Classic Paving Inc. v. Fresh Air Enterprises Ltd., 2014 SKPC 132

JudgeDemong, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateJune 13, 2014
JurisdictionSaskatchewan
Citations2014 SKPC 132;(2014), 448 Sask.R. 161 (PC)

Classic Paving v. Fresh Air Ent. (2014), 448 Sask.R. 161 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JN.044

Classic Paving Inc. v. Fresh Air Enterprises Ltd.

(398/13; 2014 SKPC 132)

Indexed As: Classic Paving Inc. v. Fresh Air Enterprises Ltd.

Saskatchewan Provincial Court

Civil Division

Demong, P.C.J.

June 13, 2014.

Summary:

Classic Paving Ltd. sued Fresh Air Enterprises Ltd. demanding payment of an interim invoice in the amount of $8,400 for partial paving services it rendered to Fresh Air in the summer of 2012. Fresh Air disputed that interim invoice and said that it had no obligation to remit any payment until the entire work was completed. In the alternative, Fresh Air alleged that the invoice sought payment for work that exceeded what was actually done and that the work that was done was not of good and workmanlike quality. Fresh Air counterclaimed, alleging that it had the right to repudiate the contract due to the poor quality of Classic's work, Classic's delay in completing the project, and an ensuing circumstance that had frustrated the performance of the work intended to be done. Fresh Air sought damages in an amount sufficient to put it into the position it would have been in had the contract been completed.

The Saskatchewan Provincial Court granted Classic judgment for $4,091.50 and dismissed Fresh Air's counterclaim.

Contracts - Topic 3667

Performance or breach - Repudiation - When available - [See Contracts - Topic 5305 ].

Contracts - Topic 5305

Impossibility or frustration of performance - Frustration - What constitutes frustration - Fresh Air Enterprises Ltd. engaged Classic Paving Inc. to recap 4,500 square feet of pavement - Classic performed a portion of the project in July 2012 - There was an understanding that Classic would return in the spring of 2013 to complete the job - In October 2012 Fresh Air received an interim invoice for $8,400 - Classic attended at Fresh Air's premises at the end of July 2013 with a work crew - They were not allowed on the work site - Classic sued Fresh Air for payment of the interim invoice - Fresh Air said that it had no obligation to remit any payment until the entire work was completed - Alternatively, it said that the invoice sought payment for work that exceeded what was actually done and that the work that was done was not of good and workmanlike quality - Fresh Air counterclaimed, alleging that it had the right to repudiate the contract - Fresh Air sought damages in an amount sufficient to put it into the position it would have been in had the contract been completed - The Saskatchewan Provincial Court granted Classic judgment for $4,091.50 and dismissed Fresh Air's counterclaim - The work actually done by Classic was performed in a good and workmanlike manner with a product suitable for its intended purpose - The contract was to perform work for a set lump sum price - Even if Classic could interim bill based on a suggestion of substantial performance, the contract was not substantially complete and there was no obligation for Fresh Air to pay the interim invoice at that time - By April 2013, the work on the east side which was still left to do, had deteriorated to such an extent that a recap was no longer viable - A portion of the contract was therefore frustrated because of fundamentally changed circumstances - Fresh Air was entitled to repudiate the agreement at least in so far as the east side work that was to be done - However, there was no reason why Fresh Air should not have let Classic complete the remaining portion of the job - Classic had performed a portion of the contract (1,670 square feet) with a stated contractual value of $4,091.50 - Under s. 5 of the Frustrated Contracts Act it was entitled to restitution in that amount.

Contracts - Topic 9628

Contracts for work, materials and services - The contract - Liability for payment - [See Contracts - Topic 5305 ].

Courts - Topic 8145

Provincial courts - Saskatchewan - Small claims - Jurisdiction - General (incl. appeals) - [See Courts - Topic 8146 ].

Courts - Topic 8146

Provincial courts - Saskatchewan - Small claims - Jurisdiction - Debt or damages - Classic Paving Ltd. sued Fresh Air Enterprises Ltd. for payment of an interim invoice it presented to Fresh Air for partial paving services it rendered to Fresh Air - Fresh Air counterclaimed alleging that it had the right to repudiate the contract - The Saskatchewan Provincial Court stated that "Section 3 of The Small Claims Act 1997, c. S-50.11 applies to any claim or counterclaim for debt or damages. Since the Plaintiff is seeking what is in essence an order for restitution in the nature of quantum meruit a question arises as to whether or not this Court has the jurisdiction to grant this form of relief. I am satisfied that it does, and in so doing I refer specifically to Grover v. Hodgins, 2011 ONCA 72" - See paragraphs 70 to 73.

Damages - Topic 7401

Contracts - Quantum meruit - General - [See Contracts - Topic 5305 ].

Practice - Topic 9767

Small claims - Jurisdiction - General - [See Courts - Topic 8146 ].

Restitution - Topic 784

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Work performed or goods provided - [See Contracts - Topic 5305 ].

Restitution - Topic 2105

Benefit acquired from the plaintiff - Contracts discharged by breach or frustration - Claim for value of services rendered - [See Contracts - Topic 5305 ].

Cases Noticed:

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 5].

Mack v. Stuike (1963), 43 D.L.R.(2d) 763 (Sask. Q.B.), refd to. [para. 25].

Vogel (Al) Construction Ltd. v. Forbes (1998), 174 Sask.R. 236 (Q.B.), refd to. [para. 25].

Atomic Interprovincial Transport (Eastern) Ltd. v. Geiger (Paul) Trucking Ltd. et al. (1987), 49 Man.R.(2d) 296; 45 D.L.R.(4th) 312 (C.A.), refd to. [para. 26].

Davis Contractors Ltd. v. Fareham Urban Council, [1956] A.C. 696, refd to. [para. 65].

Grover v. Hodgins et al. (2011), 275 O.A.C. 96; 2011 ONCA 72, leave to appeal denied (2012), 432 N.R. 392; 2012 CanLII 4147 (S.C.C.), refd to. [para. 71].

936464 Ontario Ltd. v. Mungo Bear Ltd. (2003), 74 O.R.(3d) 45; 2003 CanLII 72356 (Div. Ct.), refd to. [para. 71].

Authors and Works Noticed:

McCamus, John D., The Law of Restitution (1990), c. 4 [para. 71].

Counsel:

Daniel Aussant, for the plaintiff;

Nestor Mryglod, for the defendant.

This action and counterclaim were heard at Regina, Saskatchewan, before Demong, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 13, 2014.

To continue reading

Request your trial
2 practice notes
  • Rickard Construction Ltd. v. Burns, (2014) 458 Sask.R. 176 (PC)
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • October 25, 2014
    ...362 Sask.R. 104; 500 W.A.C. 104; 2010 SKCA 75, refd to. [para. 34, footnote 6]. Classic Paving Inc. v. Fresh Air Enterprises Ltd. (2014), 448 Sask.R. 161; 2014 SKPC 132, refd to. [para. 34, footnote Saskatchewan Government Insurance v. Medynski et al. (2012), 396 Sask.R. 104; 2012 SKQB 157,......
  • Matsalla v. Rocky Mountain Dealerships Inc., 2017 SKQB 335
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • November 7, 2017
    ...body repair and collision damage estimation and he was qualified as such at trial. In Classic Paving Inc. v Fresh Air Enterprises Ltd., 2014 SKPC 132, 448 Sask R 161 Judge Demong noted an individual called as an expert witness gave testimony which “may be tainted by some desire to benefit b......
2 cases
  • Rickard Construction Ltd. v. Burns, (2014) 458 Sask.R. 176 (PC)
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • October 25, 2014
    ...362 Sask.R. 104; 500 W.A.C. 104; 2010 SKCA 75, refd to. [para. 34, footnote 6]. Classic Paving Inc. v. Fresh Air Enterprises Ltd. (2014), 448 Sask.R. 161; 2014 SKPC 132, refd to. [para. 34, footnote Saskatchewan Government Insurance v. Medynski et al. (2012), 396 Sask.R. 104; 2012 SKQB 157,......
  • Matsalla v. Rocky Mountain Dealerships Inc., 2017 SKQB 335
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • November 7, 2017
    ...body repair and collision damage estimation and he was qualified as such at trial. In Classic Paving Inc. v Fresh Air Enterprises Ltd., 2014 SKPC 132, 448 Sask R 161 Judge Demong noted an individual called as an expert witness gave testimony which “may be tainted by some desire to benefit b......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT