Kapeluck v. Hess Developments Ltd., 2000 SKQB 528

• Judge: Foley, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 22, 2000
• Jurisdiction: Saskatchewan
• Citations: 2000 SKQB 528;(2000), 201 Sask.R. 101 (QB)

Kapeluck v. Hess Dev. Ltd. (2000), 201 Sask.R. 101 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. JA.018

Hess Developments Ltd. operating as The Saskatoon Deck Shop (appellant) v. Jim Kapeluck (respondent)

(2000 Q.B.G. No. 1340; 2000 SKQB 528)

Indexed As: Kapeluck v. Hess Developments Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Foley, J.

November 22, 2000.

Summary:

The plaintiff's amended statement of claim in a small claims action pleaded that the defendant was liable for the negligent instal­lation of a deck and railing or, alternatively, that the defendant failed to install the deck and rail in a professional and workmanlike manner. In fact, the defendant merely sup­plied the deck material, applied a waterproof coating and built the railing. The plaintiff chose to construct the deck himself. The Small Claims Court granted judgment on the basis of misrepresentation (reliance on advice as to how to construct the deck), which was not pleaded, and awarded judg­ment for the full amount paid by the plain­tiff. The defen­dant appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and remitted the matter for a new trial, with leave to the plaintiff to amend his pleadings to plead misrepresenta­tion. The failure to plead misrepresentation was not a mere technicality that did not prejudice the defendant. Further, the court erred in giving judgment for the full amount of the contract.

Practice - Topic 1462

Pleadings - Statement of claim - General - Requirement of stating basis for claim - The plaintiff's amended statement of claim in a small claims action pleaded that the defendant was liable for the negligent installation of a deck and railing or, alter­natively, that the defendant failed to install the deck and rail in a professional and workmanlike manner - In fact, the de­fen­dant merely supplied the deck material, applied a waterproof coating and built the railing - The plaintiff chose to construct the deck himself - The Small Claims Court granted judgment on the basis of misrepre­sentation (reliance on advice as to how to construct the deck), which was not pleaded - The Saskatchewan Court of Queen's Bench remitted the matter for a new trial, with leave to the plaintiff to amend his pleadings to plead misrepresen­tation - The failure to plead misrepresen­tation was not a mere technicality that did not prejudice the defendant - It was fatal to the claim.

Cases Noticed:

Dorsch v. Weyburn (City) et al. (1986), 43 Sask.R. 46; 23 D.L.R.(4th) 379 (C.A.), refd to. [para. 13].

Scott Bros. Gravel Co. v. Hullah (N.W.) Corp. et al. (1967), 59 W.W.R.(N.S.) 173 (B.C.C.A.), refd to. [para. 15].

Vanscoy No. 345 (Rural Municipality) v. Hickey (1995), 126 Sask.R. 118 (Q.B.), refd to. [para. 16].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Torts in Canada (1990), vol. 2, p. 138 [para. 14].

Counsel:

Daryl E. Labach, for the appellant;

Jim Kapeluk, on his own behalf.

This appeal was heard before Foley, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on November 22, 2000.