McKercher v. The Renovation Store Ltd. et al., 2015 ABQB 748

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 13, 2015
• Jurisdiction: Alberta
• Citations: 2015 ABQB 748;[2015] A.R. TBEd. DE.009

McKercher v. Renovation Store Ltd., [2015] A.R. TBEd. DE.009

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.009

Barry McKercher and Jeri McKercher (plaintiffs) v. The Renovation Store Ltd. and Randall Edward Keehn (defendants)

(0903 04274; 2015 ABQB 748)

Indexed As: McKercher v. The Renovation Store Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

November 26, 2015.

Summary:

The McKerchers sued The Renovation Store Ltd. and its principal Kreehn for breach of a contract to renovate their home. The McKerchers also alleged a breach of the Fair Trading Act (FTA). The defendants counterclaimed alleging that the McKerchers failed to pay the amounts agreed to under the contract.

The Alberta Court of Queen's Bench found that the McKerchers proved their claims with respect to the breach of contract. The Renovation Store and its principal, Keehn, also breached s. 6(4) of the FTA. The defendants' representations were unfair practices. Since both defendants engaged in unfair practices, both were jointly and severally liable under s. 7.3. Even if the court was wrong that Keehn personally engaged in unfair practices, because he was the principal and director of The Renovation Store, he was liable by virtue of s. 13(1). The McKerchers were entitled to be recompensed for the damage caused to their home and deficiencies in the performance of the renovation contract. The court also awarded $20,000 for the mental distress suffered by Ms. McKercher and punitive damages in the sum of $10,000. The defendants' counterclaim was not prosecuted and was dismissed. With respect to costs, the court stated that "the Defendants' refusal to set this matter down for trial after they filed a Statement of Defence and Counterclaim and participated in questioning resulted in delay and the necessity for additional court proceedings. Moreover, they did not participate in this trial. Parties who engage in litigation cannot simply ignore part of the process, especially when that part is trial. In my view, this is litigation misconduct and it is to a sufficient degree so as to attract double Column 2 costs, on a joint and several basis."

Consumer Law - Topic 1804

Sale of goods and services - Breach - Remedies of buyer - Damages (incl. punitive damages) - See paragraphs 71 to 77.

Consumer Law - Topic 8145

Offences (incl. non-compliance) - Respecting business practices - Unfair practices, deceptive and unconscionable acts and practices (incl. representations) - See paragraphs 43 to 52.

Contracts - Topic 9644

Contracts for work, materials and services - Implied terms - To do work in workmanlike manner - See paragraphs 35 to 42.

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - See paragraphs 56 to 70.

Damages - Topic 5706

Contracts - Breach of contract - Injured feelings or emotional upset - See paragraphs 56 to 70.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - See paragraph 82.

Counsel:

Neil Fenna (Neil Fenna Professional Corporation), for the plaintiffs;

No one appeared for the defendants.

This action was heard on October 13, 2015, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 26, 2015.