Tri X Excavating Ltd. v. Morman

2019 BCCA 457 Tri X Excavating Ltd. v. Morman

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Tri‑X Excavating Ltd. v. Morman, 2019 BCCA 457 Date: 20191202 Docket: CA45597 Between: Tri‑X Excavating Ltd. Respondent (Plaintiff) And: David Larry Morman and Christine Marie Morman Appellants (Defendants) Before: The Honourable Madam Justice Griffin The Honourable Mr. Justice Abrioux The Honourable Madam Justice DeWitt-Van Oosten On appeal from: An order of the Supreme Court of British Columbia, dated August 31, 2018 (Tri-X Excavating Ltd. v. Morman, 2018 BCSC 1493, Victoria Docket 14‑1114). Oral Reasons for Judgment Appearing in person on behalf of the Appellants: D. Morman Counsel for the Respondent: J. Forsythe Place and Date of Hearing: Victoria, British Columbia December 2, 2019 Place and Date of Judgment: Victoria, British Columbia December 2, 2019 Summary: The appellants appeal the trial judge's order that they pay a blasting contractor for work done on their residential property, and the dismissal of their counterclaim for damages for breach of contract and negligence. Held: Appeal dismissed. The trial judge's findings were capable conclusions based on the evidence, and no appealable error arises. GRIFFIN J.A.: Introduction [1] This appeal arises out of a dispute regarding the quality of work done to drill and blast rock on a residential property. The appellants, David Morman and Christine Morman (the "Mormans"), appeal

from the trial judge's order that they pay the respondent, Tri‑X Excavating Ltd. ("Tri‑X"), $26,250 for unpaid work and which dismissed the Mormans' counterclaims based on breach of contract and negligence. Background [2] The Mormans hired Tri‑X to blast a rocky area on the land behind their home. The parties entered into an oral contract, with an agreed upon price of $25,000. Tri‑X performed the blasting work in late 2013 and early 2014. [3] When Tri‑X sought payment following completion of the blasting work, the Mormans refused to pay. They took the position that the blasting had crossed over their property line and encroached onto their neighbour's property, described as over‑blasting. The Mormans demanded that Tri‑X sign an indemnity agreement protecting the Mormans from any claims by their neighbours, before they would agree to pay. The president of Tri‑X, Brian Baker, refused to sign the agreement and the Mormans did not pay. [4] There is no evidence that the neighbours claimed to have suffered any damages. The neighbours put their property on the market and the Mormans purchased it, they say to avoid the risk of being sued. [5] On February 21, 2014, Tri‑X filed a claim for a builder's lien and, on March 21, 2014, commenced the action below. Tri‑X also filed a certificate of pending litigation against the Mormans' property. [6] The Mormans filed a response to civil claim

on April 17, 2014, in which they made allegations of breach of contract and negligence regarding the alleged encroachment onto the neighbouring property and the manner of blasting, which they viewed as deficient. On October 2, 2014, the Mormans filed an amended counterclaim, in which they made further allegations regarding damage they say occurred during the blasting and Tri‑X's failure to blast the property down to a specified elevation. [7] By time of trial, the Mormans had obtained geotechnical advice from a geotechnical engineer, Ms. Isabelle Maltais, to the effect that the rock slope was potentially unstable and that mitigation was necessary if an additional building was to be built near the slope. [8] At trial, the Mormans argued that the result of the blasting work would not safely permit the building of a shop on the property, which had been their intention. Trial Judgment [9] In his trial judgement, the judge first considered Tri‑X's claim for unpaid work and the Mormans' claim in breach of contract. He reviewed the evidence given at trial, which included testimony by: a) Mr. Baker for Tri‑X; b) Alex Brennand, who was employed by Tri‑X to perform the blasting; c) Stephen Bean, who was qualified as an expert geotechnical engineer as a witness for Tri‑X; d) Mr. Morman; e) Ms. Morman; f) Nigel Banks, who had advised the Mormans with respect to the blasting work; g) Ronald

Elliott, who was qualified as an expert on residential and urban blasting as a witness for the Mormans; and h) Ms. Maltais, who was qualified as a geotechnical engineer to provide an expert opinion, as a witness for the Mormans, on whether the rock slope was unsafe and what would be required to permit the Mormans' intended use of the property. [10] The judge noted that there was no dispute there was an oral contract. However, the scope of the work covered by the contract, the interpretation of the contract, and the degree to which the work was performed were all in dispute: at para. 54. [11] Regarding the scope of the contract, the judge relied on a meeting between Mr. Baker and Mr. Brennand for the one party, Tri‑X, and Mr. Morman for the other party, in which Mr. Morman instructed Tri‑X to drill and blast a certain amount of rock to "dirt level" or "rough grade". They later agreed on a price of $25,000: at para.

55. The judge found that the contract was for blasting services only, and there was no term regarding the type of rock face to be left or how it might relate to proposed construction on the property: at para. 59. [12] The judge rejected the Mormans' arguments that the contract went beyond the basic blasting services discussed at the above meeting. Contrary to the Mormans' positions at trial, the judge found: that Mr. Morman had not considered what would be required to remediate the rock face for his intended use of the property, and that this matter was not discussed by the parties; the Mormans never told Tri‑X where they intended to build a shop or inquired about what was required to make the rock wall safe for building it; and the parties also never agreed that a walkway was to be left for access to the backyard: at paras. 57-59. [13] The judge noted the fact that Mr. Morman retained Tri‑X to do blasting without obtaining any advice from a geotechnical engineer or structural engineer on the viability of building a shop on the property: at paras. 26-28. [14] Turning to performance of the contract, the judge found that Tri‑X was contracted to blast the rock to a "rough grade", which it had done. Accordingly, the judge ordered the Mormans to pay $26,250 (amounting to $25,000 plus GST) to Tri‑X, and dismissed the Mormans' claims in breach of contract: at paras. 60-63. [15] The

judge next addressed the Mormans' claim in negligence. The judge noted that Tri‑X acknowledged it owed a duty of care, but disputed that it had breached the requisite standard of care: at paras. 65-68. [16] The judge found the applicable standard of care to be that of a reasonable blasting contractor acting in the circumstances of the case. [17] The Mormans' expert, Mr. Elliott, gave evidence that Tri‑X had used more explosives than ought to have been used and, thus, had created a risk of over‑break in the rock. He was critical of some of the drilling angles, the quality control by Tri‑X, and that there were discrepancies in Tri‑X's records of the amounts of explosives used: at para. 45. [18] The judge found that he could not rely on Mr. Elliott's report as it was based on assumed facts that the Mormans failed to prove at trial. Mr. Morman had instructed Mr. Elliott that he had intended the work be done in such a way so that he could construct a shop adjacent to the rock cut. Mr. Morman also told Mr. Elliott that under the contract, Tri‑X had agreed to perform sheer cutting at a four‑foot distance from the property line. That Tri‑X had been instructed in this way was rejected by the judge as not proven: at paras. 59, 69-77. [19] Further, the judge noted that Mr. Elliott's opinion that the work had created a risk of over‑break did not go so far as stating that the work had

caused over‑break. The judge noted that Mr. Elliott did not know the location of the property line. [20] Next, the judge noted that Tri‑X did not dispute that the blasted rock wall would require remediation, as stated in the opinion of Ms. Maltais, the geotechnical engineer. The judge found that the blasting work was always going to require some sort of engineered solution to stabilize the resultant rock slope, but this was not something the Mormans turned their mind to during the planning of the project. Remediation was not contemplated by the contract and Tri‑X was not required to address it. As a result, the Mormans failed to prove that Tri‑X breached its standard of care: at paras. 78-84. [21] The judge put some weight on the fact that the situation was of the Mormans' own making, in failing to obtain professional advice about their planned use of the property before engaging Tri‑X to do the blasting: [83] The damages alleged from the blasting arose from the defendants' own lack of knowledge and their failure to obtain professional advice respecting the blasting and the post-blasting work required as it related to their intended use of their property. [22] The judge then went on to consider the Mormans' claims for damages, in the event that he was wrong in finding there was no breach of contract and no claim made out in negligence. He noted that the Mormans claimed damages

with respect to remediation of the rock slope, damages for the alleged over‑blast, loss of income, and damages at large: at paras. 86-89. [23] Considering the remediation costs, the judge found the Mormans had failed to prove they incurred any increased costs due to the blasting. The rock wall would have required remediation no matter the form of blasting, and Tri‑X's work did not increase the cost: at paras. 89-92. [24] Turning to the Mormans' claim that Tri‑X had blasted over the property line, the judge found that the Mormans had failed to prove such an over‑blast occurred. While Mr. Morman's evidence was that he had painted the property line in red paint on the ground, Mr. Brennand for Tri‑X denied blasting past this red line. The Mormans provided no expert evidence proving the location of the property line or the extent of the blasting. The Mormans also provided no evidence of the costs required to remediate the alleged over‑blast: at paras. 93-98. [25] Regarding the Mormans' claim for loss of income, the judge found the claim was not proven and, in any event, was too remote. The claim was based on Mr. Morman's assertion that he intended to use the shop to work on vehicles as a source of income, despite his acknowledgement that he could not legally do so. As the judge previously found, Tri‑X did not know of the intended use of the property and the need for remediation was

not caused by the quality of Tri‑X's work. The Mormans' presented no evidence of the value of the alleged loss of income: at paras. 99-102. [26] The judge similarly found that the Mormans' claims regarding damage to certain panels on the property and the need to re‑survey the property due to the alleged over‑blast had not been made out: at paras. 104-106. [27] Finally, the judge addressed the Mormans' claims for aggravated and punitive damages, which they had brought at the close of their case. The Mormans sought such damages based on what they perceived as abusive litigation conduct by Tri‑X and its counsel. The judge rejected these claims as having no merit: at‑paras. 107‑114. Issues [28] The Mormans raise several issues on appeal. They say the judge erred in: a) finding there was no evidence of an over‑blast into the neighbouring property; b) giving no weight to the expert report of Mr. Elliott; c) finding that Tri‑X did not breach the contract by failing to scale the rock face; and d) finding that the Mormans were not entitled to damages. Analysis [29] The issues raised by the Mormans on this appeal turn on key findings of fact made by the trial judge, for which there was significant evidentiary support. [30] This Court can only intervene and overturn findings of fact when the judge made what is described as a "palpable and overriding error": Housen v. Nikolaisen, 2002 SCC

33 at paras. 10, 19 and 21-25. An appellate court cannot interfere simply because it would have taken a different view of the evidence. [31] Here the judge's findings are supported by evidence and it cannot be said he ignored evidence or misunderstood the evidence or otherwise made a palpable and overriding error. [32] It is apparent that the judge's overall conclusions turned on the following key findings of fact: a) The Mormans had not proven that blasting exceeded the property line. b) The oral contract between the Mormans and Tri‑X was limited to drilling and blasting to a rough grade, and did not extend to stabilizing the rock face of the slope afterwards or to preparing the property to support a shop. c) Tri‑X did perform the limited work it was contracted to do. d) Tri‑X did not leave the rock face slope in a state that would require more remediation than otherwise would have been necessary under this scope of contract. [33] The alleged errors raised by the appellants cannot overcome the above solidly‑supported findings of fact. Over‑blasting [34] Taking the first alleged error, the appellants argue in their factum that the judge erred in finding that there was no over‑blasting, because, the appellants assert, "there was no evidence there was no over‑blast". [35] The problem with the appellants' position is that they fail to recognize the burden of proof was on them to

establish on a balance of probabilities that there was over‑blast affecting the neighbour's property. The judge found they had not proven this. There was no burden on the respondent to prove a negative. [36] The judge held at para. 75: [75] In particular the assumption that the blasting did not allow for the four‑foot offset has not been proven. As I have found, I am not satisfied the defendants conveyed that requirement to the plaintiff. In addition, a surveyor was not called to give evidence on the location of the property line nor was any expert opinion provided on the amount or extent of the alleged over‑blast or over‑break. [37] The judge further held at paras. 93-98: [93] This relates to the defendants' claim that the plaintiff blasted over the property line between their property at 2165 Bellamy and the neighbours at 2167 Bellamy Road. At the time of the blasting 2167 Bellamy Road was owned by Shawn Henry and Farrah Ofstie. [94] The two strata lots are two halves of a strata duplex and the only two lots in that strata development. [95] Regarding the property line Mr. Brennand acknowledged he was shown a brick by Mr. Morman that showed the property line. He testified however, that he told Mr. Morman he would need a line to show the property line although he could commence work with that line to be marked when he got closer to it. Mr. Brennand stated Mr. Morman initially

asked him to get as close to the property line as possible but Mr. Brennand told him he had to leave three to four feet between the property line and the blasted area. He denied that Mr. Morman told him he wanted three to four feet left on the Morman side of that line for a walkway. He recalled the red line Mr. Morman had painted on the ground. Mr. Brennand denies blasting past the property line as evidenced by the red line, onto the neighbouring property at 2167 Bellamy Road. [96] This claim raises two issues, an evidentiary issue respecting evidence of the alleged over‑blasting and a legal issue respecting the right of the defendants to advance this claim. [97] First, there has been no expert evidence establishing the location of the property line and where and to what extent part of 2167 Bellamy Road was blasted. Mr. Elliott's report does not establish the size and location of the alleged over‑blast. Therefore, the plaintiffs have failed to prove an over‑blast. They also have provided no evidence of the costs of remediating the alleged over‑blast. Second, the owners of 2167 Bellamy at the time of the blasting never advanced a claim. Any claim for the lost property was theirs to advance. They sold the property to the defendants in May of 2015. The defendants knew of the alleged over‑blast and indeed purchased the property because of their perception that they were at risk of

being sued. There is no evidence that the property was worth less than they paid because of the alleged over‑blast. In any event given they now own the entire strata development and hold all voting rights, they can potentially move the lot lines if they proceed with their plan to subdivide the property. [98] The defendants' claim for damages for the alleged over‑blast has not been proven in either fact or law. [38] The appellants do not dispute that they did not call a surveyor to provide opinion evidence regarding the property line and whether over‑blast exceeded the property line. However, the appellants submit that evidence given by Mr. Morman should have been accepted. This was Mr. Morman's evidence to the effect that a pre‑existing pin marking the property line was blown out by the blasting. They say that other witnesses confirmed that rock over‑blasting occurred past the point where Mr. Morman said the pin was originally located. [39] The appellants' position seeks to have this Court draw inferences that the trial judge could and did properly reject. The trial judge was not persuaded by Mr. Morman's lay evidence as to the location of the property line and over‑blast, in the face of Mr. Brennand's denial that he had over‑blasted past the red paint boundary, and there was no expert evidence on the matter. It was within the purview of the trial judge to conclude that he was

not persuaded by the Mormans' evidence. [40] The Mormans further argue that they put into evidence two forms of survey plans, one done before the blasting, and one done afterwards, and that the judge could have compared the two the way Mr. Morman said they should be compared, and concluded from the comparison that there was over‑blasting. However, the judge was not required to perform technical calculations in comparing survey plans, in the absence of an expert witness assisting him. Mr. Morman is not a qualified surveyor and his interpretation of the plans did not mean it was the correct interpretation. [41] The Mormans also point to an attachment to the expert report of Ms. Maltais, which they say illustrates in diagram form the fact that the rock face was over‑blasted over the property line. However, the content of Ms. Maltais' expert report does not explain how this diagram was drawn and whether it is reliable to prove the fact of over‑blasting. Certainly that was not the point of her expert report, which was directed to the need to remediate the wall. [42] In short, the judge was not persuaded that the evidence was sufficient to establish that the blasting of rock crossed over the property line, and further, if it did, that it was of a size and location that created any harm. I would not accede to this ground of appeal, challenging the judge's dismissal of the claim based

on over‑blasting. Evidence of Ron Elliott [43] The appellants submit that the judge gave no weight to the expert opinion of Mr. Elliott for inappropriate reasons. [44] I do not see it this way. [45] The judge did consider Mr. Elliott's opinion, reviewing it in detail at paras. 44‑47 and 70-77. [46] The problem with Mr. Elliott's opinion is that it was based on Mr. Morman's instructions as to the scope of Tri‑X's work under the contract, but the judge found that the contract was much more limited. Mr. Elliott also did not know the location of the property line and so could not shed much light on the question of whether there was over‑blast beyond the property line. [47] I have already dealt with the judge's supportable conclusion that the claim in relation to over‑blast was not proven. [48] The judge found that Mr. Elliott's opinion did not consider the limited scope of the contract between Tri‑X and the Mormans, but rather, assumed the contract was of a broader scope than was in fact proven. Thus, Mr. Elliott's opinion could not be relied on to support a conclusion on what Tri‑X ought to have done, given that he assumed the instructions to Tri‑X were different than they were proven to be. His opinion regarding the blasting was also based in part on records he acknowledged were inaccurate. [49] That the judge found little probative value to Mr. Elliott's opinions does not give

rise to an appealable error. Scaling the Rock Face [50] The same observations can be made regarding the appellants' argument that the judge erred in failing to find that Tri‑X breached the contract and its duty of care by not scaling the rock face. [51] The respondent submits that this argument was not put to the trial judge. [52] However, I will treat this argument as another way of the appellants asserting the claim that Tri‑X ought to have remediated the rock wall after blasting. The rock slope in its post‑blasting state created a risk, according to the geotechnical engineer Ms. Maltais, especially if another structure was to be built near it as was the appellants' claimed plan. This was a plan that the judge found had not been communicated to Tri‑X at the time of the formation of the contract. [53] The judge's finding that the scope of contract did not include remediating the rock wall after blasting, is well‑supported by evidence. [54] The judge accepted the evidence of Mr. Baker and Mr. Brennand of Tri‑X to this effect. The scope of the oral contract was formed at a meeting of Mr. Baker, Mr. Brennand and Mr. Morman and the judge was entitled to accept Mr. Baker and Mr. Brennand's evidence. He found other circumstantial evidence of Mr. Morman's behavior consistent with this limited scope of contract: at paras. 57-59. [55] As a piece of circumstantial evidence of Mr.

Morman's understanding of the scope of contract, the judge referred to the fact that at one point Mr. Morman was prepared to pay Tri‑X for the work, so long as Tri‑X signed an indemnity with respect to over‑blast, which it refused to do. At that time, Mr. Morman did not take the position that Tri‑X was required to remediate the rock wall left by the blasting: at para. 59(e). His evidence was that he reduced the amount of the payment by $2,500 to cover survey costs. [56] In regard to this piece of evidence, the appellants submit that the judge improperly drew an adverse inference against them based on a without prejudice offer they made. I do not consider this to be an accurate summary of the evidence. The offer the Mormans made to pay the Tri‑X invoice included a demand that Tri‑X sign a form of letter purporting to be from Tri‑X headed "without prejudice", whereby Tri‑X agreed to indemnify the Mormans for any over‑blasting. [57] There was no evidence that Mr. Morman's demand that Tri‑X sign the indemnity letter, as a condition of Mr. Morman making payment to Tri‑X, was presented by the Mormans on a without prejudice basis. The draft indemnity was introduced into evidence at trial, in the evidence of both Mr. Baker of Tri‑X and Mr. Morman, without objection and without any mention of it being a without prejudice offer. [58] Regardless, this was only one piece of evidence relied

upon by the judge. It is clear that even without this evidence, the judge had other evidence which was persuasive of the conclusion that the scope of contract was as limited as he found. [59] I see no appealable error in the judge's conclusion that the scope of the oral contract did not require Tri‑X to scale the rock face or remediate the rock face to stabilize it by other means. Damages and Other Issues [60] The appellants counter‑claimed for damages alleging a variety of losses. The judge observed that there was no evidence that the Mormans suffered any damages from the alleged over‑blasting or otherwise. The Mormans and their neighbours were in a two‑unit strata, both owning one‑half of a duplex. The Mormans purchased the next door property, and called no evidence as to the impact of alleged over‑blasting on market value. Further, the judge found that the contract never provided for remediation of the rock face and that the Mormans were always going to have to pay for that work in any event and had not proven that they suffered increased costs as a result of the work by Tri‑X. The loss of income claim was similarly not proven. [61] I see no error in the judge's alternative findings regarding damages. Conclusion [62] The judge's conclusions allowing the claim by Tri‑X to be paid for the work it did on the Mormans' property, and rejecting the counterclaim by the Mormans, were based on the judge's findings of fact in weighing the evidence. It is not the role of the Court of Appeal to substitute its view of the evidence for that of the trial judge. No appealable error has been shown and I would dismiss the appeal. [63] ABRIOUX J.A.: I agree. [64] DEWITT-VAN OOSTEN J.A.: I agree. [65] GRIFFIN J.A.: The appeal is dismissed. "The Honourable Madam Justice Griffin"