Small Claims Court

                                                                                                   Claim no. 297937

                   IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as: Roche’s Flooring & Millwork Inc. v. MacIsaac, 2008 NSSM 66

BETWEEN:

                                ROCHE’S FLOORING & MILLWORK INC.

                                                                                                                     Claimant

                                                          - and -

                                GLEN MacISAAC and R & G INTERIORS

                                                                                                            Defendants

                                        REASONS FOR DECISION

BEFORE

Eric K. Slone, Adjudicator

Hearing held at Dartmouth, Nova Scotia on August 12, 2008

Decision rendered on August 19, 2008

APPEARANCES

For the Claimant              Sara Scott, counsel

Matt Newell, articled clerk

For the Defendants self-represented

BY THE COURT:

[1]               This is a claim for $25,000.00 in damages for alleged faulty workmanship.

[2]               The Claimant is a PEI-based contractor that was subcontracted to perform the installation of cabinetry in a new hospital being built in Moncton, New Brunswick.  The principal of the Claimant company is Michael Roche.  Mr. Roche put together a crew of workers to be assigned to the job, but - being unable himself - needed an experienced supervisor to oversee the work.  Through a mutual acquaintance he was introduced to the Defendant Glen MacIsaac.

[3]               The Defendant R & G Interiors was once a partnership, but is now a sole proprietorship of Mr. MacIsaac.  A sole proprietorship is not a legal entity; it is an alter-ego of the proprietor.  As such, R & G Interiors and Glen MacIsaac are one and the same, and will hereafter be simply referred to as “the Defendant.”

[4]               The Defendant, who resides in Dartmouth, Nova Scotia, was an experienced carpenter, although he does not have a journeyman’s ticket.  He and Mr. Roche spoke and he was offered the job.  Although there was little evidence touching on the initial meeting, I can infer that the scope of the job was explained and the Defendant had to have known what was expected of him.  By accepting the job, he represented that he had the necessary skills.  There was evidence that he had done this kind of work before at a different hospital.

[5]               The arrangement arrived at was not that of an employer and employee.  It was a subcontract arrangement, whereby the Defendant would be paid $30.00 per hour, plus HST, upon the presentation of invoices.  It was also agreed that he would be reimbursed for any expenses that he incurred on the Claimant’s behalf, such as building supplies.

[6]               The role of a supervisor in this context requires elaboration.  Essentially, it was the job of the Defendant to do all of the measurements and preparation work, and actually to affix the cabinets to the walls.  There would be labourers on site to help with moving material around, holding things in place etc.  There would also be one or more carpenters who would assist in the installation, but the Defendant himself would be responsible for the work.  It would be the Defendant who would have the working drawings and who would make decisions about how the work was to be done, in consultation with Mr. Roche and the cabinet supplier.

[7]               The job required the Defendant to relocate to Moncton and commence almost immediately.  The Defendant stayed a few nights in a hotel room housing another of the Claimant’s employees, before he found a place of his own.  This is an issue, to which I will return, as the Claimant is seeking (among many other things) reimbursement for this hotel expense.

[8]               The contract to install cabinetry was worth about $150,000.00 to the Claimant, which gives some indication of the scope of the job.  There were 3,100 cabinets in total to be installed.  While not all of the cabinets were the same, it may be relevant to note that this amounts to an average per cabinet cost of about $48.00.  The Claimant testified that he expects a profit of about 25% on the projects he bids, which means that he must have thought that the average cost to install a cabinet - including labour, supervision, overhead etc. - would have been in the order of $36.00.

[9]               According to the evidence, the project was already months behind schedule.  Other trades were actively at work, leading to a busy work site.  The cabinets were being custom-built by Chandlers Cabinets & Millwork of Charlottetown (“Chandlers”), which in turn had subcontracted the installation to the Claimant.

[10]          When the Defendant arrived to begin work the first week of August 2007, there were hundreds if not thousands of cabinets already on site awaiting installation.  Chandlers was also busy building cabinets off-site and regularly delivering them to the site.

[11]          The cabinets were all, or perhaps mostly, solid maple or maple veneer, with an acid-wash type of finish.  There were upper and lower cabinets in various places, and some which were to be hung from the ceiling.  There were two floors - one and three - requiring the installation of cabinets.

[12]          Most of the problems which give rise to this claim concern upper cabinets being installed on the third floor. 

[13]          As explained to me, the procedure for installing such cabinets is basically that they are held in place by screws which ideally reach into the studs, but which may also be secured by a metal backing plate which extends between the studs.  As any ordinary person who has tried to mount a shelf will attest, screws that merely penetrate drywall without something solid behind it to hold the screw do not provide much support.

[14]          The Defendant testified, and this evidence was un-controverted, that when he began installing the cabinets, he found that the promised metal backing plate was either non-existent or, at least in some cases, installed too low to be of any value for upper cabinets.  Therefore, he was forced to rely on the studs only.  He testified that he often found that the studs (which were 1-1/2" wide metal studs) were out of place - perhaps bent - with the result that when he found a stud at a particular height, it appeared to be missing when he attempted to place a screw higher or lower on the same vertical line.  This, he says, led to some holes being drilled through the cabinets that had to be abandoned as a different stud would have to be located.

[15]          The bulk of the claim before me concerns holes in upper cabinets that required costly repairs and replacement.

[16]          The Claimant placed in evidence photographs of a number of cabinets with unsightly holes that anyone can see, and the Defendant conceded, would never have been acceptable to the client.  Although there were maybe ten cabinets shown in the photos, the Claimant’s evidence was that no fewer than eighty cabinets had to be repaired or replaced.  No effort was made to photograph every single defect; the photos were for illustration purposes only.  Most of the defects concerned screw holes, while others were deficient in other ways, such as by being off-centre.

[17]          The position of the Defendant was that he admitted having damaged a few cabinets, he did not concede that he had damaged as many as the Claimant contends.  He did not believe that all of the ones shown in the photos had been installed by him.  Moreover, his evidence was that those he damaged were because of studs being difficult to locate.

[18]          There is a question of credibility that I must resolve.  I found both of Mr. Roche and Mr. MacIsaac to be reasonably convincing in their own way, but I do recognize that each of them was self-interested.  Fortunately, I also heard the evidence of Delmer Cole, who worked alongside the Defendant for several weeks as a carpenter.  Mr. Cole is an experienced journeyman carpenter and has never been a permanent employee of the Claimant.  After the Moncton Hospital he has since moved on to take other jobs, many of which have been delegated to him by the union.

[19]          It was the evidence of Mr. Cole that he found some of the Defendant’s practices to be questionable.  He himself subscribes to the maxim that you “measure twice and cut once” but stated that Mr. MacIsaac did not appear to work that way.  He felt that Mr. MacIsaac was being a bit careless in starting to mount cabinets without being absolutely sure that there were studs where all the drill holes would be, but did not think it was his place to say anything.  He also did not think much of Mr. MacIsaac’s organizational skills, although he did not elaborate much on that statement.

[20]          Mr. Cole joined the project a few weeks after the Defendant had started, so many of the cabinets were already up.  He noted that many of them had visible drill holes which, he knew, would not be acceptable.  Mr. Cole also stated that after the Defendant was released from the project (in mid-September), he continued on to install cabinets (with Mr. Roche now supervising) and did not experience any incidence of extra drill holes.  My sense was that Mr. Cole did not have an axe to grind.  He did not appear to dislike Mr. MacIsaac and was trying to be fair to him.  However, his criticisms were damaging to the Defendant.

Did Mr. MacIsaac demonstrate poor workmanship?  

[21]          On this pivotal question, I am led to the conclusion that the Defendant did not display consistent good workmanship, and as such breached the implied term in his contract with the Claimant.  I do not discount his evidence that there were problems with studs not being where they were supposed to be, but this ought to have been known in almost every case before the cabinet was installed.  All he had to do was drill small pilot holes until he confirmed the location of the studs, then carefully transfer that measurement to the inside of the cabinet.  I believe that the Defendant took a few shortcuts, such as by locating the stud at one height and gambling that it would be there a foot or two higher where another screw needed to go.

[22]          I suspect that Mr. MacIsaac felt under pressure and perhaps a bit out of his depth.  It sounded to me like a fairly chaotic environment with many challenges and surprises.  I do not doubt that he made a sincere effort to perform, but in the end the results were not satisfactory.

[23]          Having said that, however, I do not intend to hold the Defendant legally responsible for everything that is claimed or that went wrong.  I do not propose to treat him as a guarantor of perfection.  In a job involving thousands of custom cabinets, the likelihood was inherent that there would be some deficiencies leading to spoilage or wastage, and the risk of having to do some of the work more than once.  It is more a question of degree.  The spoilage or wastage here was simply more that should reasonably have been anticipated.

The Breakdown of the Claim

[24]          The breakdown of the claim presented in court consists of the following, each item of which I will consider in turn:

[25]          The Claimant has abandoned any excess over this court’s monetary jurisdiction.

[26]          I must also take into account the fact that the Claimant has held back $1,956.57 plus HST (for a total of $2,230.49) from invoiced amounts, on account of deficiencies, which amount the Defendant has Counterclaimed.

DAMAGES ALLOWED

[27]          The first items to consider are the alleged 60 cabinets that needed new backings to cover or replace those that had been damaged by excessive screw holes.

[28]          The material and labour costs must be considered together.  Essentially, this claim posits that there were 60 cabinets sufficiently damaged as to require new backs, but not damaged enough to require complete replacement.

[29]          To allow this claim as presented would require me to find both that the Defendant was responsible for all 60 backs being damaged, and that nothing less than zero damage would have been acceptable.

[30]          I am not satisfied that the Defendant damaged that many backs, nor that some of the damage might not have been unavoidable.  In a pressure filled job, mistakes happen.  People are human.  I believe that some damage would have been expected and that such is part of the cost of doing business.

[31]          I am also not satisfied that the Claimant did all he could to advocate on his own behalf with Chandlers, perhaps because he believed he could hold the Defendant (or the Defendant’s insurance company, which became involved) responsible.  I believe it is as likely as not that Chandlers bore some responsibility - eg. for sometimes not supplying the right cabinets when they were needed - and that a diligent person in the place of Mr. Roche might have fought for some consideration.  I heard no evidence that he attempted to mitigate his losses in any way, which is his legal duty.

[32]          I am also not satisfied that his cost to install a new back would have been $60.00.  The evidence was that he paid his carpenters $22/hour.  As I have also observed above, the contract was essentially paying $48.00 per cabinet installed, and the Claimant’s cost would have been less than that.  I recognize that the job to remove a cabinet, remove and replace the backing and reinstall it is not the same as merely installing a cabinet, but it puts the matter in some perspective.

[33]          In the result, I am prepared to allow the cost of 30 new cabinet backs at the claimed material cost of $33.33 each ($1,000), with a cost of $50 to install each one ($1,500).  This comes to $2,500.00 for the supply and installation of backings.  I can see a claim for HST for the material, but not for the labour.  The Claimant did not pay HST for its own workers.  HST will be allowed on the supply portion only, which was at the time 14% and which I calculate at $140.00.  The total for these items is $2,640.00.

[34]          The evidence was not entirely convincing with respect to cabinets that were supposedly damaged beyond repair.  There was some evidence of a few cabinets installed off centre.  In the result, I am only prepared to consider a claim for 10 cabinets at a cost of $226 each, with an additional $50 each to install.  This totals $2,260 plus $316.40 HST for material, and $500 for labour, for a total of $3,076.40 on these items.

[35]          The Claimant here says that the Defendant ordered a forklift from one of the other contractors on site to move material (including heavy counter tops) from the first to the third floor.  Mr. Roche’s position was that had he known that this was what the Defendant proposed to do, he would have hired a crane for an hour or two at a cost of $100 per hour.

[36]          I do not see any merit in this claim.  I believe that the Defendant made a decision in good faith, which in the end may not have been the most cost-effective, but which was a decision he was entitled to make in the heat of the moment and with the view to keeping the job moving.  Again, I find that this was part of the cost of doing business.

[37]          The story behind this claim was this.  A truck arrived one afternoon with a large load of cabinets and (according to the Defendant) 100 or more heavy sheets of plywood.  The Defendant and his men spent a number of hours unloading the material, but had not unloaded more than the plywood and perhaps one-quarter of the cabinets before the end of the day.  It was a particularly hot day and there were difficulties as well with finding a space to stockpile all of this material.  In the result, the driver was stuck with a partially unloaded truck and had to stay overnight for the rest to be unloaded the next day.

[38]          The Claimant has not satisfied me that this expense should be personally borne by the Defendant.  It sounds to me like this was an unfortunate combination of events, not of the Defendant’s making.  If the Claimant’s view is to be credited, the Defendant and his crew ought to have worked well into the night to unload this truck, at the possible expense of their own health and safety.  No account is given for the possibility that the truck arrived later in the day than it ought to have, nor that additional assistance from other quarters ought to have been provided.

[39]          The basis of this claim is that walls that were damaged by the removal and reinstallation of cabinets had to be repaired.  Consistent with my earlier findings I allow half of this claim: $400 + $56 HST totalling $456.00.

[40]          Again, when cabinets had to be removed, this sometimes necessitated the removal and reinstallation of lighting.  I also allow ½ of this claim: $431.75.  There does not appear to be an HST component to this claim.

[41]          The basis for this claim is that the Defendant stayed for what appears to be four nights in a room that the Claimant had rented for employees.  The evidence of the Defendant was that there was no agreement that he would pay for this himself.  He believed that it was being provided until he could find a place of his own, which he did shortly thereafter.  Bearing in mind that the Defendant was under pressure to get to work immediately, it is not unreasonable to find that he might have been supplied with a few days of emergency accommodation. 

[42]          Mr. Roche testified that there was an understanding that the Defendant would pay this and deduct it from one of his invoices, which he never did.  I am not convinced that there ever was such an understanding.  Had the Claimant been insistent upon recouping this expense, the amount could have been deducted from payment of any of the invoices rendered, whether or not the Defendant himself showed it on his invoice.

[43]          On balance, I am not satisfied that there is any merit to this item.

[44]          After terminating the Defendant’s services in mid-September, Mr. Roche was forced to step in and do the supervision himself.  As a result, he was unavailable for another job from Chandlers which he had bid.  Chandlers recognized that he could not be in two places at once and withdrew the offer.  The Claimant seeks compensation for half of the profit that he would have earned on that other job.

[45]          To be recoverable, damages must be within the contemplation of the parties at the time the contract was entered into, and must flow naturally from the breach of contract and not be too remote.

[46]          This claim fails on all counts.

[47]          I do not accept that it would have been in the contemplation of these parties that the Defendant, if he fell short of expected performance, might be responsible for the Claimant’s loss of profit on an unrelated contract.  These damages are remote.

[48]          Moreover, the Claimant might have mitigated the loss by hiring another qualified supervisor rather than attending to it himself.

[49]          I am also satisfied that the Moncton Hospital project had multiple problems, not all of which can be traced to the poor workmanship of the Defendant.  It was already behind schedule.  It was complex.  It was undoubtedly the right thing for Mr. Roche to get personally involved.  However, to suggest that the Defendant is responsible for everything that went wrong, and that but for his part it all would have gone swimmingly, is to strain credulity.

[50]          I allow nothing for loss of profit on this other job.

[51]          This claim suffers from the same problem.  It seeks to hold the Defendant responsible for a huge amount of man weeks of time, when there are undoubtedly many reasons why the job has gone beyond the originally expected end date.

[52]          The Defendant is already being held responsible for the labour cost of installing and repairing a number of cabinets and cabinet backs.  It is appropriate to recognize that there was an additional cost, beyond wages, to employing these men beyond their original time.  By allowing $25 per hour I have already included several dollars more than they were likely paid.  The evidence was that carpenters were paid $22 per hour and labourers $10 to $15.  The evidence as I understood it was that often a labourer would be the one to assist a carpenter.  The $50 per hour for a team of two men should not only cover their wages but additional overhead costs such as meals and transportation.

[53]          I do not allow anything further.

SUMMARY

[54]          In summary, the claims that I have allowed are in the table as follows.  I have kept the HST separate as the Defendant ought to be able to claim any HST as an input credit.

[55]          The Claimant is already holding $1,956.57 plus $273.92 in HST of the Defendant’s money.  It is appropriate to deduct these amounts from the judgment, resulting in a net judgment in favour of the Claimant as follows:

[56]          The Claimant will accordingly have a judgment for $4,373.66.

[57]          The Claimant has claimed interest and costs.  I have authority to award prejudgment interest at the rate of 4%, which I do only on the non-HST portion of the judgment.  On all of the evidence I am satisfied that the judgment should bear interest from November 1, 2007.  This amounts to 9½ months of interest, which I calculate to be $130.95.  The Claimant is entitled to its cost of filing of $174.13.  It has not proved any service costs. The total judgment is therefore:

Eric K. Slone, Adjudicator