IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Allport v. Brousell, 2023 NSSM 6
Claim No. SCCH 518021
BETWEEN:
Carol Deborah Allport (Duplisea)
Claimant
-and-
Richard Brousell, Operating As R. Brousell (Unregistered Name)
Defendant
DECISION & ORDER
1. This matter was heard on February 16, 2023. Both parties appeared and gave evidence.
2. What damages does the Defendant owe to the Claimant if his failing to complete a contract to construct her garage constitutes a breach of contract?
The Evidence
3. The Defendant, a small contractor, was referred to the Claimant by a friend. The Claimant wanted a 24’ x 24’ garage constructed on her property. There was to be parking on the ground level and living space on the second floor. On March 1, 2022, there was an exchange via text messages about aspects of the construction, based on the Claimant’s plans for the building. Several items were discussed in the exchange following which the Defendant wrote to the Claimant.
….. so my pricing is locked in for five days. I have put the post in the garage for the building permit which I could remove later on(.) Waiting on prices for Clearspan Joists it takes two weeks to get a price…I’ve been informed by my engineers that I also have to put a footing where the stairway has a wall going upstairs (.) adding that to the drawing now (.) so my price includes the downstairs finished with a septic line put the foundation below the frost line and another 3 inch pipe to run water lines. All downstairs of the garage finished drywall upstairs unfinished. Turnkey finish roof tight and siding included. I will let you handle the electrical. $85000.
4. The Claimant agreed to these terms. Between March 3 and 10 she paid the Defendant a deposit of $29000.
5. There was no time frame for completion of construction.
6. The Building Permit was issued on March 25.
7. For various reasons there were delays in starting construction. The excavator did not start when planned and was about 3 months late. During the initial excavation, the excavator’s tractor caught on fire. There were issues in procuring prefabricated trusses.
8. Once the excavation was complete, concrete for the footings and foundation was poured and approved by building inspectors in June.
9. On July 12, the parties met. The Defendant advised the company making the trusses made a mistake and they would not be available until November. For that reason, he said there was no work to be done on the property, as he did not want to erect the framing unless the rafters could be immediately installed to prevent warping or bending.
10. He acknowledged the delay and offered to pay for storage costs associated with it as the Claimant had placed personal goods into storage until they could be moved to the garage.
11. The Claimant contacted companies that manufacture rafters and was advised the Defendant, though he was known to them, had not contacted them regarding this job.
12. In his evidence the Defendant stated he was doing this project for cash and was not charging the Claimant HST. Thus, he was only intending to obtain the trusses from someone who would likewise not change him HST.
13. Through the rest of July, the Claimant called, emailed and sent message to the Defendant about the schedule for advancing construction. She spoke to the Defendant’s wife. The Defendant did not respond to her communication.
14. On August 4, the Defendant removed his tools, equipment and supplies form the Claimant’s jobsite. He backfilled the foundation with a tractor. He abandoned the job.
15. On August 17, the Defendant left an invoice, marked paid, on the door of the house next to the incomplete garage. The Defendant knew the Claimant was not residing there and did not try to deliver it to her personally.
16. The invoice totalled $28,800 and included:
• Foundation- $25000 including 26 sheets ¾ Goldboard to be used as subfloor minus contract for finished floor by Propour @ 4000.00 - 21000.00
• Permit/drawing edits/site visits – 1500.00
• Excavation/stump removal backfill/load of fill – 5200.00.
• Staging rental and misc. (Fencing stated on permit) – 1100.00.
17. The Defendant did not return to the site.
18. The Claimant had the work completed by others. In doing so she determined the lip of the foundation, where a car would enter, was not at the proper elevation. It had to be cut for $575. The fill used by the Defendant when he left the job site on August 4 was not proper for compacting. The Defendant had not installed a drainage pipe and pipes he had installed were not properly sealed.
19. The Claimant estimates the value of the work done on the foundation was $10629.99, based on her analysis of the time spent on the work and information provided by others, such as South Shore Ready Mix, who provided information on the cost of the concrete, and G. Veith who told her of the cost of the excavation.
20. Before the structure could be erected on the foundation, the Claimant had to rectify several items:
• Excavator rental - $832.60
• Fuel - $95.72
• Removal of dirt (G. Veith) - $600
• Cut Garage lip - $575.
• Revised building permit - $248.29
21. There were additional storage costs incurred because of the delay. Starting in August these totaled - $3229.66.
22. The Clamant does not seek compensation for the costs of completing the garage.
Findings
23. There was a contact between the parties to construct a garage for $85000. Though no time for completion was specified, it was implied the garage would be constructed in a reasonable timeframe. By abandoning the job, before the contract was complete, the Defendant breached the contract and is liable for damages.
24. When the Defendant left the job, the foundation was finished, though, as noted above, some deficiencies needed to be rectified.
25. The Claimant paid to have the foundation work rectified to allow erection of the structure on it. These costs totaled $2351.61. The Claimant included a charge for ‘C. Duplisea for $300’. This appears to be a claim related to a work done by a relative as a form of sweat equity. Though a document notes this cost, there was no evidence a payment was made so, that sum is disallowed.
26. Though no dates for completion of the garage were set in the contract, it is implied the work would be done in a reasonable timeframe and without inordinate delay. The Defendant explained the reason for some delay during excavation. That delayed the project by be no more than a few days. The main reason for the delay was the Defendant was doing this work as part of the underground economy, not charging HST and seeking to procure supplies on a cash and non-HST basis. That resulted in a substantial delay (June to November) in obtaining the trusses. The direct costs associated with the delays were for storage of $3229.66.
27. The evidence of the value of the work to complete the foundation to allow a structure to be erected on it varied significantly. The Defendant says that nearly all the deposit of $29000 was attributable to the foundation and he invoiced for $28800. The Claimant estimated the value to be $10629.99, based on her analysis of the time spent and cost information provided to her by others.
28. The Defendant was not straight forward in providing his evidence. Until ordered by the Court to provide the names of the intended suppliers of the trusses, he refused to do so. He was evasive in his answers and provided no independent proof, with receipts or other evidence of the value of the completed done. When asked if he could provide receipts, he indicated they had been discarded. His destruction of business records in such a cavalier manner was another indicator of the Defendant’s failure to meet his contractual obligations.
29. The Defendant knew, by not charging HST (though he suggested the benefit was for the Claimant) he was breaching his legal obligations, conduct consistent with his attitude and behaviour relating to this construction job.
30. Because there is no independent evidence of the value of the foundation nor is there any information on the percentage of the initial contract price attributable to it, the Court must, as best it can, determine what amount or cost should be fixed for that work. Looking at the materials provided and the total estimated cost, I set the value of the foundation at 15% of the original contract price or $12500.
31. Because the Claimant paid the Defendant $29000, she will be refunded the difference or $16500.
32. In addition, she is entitled to damages amounting to the additional amount expended to prepare the foundation for the structure to be placed on it, or $2351.61. The storage costs of $3229.66 are also recoverable.
33. The Claimant is entitled to costs for filing the claim, printing at Staples and Canada Post. Costs of ink for a printer are not allowed as there is no evidence the cost was attributable solely to this claim.
Order
34. It is ordered the Defendant pay the following to the Claimant:
a. Damages for breach of contract.
- Return of deposit - $16500
- Preparation of the foundation - $2351.61
- Storage - $3229.66
b. Costs - $228.23
Total - $22309.50
Dated at Halifax, Nova Scotia, February 22, 2023
Darrel Pink, Small Claims Court Adjudicator