floor was low, it was probably an inch, inch and a half low from side to side out in the middle.

[104]       Mr. Hanson testified this caused him concern.  He went back to Mr. Weyman and told him he “had to fill all this floor”, and that it was going to cost extra.  Mr. Weyman accepted that, he said.

[105]       The extra cost associated with applying the floor leveller would involve using fifty bags of leveller over three days.  “We tackled it with levellers”, he said.

[106]       Mr. Hanson discussed briefly the other option which was an “overpour”.  This is to put another coat over the entire floor with concrete.  He stated:

A:         It was almost impossible at that point because all the petitions, the walls, and everything were up and when I finally came…  when I saw the job.  So we tackled it with self-levellers.

[107]       In applying the floor leveller, Mr. Hanson explained how the job was completed.

Q:         And did you work on this job yourself?

A:         I did yeah.

Q:         And do you recall how long it took you to do this job?

A:         Levelling part of it?

Q:         Yes I’m going to start with that.

A:         I think we were probably out on that floor close to three days, because you had to do stuff in coats you can’t put that all on at once.

Q:         And what do you mean by, can you break it down for His Lordship, in terms of what you mean by doing it in coats and why you do that?

A:         Well it’s not… they recommend that you don’t go over a half inch with this product at one time, so you have to keep building it up.

Q:         I see.

A:         And your area keeps getting bigger…

Q:         Yes.

A:         …because your basically in a hollow…

Q:         So, so.

A:         …every time you add a coat you’re coming up, you’re coming up a little and you’re going out a little.

Q:         So that you used the fashion of putting it up a half inch at a time.

A:         In that roughly that area yes.

Q:         And when you say that area what area are you speaking of.

A:         Well I mean we wouldn’t go over the half inch…

Q:         Yes.

A:         … we’d make a mix up and that when they say self-levelling it is self levelling, you pour it and just kinda roughly push it around and it finds its own levels.  That’s why it’s so expensive.

Q:         So the, you do it a half inch at time. Do you remember how many times you had to put different layers on?

A:         Well if… probably three days.  We’ve…

Q:         How long does it take to set?

A:         It sets, well we were leaving it overnight.

Q:         Yes.

A:         Yeah.  It does set a little quicker but it’s not hard.

Q:         Do you have any… as somebody who, who uses that, did you have any concern about using that knowing that there was a in floor radiant heat system below that?

A:         No I didn’t have any concern.

Q:         Now do you, there’s a term level and there’s a term straight, in your trade, do you discern a difference between the two of them.

A:         I do yes.

Q:         And could you indicate to His Lordship when you are speaking of the floor being straight and level that your using one of those terms what you mean by that?

A:         Well what I mean… we try to get the floor flat…

Q:         Yes.

A:         …a lot of these homes that we work in, things aren’t always perfectly level but if we can get it flat is acceptable…

Q:         Yes.

A:         … so no there’s no ridges or humps or bumps in the floor….

Q:         Yes.

A:         …and that’s what we were trying to do was get it flat.

Q:         Did you notice if it was level?

A:         Ah, hard for us to tell if that was level from one side to the other, there was no reason, we were going for flat.

[108]       Mr. Hanson explained the difference between the terms “level” and “straight” in his trade.  In a lot of the homes they work on, things are not always perfectly level, but if they can achieve getting the floor flat, that is acceptable.  He explained that in his industry “straight” means “flat”.

[109]       According to the evidence, Mr. Hanson tiled the floor over three days, bringing it up a half inch a day.  On occasion he discussed his work with the homeowners.  They were concerned.  It was mostly Mr. Tutty who was present.

[110]       Mr. Hanson inspected his work when he was finished.  The homeowners were there also.  It was his impression that they seemed pleased with the job. 

[111]       In cross-examination by Mr. Gillis, Mr. Hanson confirmed that this is one of the worst floors he had seen in terms of levelness.  He later changed that to one of the worst in terms of flatness.  It “ranks right up there”, he said.

[112]       He was asked if he had used self leveller for “dips”, in the past.  “Yes, but we weren’t trying to get up an inch and a half”.  We were trying to take out the low spots, he said.  He explained that the inch and one half applied to certain areas where a string was strung across, one area at a time.

Q:         When you went out there to actually complete the job and had everything cleared out of the way you perceived the issue with the flatness and the dips worse than you had anticipated.

A:         Yes definitely.

[113]       Mr. Hanson summarized the completion and inspection of the job:

Q:         When you completed installing the tile, did you lay the string across at that point?

A:         I didn’t have to.

Q:         You didn’t have to so you just eyeballed it then.

A:         Well I knew that it was still… the floor was never level.

Q:         Okay so even after you had completed the tile, you still… the floor was still not level.

A:         No. 

[114]       Mr. Hanson confirmed in cross-examination that it was impractical to pour a new layer of concrete.  He testified that Mr. Weyman made the decision to proceed with the floor leveller.  Mr. Hanson did not think using floor leveller would cause any difficulty with the in floor heat.  There is no such warning from the manufacturer, he said.  Its basically a concrete product, not a gypsum material, referring to floor levelling product (Nivex) used.

[115]       The additional labour costs charged by Mr. Hanson were $1,500, in addition to the leveller cost of ($2,300).  Mr. Weyman’s company assumed this cost.

Decision Issue #1 - Levelness of the slab.

[116]       Mr. Tupper was cross-examined in some detail on his report, and in particular, the discussion in section 15.1 dealing with the floor slab.  He agreed that of the two options, the placement of the materials under the slab and the work done in the placement of the slab itself, the problem at 30 Victory Road was the placement of the slab.  It was “more probable than the other”, he said.

[117]       Mr. Tupper agreed also that of the two reasons cited, 1) that the slab was not installed with good and proper workmanship; and 2) that it was not installed within the requirements of the National Building Code, that other than referring to the Kennedy report he did not complete an analysis of the code compliance issues.  He agreed the Building Code itself was not attached to the report except by reference.  Nor did he do any measurements, “except the two or three spot measurements”.

[118]       With respect to his statement that several bags of calcium chloride were added after the mixing batch was delivered to the site, Mr. Tupper was relying upon Mr. Tutty.  He testified, “I got the sense there were quite a few”.  Rick Ley of MacLean’s said he was the one who added “a bag, maybe two” to the mix.  There is no definitive evidence as to the number of bags added.  There is evidence that MacLean and Municipal knew from experience that the proper mixture was 2%, or “one 10 lb bag for every 8 - 10 yards of concrete”.

[119]       Mr. Tupper acknowledged that, upon further research, adding calcium would only affect the workability of the concrete, referring to the ability to move the concrete around.  While that  can happen rapidly, he agreed that it is not poor workmanship to add calcium chloride.

[120]       As to the bullets on page 34 of his report, and the contractor’s failure to recognize the potential deleterious affects of these additions, Mr. Tupper agreed he did not know the level of knowledge that MacLean had of calcium chloride.

[121]       There were a number of other areas in Mr. Tupper’s evidence, where the reliability of his report was called into question.  He admitted, with respect to the last bullet, “waiting too long to perform final placement and finishing off the slab”, that there was no evidentiary basis and that he did not exactly know what time the slab was poured on the day in question.

[122]       Robert MacLean said the slab looked fine on the day it was finished.  He added, that if it hadn’t, he would not have left.  Mr. Ley recalled seeing the finished product, and said it looked “just like any other slab”.

[123]       To Mr. Tupper’s credit, these admissions, reflect his objectively and his credibility.  When asked if he actually performed measurements he said he “observed” as Mr. Hill completed the measurements in his presence.  In regard to the “representative measurements” taken he said, “we just made three or four shots on this floor which is in no way a survey of the thing”. 

[124]       Mr. Tupper explained it was his intention to have a formal survey completed, as is recommended in Section 15.3 of his Report.  He explained however that this would relate to the second potential cause, the placement of materials that had settled.  His recommendation for a full elevation survey pertains to this alterative reason for the unlevel slab.  (See page 40 of Tupper report).

[125]       On the other hand there were aspects of Mr. Tupper’s evidence, and his report that “stood up” on cross-examination and to scrutiny by the Court.  In Mr. Tupper’s opinion (at page 34) the slab is not level because of “failure to set and maintain proper grade benchmarks before and during the course of the pour ”.

[126]       The evidence indicated that Robert MacLean is a very skilled and dedicated worker.  Leo MacLean has placed his total trust and confidence in him for good reason.  Robert MacLean was also an honest witness, but given the many foundations he has worked on, it was difficult for him to remember the specific details of each one. 

[127]       This foundation was no exception.  He said he could specifically recall, but his evidence suggested otherwise.  I accept that he remembers returning to the property to “grind down” the areas of the frost wall that were higher.  It is relevant that these were the areas at or near the kitchen and the master bedroom.  The photos at D9 and D10 of the Tupper Report are in that same area. 

[128]       Robert MacLean offered the possible explanation of “shrinkage” in the concrete floor to explain why it was not level with the top of the frost wall.  It was only marginal, he said, or words to that effect.

[129]       In the questioning of Mr. Tupper, he explained his opinion at page 34.

Q:         The next bullet the failure to set and maintain proper grade benchmarks before and during the course of the pour.  You don’t have any evidence to establish that MacLean Concrete and it’s employees failed to set and maintain proper grade benchmarks do you?

A:         The evidence is manifest in the slab.  If the benchmarks had been properly set and adhered to maintained… then we wouldn’t have a dipping slab it would be level.

Q:         That’s your opinion.

A:         Yes.  And that’s the basis of that allegation.  So what sometimes happens is you set these things, somebody steps on them and you don’t realize it and you go to screet off to that particular benchmark and its low and you don’t know that until you go to pour water on the floor.

[130]       There is uncontradicted evidence, given by Mr. Weyman, Mr. Tutty, and Ms. Strong that there were puddles of water on the slab after it was finished.

[131]       Mr. Tupper further testified in cross examination:

Q:         Okay so what you’re saying is there’s no evidence that someone failed to set and maintain the benchmarks but the outcome would be consistent with that having occurred.

A:         I think that’s true.

Q:         Okay you just in part of your answer to the last question indicated that the concrete was not set properly. 

A:         It was not finished properly. 

Q:         Not finished.

A:         Not placed, placed and finished properly, because I think it set up.

[132]       In my view, this evidence of Mr. Tupper withstood cross-examination by MacLean’s counsel.  It must be considered in the context of all of the evidence.

[133]       There is also evidence of MacLean’s witnesses including Paul Yurchesyn, a very knowledgeable witness as to the proper grade, content and quality of the cement pouring and curing process.  

[134]       For his part, Robert MacLean’s evidence suggests a continuous process of meticulous work to ensure a level pour, with extensive use of one or more laser levels.  As supervisor, he said they were multitasking.  It might have been him, he said, using the laser level that day, but he was unsure of which employee had been tasked with it, as was Mr. Ley. 

[135]       Leo MacLean would occasionally attend the site to assess things and determine problems.  Mr. MacLean has a wealth of experience, pouring slabs as does his company.  This was obvious from his evidence.  Leo MacLean said clearly, that a floor that was “out” an inch and a half would be unacceptable.  “We don’t make those mistakes”.  He said, MacLean has poured hundreds of basements.

[136]       MacLean’s counsel puts forth the photo in Exhibit 13 A and B, suggesting the floor is in fact level.  Mr. Tutty and Ms. Strong, who have lived in the property for six years, say it is not level.

[137]       Mr. Tupper is not alone in his opinion.  Ms. Strong stated in direct evidence:

Q:         That’s fine, prior to this litigation did you ever discuss any deficiencies with Mr. Weyman or employees?

 

A:         Yes I sent a letter to him, and well it was addressed to Frank Gillis, where I wrote out that we were not satisfied with the work that was being done.  We stated that the slab was noticeably unlevel, there was things that still remained to be finished on property.

[138]       Ms. Strong stated the floor was “noticeably” unlevel in June of 2012.  Mr. Tutty described the floor as being “like a roller coaster”.  It should be noted that Ms. Strong and Mr. Tutty’s evidence is consistent with that of Mr. Hanson, who installed the floor.  Although not qualified as an expert, he had fifty years’ experience and no “axe to grind”.  Mr. Hanson testified, “we went for flatness, but the floor is not level, definitely not”.

[139]       Still, there are subtle differences in the evidence that are hard to explain.  For example, Mr. Hanson’s evidence that the floor was “out” 1½ inches  before the leveller was added.  Mr. Tupper’s evidence it is 1½ inches from the datum point, after the floor leveller.  As Robert MacLean said, “with concrete anything can happen”.  Mr. Hanson spoke of unlevel sections.  This possibly lends credence to Mr. Tutty’s roller coaster analogy.  Exhibit 13 might suggest the contrary.

[140]       In addition, there are the photos in Exhibit Book 2.  It appears that “sunken” tiles are present in Mr. Tupper’s Report (November, 2016, photos D9, 10) but do not appear sunken in the photos taken by Ms. Strong (April, 2013, photo 22).  This is “collateral damage to the unlevel slab”, says counsel for the Defendants.  I note the cracked and sunken tile does appear on a November 27, 2015 photo. (Photo 28).

[141]       The photos in Book 2 show a number of problem areas, such as the wall not being plumb, and a gap in the baseboard, which had been cut in an attempt to make it flush.  Contrary to Mr. Tupper’s report, there are few photos showing an unlevel floor under a door.  There is the severely cracked tile that appears in photo 26, and D4, and D5.  The evidence suggest this as the main problem area at 30 Victory Road.

[142]       In the civil context the burden of proof is on the balance of probabilities.  In Bidart Estate v. Portage La Prairie Mutual Insurance Company, 2018 NSCA 58, Bourgeois, J.A. described the civil burden of proof at paragraph 35:

[35]         In my view, the words bolded above are reflective of a heightened civil burden.  In any given factual scenario, there may be several “reasonable” inferences which could be drawn on the evidence accepted, with varying degrees of probability.  In order to accept one, the trial judge does not have to eliminate the others.  Rather, where several inferences are possible, the trial judge can accept the one that he or she finds to be the most probable on all the evidence, provided that it meets the overall burden on the balance of probabilities; simply, that it is more likely than not.

[143]       On the whole of the evidence, I accept the expert opinion of Mr. Tupper that the floor and concrete slab at 30 Victory Road, installed by MacLean Concrete is not level, in spite of the remedial attempts.  While there are some deficiencies in that report, they do not undermine his basic conclusion that there was a failure to maintain the proper grade in the placement of the slab, as is evident or “manifest” by the condition of the floor itself.  This is the inference I find to be most probable on the evidence, and in my view, it is reasonable.

Issue #2 – Liability for the condition of the slab.

[144]       Having found that the slab at 30 Victory Road is unlevel, I turn now to determine whether Weyman Construction is liable to the homeowners.

[145]       In the statement of claim, Weyman claims a builder’s lien for the balance of the purchase price ($158,675.93).  The homeowners have defended that action, alleging a failure by the Plaintiff to properly account for materials, labour, and supplies provided by the Defendants, including those related to the kitchen cabinets, flooring and some aspects of the plumbing.

[146]       The homeowners have also defended Weyman’s action on the basis of poor workmanship, as alleged.  Paragraph 11 of the Statement of Defence reads:

11.  The Plaintiff breached their contract in failing to complete the work in timely manner and to a reasonable standard of workmanship as implied in the contract.

[147]       The Defendants have counterclaimed against Weyman stating that it failed in its duty to exercise the reasonable skill and care expected of a reasonably competent and prudent contractor, which failure included among other things, the levelness of the concrete slab.  In the counterclaim the Defendants seek damages against Weyman in contract and in negligence.

[148]       The Plaintiff acknowledges that the counterclaim (and the Third Party claim) in relation to the slab, is the major issue at trial.  I shall deal first with liability for the counterclaim.  I shall then address the Third Party claim, in which Weyman claims contribution and indemnity from MacLean in both contract and negligence.  In its Defence, MacLean has denied any liability.  I shall then deal with the claim by Weyman against the Defendants in contract for the Builders lien.

Counterclaim – Tutty and Strong against Weyman – Liability in contract

[149]       In its brief Weyman acknowledges that liability in construction cases is often determined by the following principle, as enumerated in Stevens & Fiske Contractors Ltd. v. Johnston (1973) 9 N.S.R. (2d) 608, by Gillis J. at p. 626.

It is fundamental, I think, that in the absence of an express term, the Court may imply as a term of every building contract that the contractor undertook to do the work undertaken, with care and skill, or, in a good and workmanlike manner.

[150]       In the present case, it is expressly stated in the contract that “all work” was to be “completed in a workmanlike manner according to standard practices”.

[151]       In the counterclaim the Defendants allege a breach of this term (para. 12).  In addition, they allege that Weyman was negligent in failing to properly complete and/or supervise, oversee and manage their work or the work of the subcontractors.  The particulars of such negligence are outlined in paragraph 16.  The homeowners say Weyman did not meet the required standard of care, and thus breached the duty of care.

[152]       Weyman maintains that it exercised the degree of skill, care, and diligence expected of a reasonably competent and prudent general contractor.  Specifically, this was in the hiring of MacLean, a reputable contractor, and also in the hiring of Mr. Hanson, a skilled and reputable contractor to “level the floor”.

[153]       Weyman is clearly exposed to liability in contract on the facts of this case, based on the Court’s finding that the floor is not level, and for having itself advanced the expert opinion of Mr. Tupper that the floor was off.  Weyman acknowledged as much in its post trial submissions, by Mr. Ripley:

This was more than just a matter that could be fixed with some grinding.  And I think that when we put Mr. Tupper’s report in combination with the photographs that we see of the sunken tiles.  This isn’t a matter of some broken tiles because some children were rough or dropped things or a guest did.  You can see visually with the photographs there’s something wrong and Mr. Tupper has said it was 1.5” out and we have the third parties own president saying that that would not be acceptable.

 

I would suggest as a result, given that the other parties had opportunity that they did not avail themselves or call evidence with regard to whether that was wrong.  That we have the evidence from Mr. Tupper and that that should be accepted.  And we have what he outlined as being the two causes, and there really hasn’t been any cross examination that takes away or erodes what he has outlined as being the two possible causes.  The only thing is if we had had those readings that were in the control of the defendants might help us to decide which of the two.  But either lays at the doorstep of the third party.

[154]       Having taken this position and having advanced the expert opinion, it is difficult for the Plaintiff to argue that it is not directly liable to the homeowners under the contract.  Simply put, delivering an unlevel floor to the homeowners under the main contract does not constitute completion in a workmanlike manner.  The problems and difficulties associated with this slab extend beyond acceptable levels as outlined in the discussion of the floor slab in the expert’s report. 

[155]       I am satisfied, that Weyman Construction is liable to the Defendant homeowners in contract for breach of its obligation to perform the work in a good and workmanlike manner, both express and implied.  I will next discuss whether Weyman is also liable to the Defendants in negligence.

Issue #3 – Tutty and Strong against Weyman – Liability in negligence

[156]       The Defendants’ counterclaim against the Plaintiff for the concrete slab is also in negligence.  The main allegation by the Defendants is that Weyman proceeded with the work on the house (walls, partitions, etc.) knowing there were problems with the floor.  Mr. Weyman said he knew he would have to return to address the floor.  He felt however, that it could be addressed.  Mr. Weyman was concerned with the dips, but not overly so.  Mr. Hanson was very experienced.  Mr. Weyman has used him in the past.  Mr. Tutty was also aware of Mr. Hanson and his favourable reputation.

[157]       Mr. Hanson inspected the floor, and, based on his experience, the situation could be addressed by adding floor leveller, a material or compound that “finds it over level”, to fill in the low spots, so to speak.  Even he, however, did not immediately appreciate the extent of the unevenness in this large floor.  There was construction debris lying about on the floor.  When that was cleared away he realized the extent of the problem was greater.  They first ordered twenty five bags of Nivex, but ultimately purchased fifty bags, and used most, if not all, of them.

[158]       Should Mr. Weyman not have proceeded before getting MacLean Construction out to inspect the slab thoroughly to assess the job they did?  It was Mr. Weyman’s decision to proceed with the construction.  He was concerned with the weather, he said, and getting the house built.

[159]       I have concluded that Weyman was not negligent.  It is true, Mr. Hanson did say, that pouring a new layer of concrete would have been an option, but that solution was no longer available.

[160]       His past experience, however, told him the problem was not as serious.  He was not alone in thinking this way.  If the benefit of hindsight is removed, Mr. Weyman’s actions cannot be said to be negligent, in my view, and I so find.  

[161]       I turn now to discuss liability as between Weyman and MacLean.

Issue #4 Third Party claim - Weyman v. MacLean

[162]       MacLean acknowledges that as a subcontractor, it owed a duty of care to Weyman.

[163]       MacLean also acknowledges that every building contract contains an implied term that the contractor retained will perform the work undertaken with care and skill or in a good and workmanlike manner.

[164]       MacLean argues, however, that the onus is on Weyman Construction to show on a balance of probabilities that there has been a breach of contract by MacLean.  MacLean says that has not been established in any respect.

[165]       MacLean further acknowledges the standard of care, that is to construct the concrete floor/slab for the home in a manner consistent with that of a reasonably competent concrete foundation contractor.

[166]       MacLean argues that Weyman has failed to discharge its onus on both counts.  It says Weyman has failed to prove either a breach of contract or a breach of the standard of care in negligence.

[167]       MacLean says there is no expert evidence as to what a reasonably competent contractor should do or not do when working with concrete and installing a slab.  Examples would be evidence as to the proper use of a laser level, evidence in respect of pouring the slab, evidence as to the calcium mix, and the effects of these steps on this slab.

[168]       In addition, MacLean argues there is no evidence of how the standard of care was breached, that is, there is no evidence to show what MacLean allegedly did wrong.  There are suggestions that benchmarks were not maintained, that too much calcium chloride was added, and that there was a lack of compliance with the National Building Code.  MacLean says, however, the evidence falls short, and the third-party claim is not established.

[169]       Mr. Tutty and Ms. Strong were living alongside the property while the slab was being placed.  There is no evidence that they witnessed an act or omission by MacLean that would constitute a breach.  There are no photos of the slab to suggest the contract was not carried out in a reasonable manner or by a reasonably competent contractor, says MacLean.

[170]       Further, MacLean says the job was not rushed.  It was completed over thirty days.  In early December, the footer and frost walls were completed and inspected.  Again, there is no evidence of a problem being encountered, or anything unexpected occurring, MacLean submits.  All necessary inspections were passed, as confirmed by the evidence of the building inspector, Mr. MacPhee.  (See Appendix “A” attached hereto.)

[171]       Mr. MacPhee noted, that the building inspections are visual only.  For this reason the approval states, “appears adequate”.  No measurements are taken and no final inspection of the completed slab is required. 

[172]       MacLean therefore submits that the evidence of wrongdoing by it, is lacking.  Even Weyman employees and Mr. Weyman himself thought the slab looked good, when it was completed.  They were also on the site alongside, building walls, adjacent to the property.  They saw nothing that raised a concern.

[173]       MacLean submits that the best evidence of whether the standard of care has been breached comes from MacLean Concrete, and in particular, Robert MacLean and Leo MacLean.  These witnesses explained how a foundation is constructed, the tools used, how a laser level is used, and how much calcium chloride to add to the mix.

[174]       Robert MacLean is a lead hand with sixteen years experience doing residential concrete work.  He learned the trade from his employer and mentor, Leo MacLean.  According to his evidence, he was in total control of the day and saw it completed to the finish.

[175]       Leo MacLean was the last witness to give evidence on behalf of the Third Party.  Mr. MacLean has over forty years experience in the concrete industry, and as a concrete installer.  Mr. MacLean’s experience is extensive and his reputation is reflective of his longstanding career as a contractor. 

[176]       Mr. Weyman has used Mr. MacLean and his firm some 25 – 30 times.  He has also used Mr. MacLean since this job occurred.  MacLean submits that it is clear that Leo MacLean has the most experience of any witness that testified at the trial.

[177]       Mr. MacLean testified that he maintained regular contact with the job and had consulted with Mr. Wheaton, who had attended the site in preparation for the work.

[178]       In essence, Mr. MacLean testified that MacLean Concrete’s usual procedures were followed.  They were aware there had been a previous foundation on the site, and that it had been destroyed and filled in.  Mr. MacLean had total confidence in his foreman to handle the job, based on his past experience.  There was no issue with the footer or frost wall, and no reason to think that anything went wrong.  Leo MacLean said he is always there before they start to set the elevation.  

[179]       MacLean submits the third party claim by Weyman has not been proven.  Everything went according to plan.  It was still daylight when the job was finished.  There is nothing here that establishes a breach of the standard of care.

[180]        In cross-examination Robert MacLean acknowledged that concrete does shrink.  MacLean states however, that for the Court to make a finding on this point, expert evidence should be allowed.  While I do not disagree, it was Leo MacLean who testified he uses 4000 psi concrete, and that it will tend to shrink more, and  MacLean’s counsel says Leo MacLean is the most knowledgeable witness.

[181]       There is also relevant evidence of the floor installer Ken Hanson.  He was reasonably satisfied that the floor problem could be addressed with leveller, before proceeding with the expensive tiling job at 30 Victory Road.  Leo MacLean himself said a number of times, “you use leveller”, as that is what the product is for.

[182]       MacLean says the “biggest mystery” is that no one has measured the floor.  There is no evidence, they say, that the floor was measured and is not level.  MacLean submits this is a significant problem for the Plaintiff in meeting its burden.

[183]       MacLean says Mr. Tupper did not bring a level with him.  MacLean says this is the “biggest disappointment” and it is a serious failure in his opinion.

[184]       Having made findings as to the levelness of the floor, I will expand upon them in reaching my conclusion on liability as between the main contractor, Weyman, and the sub-contractor, MacLean.

[185]       While acknowledging a duty of care, MacLean says there is no evidence to establish the standard of care.  In terms of poor workmanship, there is no evidence, says MacLean, of “common concrete placement practice”.  The only evidence of the standard of care is MacLean’s own evidence regarding their normal practice.

[186]       I am not satisfied that further evidence is necessary.  Both the duty and the standard of care are acknowledged by MacLean.  The standard is well known.  It is this for the Court to determine whether MacLean breached the standard of a reasonably competent contractor based on the evidence.

[187]       That said, the report of Mr. Tupper refers to the nature of the skill and care and the level of competency to be applied by a contractor.  The crux of the Third Party’s position is that Mr. Tupper’s evidence and opinion, are not reliable.

[188]       Mr. Tupper’s report refers to “a regular slab placement job”, and states:

1.  The placer determines how level the slab is by careful attention to proper elevation benchmark readings during placement of the concrete.

 

2.  The finisher seeks to establish a smooth flat surface on the level slab by appropriate surface treatment, such as screeding. (page 19)

[189]       In terms of how a failure to complete work to the standard of a reasonably competent contractor can be shown, the expert’s report refers to broken floor tiles in its discussion in s. 10.1, entitled “Manifestation”.  These broken tiles are further included in the diagram in Figure 5.  The location of these damaged floor tiles is consistent with the photographs.  Clearly, this part of the house is the area most affected by the levelness issue.  Mr. Tupper refers to this area in his report, as being the datum point, a point on the floor in the passage way on the east side of the kitchen.

[190]       There is however other evidence, such as the photos showing the walls and the baseboard, suggesting unevenness beyond what is acceptable for new home construction.

[191]       I concur with the Third Party that the evidence does not clearly establish the particulars of how a breach of the standard of care occurred.  It is not disputed however, that it was MacLean who constructed the slab, and had total control over the process of constructing it.

[192]       The outcome is telling in terms of breach of contract and negligence, as stated by Mr. Tupper in his report.  In his opinion the floor in question is not level.  He said knew that was the case, just from walking on it.

[193]       Counsel for MacLean to his credit, acknowledged there is other evidence the Court can look to determine the levelness of the floor.  An example might be that of Mr. Hanson, who said the floor was up there with “the worst he’s seen”.

[194]       Mr. Tupper attended the site on November 10 and did some preparatory work prior to assessing the property and preparing his report. 

[195]       Approximately fifty bags of floor leveler were used by Mr. Hanson in an effort to obtain a level floor for the homeowners. 

[196]       Mr. Hanson, who has been finishing floors for fifty years, stated that the floor was flat, but not level.  The homeowners who have stayed there constantly, agreed it was not level.  Ms. Strong referring to Exhibit 13, said “it does look good in the picture” but also said  the floor is “slanting down left towards the kitchen nook” and “the floor would be sloping down into the kitchen”.

[197]       There are the cracked tiles which appear at or near the entrance to the master bedroom, east of the pantry closet.  It is true these tiles have not been pulled up to determine the underlying condition.  It is difficult to determine the levelness of the floor from viewing a photo.  However, the tiles are clearly cracked and sunken.

[198]       The evidence that the floor is level, is mainly that put forth by the Third Party MacLean and its employees.  I reject the suggestion by MacLean Concrete that the floor is level.  I find as a fact, it is not.

[199]       Robert MacLean explained in detail the process involved in pouring a concrete slab.  His employer, Leo MacLean, indicated he takes much pride in ensuring the levelness of the floors.  He said it looked fine when he left, but he confirmed that no final measurement was taken.  It is acknowledged that Robert MacLean returned to grind down the top of the frost walls, which were slightly above the floor level.  There is evidence that the walls were higher than the level of the large floor.  Robert MacLean suggested that the concrete may have shrunk since the pour. 

[200]       According to the civil burden, if something is more likely than not, it is considered a certainty, the onus of proof being on the party asserting the wrong.

[201]       Having weighed and considered the evidence, I find on a balance of probabilities, that the slab in question was not properly poured and that it is presently not in a level condition.

[202]        I find that the responsibility for the condition of the floor must fall to the contractor that installed it, the Third Party, MacLean Concrete.

[203]       In reaching this conclusion I refer the Supreme Court of Canada’s decision in R v. Villaroman, 2016 SCC 33, with respect to the drawing of reasonable inferences.  Although it is not a civil case, I find it be instructive with respect to weighing circumstantial evidence and drawing inferences.

[204]       Further as has been stated by Linden, Allen M. (as he then was) in his text, Canadian Tort Law, 10^th ed., at paragraph 8.31:

Now that res ipsa is dead, there is no need to discuss at length its procedural effect, a topic that filled ten pages in previous editions.  It will now be up to the judges and juries to weigh the circumstantial evidence of negligence and of the defendant’s role in the accident and decide whether there is sufficient circumstantial evidence to impose liability.

[205]       It has been stated that these authorities are essentially an expansion of common sense applied to circumstantial evidence.

[206]       In this case, I accept the opinion evidence of the expert as corroborated by the evidence of others who are familiar with the circumstances.  In doing so, I draw the inference that MacLean as contractor, was negligent.  It is my view that this is the reasonable inference to be drawn in all of the circumstances.

[207]       In the result, I find the Third Party liable, in both contract and negligence, for the difficulties associated with the concrete slab, including its unlevel condition.  I accept the evidence of Mr. Tupper that the evidence of poor workmanship, and the failure to set and maintain proper grade benchmarks, lies in the slab itself.

Damages – for Rectification, Remediation, Repair of slab.

[208]       In law, the onus is on the party seeking damages to establish their entitlement on a balance of probabilities.  Wright, J. stated in Connolly v. Greater Homes Inc., 2011 NSSC 291, that such entitlement is determined as follows:

[40]  It has long been established in the law of building contracts that there is an implied condition that the builder will perform the work in a good and workmanlike manner including the supply of good and proper materials as contracted for (see, for example, Stoddard v. Atwil Enterprises Ltd. (1991) 105 NSR (2d) 315. 

[209]       In this case, Weyman as Plaintiff claims damages against the homeowners for the balance due under the contract.  The Defendant homeowners have counterclaimed seeking damages for failure to construct a proper floor and other deficiencies.  Weyman claims against MacLean for a failure complete their work in a workmanlike manner to the standard of a reasonably competent contractor.

[210]       Both Weyman as Plaintiff and Mr. Tutty and Ms. Strong as Plaintiffs by Counterclaim, assert that the proper measure of damages is the cost of rectification of the concrete slab, it being the realistic remedy in these circumstances.  (Musgrave v. Ford, 2016 NSSC 157, at paragraph 52)

[211]       Both parties rely on the evidence of Craig Beazley to establish their claim for damages.  In his evidence, Mr. Beazley provided price quotations in some detail, addressing the cost of repairing the floor and rectifying the property to properly completed condition.  Mr. Beazley provided two options, based on the recommendations of Mr. Tupper in his expert report.  Specifically, these are contained in the Beazley report, Exhibit 11, and stated as follows:

Option 1:

            Pouring a new levelling layer on top of the existing slab.

 

Option 2:

            Replace the existing slab with a new one.

[212]       Mr. Beazley and his company have experience in completing difficult contracting jobs.  In his testimony he described some of the past projects completed.  In one case he dug out a basement, under an older home, digging down below the old footer and hauling out the dirt.  The structure had to be supported, while he then competed construction of a new foundation.  Essentially he extended the height of the foundation by lowering the floor.  This is one example of the skill and experience of Mr. Beazley’s firm.

[213]       Mr. Beazley was sought to be qualified as a Rule 55 expert.  This Court ruled that his report was inadmissible, as it did not comply (as to form) with the requirements set out in the rules, and in particular Rule 55.04.  Exclusion of the report was not based on the expertise of Mr. Beazley, but rather compliance with the Civil Procedure Rules.  It is obvious from his evidence that Mr. Beazley has the ability to do the job.  Although he did not testify as an expert, Mr. Beazley’s evidence as a skilled contractor was impressive.

[214]       MacLean takes issue with the Beazley report on a number of levels.  First, the Court is being provided with only two options, as outlined by Mr. Tupper.  They say it is open to the Court to reject either option and choose another.

[215]       MacLean submits the onus rests with the Plaintiff to establish these are the proper repairs in the circumstances.  MacLean submits that removing the entire floor would not be reasonable.  Leo MacLean suggested that it would be more reasonable to repair the sections of the floor that are deficient.  MacLean has not presented a cogent plan for the repairs, an expert report, or even an estimate.  The Court recognizes they have no obligation to do so.  They have no burden.

[216]       MacLean correctly points out that the quote given by Mr. Beazley for both options is now null and void.  The report indicated it is valid for thirty days from November 8, 2017.  The estimate could change significantly.

[217]       With respect to the first option, it essentially involves stripping the house down inside and removing the cabinets, vanities, plumbing fixtures, and baseboards.  All of the flooring would be removed, before pouring a new levelling layer on top of the existing slab.  Notably, this would involve the installation of an alternative heating source, two “mini split” heat pumps.  The price quoted for Option 1 is $64,675 plus HST.

[218]       Option 2 as presented is on a much larger scale. The existing concrete slab would be removed and replaced with a new one.  The existing floor would be jackhammered out.  The stability of the structure would need to be secured during the replacement.  The plumbing would be disturbed and would need to be re-inspected and repaired.  New in-floor tubing would be installed.  All of the removals in Option 1 would be required, including removal of the wire mesh and slab insulation.  Mr. Beazley described this option as essentially a renovation.  The cost estimate of Option 2 is $91,045 plus HST.

[219]       I have considered Mr. Beazley’s evidence, which is the only evidence before the Court that assists in the determination of remediation costs to any great extent.  The reports are detailed and, as he stated, all manner of problems can arise, but he has attempted to weigh the expected and factor in some additional costs for contingency, eg. a 2% increase for inflation to the flooring price.  He acknowledged he did not speak to the owners, or to Mr. Weyman or MacLean.

[220]       Mr. Beazley, in preparing his reports viewed photographs of the home, and reviewed the Tupper report.  He was also able to view the detailed plans in Exhibits 3, 4, 5, and 6.  He testified that the change in his estimate first given on October 30, 2017 was in part due to having the actual receipts for the flooring and seeing the complexity.  He felt obligated to increase the flooring charge from $6.00 to $16.25 per square foot.  He noted the importance of working within a budget, and the right of the customer to decide on the selection of materials within that budget.

[221]       I have considered the evidence of Mr. Beazley, testifying as a lay witness in this matter.  I have considered the submission of MacLean that his evidence does not meet the standard necessary for the Court to rely on it.  Naturally, the Court is concerned with the fact that the price quoted is no longer valid, and will need to be re-quoted.  Additionally, Mr. Beazley did not attend at 30 Victory Road itself, and there is no breakdown of the various items.  This makes it difficult to determine whether the price quoted is reasonable.

[222]       The Defendants bear the burden of proving their damages on the counterclaim.  Similarly, Weyman bears the burden of proving its damages on the third party claim.  These parties are relying on the evidence of Mr. Beazley.  He is in the construction trade with first hand knowledge of repair costs.

[223]       The deficiencies in the document at Exhibit 12 are matters of weight.  The concern of the Court is in relying on a report that has been excluded as a Rule 55 Expert Opinion cannot be given by non-experts. 

[224]       I think its worth noting that Mr. Beazley is not expressing an opinion on the central issue of levelness or the related liability.  That has been provide by Mr. Tupper.  Mr. Beazley’s role is secondary to the opinion expressed by Mr. Tupper.  He was asked “to prepare a quote on the scope of work, material, and information given” by Mr. Tupper.  Two repair possibilities were presented to him for 30 Victory Road.

[225]       His role is analogous to an auto mechanic who provides an estimate of what it will cost to fix or replace an engine.  It is true the information provided is outside the knowledge of the trier of fact, but it is also helpful in assisting the Court with its assessment of damages.  As noted by Dickson, J. (as he then was) in R v. Graat, [1982] 2 S.C.R. 819, the helpfulness of the evidence to the Court is a consideration in accepting this kind of evidence.  The observations of Mr. Beazley are within his knowledge based on his personal background and experience.

[226]       In Urquhart v. MacIsaac, 2017 NSSC 313, Chipman, J. recently made the following statement in his ruling on evidence such as is presented here:

[224]     The fact that the Plaintiffs did not present expert evidence in this area should not deprive them of their entitlement to damages.  Having said this, the Court’s task is more difficult without expert assistance.  In the circumstances I have bourne all of the evidence and arguments in mind in fashioning what I believe to be an appropriate special damages appraisal.

[227]       Counsel for the Plaintiff submits this is not a case where Mr. Beazley is merely capable of doing this work, or that he has the necessary tools.  Mr. Beazley has in fact, performed this difficult work on many occasions.  In large measure, Mr. Beazley’s evidence is presented as factual.

[228]       Counsel for the Defendants submits that the Court should have “great confidence in the reasonableness of Mr. Beazley’s assessment”.  I concur with counsel on both counts.  I further adopt the reasoning applied in Urquhart as cited.

[229]       For these reasons, I am prepared to accept the assessment by Mr. Beazley.  I am satisfied that the price quoted for the scope of the work is reasonable and that the Court can reasonably rely on it, notwithstanding some shortcomings.  Primarily, these relate to the quote expiring and related costed costs being subject to change, “based on all site conditions”.

[230]       The principle in assessing damages is that the court has an obligation to assess damages as best it can even if the evidence does not allow precise calculation.  This principle is often summarized by saying that difficulty in assessing damages is no bar to their recovery. (Jeffrie v. Hendriksen, 2018 NSCA 77, at paragraphs 50 and 52; Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120, at paragraph 172).  

Issue #5 – Builders Lien - Calculation and Deficiencies

[231]       Much time at the trial was spent on evidence as to the proper calculation of the builder’s lien filed by the Plaintiff, Weyman Construction.  The lien was filed on May 31, 2013, in the amount of $158,137.42.  This amount is slightly less than the $158,675.93 sought by Weyman which is calculated in Exhibit 7 as follows:

Contract Price:                                                                                   $459,310.00

 

 

Payments made:                     -$45,000.00 (Jan, 2012)

                                                -$58,511.00 (April, 2012)

                                                -$58,511.00 (May, 2012)

                                                -$18,552.95 (Sept, 2012)

                                                -$100,004.93 (Dec, 2012)

 

Subtotal:                                                                                             $178,730.12

 

Allowance for Veranda                         -$6,900.00 ($6,000.00 plus HST)

Allowance for Plumbing Fixtures                       -$5,750.00 ($5,000.00 plus HST)

Remaining allowance on Light Fixtures  -$644.00

Allowance for Cupboards and Vanity                -$16,100.00 ($14,000.00 plus HST)

Amount in excess of allowance for flooring        +$9,339.81

 

TOTAL:                                                                                              $158,675.93

[232]       In addition to Exhibit 7, there is Tab 7 of Exhibit 1 which contains a breakdown of the payments received.  It is dated November 6, 2012, and contains all of the payments except the large payment of $100,004.93 made in December 2012.  This is the payment that Ms. Strong and Mr. Tutty say was required in order for Mr. Weyman’s company to complete construction of the entire home.  They allege that instead of completing the home, Mr. Weyman left the job shortly thereafter in March 2013, and filed his lien two months later, in May. 

[233]       Mr. Weyman’s evidence does not accord with that of the homeowners.  He testified that there were interruptions in the work of his company due to non-payment of funds in accordance with the contract.  The payment schedule for the contract is contained at Tab 6 of Exhibit 1.

[234]       Mr. Weyman claims that as of October 3, 2012, 85% of the contract was complete as signified in writing on November 6, 2012, at Tab 7. 

[235]       Mr. Weyman says he did not intend to file a lien but rather wanted to finish the contract.  In the previous year, 2012, the homeowners “fell behind” in their payments.  Then on March 22, 2013, Mr. Weyman says, he was summarily dismissed from the home project by Ms. Strong.

[236]       The fixtures that Ms. Strong wanted installed in her home are a major issue.  For example, he said, she did not like the color white.  The allowance for the kitchen cabinets and vanity in the contract was $14,000 plus HST.  Ms. Strong decided she did not want cabinets from Rona or other suppliers, but wanted the cabinets custom made at Mill Creek at a significant cost.  Mr. Weyman refused to proceed in this fashion.  The cost of those cabinets, at $26,000, was almost twice the allowance.  Also, payment would be required in advance.

[237]       The contract between Ms. Strong and Mill Creek Kitchen Ltd., is located at Tab 16 and is dated March 26, 2013.  Mr. Weyman’s position is that Ms. Strong advised him that if he was not prepared to install the cabinets of her choice as part of the contract, he should not return to the property. 

[238]       The last day Weyman worked on the property, as confirmed in the lien document, was March 22, 2013.  The home at that point was still not complete.

[239]       In law the onus is on Weyman to prove its damages and the amount owing to it under the contract.  Mr. Weyman argues that at the time he was told not to return, the home was 95% completed.  On the other hand, the homeowners state that they never questioned the contract price or the amounts due.

[240]       There are two themes running through the homeowner’s position under the contract: 1) they are prepared to pay Mr. Weyman’s company but only that to which it is entitled; and 2) any such payment is conditional upon them receiving what they bargained for.  They say they did not bargain for a floor that is sloped, doors that are not properly hung, walls that are crooked, fixtures that have not been put in, including the labour to install them, among other things.

[241]       Primarily, counsel for the homeowners submits that the Plaintiff in proving its case, has attempted to reverse the onus.  Instead of submitting invoices for the work performed, the Plaintiff has taken the contract price and “worked backwards” in an attempt to prove to the Court the amount which its owed under its lien.  The homeowners submit that in law, this is not a proper discharge of the burden of proof, which falls to Weyman to establish under the contract.

[242]        Ms. Strong takes a different view of the conversation with Mr. Weyman.   There was a conversation she says where she expressed her wish to use Mill Creek. However, she says that Mr. Weyman had just returned from vacation, and when it was mentioned to him “he cursed and hung up”.

[243]       A central issue then stems from this “blow up”.  Mr. Weyman feels quite justified in having left the property and maintains that his company’s services were terminated.  He appeared to be helpful from the outset and acting in good faith.  He was not indifferent to the problems that arose despite the financial problems being experienced by the homeowners.  He attempted to work with the homeowners.  An example of this would be the exchange of letters between counsel, whereby he ultimately agreed to Ms. Strong having the cabinets installed by Mill Creek. 

[244]       The timing of the termination coincides with the date of the invoice received form Mill Creek or just prior to the invoice.

[245]       I accept Mr. Weyman’s version of the conversation between him and Ms. Strong.  I have little doubt that both parties were likely frustrated with the contract at that point in time which had been ongoing for fifteen months.  Mr. Weyman’s testimony was straightforward and largely unaffected on cross-examination.  He provided details of the conversation.  He wanted nothing to do with Mill Creek but was willing to return to do the trim and the fixtures.  He said, “she slammed the phone down”.  I accept his evidence on this point.

[246]       It is common ground that the main items to be completed when Mr. Weyman left were 1) installation of kitchen cabinets and vanity; 2) plumbing fixtures; and 3) lighting fixtures.  In addition, there are numerous deficiencies regarding poor workmanship as claimed by the homeowners.

[247]       Weyman submits that given that the home was substantially complete, it makes more sense to assess the amount owing by determining the items that had not been completed and then deducting their value from the contract price.  I concur.

[248]       The homeowners take the view that the house at 30 Victory Road was 88% complete prior to the installation of the flooring, which was completed in March 2013.  The completion of the flooring, they say, brought the percentage up to 90 – 91%, a difference of 4 - 5% between them and the Plaintiff.

[249]       It is agreed that the amount paid by the Defendants totals $280,579.88.  Ninety-one percent of the contract price less the amount paid would equate to $137,392.22, a difference of $21,283.71 when compared to the amount claimed by Weyman of $158,675.93.

[250]       At this point, my focus therefore will be on the three areas identified as being uncompleted.  Of those areas an allowance was stipulated for the kitchen and vanity of $14,000 plus HST, for a total of $16,100.  In its calculation of the lien the Plaintiff has deducted the full amount of the allowance from the contract price.

[251]       With respect to the lighting, an allowance of $3,000 plus HST was stipulated and of that $644 remained unspent.  The Plaintiff has credited the homeowners in that amount. 

[252]       With respect to the plumbing, there was no set allowance in the contract.  Mr. Weyman testified that he obtained an estimate for the plumbing work that had to be completed from Paul MacNeil of Islandwide Plumbing and Heating Ltd.  Mr. MacNeil gave evidence at the trial regarding normal costs for plumbing, fixtures and labour.  I accept his evidence.  Mr. Weyman has deducted the sum of $5,000. plus HST from the contract price.

[253]       This leaves the covered veranda which was to be included in the contract.  At trial Mr. Weyman provided a breakdown of the allowance given for this item of $4,300 for materials and $1,700 for labour.  Exhibit 8 is a materials list from Cameron’s Building Supplies.  It identifies the sum of $5,000 as being associated with the covered veranda.  At times Mr. Weyman gave the homeowners credit for the full amount when he might have been able to deduct only a portion.  An example would be the posts for the veranda.

[254]       A major point argued by the Defendants is that only the flooring allowance stipulated that labour was included.  The homeowners therefore submit that they should receive a credit for the labour component for the uncompleted items, as Mr. Weyman’s company did not complete the labour.

[255]       With respect to the flooring, it is a “big ticket” item at $25,000 plus HST, for a total of $28,750.  Mr. Weyman indicated that he did not charge the homeowners for the costs of the leveller used by Mr. Hanson ($2,300) or the labour of $1,500.  He kept that as a separate item. 

[256]       The Defendants maintain that instead of $9,339.81 being charged to them, the amount should only be $1,500 plus HST.  In its final calculation at trial, the Plaintiff made a major concession by accepting the Defendants’ amount.  Ms. Strong was knowledgeable and clear in relation to the Value Check invoices at Tab 21, in terms of what was quoted and what was paid.  This deduction in the amount claimed reduces the balance owed to Weyman to $152,720.57.

[257]       The amount of $152,720.57 takes into account a credit to Mr. Weyman of $2,200 plus HST representing the amount by which Mr. Weyman undercalculated the plumbing.

[258]       The Skyline invoice for the plumbing fixtures was $12,882.37.  There is an invoice from Islandwide Plumbing and Heating charged to Mr. Tutty for $3,900.  There is a discrepancy as the invoice in Tab 20 shows $1,000 for material, and $2,100 for labour.  Mr. MacNeil stated he did not provide materials.  As one can see, there is some amount of estimating involved in attempting to arrive at a reasonable figure for these damages.  It must be kept in mind that the onus is on Weyman to establish the amount owing on a balance of probabilities.

[259]       Thus far, these items do not account for such major items as the spiral stair case and the fireplace, both of which the homeowners claimed were to be installed by Weyman.  Ms. Strong thought there would be a meeting to discuss these things.

[260]       I will momentarily turn to other claims asserted by the homeowners in their counterclaim.  One thing is clear: as of the date of the counterclaim, in July 2014, they would have been aware of the deficiencies remaining in the home at that time.

[261]       There are a number of additional claims.  At one point Ms. Strong expressed to Mr. Weyman that she would like a granite bathtub installed at a cost of $28,000.  She later confirmed in her evidence this was only a wish and that she did not intend to necessarily follow through on it.

[262]       With respect to the fireplace and the spiral staircase, the house plans at Exhibits 3, 4, 5, and 6, do not show a chimney or a hearth for a fireplace.  Instead of a spiral staircase, the plans show an “L” shape landing for the stairs.

[263]       By the time this contract was signed in or about July 2012, it would have been apparent that these items were not to be included.  Indeed, they are not included in the written contract.

[264]       Contrary to the first proposal for a home of 832 sq. ft., the November 27, 2011 contract, at Tab 6, did not contain an alternate heating source.  I reject the claim of the homeowners that their home was to include these two major items.

[265]       With respect to the veranda, the amount deducted seems reasonable and does include a labour component.  I will therefore allow it. 

[266]       With respect to the flooring allowance, labour was included and I accept the concession made by the Plaintiff at trial.  No further credit therefore will be given for the flooring except for the cost of remediation on the levelness issue.

[267]       In regard to the lighting fixtures, this calculation is straightforward.  I am satisfied Mr. Weyman has provided the homeowners with the appropriate credit of $644.  According to Weyman the pot lights have been factored in as well as the alarm system, although he has no invoice.

[268]       This leaves the allowance for the plumbing fixtures and the kitchen/vanity.

[269]       It was suggested by Plaintiff’s counsel that the sum of $1,000 would easily cover additional labour.   There is also Mr. Tutty’s claim for the security system.  I am going to provide the homeowners with a further credit of $2,000 which will reduce the Plaintiff’s claim down to $150,720.57. 

[270]       I turn now to deal with the further deficiency claims as outlined in the photographs outlined in Book 2.  Before doing so, I find the Skyline invoice to be excessive and have considered this as part of the submissions in reaching the above amount as owing to the Plaintiff.

[271]       In addition, I will mention that the Mill Creek invoice, at Tab 16, does not include plumbing, electrical, or appliance installation in its quote, which is for cabinet installation only.  These items cannot be established with precision.

[272]       Finally, I will address the Defendants’ submission that the Plaintiff has attempted to reverse the burden of proof.  Having reviewed the Builders Lien Act, I note that s. 11 states the maximum amount of the lien is “the sum owed by the owner to the contractor”.  While this amount must be proven, there is here a signed contract stipulating the amount owed to the contractor.  I find that it is not unreasonable to deduct appropriate amounts for deficiencies from the contract price because it is that amount that was agreed to for goods and services rendered.

Further claims for Deficiencies by the Defendants

[273]       Thus far the deduction from the amount due for deficiencies is the sum of $28,009.55 ($178,730.12 - $150,720.57).   Generally, Ms. Strong’s evidence is that the only things she was satisfied with were the roofing shingles and the siding.  Mr. Tutty was satisfied with nothing.

[274]       Ms. Strong provided a list of things what were problematic.  This included crooked walls, the painting (still some not done), the moldings (looked terrible), the whole stair section, gaps on one side of the door frame, the stairs not cut straight.  She also mentioned the railing posts and the engineered floor instead of oak on the landing.  There is the wet area below the window in the master bedroom.

[275]       The photographs in Book 2 are intended to show the remaining deficiencies and work not completed.  In summary, I conclude that a figure approaching $30,000 for deficiencies is reasonable compensation to the Defendants apart from the major issue of the floor.  I will therefore deduct an additional $2,000 from the amount owed to Weyman, leaving a balance of $148,720.57.

Issue #  General Damages - Claim for Mental Distress

[276]       The Defendants made a claim for mental distress incurred as a result of this building contract.  Ms. Strong gave compelling evidence that between March and December 2016 her family was without power, stating “they couldn’t keep up”, with the power/electricity bills.  There was no hot water, the house was dark, they had propane heaters that were costly.  They relied on family.  Her mother cooked some meals.  She feared losing her children.  There were meetings with Children Services.  The school became involved.  They were in “dire straits”.  One could not help but be moved by her testimony.

[277]       I have considered the relevant caselaw in this area and those referred to me by counsel.  In Saadati v. Moorhead, 2017 SCC 28, the Supreme Court of Canada recently dealt with claims for mental distress.  It is now apparent that this type of claim can succeed without the need for medical evidence, but a Court must still be somewhat cautious in granting such an award.  Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, as referred to in Saadati, is obviously still an important case in this regard.  This claim for mental distress must be both serious and prolonged.  Arguably these criteria are met in this case.

[278]       There are difficulties with the claim however.  Firstly, Saadati made it clear that some mention of this type of inquiry must be made in the pleadings.  It need not be detailed, but must be sufficient to place the opposing party on notice of the claim.  The pleadings as amended do not include any reference to such a claim.

[279]       Perhaps more pertinent is that I am not satisfied the tragic results are attributable to actions of the contractor.  There is clear evidence of work stoppages for lack of funds.  The contract was in fact terminated by the Defendants three years prior to the period mentioned.  The contract called for a 400 amp service to be installed.  The power bills were not admitted into evidence.

[280]       In stating this, I have little doubt the pain experienced was real, and that the Defendants’ were “fighting” for their survival on many levels.  That said, I am compelled to deny their claim for mental distress.  Although it may seem harsh, I am not satisfied a proper claim for mental distress has been made out in law.

Aggravated Damages

[281]       There were a number of things that contributed to the deficiencies experienced under this building contract.  These include a lack of clear communication between the parties, and a lack of appreciation by the homeowners for the amount of insurance monies available, and their own obligation for timely financing to pay for the construction.

[282]       That said, the problem with the floor did add to the stress and injurious consequences for the homeowners.  This was not intentional or malicious on the part of Weyman.  He terminated the first painter and replaced him with more experienced men.  He also absorbed the cost of the floor leveler and labour.  However, I think it is only fair for Mr. Weyman to compensate the homeowners to some extent for the aggravation they suffered.  I award the sum of $3,000.

Contingency

[283]       I have been persuaded on the facts and the caselaw that an amount for contingency should be added to the cost of rectification as outlined by Mr. Beazley in Option 2, and as requested by the Defendant’s counsel.  The Plaintiff’s counsel acknowledged that Mr. Beazley’s estimate is likely to increase, while making the point that the damages sought are conservative.  In these circumstances, I think it is appropriate to apply a contingency of 10% as granted in cases such as Connolly and Stoddard.

Set-Off

[284]       It may be apparent that the Court should award set off as of right between the Plaintiff and Defendants for sums due and owing to each other.  There is however, the builder’s lien claimed by the Plaintiff for the full amount and also the Third Party claim, resulting in sums owed to the Plaintiff by the Third Party.  Prior to making a decision on set-off I will need to hear further from the parties.  I propose this would coincide with cost submissions.

Conclusion

[285]       Based on a consideration of all the evidence, I conclude as follows:

Issue 1 – Levelness Issue - The concrete slab as poured by MacLean Concrete at 30 Victory Road is not level.

Issue 2 – Counterclaim - Weyman is liable in contract to the Defendants for the cost of rectification and repair of the concrete slab.

Issue 3 – Counterclaim - Weyman is not liable in negligence to the Defendants for the construction of the concrete slab.

Issue 4 – Third Party Claim – MacLean Concrete is liable in contract and negligence to Weyman for the cost of rectification and repair of the concrete slab.

Issue 5 – Builder’s Lien – the Defendants are liable to Weyman under the building contract for the amount due under the contract less appropriate deductions for deficiencies, as determined by the Court.

[286]       In the result, the judgement shall be as follows:

1.                  The Plaintiff shall have judgment against the Defendants in the amount of $145,720.57 on the Plaintiff’s Statement of Claim, being the amount due under the contract; ($148,720.57 - $3,000.)

2.                  The Defendants shall have judgement against the Plaintiff on the counterclaim in the amount of $91,045.00 plus HST (Option 2) plus a contingency of 10%, being the cost of rectification.  This is the option that would best place the homeowners in the position they would have been in had the floor been properly constructed and the contract properly performed.

3.                  The Plaintiff shall have judgment against the Third Party on the Third Party claim in the amount of $91,045.00 plus HST (Option2), plus a contingency of 10% being the cost of rectification;

4.                  Costs, set off and prejudgment interest will be determined upon receipt of submissions from counsel.

[287]       Order accordingly

 

 

Murray, J.

 

 

                                               APPENDIX “A”

Cape Breton Regional Municipality Fire Services – Inspection & Bylaw Division, Building Inspection Reports

➢  December 7, 2011 – Inspection Type:  Footings;

➢  December 14, 2011 – Inspection Type:  Backfill Inspection;

➢  December 23, 2011 – Inspection Type:  Plumbing- Underground;

➢  May 7, 2012 – Inspection Type: Venting Inspection;

➢  May 15, 2012 – Inspection Type:  Framing; further requirements noted.

➢  May 28, 2012 – Inspection Type:  Insulation/Vapor Barrier; Ok.  To proceed.

➢  April 12, 2013 – Inspection Type:  Final Occupancy; Not Ready

➢  September 11, 2013 – Inspection Type:  Final Occupancy; Further requirements.

➢  September 16, 2013 – Inspection Type:  Final Occupancy; 30 days for corrections.

➢  Evidence of homeowner Ms. Strong is that Defendants moved in, in November 2013.