Small Claims Court OF NOVA SCOTIA
Citation: Makary v. Pleasant et al., 2023 NSSM 68
Date: 20231025
Docket: 495880
Registry: Halifax
Between:
Holly Anne Makary
Claimant
v.
Jerry Pleasant, Gordon Horton, Judith Horton and Eastern Home Sanitary Inspection
Defendants
Adjudicator: |
Darrell Pink |
Heard: |
October 25th, 2023 in Halifax, Nova Scotia |
Decision |
October 25, 2023 orally, followed by written reasons on October 26, 2023 |
Counsel: |
Holly Makary – Self-represented Jerry Pleasant – Self-represented Gordon and Judith Horton – Self-represented Eastern Home Video Inspection – Shaelyn Masters |
By the Court:
[1] This matter was heard in person on October 25, 2023.
[2] The Claims is for damages allegedly caused by the Defendant Pleasant, who excavated the area on top of the septic system at a house the Claimant was purchasing from the Defendant Hortons. The inspection commenced before the closing of the purchase on March 1, 2019, and was done under terms of the Agreement of Purchase and Sale.
[3] The Claimant alleges Pleasant broke the septic tank lid and cracked the tank, resulting on substantial leakage and a need to replace the septic tanks. The claim against Eastern Home Video Inspection relates to their failure to detect the crack while undertaking a septic inspection.
[4] Evidence for the Claimant was provided only by Ms. Makary. Jerry Pleasant, Gordon Horton and Ken Hills testified, the latter being the principle of Eastern Home Video Inspection.
[5] Following completion of the evidence and submissions I dismissed the claim, briefly explained my findings and indicated written reasons would follow.
[6] In a civil case, the burden of proof is on a claimant to prove on the balance of probabilities that the Defendants are liable for the damages suffered because of the tortious conduct, negligence or breach of contract by one, some or all the Defendants. Claimants establish their case and try to satisfy the burden upon them by calling evidence to support their claim and by extracting evidence for the Defendants as witnesses or through their documentary evidence. Defendants do not have to negate the claim until the Claimant has established a prima facie case, through evidence, that needs to be answered or responded to.
[7] My practice is to review this obligation with self-represented claimants, so they are aware of the obligation they have. Though some clearly understand the legal framework in which their claim will be assessed, many do not. They believe by simply asserting that damages were caused, and the Defendants were involved in activities that appear to have given rise to damages, those Defendants must be responsible for the loss incurred or the damages.
The Facts
[8] There is no dispute on the facts. There are some discrepancies on what certain pictorial evidence shows, but the sequence of events is not disputed.
[9] The Claimant and her husband purchased a home from the Defendants, Judith and Gordon Horton. The standard form Agreement of Purchase and Sale was used. Two addenda were added to the Agreement to address the need for an inspection of the septic system. A $20000 holdback could be held by the vendors’ lawyer, pending a satisfactory inspection of the septic system by Eastern Home Video Inspection by April 30, 2019. Details are outlined on several alternate courses of action. The addendum states: “This clause will be voided if buyers (sic) representative conducts satisfactory inspection and tank is pumped before closing.”
[10] The 2019 winter was extremely cold. Frost that usually penetrated 12 – 18 inches reached depts of 3-4 feet.
[11] Before March 1 the parties agreed to complete the required video inspection. To do so it was necessary to expose the septic tank and the pump chamber, that contains the lift pump. Ken Hills of Eastern Home Video Inspection attended to perform a video inspection of the inside of the pipes and the tanks. This was done with a camera attached to a snake that enters the system from the house.
[12] The Claimant was present and received advice from Mr. Hills that the pipes and tanks were in good condition when viewed. Because of the extreme cold, the recording equipment usually used to transfer the video to a USB memory stick, did not work. No recording of the initial inspection was available as evidence, though all agreed it showed pipes and tanks in good condition.
[13] A visual inspection of the exterior or top of the tanks was also required. Mr. Horton arranged for Mr. Pleasant, an experienced excavator and an authorized septic system installer, to attend at the property to expose the tanks for visual inspection. That occurred on February 26 or 27, as the goal was to complete the septic inspection before the closing, thus avoiding the need for the holdback.
[14] Mr. Pleasant testified he used a small digger or mini excavator to dig down approximately four feet, through frozen ground. He was assisted by a colleague, who used a 60 lb jack hammer to break through areas where the excavator could not go. Ms. Makary was not present when this digging was being done. She only saw it from a distance.
[15] Because the earth was frozen and it was so cold, Mr. Horton arranged for a second piece of equipment with a chipping hammer to be brought to assist with the digging. It was operated by his son-in-law, along side Mr. Pleasant, to allow the tanks to be exposed. To undertake the inspection earth was removed from an area about 15’ x 20’ to depth of about 4’.
[16] Wires for the pump located in the pump chamber, ran across the top of that chamber, connect to a junction box and lead to a power source in the garage. While excavating Mr. Pleasant’s equipment hooked the wires from the pump and tore them. The 24” round concrete top for the tank (about 2” thick) broke during the digging and had to be replaced. Because of that some pieces from the top and other debris fell into the septic tank.
[17] Newman Electric was brought to the site to fix the electrical damage. Mr. Horton purchased a new block cover for the tank, to replace the one that had been broken. Mr. Pleasant arranged for a worked who was small enough to enter the tank to do so to clean out the remnants of the broken cover and any other debris that had fallen into it because of there being an open hole at the top of the tank. This work was done by hand with a garden shovel.
[18] When the electrical repair was being done, Mr. Hills was present. He did a visual inspection of the exterior and saw nothing on the tank exterior. He stated there were no visible cracks or blemishes in the tank.
[19] Mr. Pleasant and Mr. Horton stated they saw no cracks, even hair-line ones, in the septic tank.
[20] All recognized the need for particular care because the cold temperatures made the septic tank more fragile. They accounted for that in the work they did and took extra care when removing the soil from the top of the septic system and when Mr. Pleasant replaced it, or refilled the hole, following the inspection.
[21] The closing of the purchase occurred on March 1, 2019, which was a Friday. On that day the inspection of the system was completed by Eastern Home Video Inspection. The inspection report required some cleanout of the tank. That cleanout of debris and the backfilling occurred on March 2.
[22] The Claimant was aware of and was generally party to all the things that effected the inspection, repair the electrical damage and clean out the tank.
The Claimant’s Evidence to Prove her Case.
[23] Six months later, in September 2019, when the Claimant was having a heat pump installed, the Claimant was advised the septic pump power was defective. This resulted in calls for assistance.
[24] Newman Electric was called to the property. The evidence was not clear about what Newman Electric did or found. There was a suggestion by the Claimant that they found wires from the septic pump ‘in sewage’ but the location of this was not established. No one from Newman Electric gave evidence.
[25] Ms. Makary’s evidence did not address whether the septic system itself was not working. She did not say there were backups in her home or that water did not flow from her plumbing hardware, toilets, sinks and tubs to the septic system. Her evidence about the problem she had was not clear, other than as it related to the pump electrical problem.
[26] The Claimant says she contacted, Mr. Pleasant, Mr. Horton and Mr. Hills. None offered any assistance.
[27] The Claimant called a plumbing contractor, Mr. Rooter Plumbing. In her notice of Claim, which is not evidence, the Claimant provided some insight into what occurred. In her claim she stated:
Pump tank had to be drained to look at issue. So MR. ROOTERS was called and all problems were revealed
The Claimant testified they removed and replaced the pump chamber and did some other work as described on their invoice. Their charge of $5930.31 constitutes the bulk of the Claimant’s damages.
[28] No one from Mr. Rooters testified about what they saw, concluded from that or did. This Court has subpoena powers, and they are available to assist parties to secure the attendance of witnesses with material evidence required to prove a claim. It was not clear why that evidence was not presented but without it, it would be difficult for the Claimant to prove her claim.
[29] The Claimant introduced several pictures she took when the septic system was excavated again to find the cause of the problems there were with it and before Mr. Rooter did its work. She says effluent leaked from the septic system, that it had affected the area around the tank. She pointed to places which she says showed sewage leaking from the tank. [Ex 1, picture A, B, G, H]. Neither these photos nor the Claimant’s words revealed the extent of the problem and more important the cause of it.
[30] Mr. Pleasant and Mr. Hills did not agree with Ms. Makary’s conclusion that there was black soil evident around the tank which would prove fecal matter outside the tank. They examined the pictures as presented in evidence and as available on the Claimant’s laptop. They respectfully disagreed with the conclusion offered by the Claimant.
[31] The Claimant says the chamber had to be replaced because it was cracked. No photographs showed cracks in the chamber tank or any other cause of water or sewage leaking from it.
[32] There is no doubt the Claimant believed she had to incur the expenses she did. She was sincere in her assertions and believed she had been wronged. At law that is not what is required to prove liability. What the Claimant must show is that the Defendant’s breached a duty owed to her; that they engaged in conduct that fell below the standard expected on someone in their situation; and as a result they caused damage to her.
[33] When looked at in its entirety, the evidence does not prove the septic system was damaged. The Claimant failed to present evidence to do that. She could have called witnesses with firsthand Eastern Home Video Inspection knowledge to speak about what they saw. If there was a leak, resulting from a crack in a part of the septic system, the Claimant had to present evidence of it. Her failure to do so means there is no evidence of a breach of any duty that caused damage. On that basis alone, the claim must be dismissed.
[34] The evidence does not support a conclusion that Mr. Pleasant caused any damage to the tank. Though he was excavating in difficult circumstances, and he acknowledged the two minor mishaps that occurred (hooking the wires and the broken cover), both were remedied immediately at no expense to the Claimant. There was no evidence the backfilling to return soil to the septic field was done improperly or that it caused damage to any part of the system. The Claims against Mr. Pleasant is dismissed.
[35] Eastern Home Video Inspection was hired to conduct an inspection. They did so and found the system was in good order. A report to that effect, via its invoice to the Claimant, was provided. The small amount of work to be done (clean out the debris) was completed. This party breached no obligation owed to the Claimant. Her claim against Eastern Home Video Inspection is dismissed.
[36] The Claim against the Hortons is founded in contract, based on the Agreement of Purchase and Sale as opposed to in negligence. The Claimant did not suggest that they breached thee contract or specify what it is these Defendants failed to do that they had to do. On the contrary, the evidence demonstrates they relied on the addendum to the Agreement to have the septic inspection completed by Eastern Home Video Inspection before the closing. It was satisfactory and thus ended the holdback provision. The Claimant has not presented evidence of any breach of contract. The claim against the Hortons is dismissed.
[37] For the reasons outlined herein, the claim is dismissed.
Darrel Pink, Small Claims Court Adjudicator