Executive Summary: Key Legal and Evidentiary Issues

• The court considered whether an enforceable verbal agreement existed between Mr. Falls and Dig Zach despite the absence of written documentation.
   
• Dig Zach's failure to appear at trial required the court to assess liability based solely on Mr. Falls' evidence and corroborating exhibits.
   
• Expert arborist testimony established the extent and monetary valuation of long-term damage to a mature bur oak tree.
   
• Photographic and documentary evidence corroborated claims that the construction work fell short of the agreed specifications.
   
• Negligence claims addressed property damage caused by heavy machinery, including a garage door, two boulevard trees, and stone skirting.
   
• Damages were calculated separately for breach of contract and negligence before being combined into a single award.
   

Facts of the case

Gregory Hugh Falls hired 1791524 Alberta Ltd., operating as Dig Zach Earthworks Ltd. ("Dig Zach"), to perform concrete, excavation, and landscaping work on his Edmonton property in 2017. The parties initially agreed, verbally, to a $21,000 all-inclusive scope covering garage demolition and reconstruction, concrete pad and sidewalk replacement, a new RV pad, and landscaping. After Mr. Falls was denied a construction permit for the garage, the scope was revised to exclude the garage work, and the price was reduced to $10,500. Dig Zach, operated by Ziad Elkadri, began work in June 2017 but left much of it incomplete or deficient: the RV pad was never poured, sidewalks stopped abruptly and lacked proper rebar placement, side wings and a front pad were never poured, debris was left on site, and landscaping was limited to soil removal. During the work, a bobcat operated by Dig Zach struck and damaged Mr. Falls' garage door, his home's stone skirting, a bur oak tree on his property, and two City-owned boulevard trees. Mr. Falls hired Next Level Concrete to complete the outstanding concrete work and completed the landscaping himself with the help of family and friends. Dig Zach's legal counsel withdrew in 2022, the company was later struck from the corporate registry for failing to file annual returns, and it did not participate further in the litigation or appear at the December 2025 trial.

Policy and legislative provisions at issue

The court applied section 227(2) of the Business Corporations Act, R.S.A. 2000, c. B-9, which permits a civil action commenced against a corporation before its dissolution to continue as though the corporation had not been dissolved, allowing the trial to proceed despite Dig Zach's corporate status. On the contract claim, the court applied the principle that oral contracts are enforceable without writing except where a statute or the Statute of Frauds requires otherwise, and that enforcement requires proof of offer, acceptance, and certainty of essential terms. Construction contracts carry an implied condition that work be performed in a good and workmanlike manner. On the negligence claim, the court applied the standard elements: a duty of care, breach of that duty, compensable damage, and causation.

Reasoning and analysis

The court found Mr. Falls to be an entirely credible witness, with his account corroborated by photographs, text messages, and the defendant's own Statement of Defence, which acknowledged an agreement despite differing on some terms. The court accepted Mr. Falls' version of the agreement, including the $10,500 price and the specific scope of work, as the "Amended Agreement." On breach of contract, the court held that expert evidence was not required where deficiencies were obvious, citing Turano's Home Improvement Ltd v Stern, 2018 ONSC 201, and Thorburn v McDiarmid Homes Ltd., 2009 ABPC 259. It found Dig Zach breached the agreement by failing to properly construct the RV pad, failing to pour the sidewalks to the agreed height and completeness, failing to remove debris, and failing to complete landscaping. On negligence, the court found Dig Zach owed and breached a duty not to damage Mr. Falls' property, relying on Mr. Elkadri's admissions during questioning and photographic evidence to conclude that the bobcat caused the damage to the garage door, the bur oak tree, the boulevard trees, and the stone skirting. Expert evidence from arborist Milton Davies, based on multiple site inspections between 2017 and 2025, established that the bur oak's structural and feeder root systems were damaged, causing measurable long-term decline in the tree's health and asset value using the Trunk Formula Method.

Ruling and overall outcome

The court found Dig Zach liable to Mr. Falls for both breach of contract and negligence. On the contract claim, it calculated Mr. Falls' out-of-pocket losses at $20,734.06, less the $10,500 he would have paid had the contract been properly performed, yielding damages of $10,234.06. On the negligence claim, the court awarded $26,523.11, comprising tree-care expenses, the assessed loss in the bur oak's asset value, garage door and stone skirting replacement quotes, and future pruning costs. In total, Dig Zach was ordered to pay Mr. Falls $36,757.17 in damages, plus costs of $18,177.37, with interest payable under the Judgment Interest Act. Mr. Falls was the successful party throughout.