SMall Claims COURT OF Nova Scotia
Citation: Darrell Sidney Renovations Inc. v. Wong, 2018 NSSM 104
Date: 2018-07-23
Docket: Sydney, No. 466144
Registry: Halifax
Between:
Darrell Sidney Renovations Inc.
Claimant
v.
Dave Wong
Defendant
Adjudicator: Patricia Fricker-Bates
Heard: October 18th, 2017; and March 7th, April 18th and May 23rd, 2018
Decision: July 23, 2018
Appearances: Darrell Sidney Renovations Inc., Claimant, represented by Darrell Sidney;
David Wong, Defendant, self-represented.
BY THE COURT:
[1] Darrell Sidney for Darrell Sidney Renovations Inc., filed a Notice of Claim on July 27, 2017, alleging the following:
Customer said he would finish the job then wouldn’t pay his bill (very unreasonable)
Darrell Sidney for the Claimant gave evidence. He also called rebuttal evidence from Dave Green, Adam Green, and Logan Sidney. The Claimant introduced into evidence 11 exhibits.
[2] The Defendant, Dave Wong, filed a 34-paragraph Defence and Counterclaim on September 7, 2017, stating, in part:
1. I dispute that I owe any monies to Darrell Sidney Renovations Inc. I claim that the Claimant breached the contract and did not provide services that he contracted for with no legal basis or defence permitting him to breech.
…
29. The total of all quotes from the Claimant was $34,118.00.
30. The total amount of payments that were made to the Claimant was $21,300.00.
31. To date the Defendant has not received a full accounting of work and materials expended by Darrell Sidney Renovations Inc.
32. The Defendant and his wife that the position that the Claimant has been fully compensated for what work he did do.
33. The Defendant and his wife further state that the Claimant’s breach of the contract caused his family worry, frustration and delay; and, the loss was only mitigated by the ability the Defendant had in having the renovations completed by third party contractors and repair of the compromised fence.
34. The Defendant claims the following:
(a) Dismal (sic) of the Claimant’s claim;
(b) $600.00 for repair of improper work;
(c) $5000.00 for repair of compromised fence;
(d) Difference between the value of the work completed by Claimant and the market value;
(e) Costs to complete the project;
(f) Costs.
Defendant Wong represented himself at hearing and testified on his own behalf. His wife, Natalie Wong, also testified. The Defendant introduced into evidence 11 exhibits.
History of the Proceedings
[3] This matter first came before the court on October 18, 2017. Unfortunately, the Claimant had not been served with a copy of the Defendant’s Defence and Counterclaim prior to the court date; and the matter was adjourned until January 31, 2018. The Defendant mistakenly thought that his former lawyer had arranged service of the documents. On January 31, 2018, the matter was further adjourned to February 15, 2018, and then to March 7, 2018, due to the unavailability of this Adjudicator.
[4] The Claimant testified on March 7, 2018. He did not call additional evidence in his case-in-chief. The Defendant, Dave Wong, also completed his direct testimony on March 7, 2018. The Claimant then requested an adjournment to have time to prepare his cross-examination of the Defendant. He also requested permission to call rebuttal evidence at the adjourned date; and that permission was granted by this Adjudicator. The Defendant also was advised that the court would entertain requests from him after hearing the rebuttal evidence. The hearing then was adjourned for continuation to April 18, 2018.
[5] On April 18, 2018, Darrell Sidney, representing Darrell Sidney Renovations Inc., began his cross-examination of Dr. Wong. He then called rebuttal evidence from Dave Green, Adam Green and Logan Sidney who each were cross-examined by Natalie Wong. The Defendant then called his wife, Natalie Wong, as a witness; and she was cross-examined by Darrell Sidney. The parties were then advised that a date would be set for final submissions, and that they would be notified of that date by mail. On April 19, 2018, letters were sent out by Xpress Post to Dave Wong and Darrell Sidney Renovations Inc. advising that the matter was scheduled for submissions on Wednesday, May 23rd, 2018 at 5:00 p.m., Sydney Justice Centre, Courtroom #1, 2nd Floor. The Claimant Darrell Sidney Renovations Inc. accepted delivery on April 20, 2018. The Defendant Dave Wong accepted delivery on April 20, 2018.
Review of the Evidence
[6] On March 7, 2018, Darrell Sidney for the Claimant, completed his direct testimony and was cross-examined by Natalie Wong. Mr. Sidney testified that there were two sales contracts relative to the work to be done at the home of the Defendant and his wife, Natalie, at 131 MacKinley Street, Sydney, NS: one dated July 9, 2016 (see Exhibit No. 2) and one dated July 15, 2016 (see Exhibit No. 1). It appears from these contracts, that the total cost of the construction project at 131 MacKinley Street totaled $34,118.00. The Defendant paid a total of $21,300.00: $10,800 on July 15, 2016 (see Exhibits 2 and 6); $500 on July 15, 2016 (see Exhibit 1); and $10,000 on November 8, 2016 (see Exhibit 5). The outstanding balance is $12,818.00. However, the Claimant maintains that he is owed $13,418.45 which is the balance of $1018.00 from Sales Contract 16152-2 (see Exhibit 1) and an Invoice balance of $12,400.45 (see Exhibit 8; see also Exhibit 9, Tabs 4 and 15).
[7] Darrell Sidney for the Claimant testified that there was a delay in getting a building permit relative to the concrete slab located in the carport. In addition, he testified that Metro Planning for CBRM had advised him that the Defendant’s garage was located on the neighbor’s property. A number of items remained to be completed as of November 8, 2016 (see Exhibit No. 3). The Claimant testified that the ‘To Do List’ of November 8, 2016 (Exhibit No. 3) was completed by the Defendant. He testified that things were going fine until the request came from the Defendant to put stone on the front of the house. Under cross-examination, the Claimant noted that the Defendant did not ask for the stone work until he brought in the ‘To Do List’ on November 8, 2016 and made an additional $10,000.00 payment on the outstanding account. It was the Claimant’s position that it was too late in the year—November/December—to install stone work on the front of the Defendant’s home due to cold temperatures. However, the issue of stone installation was raised by the Defendant with the Claimant on October 28, 2016 (see Exhibit 9, Tab 2); but, according to the Defendant, he received no response from the Claimant.
[8] In reference to alleged deficiencies in the concrete work done by the Claimant, Mr. Sidney testified that the photos of that work (see Exhibit No. 11, 37-40) were “doctored”. As for the fencing, Mr. Sidney indicated under cross-examination that an eight-foot section of fence was removed in order to get machinery under the carport to work on the concrete slab. He maintained that the fence had been replaced by one of his workers in November 2016.
[9] The Claimant testified that he refused to do the stone work in November/December 2016, maintaining that the work wouldn’t be covered by warranty if installed in temperatures below 40 degrees (F) [4 degrees (C)] (see Exhibit 4). However, in cross-examination, the Claimant acknowledged that Exhibit 4 did not stipulate that the warranty would be void if installation of stone work occurred at or below a certain temperature. He surmised that such information must be in another information sheet not before the court.
[10] The Claimant maintained that in late November 2016, the Defendant’s wife telephoned him, that she was upset, hollering and screaming, wanting a breakdown of the outstanding invoice (see Exhibit 8). The Claimant testified that he told the Wongs to get someone else to complete the job and offered to return the deposit. At several points during the hearing, the Claimant challenged the Defendant and his wife as to their knowledge of the construction business.
[11] The Defendant testified that from the outset, he felt the Claimant’s prices were overinflated. However, he agreed to pay at the prices quoted in Sales Contracts 16152-1 and 16152-2 (see Exhibits 1 & 2) on the understanding that the job would be done quickly and before the court undertaking on his former girlfriend expired on September 22, 2016. He testified that while he agreed to the original inflated contracts with the Claimant, he did so expecting that the work would be done quickly. He submitted that as the Claimant broke the contract, his original inflated quotes shouldn’t hold.
[12] The Defendant testified that on December 5, 2016 (see phone logs, Exhibit 1, Tab 1), the Defendant and his wife called the Claimant, Darrell Sidney, in the morning and he returned the call in the afternoon. He stated that words were exchanged, his wife Natalie called Darrell Sidney a liar who then told the Wongs, over the speaker phone, to get someone else to do the job and hung up. He maintained that neither he nor his wife told Darrell Sidney to stop the project, that the Claimant is seeking payment on an incomplete project. He testified that the Wongs were happy with the Claimant’s work to an extent, that the Claimant should be compensated for the work he completed, but that he should break down the numbers set out in Exhibit 8. Further, in closing summation (see Exhibit 20, pg. 6) the Defendant stated:
He [Darrell Sydney] should be compensated for market value of the part of the project he did complete, which is what was communicated to his office right at the start, the collection agent from Credit Consultants Limited and this court. Darrell Sydney was paid $20,800 for the close in car port and $500 for the back door. … [W]e have already paid in full or even overpaid the market value of the projects.
He testified that he requested from the Claimant an itemized breakdown of the Invoice figures (see Exhibits 1 and 8) on December 5, 2016, January 2017, and February 23 and 28, 2017. As of May 24, 2018, that breakdown had not been provided to either the Defendant or his wife. He testified that the Claimant demanded a deposit of one-third the total cost of the project with payment in full upon completion.
[13] Matters between the Claimant and the Defendant were exacerbated when the Claimant submitted his bill for $13,418.45 to Credit Consultants Limited on February 17, 2017 with instructions “to collect with all the collection means at our disposal”: see Exhibit 9, Tab 15. According to an Equifax Report dated September 20, 2017, there were no outstanding collections accounts relative to the Defendant Dave Wong (see Exhibit 9, Tab 16).
[14] However, this perceived attack on the Defendant’s otherwise good credit, the failure of the Claimant to ever submit an itemized account in support of project invoices relative to at 131 McKinley Drive, Cantley Village, NS; and the institution of debt recovery proceedings in this court, caused the Defendant to scrutinize the situation more closely. He testified:
Sidney says that we were happy with his work, and, to an extent, we were.
But now we are going to nitpick.
And, indeed, the Defendant took a closer look at the work completed by the Claimant, including any relevant paperwork, and found numerous deficiencies (see, for example, Exhibits No.11 and 12, with a corresponding ‘Pictures List’ found in Exhibit No. 9, Tab 9). According to the Defendant, those deficiencies included the following: (1) failure of the Claimant to secure a building permit for the project in a timely manner causing a work-start delay until October 4, 2016 (see Exhibit 9, Tab 6); (2) failure of the Claimant to resolve in a timely manner issues with the property boundaries for 131 MacKinley Street, Sydney, NS, to the satisfaction of CBRM, despite existing and indisputable documentation confirming those boundaries (see Exhibit 9, Tab 5 ‘Land Survey Report’); (3) failure of Claimant to acknowledge that he neither supplied nor installed a generator even though that expenditure is listed in Exhibit 8 ‘Invoice’ (see also Exhibit 9, Tab 17 ‘Receipt from Home Depot dated November 16, 2016’; and see Exhibit 12 A & B ‘Picture of uninstalled generator’; (4) failure of the Claimant to move in a timely manner on the Defendant’s request to have stone instead of siding on the carport/garage, suggesting that the Defendant put siding on the garage and replace it in the Spring with stone (see Exhibit 11, photos 49-50); (5) failure of the Claimant to make provision for an inset door to accommodate an electrical power stack when submitting engineering and building permit plans for an engineered concrete slab (see Exhibit 9, Tab 7) ; (6) failure of Claimant to explain multiple relocations of oil tank and removal of concrete steps; (7) failure of the Claimant to follow the engineering report of W. F. Leonard relative to the project submitted to CBRM (see Exhibit No. 9, Tab 7) but using instead an engineering report of K. McKeen (see Exhibit No. 9, Tab 8); and failing to have necessary inspections completed (see Exhibit No. 18, Tab 6) ; (8) failure of the Claimant to replace/repair fencing; (9) failure of the Claimant to secure the pool until November 2016 after having the Defendant remove the pool fencing in August 2016, contrary to CBRM bylaws (see Exhibit No. 9, Tab 19); (10) failure of the Claimant to provide a complete breakdown of the project-to-date as of December 5th, 2016—the date on which the contractual relationship between the parties broke down—despite repeated requests from the Defendants; (11) failure of the Claimant to finish concrete work properly; (12) failure of the Claimant to have revised the back of its contracts to remove reference to applicability of the Direct Sellers’ Licensing & Regulations Act (see Exhibit No. 14) and the erroneous reference to ‘Darrell Sydney Windows and Doors Limited’ as opposed to ‘Darrell Sidney Renovations Inc.’
[15] The Claimant called rebuttal evidence from Adam Green, his employee responsible for concrete work, on the issue of alleged deficiencies in the concrete work. Referencing Exhibit No. 11, photos 28, 34, 36-40, Mr. Green testified that in photo 28 “when we poured the slab, it was even in front of the door—it looks tampered with, ground down by someone”; that in photo 34 “the apron in front of the garage door looks tampered with”; that in photo 36 “something was smashed off the concrete”; that in photo 37 “someone tampered with the concrete”; that in photo 38 “someone was tampering—it looks chipped”; that in photo 39, “if a crack, no one can guarantee concrete from cracking”; that in photo 40 “it’s a spider crack”. The witness testified that he didn’t know who would have tampered with the concrete work.
[16] The Claimant also called rebuttal evidence from Andrew Green. Referencing Exhibit No. 11, Photos 41 and 42, the witness acknowledged that he and another employee removed the fence posts in the back yard and an 8-foot length of fence (see Exhibit No. 10, Photo 7). He spoke of the fencing as “flimsy”, stating that “anything would have taken that fence over.” In cross-examination, the Defendant pointed out that, over the previous seven years, the fence hadn’t fallen.
[17] Logan Sydney also was called to give rebuttal evidence. He testified that when the Defendant came to the office of the Claimant with his “To Do List” (see Exhibit No. 3), he made a $10,000 deposit and seemed to be in a fine mood—the Defendant wasn’t upset. He examined the sales contract from July 15, 2016 (see yellow copy of Sales Contract No. 16152-2, Exhibit 9, Tab 4) and explained the absence of the Defendant’s signature on that form as a result of signatures being light on the carbon copy. He testified that he presented the July 9th, 2016, contract, previously drafted by his father, Darrell Sidney, to the Defendant for his signature on July 15th, 2016. He reiterated that the stone couldn’t be put on at the end of November 2016 as it wasn’t warm enough. He stated that the masonry guy at Darrell Sidney’s Renovations Inc. doesn’t recommend doing stone work at that time of the year because if the stone doesn’t cure well, it will crack.
[18] After calling his rebuttal evidence, Darrel Sidney for the Claimant advised the court that he didn’t want to submit any further evidence, oral or documentary.
[19] The Defendant’s wife then testified. She testified that expediency in getting the renovation work done was important to she and her husband, the Defendant, and that’s why they agreed to pay more. She was adamant that on December 5, 2016, the Claimant fired himself after she accused him of lying, that he refused to try to negotiate a settlement.
[20] She maintained that removal of the power stack to the front of the house was not mentioned by the Claimant until after the concrete slab was poured. At the time of renovations, the electrical stack extended into the carport by the chimney. The purpose of the inset door would have been to permit Nova Scotia Power to read the power meter from the outside. She testified that she didn’t want the power stack outside the front of the house in the absence of an inset door and that registered professional engineer Wally Leonard stated in an email: “I clearly recall my comment to Mr. Sidney that the electrical meter had to be moved outside, and that he stated ‘my electrician will do that’” (see Exhibit 18, Tab 5). She testified that with respect to the property boundaries, Darrel Sidney had stated: “Your property is so screwed up you couldn’t get a building permit if you wanted to.” She testified that security cameras covering the areas of concrete allegedly tampered with did not catch any tampering activity—she and her husband, the Defendant, would have definitely noticed such activity. In addition, according to the engineering plan of Wally Leonard, paving should not have been done for at least one year (see Exhibit 9, Tab 7, ‘Notes, No. 6’). She testified as to deficiencies in the electrical outlets for the garage door lifts; that despite the Claimant’s position on the installation of stone at that time of the year, it can be done (see Exhibit 18, Tab 4), and she and the Defendant were able to find a contractor who installed the stone successfully.
[21] In cross-examination by Darrell Sidney for the Claimant, he opined that a small machine was used to dig out the ground under the carport and the concrete steps would have fell over; and that a carpenter advised him to remove the step.
[22] In summation, the Claimant maintained that he didn’t drop the job, that he told her to get someone else to do it, and that the Defendant’s wife screamed and cried and said send the bill and we’ll get someone else. He claimed that he was in business for 43 years and that his company does good work. He submitted that there was nothing wrong with the job the company did for the Defendant, that when he refused to install the stone, things just blew up. He stated that “I think we got off on the wrong foot when I didn’t get the building permit right away.” However, at one point during closing summation, he stated: “I should have hired a lawyer.” And at another point: “Maybe I wasn’t prepared for going through something like this.” The Claimant asked this Adjudicator to “bump” the matter up to Supreme Court, a request that this Adjudicator explained was outside the jurisdiction of the Small Claims Court and therefore would not be entertained.
[23] Darrell Sidney for the Claimant then sought to introduce a breakdown of his invoices to the Defendant, something the Defendant and his wife had been seeking since at least December 5, 2016. According to the Claimant, the handwritten document setting out a breakdown of the Invoice for $28,892.00 (see Exhibit 8) was “prepared by his girl in the office”. That person was not present to speak to the document. The paper documentation in support of that handwritten note is found in Exhibit 21. However, the purported breakdown is not helpful. The Rona bills, for example, are alleged duplicates, unsigned by either the Claimant or the Defendant. The electrical work is not broken down into particulars as the Claimant outsources its electrical work and pays the electrician for 2-3 jobs at once and these are not included as part of Exhibit 21. The bill relative to two garage doors for $936.00 plus tax does not specifically reference the Defendant or his civic address. The Claimant did not provide cheques/other documentation relative to labour costs.
[24] Darrell Sidney was adamant that no one can build a garage with a concrete slab for $14,000 as alleged by the Defendants (see Exhibit 17, photo 12).
[25] The Defendant submitted an 11-page written submission to the court in closing argument. A copy was provided to the Claimant. The Defendant read the submission out loud and the Claimant was given an opportunity to respond. The Defendant presented his take on the evidence before the court. In his submission, he stated:
He [Darrell Sidney] should be compensated for market value of the part of the project he did complete, which is what was communicated to his office right at the start, the collection agent from Credit Consultants Limited and this court. Darrell Sidney was paid for the close in car port and $500 for the back door. Given the price valuations, we have already paid in full or even overpaid the market value of the projects.
It was his position that Darrell Sidney for the Claimant quit on December 5, 2016, by speaker phone. He submitted that the Claimant is a poor communicator and unorganized.
DECISION OF THE COURT
[26] There were 22 exhibits before this court and the court heard from five (5) witnesses including the Claimant and the Defendant. There was ample opportunity for both sides in this matter to prepare and present their respective cases.
[27] Clearly there was a contractual relationship between the Claimant and the Defendant as evidenced by the two written contracts (see Exhibits No. 1 and 2) and the deposits paid in furtherance of those contracts by the Defendant (see Exhibits No. 9, Tab 4).
[28] This case involved the breakdown of a contractual relationship between the Claimant contracting company and the Defendant client. There are competing accounts before this court as to whether, on December 5, 2016, the Claimant quit and told the Defendant and his wife to find someone else to finish the job; or whether the Defendants fired the Claimant contractor on that date (see, for example, Exhibit 22 ‘Timeline’).
[29] Based on all the evidence before me, I find that the breakdown of the contractual relationship between the Claimant and the Defendant on December 5, 2016, was attributable to actions on both sides. The Claimant contractor was quick to take umbrage at the nature of the telephone conversation with the Defendant and his wife on December 5, 2016, offering to return their deposit; and the Defendant and his wife took up the Claimant’s suggestion that they get someone else to complete the job. Whether it was a case of the Claimant quitting or being fired is not determinative of this case.
[30] More importantly was the evidence of the Claimant that on December 5, 2016, he offered to return the deposit to the Defendant. In addition, is the unrefuted evidence of the Defendant that the Claimant requested one third of the cost of the project up front, with the balance due on completion. The Defendant paid in excess of one-third the cost of the project, with $10,000 paid as late as November 8, 2016, and with a ‘Things Left To Do List’ outstanding. The project was not completed. Whatever the disposition of the parties post-December 5th, 2016, it appears that up until December 5th, 2016, the Defendant had no major issues with the Claimant’s work. The Defendant testified as follows: ‘Sidney says that we were happy with his work, and, to an extent, we were. But now we are going to nit-pick.” I find the use of the term ‘nitpick’ somewhat telling as it means to be “overcritical” or “to focus on minute details”. Undoubtedly, the Claimant’s dogged pursuit of the balance he claimed owing on the contracts soured the Defendants to the point where they took a hard look at value received for the monies paid. And, I must say, the Defendant and his wife were equally as dogged in their review of the Claimant’s work as particularly demonstrated in Exhibits 9, 10, 11, 17 and 18. The alleged deficiencies might best be classed as ranging from benign to serious. As the Defendant indicated in his Defence and Counterclaim, and in his testimony, it is his position that the Claimant has been fully compensated for what work was done.
[31] The evidence before me does not support the testimony of the Claimant nor of his rebuttal witness, Adam Green, that the concrete work completed by the Claimant at 131 MacKinley Street, Sydney, NS, was “tampered with” or the photos “doctored”. The Defendant has established to the satisfaction of this court not only the deficiencies in the concrete work as alleged but in other aspects of the Claimant’s work as well (see paragraph 14 herein).
[32] On a review of all the evidence before me, including the 22 exhibits, and a demonstration to the satisfaction of this court that there were deficiencies in some aspects of the work performed by the Claimant, I find that the Defendant does not owe anything to the Claimant over and above the $21,300.00 already paid by the Defendant and his wife. I am therefore dismissing the Claimant’s claim against the Defendant.
[33] On a review of all the evidence before me, I also am dismissing the Defendant’s Defence and Counterclaim.
____________________
Patricia Fricker-Bates
July 23rd, 2018