Nepogodin v. Austin Contracting Ltd.

Nepogodin v. Austin Contracting Ltd.

On the balance of probabilities the claimant did not prove the odour resulted from defective materials or non-workmanlike installation by Austin, Halifax Insulators or J.D. Irving, and the claimant failed to mitigate by not employing mechanical aeration; accordingly the odour-related claims against Austin, Halifax Insulators and J.D. Irving are dismissed. The separate roof leak claim was proven to result from poor workmanship and the claimant succeeds on that claim and is entitled to an award and costs.

Citation
2008 NSSM 17
Parties
Claimant: Andrew Nepogodin; Defendant: Austin Contracting Ltd.; Defendant: Halifax Insulators Limited; Defendant: J. D. Irving Limited (d/b/a Kent Building Supplies)
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
2 April 2008
Procedural Posture
Consolidated Small Claims Court Actions (construction/deficiency Disputes) / Decision Following Trial (adjudication)
Outcome
Odour claims against Austin Contracting Ltd., Halifax Insulators Limited and J. D. Irving Limited dismissed; roof leak claim against Austin Contracting Ltd. allowed.
Legal Topics
Breach of Contract, Implied Warranty of Habitability, Negligence, Product/materials Liability, Division of Claim/jurisdiction, Mitigation
Source Language
English
Construction Contract Property Environmental Contamination Civil Procedure Breach of Contract Implied Warranty of Habitability Negligence +3 more

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Parties

Andrew Nepogodin

Claimant

Austin Contracting Ltd.

Defendant

Halifax Insulators Limited

Defendant

J. D. Irving Limited (d/b/a Kent Building Supplies)

Defendant

Procedural Posture

Consolidated Small Claims Court Actions (construction/deficiency Disputes) / Decision Following Trial (adjudication)

Legal Issues

  1. 1 Whether the chemical odour was caused by defective materials or poor workmanship by the contractor or subcontractor
  2. 2 Whether the supplier (J.D. Irving/Kent) supplied faulty materials
  3. 3 Whether the claimant improperly divided claims to fit Small Claims Court jurisdiction contrary to s.13 Small Claims Court Act

Ratio Decidendi

On the balance of probabilities the claimant did not prove the odour resulted from defective materials or non-workmanlike installation by Austin, Halifax Insulators or J.D. Irving, and the claimant failed to mitigate by not employing mechanical aeration; accordingly the odour-related claims against Austin, Halifax Insulators and J.D. Irving are dismissed. The separate roof leak claim was proven to result from poor workmanship and the claimant succeeds on that claim and is entitled to an award and costs.

Court Disposition

Odour claims against Austin Contracting Ltd., Halifax Insulators Limited and J. D. Irving Limited dismissed; roof leak claim against Austin Contracting Ltd. allowed.

Orders

  • Odour-related claims dismissed against Austin Contracting Ltd., Halifax Insulators Limited and J. D. Irving Limited.
  • Claimant succeeds on roof leak claim against Austin Contracting Ltd.; award in the amount claimed ($1,560.00) and claimant to have costs on that claim.