Executive Summary: Key Legal and Evidentiary Issues

• Court found the construction work did not meet the implied contractual standard of good and workmanlike manner.

• Written statements from tradespeople were ruled inadmissible as expert evidence due to lack of authentication.

• Photographic evidence provided sufficient basis to find significant workmanship deficiencies without expert testimony.

• Claimant was awarded the maximum recoverable damages of $20,000 under the Small Claims Act.

• Contractor’s counterclaim for unpaid invoice was dismissed due to breach of workmanship obligations.

• Costs and post-judgment interest awarded to the claimant under the applicable small claims regulations.

Facts of the case

Riley Robichaud hired Kaye’s Clean Cut Landscaping Inc. to install hardwood flooring and bathroom and shower tiles in his newly built residential property. The agreed cost for labour was $4,675.79, with Mr. Robichaud responsible for purchasing the materials separately. The project began in January 2021, but soon after, Mr. Robichaud raised concerns about the quality of workmanship, including rough cuts around door frames, jagged flooring edges, uneven grout lines, and poorly aligned tiles. Dissatisfied with the progress and quality, Mr. Robichaud asked Kaye’s to leave the premises. At that point, two payments had been made totaling $3,740.00, and an additional invoice for $1,400.79 remained unpaid.

Following the termination of the contract, Mr. Robichaud hired new contractors to remove and replace the hardwood floors and tiles at a cost of $26,223.22. He pursued a claim seeking damages limited to $20,000 due to the statutory cap under the New Brunswick Small Claims Act. Kaye’s counterclaimed for the unpaid invoice. The matter was heard on appeal before the Court of King’s Bench following the Small Claims Court’s decision.

Outcome of the case

The Court ruled that the construction work performed by Kaye’s did not meet the contractual obligation to complete work in a good and workmanlike manner, a standard implied in every construction contract. The Court rejected Mr. Robichaud’s unsworn typewritten expert statements and hearsay evidence, but relied on photographic evidence to confirm substantial defects visible to the naked eye. The deficiencies included rough cuts, uneven transitions, poor tile alignment, and excessive grout use, collectively constituting significant workmanship failures. The Court found Mr. Robichaud’s decision to replace the work entirely was reasonable given the extent of the problems. Mr. Robichaud was awarded $20,000, the maximum allowed under the Small Claims Act, along with $175 in filing and service costs. The Court also denied Kaye’s counterclaim for the unpaid invoice and ordered post-judgment interest at the statutory rate of 7% per annum.