Small Claims Court

                                                                                                                                                                                                                                                                             Claim No: 426725

                                                                           IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as: McKay v. Brannen, 2014 NSSM 43

BETWEEN:                                          

                                                                                                      GORDON McKAY and MAUREEN McKAY

                                                                                                                                                                                                                                                                                                                                                                                  Claimants

                                                                                                                                                     - and -

                                                                                       JOHN BRANNEN and BRANNEN: CRAFTSMEN LTD.

                                                                                                                                                                                                                                                                                             Defendants

                                                                                                                   REASONS FOR DECISION

BEFORE

Eric K. Slone, Adjudicator

Hearings held at Dartmouth, Nova Scotia on June 10, 2014 and June 25, 2014

Decision rendered on August 26, 2014.

APPEARANCES

For the Claimants                              self-represented

For the Defendants   self-represented

BY THE COURT:

Introduction

1                                           In 2012 the Claimants were retiring and planning to move to Nova Scotia from Ontario, and build their dream home on a seaside lot in Musquodoboit Harbour, Nova Scotia.  The Defendant, John Brannen was recommended to them as a quality custom builder.  Thus began the relationship that would give rise to this dispute.

2             Mr. Brannen appears at all times to have carried on his business through his company, “Brannen: Craftsmen Ltd.”  For sake of the narrative, I will refer to the two as the Defendant, recognizing that Mr. Brannen was at all times the guiding mind of his company and was the party actually working as a builder.  I will deal with issues of corporate or personal liability at the end of these reasons.

3             There was no written contract setting out the terms of what the Defendant was to do, or at what cost such things would be done.  The arrangement was basically that the home would be built on a cost-plus basis, with the Defendant acting more or less as a project manager.  This arrangement, for better or worse, allowed the Claimants (and particularly Ms. McKay) to save some money by looking after some of the materials acquisitions and even, in the end, doing some of the painting and other finishing touches.

4             The lack of any written contract is, for a project of this size, somewhat troubling, though the courts see this type of situation more often than one might think.  In fairness to the parties, they began the relationship with a high level of trust and all believed, I am sure, that their word was their bond, so to speak.  Unfortunately, when things do not turn out as expected, the lack of a written contract can lead to uncertainty and conflict - even with decent people with high levels of personal integrity.

5             The Claimants are suing for $25,000.00, which is the limit to the Court’s monetary jurisdiction, to compensate them for some of the deficiencies in their home that they believe were the fault of the Defendant.  In fact, if the Court were to total up all of the damages claimed, it would exceed $25,000.00 by a considerable margin.  The Claimants have waived any amount over the limit to keep their case within the Court’s jurisdiction.

The Facts

6             The relationship began with an exchange of emails in early 2012.  The Claimants very much liked what they had seen of another home designed and built by the Defendant and wanted something similar.  The Claimants specified the features that they wanted, and the Defendant arranged for plans to be developed with the assistance of a young architect that Mr. Brannen knew and recommended.  The Claimants also specified the amount of money they had to spend, and the Defendant assured them that the home could be built for that amount.  Unfortunately, there was no written guarantee to that effect and the cost-plus arrangement that they negotiated with the Defendant virtually precluded any such control.

7             The financial arrangement that Mr. Brannen insisted upon included him sending a spreadsheet more or less weekly, with materials and labour costs itemized, and the Claimants were expected to make periodic payments as requested.  In the end, though the project went well over budget, there is no dispute about the accounting and the Defendant is not owed anything.  The issue is deficiencies.

8             Over the course of many months beginning in about May of 2012 and continuing until May 2013, the parties engaged in lengthy email exchanges, with the Claimants typically setting out their requirements or requests and asking for advice and recommendations, and the Defendant responding to those questions and reporting on the progress.  Construction actually began in October 2012.

9             Almost until the very end, the tone of these email exchanges was friendly and courteous.  There were also some phone calls, and I have no reason to believe that the tone of these was any different.  It was not until the Claimants travelled to Nova Scotia in early May 2013, for a several-week trip to deal with the final stages of the construction, that problems began to arise and the relationship suffered.

10          The Claimants happened to arrive just as Mr. Brannen was leaving for a three-week European vacation.  His employee, Jordan Maerz, who he sometimes referred to as his foreman, was present doing various jobs including finishing the flooring.  The house was far from ready, but the Claimants were prepared to “camp” in the home.  The Defendant thinks it was a bad idea for the Claimants to have been living in an unfinished home, which carries a kernel of truth, because they got to see things they might not have seen if they had arrived later.

11          Nevertheless, within a few days of the Claimants’ arrival, several things happened to shake their confidence.  Also, as they got a good look at what they had invested hundreds of thousands of dollars into, there were issues that immediately troubled them.

12          Something of a rude awakening appears to have occurred on May 13, 2013, when there were heavy rains and water leaked in under the front door and also through a basement door.  Mr. Maerz attempted to repair these things but was only partly successful.  According to the Claimants, there are still problems with the front door that require towels to soak up the water whenever ir rains in earnest.  In the days that followed, they inspected their new home closely and waited for Mr. Brannen to return.

13          Shortly after his return to Nova Scotia, on May 22, 2013, there was a meeting at the house to do a walk through and identify deficiencies.  A number of issues were discussed, some more serious than others.  One significant concern of the Claimants was the flooring, which would actually become more serious later on.

14          The flooring throughout most of the home is engineered hardwood.  This product is sometimes used instead of solid hardwood where it has to go over in-floor radiant heat, because it is less susceptible, though not immune, to expansion and contraction.  This product is tongue and groove that is fastened much the same way as solid hardwood, namely with nails driven through the tongue into the sub-floor.  By the time of this meeting, the floors were all installed and in most places the baseboard had been installed, with the result that one could not see the edges of the last boards as they abutted the walls.  However, the baseboard was not yet installed in one part of the kitchen and there it seemed that the wood was very tight to the patio door.  The Claimants immediately registered a concern that there might not be enough room for expansion.  Although they did not know this for sure at the time, the Claimants would later come to learn that lack of expansion room was a problem throughout the house.

15          I think it is fair to say that Mr. Brannen was taken by surprise by the tone of this meeting, and he appears to have interpreted the event as if he were being fired from the job.  I do not believe that to be a fair characterization.  By then there was not a lot left for him to do, as third parties (such as the installer of the heating system) were scheduled to do their work, and the Claimants themselves were going to be looking after a lot of the finishing touches such as finish painting, but there is no question that they were looking to him to stand behind his work and deal with any issues that might require him.  The Court would still hold him to a duty of care for the labour and materials supplied by him, and for the advice offered.

16          On May 30, 2013, the Claimants emailed Mr. Brannen a lengthy summary of the deficiencies that they had identified.  I will not recite all of the issues, as some of them were minor and no longer are a concern.  One item identified, which ends up being the biggest ticket item in this case, is the hardwood floor issue.  The Claimants wrote:

“ ... Hardwood floors do not appear to have enough expansion room around the perimeter and thus will be susceptible to heaving.”

17          In his fairly detailed reply several days later, Mr. Brannen had this to say about the floors:

“We had worked quite diligently to heat and dry the house before installing floor.  We had house frame down to around 16% and the flooring was around 6%.  The manufacturer wants to see the air/heat system running when floor is in.  At this point the house seems dry despite many rainy foggy days.  The very least I would like to see is a dehumidifier set up with a drain.  If you wish me to purchase and set this up, I will.  The floor seems fine right now but I don’t think it should sit for several weeks with hot humid weather coming.”

18          This response did not really answer the point about expansion room, though it did address some aspects of the potential for heaving which, to put this in context, had not yet occurred.

19          In the weeks and months that followed, the Claimants settled into their home and determined that there were a lot of problems that would have to be addressed to bring the home up to their expected standard.  They are not certain if they will stay in the home or sell it, which is a difficult choice given how expensive it has proved to be and how seriously it has impacted their finances.

The floor problem

20          The largest issue between the parties is the performance of the hardwood floors.  By the time of the trial, as described by the Claimants in colourful language, there are squeaking and crackling sounds everywhere when the floor is walked on; at times, they say, it sounds “like a rifle range.”  This is a serious concern, not only because the noise is unpleasant and disruptive, but also because it would seriously impact the marketability of the home. 

21          The Claimants engaged a flooring expert, Ron Peverill, to look into the cause of the problem and make recommendations.  Mr. Peverill was in court to support his written opinion.  His conclusions can be summarized as follows:

a.            The cause of the noise is installation error in either or both of lack of expansion space and poor nailing.  Although he could not see it directly, he testified that according to his magnetic measurements, the nails were spaced farther apart than would have been the recommended interval.  He also found a deficiency in the stagger pattern in that some of the joins were too close together.

b.            The result of all of this has been buckling of the floor, in places, and loosening of the fasteners.  Thus the floor squeaks and cracks because of movement and friction.

c.            It is possible that the loosening of the fasteners may have been caused by the OSB floor having gotten and remained wet for too long before the home was roof tight.  Mr. Peverill noted, as was told to him by the Claimants and which fact is not in dispute, that the OSB had been open to the elements for 55 days.

d.            Mr. Peverill quoted from literature which cautions against the use of OSB as a subfloor if it is allowed to get wet.  The fact that it later dries does not solve the problem, as it may already have lost some of its ability to hold nails or other fasteners (such as staples).

e.            Mr. Peverill observed buckling around the perimeter of the floors, suggesting that there was a lack of expansion space allowed during the installation.  Some expansion and contraction would have been expected as humidity changed with seasonal variations. 

f.             His conclusion is that there are no easy ways to fix a large-scale problem such as this.  The only option is to tear up and replace the entire floor.

22          It should be noted at this point that OSB was not even supposed to be the subfloor into which the engineered hardwood floor would be nailed.  At a fairly early stage, the Claimants had specified that they wanted a layer of plywood, and the Defendant had explicitly promised that this would be provided.  The Defendant did not have a satisfactory answer as to why he did not use plywood.  He explained that it would have been very difficult to add even a thin plywood layer over the OSB because it would have raised the floor and interfered with all of the doors.  Essentially this suggests that he simply failed to make allowances for the increased thickness and that it would have been too late to do it after the doors were in.  But it does not explain why he did not bring plywood into the picture at an appropriate time, before the doors were installed.

23          It cannot be known for certain that the addition of plywood over the OSB, or use of plywood in the place of OSB, would have avoided the problem, but the evidence suggests that the problems would have been less likely to occur.

24          It is noted that Mr. Peverill was not cross-examined by the Defendant on any of his testimony.  It is understood that lay litigants such as the Defendant often do not appreciate the importance of cross-examination, and/or lack the skills to do it, but the fact is that Mr. Peverill’s expert evidence remains unchallenged except to the extent that the Defendant and his floor installer, Jordan Maerz, testified otherwise.

25          The Defendant denies responsibility for the condition of the floor.  He denies that the OSB was wet for an inordinate amount of time.  He says that most of the 55 days were dry, cold weather days.  Moreover, he argues, this was top quality OSB that is designed to withstand weather.  He argues that there was nothing wrong with the installation.  He says, upon the word of the installer Jordan Maerz, that the nailing and layout of the planks was all done to specification.  He suggests that the magnetic nail finder used by Mr. Peverill may have missed some of the nails, giving a false impression.

26          The Defendant further says that the subfloor was dried thoroughly before the floor was laid, and that wetness at that stage was not a problem.

27          He bases his main argument against liability on the theory that the floor was exposed to high humidity conditions over the summer, causing it to swell and loosen.  He says that he was gone from the project by then, which is mostly true, and that the Claimants themselves failed to follow his advice about protecting the floor.  Essentially, he says that the way to have prevented high humidity was to have turned on the air exchange and heat pump systems at a much earlier stage than was done.

28          This is a hotly contested point.  In an email dated March 10, 2013, Ms. McKay asked the Defendant “how long can we put off the installation of the heat pump?  We aren’t billed for it until installation. We have paid up to date for their work” (referring to Halifax Heating Ltd., which was the heating contractor.)  In his response the next day, the Defendant stated “the heat pump can be put off to the very end.”  The term “very end” was not explained.  The Claimants interpreted this to mean that they could defer this expense until close to the time that they would need to start heating the home, i.e. in the fall.  There was no suggestion at this time that there was another reason to have the heat pump working at an earlier stage.

29          As noted above, on June 5, 2013, during the email exchange concerning deficiencies, the Defendant stated “the manufacturer [of the floor] wants to see the air/heat system running when floor is in.  At this point the house seems dry despite many rainy foggy days.  The very least I would like to see is a dehumidifier set up with a drain.  If you wish me to purchase and set this up I will.  The floor seems fine right now but I don’t think it should sit for several weeks with hot humid weather coming.” 

30          It appears that the Claimants did not take the Defendant up on this offer.  They say that they were still operating on the assumption that the heat pump and air exchange could wait.  By then they were returning to Ontario for the last time to pack up their belongings for the move to Nova Scotia.  It would seem that they left the home without any air exchange or dehumidification until they returned in late July, at which time they turned on the air exchange (which had been installed during their absence) and started running a dehumidifier.  By then, the Claimants say that areas of the floor were already buckling.

31          The Defendant says that this failure on the part of the Claimants is the source of their problem, and that had they heeded his advice to start running a dehumidifier, they might not be in the situation they are in.  In retrospect, it would have been helpful for Mr. Peverill to have been asked for his opinion on the lack of dehumidification, but he was not cross-examined by the Defendant.

32          Looked at objectively, the floors are in an unacceptable condition, and there are a number of possible causes, some or all of which have led to the complete failure of the floor.  Those possible causes are:

a.            Floor boards laid too close to walls, not leaving enough room for expansion.

b.            OSB subfloor may have been compromised by moisture - not holding nails well.

c.            Inadequate nailing.

d.            Improper layout of boards.

e.            Failure to use plywood subfloor, as promised.

f.             Excess moisture from May to end of July, with no HVAC running.

33          All of these causes, save the last, would be the responsibility of the Defendant.  So the question is this: do the Claimants bear some responsibility, and, if so, how much?

34          I find that, although there was a recommendation for dehumidification, the Claimants were not given a clear warning of the possible consequences.  They were relying on the Defendant’s advice.  Knowing what we now know about the catastrophic failure of this floor, had the Defendant been seriously concerned about such an eventuality, he ought to have stated in no uncertain terms “this floor could be destroyed if exposed to excess humidity; get dehumidifiers going immediately or risk serious consequences.”  I doubt that the Claimants would have ignored a clear warning.

35          Even so, the evidence inclines me to believe that the damage was already done.  There were already serious deficiencies.  I accept the evidence of Mr. Peverill, whose conclusions were set out above.  I explicitly reject the theory that exposure to heat and/or humidity after the floor was laid is a significant reason for the failure.  I note that, although summer is traditionally the warmest and most humid season, there was no evidence presented as to the actual weather in this part of the province during those times.

36          As such, I find that the Defendant did not construct this floor in a good and workmanlike fashion, and is liable in damages on a breach of warranty basis. 

37          The cost to rip and out and replace the floor is significant.  The Claimants have approached a number of contractors to obtain prices.  There is one stand-alone quote from Burnside Floors which comes in at $16,539.30, inclusive of labour, materials and tax.  Wacky’s in Dartmouth has its prices mixed in with quotes for other jobs (related to other alleged deficiencies), but a total can be assembled from the elements.  Adding together the separate prices for removal, materials and installation, and replacement of the baseboard - together with HST - results in a figure of approximately $17,500.00.  On all of the evidence, and using the lower of the two quotes, it appears that the Claimants will have to spend at least $16,539.40 to have their floor replaced, and I allow this amount.

38          As for the missing plywood subfloor, there is no need to add anything for this as the Claimants did not pay for any plywood.  If they choose to add a layer of plywood when the floors are removed, that would be their expense.

Other problems

39          The Claimants presented meticulous detail about other deficiencies that they feel should be charged to the Defendant.  I will do my best to set these out below.  If I have missed anything, the result will not change as the Claimants have presented evidence of deficiencies that greatly exceed the jurisdiction of this court.  I present these in no particular order of importance.

electrical problems - improper placement of sconces etc.

40          The Claimants produced evidence showing awkward placement of sconces in one of the bathrooms.  I agree that this shows carelessness or thoughtlessness on the part of the electricians, for whom the Defendant is responsible.  Other minor electrical issues were also outlined, such as light switches in inappropriate places, suggesting an overall carelessness by the electricians.  There also appear to be some circuits which cannot withstand even a light electrical load.

41          The Defendant defended his electrical subcontractors, but had nothing substantive to say that would refute the existence of many problems that ought to be repaired to bring this home up to the standard as a luxury, custom home.

42          The Claimants received a quote from Tidal Coast Construction to repair all (unspecified) “electrical deficiencies” for $2,600.00 plus HST.  it is obvious that moving light fixtures and dealing with other problems will involve a substantial amount of electrician’s time and consequent repair to drywall and other finish elements.  I am prepared to allow the full amount, namely $2,990.00.

Use of 36" railings on the balcony and 4" posts

43          The Claimants complain that the Defendant failed to use 42" railings as specified on the plans, and installed 36" railings instead.  They are concerned about safety and also worry that a potential future buyer would be put off by the appearance.  The Defendant did not have a good explanation for this discrepancy, other than the fact that he says the Claimants ordered the material and he merely picked it up from the supplier.  He did not notice that it was the wrong size.  He also rested on the fact that this technically meets Code because the deck is not that far above ground.

44          I find that the Claimants did have a role in ordering the materials, but they ordered 42".  The supplier appears to have made the error.  The Defendant ought to have checked that the supplier was delivering what was ordered.  At some point, he ought to have detected that he was not installing the 42" railings that were part of the plan.

45          The other issue with the deck is the use of 4" X 4" supporting posts instead of the 6" X 6" that the Claimants expected.  The Claimants have concerns about the stability of the entire deck, and also about the appearance.  In their eyes, it looks unsound to have such skinny posts.

46          The Defendant’s position is that it is structurally adequate and passed inspection by the municipality (though not without some argument), so there is nothing deficient.  In order to pass inspection, some of the 4" posts were replaced by the Defendant.  The Claimants want the rest of them replaced.

47          The one estimate to repair both the deck railings and posts totals $7,530.00 plus HST, made up of $1,050.00 to replace the supporting posts and $6,480.00 for the deck railings and deck posts.

48          I have already stated that the 36" railings are not what the Claimants ordered, and the Defendant ought to have been alert to the discrepancy and seen to it that the right ones be substituted.

49          As for the supporting posts, in my view there is a deficiency here, but not necessarily to the extent that the Claimants allege.  Part of the problem is that there could be additional fill below the deck, which would partially or fully hide some of the remaining skinnier posts.  I do not accept that there is a safety issue, but rather an aesthetic one.  I also believe that there could be other approaches, such as by building up the posts with wood facing, where it is visible.  I do not believe that the Claimants have exhausted their options.

50          The estimate from Tidal Coast Construction places this cost at $1,050.00.  I am prepared to allow $500.00 on the theory that not all the posts necessarily need to be replaced, and that other approaches may be adequate.  The amount for both posts and railings is therefore $6,980.00 plus HST for a total of $8,027.00.

Painting and/or drying of wood

51           The Claimants complain that the wood for the basebaords and trim must not have been properly dried, because tannin and knots have bled through, requiring a stain blocker and two coats of paint.

52          The Defendant says he used good quality, kiln-dried lumber, and that it was properly primed.

53          As many a homeowner has experienced, when grainy or knotty natural wood is used, no matter how well dried, unless a special primer is selected and properly applied, there will be bleed through that is very hard to cover. 

54          The Defendant was responsible for priming.  The results of his priming speak for themselves.  It was not adequate.  I find that the Defendant did not take adequate precautions to prevent or minimize bleed-through, and allow $500.00 for this deficiency.

Creaking bathtub

55          The Claimants report serious creaking of one of their bathtubs, which suggests improper installation.  The Defendant had no specific response to this.  The estimate from Tidal Coast to reinstall the tub comes to $665.00, plus HST.  I find that the Claimants are entitled to recover this amount, namely $764.75.

Marble and tile in ensuite bathroom

56          The Claimants produced evidence to show that in May 2013 they identified serious issues in the ensuite bathroom - mostly unevenness of marble tiles and grout not properly cleaned off.  This was brought to Mr. Brannen’s attention.  His attempt to rectify the problem was to sand the marble down (to try to level it) resulting in an uneven and unacceptable surface.  He also used a type of mosaic tiles on the shower bench, which the Claimants say is very uncomfortable to sit on.  They are also quite unhappy with the way the Defendant cut the square marble tiles in half to create a brick-like pattern.  I agree that there are aesthetic deficiencies in this shower stall and tile floor.  In particular, the unevenness of some of the mosaic tiles is unacceptable, and the cut marble presents a poor appearance.

57          The Claimants have estimates for complete replacement of the shower which would involve removal of the tile and substitution of a built in shower kit. Additional work and materials would be used to replace the floor The total would be approximately $9,000.00 plus HST.

58          I am unconvinced that the Defendant’s work was so deficient that this drastic a job is required.  I believe that a combination of repair and replacement would likely suffice, and am only prepared to allow $2,500.00 for this deficiency.

Leaky basement door

59          The Claimants were forced to have the basement door replaced at a cost of $369.10, plus HST, plus labour.  No breakdown was given for the labour. 

60          The position of the Defendant was that the door the Claimants replaced was just a temporary door.  I have a great deal of trouble accepting that this could have been the case, given that there was no mention in the emails between the parties.

61          I am prepared to allow $500.00 as a best estimate of the cost to replace this door.

Basement not up to Code for apartment

62          The Claimants complain that the Defendant did not build the basement in such a way that it could be used as a separate apartment or guest suite.  After some back and forth discussion, on October 12, 2012 Mr. Brannen confirmed that he had applied for a permit as a 2-unit residence.  The evidence is unclear as to what was ultimately approved.

63          In the end, what was built did not have the fire separation that would be required for two separate residences.  It is unclear why Mr. Brannen did not equip the home for the intended use.  He did testify that it would have cost the Claimants a great deal more money to meet the Fire Code for two units.  He suggested it would have been $60,000.00 more.

64          Although I am deeply sceptical of the $60,000.00 figure, I suspect that Mr. Brannen realized that he was already way over budget, and he knew he would be in difficulty if he embarked on this more expensive construction. 

65          I do not see that he ever explained this to the Claimants, which is unfortunate because it was just another surprise for them that fed into their sense of disappointment.  However, I am not satisfied that it has cost them any money.  There is no proof that they could have had the 2-unit plan approved and built affordably.  It is more likely than not, that had they been told of the additional cost, they would have balked and reverted to a single family plan.  As such I do not allow any damages under this heading.

66          I note that the Claimants have an estimate of approximately $12,000.00 to bring the basement up to Code as separate unit.  This suggests to me that much of this would have been an extra, in any event, and the Claimants are not out any significant amount.

Faulty basement stair rails

67          The basement stair rails had to be rebuilt because the basement stairs failed inspection and had to be redesigned.  The cost is $760.00 plus HST.  This $874.00 should be charged to the Defendant in full.

Toilets

68          One toilet was very awkwardly placed, such that the door cannot open all the way without hitting it.  This should not have occurred.  Even if it had been in the plans, the Defendant ought to have detected and corrected the problem before taking irrevocable steps to place the toilet.  The cost to rectify this deficiency is estimated at $1,225.00 plus HST.  I allow $1,408.75.

69          Another toilet was grouted to the floor.  This appears to be a wrong type of material to use, given that the toilet moves slightly and the grout will inevitably crack.  The cost to fix this is estimated at $200.00 plus HST.  This is reasonable and $230.00 is allowed.

Wall behind microwave

70          The Claimants complain that the wall behind the microwave is unnaturally cold, which suggests they are losing heat.  The Defendant suggests that Halifax Heating may have been responsible for insulating this wall.  This makes no sense to me.  The problem is not the vent, but an apparent deficiency in the insulation.  I allow the estimated repair amount at $1,675.00 plus HST, which totals $1,926.25.

Re-painting doors

71          The Claimants had requested that all interior doors be spray painted before being installed.  They say this did not happen, and believe they all need to be removed and spray painted.  This would be quite expensive.

72          The Defendant did not answer this claim in his evidence.  Even so, I am not satisfied on all of the evidence that there is a deficiency that needs to be rectified.  I am unaware of the state of the doors currently.  Without better proof, I do not allow anything.

Inadequate closet shelves and sagging wooden rods-painting doors

73          In a custom house of this quality, the Defendant should have done a better job of outfitting the closets.  What the Claimants described was the type of poor quality fittings one might see in a low budget housing development.  The estimate to rectify this deficiency is $350.00 plus HST, totalling $402.50.  This amount is allowed.

Crumbling concrete pad under heat pump

74          There is no reason why a brand new concrete pad should be deteriorating to the extent described.  The Defendant did not have an explanation.  The cost to fix this is estimated at $800.00 plus HST, namely $920.00, which amount is allowed.

Hydro pole not backfilled

75          The Claimants claim $150.00 to complete this minor job.  The Defendant explained that his excavator guy was not around, and he had not wanted to call him back for a small job.  I do not allow anything for this item, as there would have been a cost to the Claimants in any event.

The Defendant’s position

76          On many of these items listed above, the Defendant relies on the fact that the property passed municipal inspection.  With due respect to him, that is not the test.  Municipal inspectors are looking for Code violations and safety issues, and are usually satisfied if the construction meets minimum standards.  A builder such as the Defendant here has a higher duty - which includes following instructions and providing value for the money spent. 

77          The Defendant was very emphatic in his insistence that he is a quality home builder.  Pictures of some of his other projects reflect that, and the home built for the Claimants is, in most respects, a beautiful, custom home.  But something went wrong, and the Defendant must accept his share of the responsibility.

78          I have considered, and reject, the implicit suggestion that the Claimants were overly demanding.  I am sure that they became hyper-vigilant as they saw their project soar over budget, and as they came to realize the extent of problems that would need addressing.  This does not change any of my conclusions.

Corporate and/or personal liability

79          Had there been a written contract that specified that the corporate Defendant was the party solely responsible for the construction, this might have been enough to prevent personal liability on Mr. Brannen.  I have no doubt that the Claimants knew that Mr. Brannen operated through a company, but virtually all of their dealings were with him personally.  It was Mr. Brannen’s personal reputation, and their personal relationship with him, that was important.  Under all of those circumstances, I cannot see any basis to shield him from personal liability.  Perhaps this will make no practical difference, but if it does then the Claimants should not face this obstacle to recovering some of their losses.

Summary of damages

80          The following table sets out the damages that I have determined to be recoverable:

81          The Claimants are not entitled to recover any more than $25,000.00 in this court, and this is the amount that I allow.  The Claimants shall have judgment for $25,000.00 plus costs of $193.55 against the Defendants jointly.

Eric K. Slone, Adjudicator