Ontario Superior Court of Justice. Small Claims Court Goderich, Ontario. - and - Bill Steenstra

Transcription

1 Court File No. 231/08 Ontario Superior Court of Justice Small Claims Court Goderich, Ontario Between: Hydro One Networks Inc. - and - Bill Steenstra Heard: April 21, June 4 and August 30, 2010 Judgment: November 23, 2010 Plaintiff Defendant Representation: Thomas Schoenleber, Agent for the Plaintiff Karl McNamara, Lawyer for the Defendant Overview: Reasons for Judgment The Defendant, Bill Steenstra, owned a house that he wanted moved from one lot in the Town of Clinton, in the Municipality of Central Huron, to another lot in the Town of Clinton. Mr. Steenstra hired the Plaintiff, Hydro One Networks Inc. (herein referred to as Hydro One ) to provide an escort service because there were hydro lines which needed to be moved along the route. Hydro One provided an estimate to Mr. Steenstra of what the escort service would cost. After the move was completed, Hydro One gave Mr. Steenstra a bill for the actual cost. The difference between the estimate and the final bill is what this lawsuit is about. Facts: The amount in dispute is $ 6, Over the course of 3 days of trial, the court heard from 5 witnesses, 3 on behalf of Hydro One and 2 on behalf of Mr. Steenstra. The following facts are not in dispute: 1. Before giving Mr. Steenstra an estimate, Hydro One had Mr. Steenstra sign an Oversized/House/Vessel Move Document (herein referred to as the Move Document ). The relevant parts of that document are as follows:

2 2 2.0 Estimated Cost The initial estimate is free of charge. Should a Hydro One escort be required, your payment for the escort will be based on actual Hydro One charges incurred. The estimate is +/- 50% of actual costs. 4.1 Cost Overruns In the event that a move does not evolve as anticipated, resulting in cost overruns, the [Hydro One] Supervisor shall advise the mover of additional costs. The mover shall be responsible to pass that information along to other relevant parties. 2. The Move Document required Mr. Steenstra to provide certain information about the building to be moved as well as a map of the route, which he did provide. 3. Paragraph 8.0 of the Move Document had provision for including a Start Date/Time. In the document which Mr. Steenstra completed and signed, the Start Date/Time was left blank. On the page giving the proposed route, Mr. Steenstra wrote Move date (ASAP), meaning as soon as possible. 4. Hydro One gave Mr. Steenstra its estimate dated November 1, 2006 on a form entitled Requestor Approval to Proceed. The relevant parts of it are as follows: The estimated cost for Hydro One to assist with the escort for your move is $17, Payment equal to 50% of this cost is due prior to the move proceeding. The amount owing to Hydro One at this time is $ 8745 including G.S.T. Your final bill will be based on Hydro One s actual costs incurred to complete the move. Estimate Prep and clean up, one truck two men 16 hours x $250 per hr = $ Day of move, Four trucks, eight men, 4 x 8 hr x $250 per hr = $ Day of move, one man and pickup, 8 hr x $100 per hr = $ Temporary anchors, = $ Switching and Outage Planning = $ Total = $ When 6 % G.S.T. was added to the $ 16,500.00, the total estimate was $ 17, Mr. Steenstra paid Hydro One the requested $ 8, deposit. 7. The move took place on December 13, Some time after the move was completed, Mr. Steenstra paid Hydro One a further $ 8,

3 3 9. Hydro One s actual bill to Mr. Steenstra was in the amount of $ 24,229.31, which was $ 6, more than the estimate (or 38.5% more). 10. Hydro One s Supervisor never told Mr. Steenstra s mover on the day of the move, or on any day thereafter, about any additional costs (as contemplated in paragraph 4.1 of the Move Document). 11. In fact, no one from Hydro One told Mr. Steenstra or his mover on the day of the move or at any reasonable time thereafter about any cost overruns. 12. The Ontario Provincial Police provided police escort for this move. 13. Mr. Steenstra s mover did not do anything to cause any delays. In fact, the Hydro One Supervisor who oversaw the Hydro One crews on the day of the move testified that the mover did a good job. There was conflicting evidence about what time Hydro One s employees were to be prepared to start the move. There was also conflicting evidence given about delays that may or may not have occurred on the day of the move. In his submissions, Mr. Schoenleber stated that Hydro One did not have to justify its actual bill because Hydro One s actual costs were within the +/- 50% of the estimate (as referred to in paragraph 2.0 of the Move Document). Then Mr. Schoenleber went on to submit that Hydro One had given evidence as to why the final bill was 38.5% more than the estimate. To determine if that submission is accurate, we need to look at the evidence. I want to first refer to the evidence of Mr. Michael Leitch, the Area Distribution Engineering Technician for Hydro One. He was the last witness to give evidence in the trial. In fact, he was actually called as a Reply witness, after the Defendant had called all of his witnesses. Considering the totality of Mr. Leitch s evidence, he should have been called as part of the main case of the Plaintiff, instead of leaving him until after the Defendant had testified. Some of the relevant portions of Mr. Leitch s evidence are as follows: 1. He works out of the Clinton office, and hence is very familiar with the area. 2. He is the one who had the direct dealings with Mr. Steenstra. 3. He prepared the written estimate. 4. He said if things went well, the estimate should be pretty close. 5. His estimate contemplated that Hydro One s employees would be required from 7 am until 4 pm on the day of the move.

4 4 6. The estimate also took into account the work that would have to be done on the day before the move and on the day after the move. 7. His estimate allowed for a 1 hour lunch break for all of Hydro One s employees for which Mr. Steenstra would not be charged. 8. His involvement with Mr. Steenstra ended before the day of the move, and, accordingly, he was not on site the day of the move. 9. Every work order that he receives for use in preparing an estimate has a start time. 10. He had no idea where the work order for this move was. (In fact, no one was able to produce it during the trial.) 11. He confirmed that he was not aware of any document in this file that showed the time the move was to start. 12. His estimate was based on the following: a) 4 trucks; b) 2 men in each truck; c) Michael Henderson would act as the Supervisor; d) 1 truck for Mr. Henderson; e) 8 hours of work for each man, being 7 am until 4 pm, with 1 hour for lunch; f) 8 hours of preparatory work on the day before the move; g) 8 hours of work on the day after the move to put everything back; h) The cost of some material. 13. His written estimate was given to Mr. Steenstra in advance of the move. 14. His estimate included time for the Supervisor, Mr. Henderson, to meet with his crews at the Hydro One yard before travelling to where the crews would meet up with the house. 15. His estimate was based on 5 crews (including Mr. Henderson, the Supervisor, as one of those crews). Next I want to refer to the evidence of Michael Henderson, the Hydro One Supervisor who supervised the Steenstra move. Some of the relevant portions of Mr. Henderson s evidence are as follows:

5 5 1. He was given a house move folder for the Steenstra move in advance of the move. That folder contained details of the move, including the start time for the move. 2. He did not know where that house move folder is. (In fact, no one was able to produce the folder during the trial.) 3. Under cross-examination, Mr. Henderson said he could not remember if the folder had a specific start time in it. 4. His meeting with his crews took place at Hydro One s yard around 7 am on the morning of the move. 5. He and his crews then travelled to where they were to meet the house. 6. He and his crews arrived before 8 am at the designated location where they were to meet the house. (He was unable to give an exact time of when they arrived there.) 7. He said a total of 7 crews took part in the move (including himself as one of the crews). 8. He said that this should have been an ordinary routine move. 9. Then he went on to provide details of 4 delays that he says occurred throughout the day of the move. 10. He said that all of the Hydro One crews were back in the yard of Hydro One by 4 pm on December 13, He confirmed that Hydro One employees did not do any work after 4 pm on December 13 th related to the Steenstra move. 12. He confirmed that the work done on the day after the move was included in the original estimate. 13. He identified a sheet entitled Details of Charges. 14. He also indentified a sheet entitled Details of Delayed Charges. The Defendant, Bill Steenstra, testified on his own behalf. Some of the relevant portions of Mr. Steenstra s evidence are as follows: 1. He hired Murray Abra and his company, Continental Building Movers Ltd., to move the house. 2. Prior to the house move, the only person at Hydro One with whom he had contact was Mr. Leitch. 3. He filled in the blanks on the Move Document and signed it.

6 6 4. He received the estimate from Hydro One in the amount of $ 16, G.S.T., for a total of $ 17, He accompanied the house the entire route on the day of the move. 6. He said the move went smoothly. 7. He said the move was done by 3:30 pm on December 13, He said that Hydro One s part on the day of the move was finished before 3 pm. 9. Approximately one month after the move, he received an invoice from Hydro One saying that he still owed $ 8, (This invoice was not produced at the trial.) 10. He contacted Hydro One and said that there must be a mistake. He told Hydro One that he was all paid up. (He had paid the initial deposit of $ 8, before the move and had paid a further $ 8, after the move, the total of these 2 payments equalling the amount of the estimate that he had received from Hydro One prior to the move.) 11. He did not hear from Hydro One again until approximately the end of February That is when he received a letter from Hydro One saying that he still owed approximately $ 6,500.00, with no reason or explanation given. (Again, this letter was not produced at the trial.) 12. Sometime on or after May 24, 2007, Mr. Steenstra received an Invoice numbered dated May 24, This invoice showed a balance owing of $ 15, It neglected to give Mr. Steenstra credit for the $ 8, that he has paid after the move. 13. It was not until August 2009 that Mr. Steentra (through his lawyer) received a letter dated August 28, 2009 from Hydro One. (I note that this lawsuit was commenced by Hydro One on December 10, 2008.) 14. The August 28, 2009 letter stated in part as follows: a) Further to your request at the last Settlement Conference, I have received a document, attached, detailing the portion of Invoice No which can be attributed to delays. b) Please note that Mr. Steenstra was billed for the move from 7:00am 4:00pm, which includes travel time to and from the site. c) The amount that Mr. Steenstra was charged in excess of the estimated amount is attributable to the foregoing. 15. The document which was attached to the letter dated August 28, 2009 is the one which is entitled Details of Delayed Charges.

7 7 Mr. Murray Abra gave evidence during the trial. Some of the relevant portions of his evidence are as follows: 1. He owns Continental Building Movers Ltd. 2. He has been moving structures, including houses, for over 30 years. 3. He had Mr. Steenstra make the arrangements with Hydro One. 4. Mr. Abra arranged for the escort by the Ontario Provincial Police (herein referred to as the OPP ). 5. The letter that he received from the OPP dated December 6, 2006 was filed as Exhibit On the day of the move, he drove the truck which transported the house. 7. The Steenstra move was a standard, normal move that went fine without any problems. 8. The move was done by 4 pm. 9. The OPP were on site from 9 am until 3:30 pm (which would be the same hours that Hydro One was required to be present). 10. He paid each of the 2 OPP officers who drove the escort cruisers for 6.6 hours of their time. This is evidenced by Exhibit 3, page He paid the OPP for 13 hours for 2 cruisers, being 6.5 hours for each cruiser. This is evidenced by Exhibit 3, page 1. Analysis: As I have already said, Mr. Schoenleber submitted that Hydro One did not have to justify its final bill because its actual costs were within the +/- 50% of the estimate (as referred to in paragraph 2.0 of the Move Document). I respectfully disagree with that submission. I find that even though the final bill was only 38.5% more than the estimate (and clearly within the +/- 50% ), Hydro One still has to prove: 1. What its actual costs were; and 2. If those actual costs varied from the estimate given, what caused the variance. There was no evidence at all to indicate that anything that happened before or after the day of the move caused the increase between the estimate and the final bill. A great deal of time was spent during the trial hearing about: a) What time the Hydro One crews were to show up on the day of the move; and

8 8 b) What delays there were on the day of the move. It is clear from the evidence of the witnesses referred to above, and I find: 1. The estimate provided by Hydro One contemplated that the time required for the move on the day of the move was a maximum of 8 hours, being from 7 am until 4 pm, with 1 hour for lunch. 2. The times on the day of the move did not exceed the times used in the estimate that Hydro One gave to Mr. Steenstra. 3. There were no additional time requirements for Hydro One on either the day before or the day after the move outside of those contemplated by the estimate which Hydro One provided. Therefore, what time the Hydro One crews were to meet the house and what delays there were on the day of the move are irrelevant to this case. The only other evidence that was offered by Hydro One to support the variance between the estimate and the final bill was: 1. The letter from Hydro One dated August 28, The document entitled Details of Delayed Charges. 3. The document entitled Details of Charges. The Hydro One letter of August 28, 2009 contains the following comment: The amount that Mr. Steenstra was charged in excess of the estimated amount is attributable to the foregoing. Before that comment is made in the letter, Hydro One refers to the Details of Delayed Charges document and to the fact that Mr. Steenstra was billed for the move from 7:00am 4:00pm, which includes travel time to and from the site. As I have already found, the estimate that Hydro One submitted to Mr. Steenstra already contemplated Hydro One starting work at 7 am and finishing at 4 pm. So therefore, the August 28 th letter must be referring to the document entitled Details of Delayed Charges. Again, as I have already found, any delays that occurred on the day of the move took place between 7 am and 4 pm. Therefore, I do not know how those delays could cause the difference between the estimate and the final bill. As I examine the documents entitled Details of Delayed Charges and Details of Charges and compare them to the written Estimate, I note the following: 1. The estimate expected that on the day of the move there would be a total of 5 crews for a total of 9 men.

9 2. In reality 7 crews were used on the day of the move, for a total of 11 men. 3. The estimate expected that there would be 5 trucks used on the day of the move. 4. In reality 7 trucks were used on the day of the move Regular hours ranging from 6 hours for 1 man, 8 hours for each of 4 men, 10 hours for another man, 12 hours for another, 18 hours for another, 20 hours for each of 2 men, and 22 hours for 1 man were charged to Mr. Steenstra. 6. Thus, a total of 140 regular hours were actually charged to Mr. Steenstra, whereas the estimate contemplated a total of 104 hours hour of overtime for each of the 11 men, for a total of 11 hours, was charged to Mr. Steenstra, whereas the estimate did not contemplate any overtime hours. 8. The estimate provided for all but one of the men being charged out at the rate of $ per hour. That remaining man was charged out at the rate of $ per hour. 9. The regular hours of 2 of the men were actually charged at a rate of $ per hour. 10. The regular hours of 8 of the men were charged at a rate of $ per hour. 11. The regular hours of the remaining man, being the Supervisor, were charged at a rate of $ per hour. 12. The overtime hours of the men were charged at a rates varying from a low of $ per hour to a high of $ per hour. 13. The Temporary anchors and Switching and Outage Planning in the estimate accounted for $ 3, (plus G.S.T. on that amount). 14. While the Details of Charges does not refer to Temporary anchors and Switching and Outage Planning, it does refer to a charge of $ 5, (plus G.S.T.) for Transport and Work Equipment. 15. There are charges for Markup of 5% and Corporate Overhead of 17% referred to in the Details of Charges. 16. The estimate does not make any reference to either Markup or Corporate Overhead. There was no evidence whatsoever presented at the trial to indicate: 1. Why 7 crews and 7 trucks were used, instead of 5 crews and 5 trucks. 2. Why the total regular hours exceeded the estimated hours by 36 hours. 3. Why there was any need for overtime hours.

10 10 4. Why the hourly rates for the men were different from the hourly rates in the estimate. 5. What the Transport and Work Equipment was and whether it was connected in any way with Temporary anchors and Switching and Outage Planning. 6. Why a markup was being charged, when it was not referred to in the estimate. 7. Why there was a charge for Corporate Overhead, when it was not referred to in the estimate. With the exception of some possible delays throughout the day of the move (which did not extend the work day past that contemplated by the estimate), the evidence clearly indicated that this was a regular straightforward move. Paragraph 4.1 of the Move Document clearly stipulates that In the event that the move does not evolve as anticipated, resulting in cost overruns, the Supervisor [of Hydro One] shall advise the mover of additional costs. No one told the mover, Mr. Abra, or Mr. Steenstra about any cost overruns on the day of the move or at any reasonable time thereafter. When Mr. Henderson was shown the Details of Charges document, he initially said: a) It gave the details of the labour and equipment used on this job; and b) To my knowledge, the hours of the employees and the hours of the equipment are correct. But later in his evidence, Mr. Henderson said that he had not seen the Details of Charges document before the day that he was testifying. Still later in his evidence Mr. Henderson said that he did not know if the information that he gave to Mr. Rob Vader, another Hydro One employee, was transferred correctly. Therefore, how can Mr. Henderson say that what is contained in the Details of Charges is correct? I am not satisfied that the Plaintiff has proven why Mr. Steenstra should pay the difference between the estimate and the final bill that he received from Hydro One when the final bill represents a 38.5% increase over the estimate. In the event that I am wrong about the irrelevance of the start time and the delays on the day of the move, I will make the following comments about those topics: Start Time on Day of Move: 1. Hydro One was adamant that its employees were to start at 7 am and planned to be at the move site by approximately 7:30 am. 2. Mr. Steenstra was equally positive in his evidence that the Hydro One employees were not to be at the move site before 9 am.

11 11 3. In actual fact, the Hydro One crews sat at the move site from 7:30 am until 9 am. The reason for this 1.5 hour delay was because of school buses. 4. Both Mr. Leitch and Mr. Henderson knew that there were 2 high schools and at least 1 elementary school in the immediate vicinity of where Hydro One crews were going to start assisting the move. They also knew that both high schools and perhaps an elementary school would have school buses arriving just before 9 am. 5. When Mr. Leitch did the estimate, he used 7:30 am as the actual time that the Hydro One crews would arrive at the move site. 6. Mr. Leitch was expecting that the mover and the Hydro One crews would clear the area where school buses were coming before the school buses started arriving at 8:30 am. 7. Mr. Leitch denied that 9 am was ever mentioned as the start time from the move site. 8. We don t have the benefit of the work order that Mr. Leitch was given to prepare the estimate. 9. Mr. Abra said that he wanted to wait until the school buses were off the road before he started to move the house down the highway (which is where Hydro One crews would be needed). 10. Therefore, Mr. Abra arranged for the OPP to be at the move site where Hydro One was meeting by 9 am. This is clearly stipulated in the letter that the OPP sent to the mover. 11. Paragraph 8 of the Move Document where it says Start Date/Time is blank. 12. We don t have the benefit of the house move folder that Mr. Henderson was given. In any event, Mr. Henderson could not remember if the folder had a specific start time in it. 13. Mr. Henderson s evidence was that the first he knew about the school bus issue was when he and the Hydro One crews arrived at the site and were told by Mr. Abra that they would have to wait unto after the school buses had gone before starting the move. 14. The burden of proof in a civil trial is on the Plaintiff on a balance of probabilities. 15. Considering all of the evidence, I am not satisfied that Hydro One has proven that its crews were to be at the move site by 7:30 am. 16. But having said that, for reasons given earlier, I find that it is irrelevant whether the crews were to be at the move site by 7:30 am or 9 am. The estimate prepared by Mr. Leitch is based on the crews being at the Hydro One yard by 7 am (which they were). Delays on Day of Move: 1. The evidence given by the witnesses called on behalf of Hydro One purported to outline 4 delays on the day of the move.

12 12 2. Mr. Rob Vader, the Customer Operations Manager for the Clinton Operations Centre of Hydro One, testified that he first became involved in the Steenstra file in late March or early April 2007 because Mr. Steenstra had complained about the amount of the final bill from Hydro One. 3. Mr. Vader confirmed the following: a) He was involved in the preparation of the document entitled Details of Delayed Charges. b) The Details of Delayed Charges was not prepared until approximately July 2009, approximately 2.5 years after the move. c) There was no documentation concerning the delays or the reasons for those delays. d) Mr. Vader talked to some of the men 2.5 years after the move to find out what happened on the day of the move. 4. The first delay mentioned lasted from 7:30 am until 9 am because of the school bus issue mentioned above. 5. I accept the fact that the Hydro One crews had to sit at the move site for 1.5 hours waiting for the school buses to finish passing. 6. But I find, for the reasons given above, that the delay was not the fault of Mr. Steenstra or his mover. Instead, the reason was because Hydro One crews showed up earlier than they should have. 7. The remaining 3 delays were not documented by Hydro One until 2009, some 2.5 years after the move. 8. The second delay that was alleged by Hydro One was from 9:15 until 9:30 am and occurred just east of Clinton. Mr. Henderson said that delay was caused by a tree that needed some more trimming. 9. The third delay that was alleged by Hydro One was from 11 am until 12:30 pm and occurred in front of the cemetery. Mr. Henderson said that delay was caused by some more trees that needed trimming. 10. The fourth and final delay that was alleged by Hydro One was from 1:15 until 1:30 pm and occurred close to School House Road west of Clinton. Mr. Henderson said that delay was caused by another tree that needed some more trimming. 11. Mr. Henderson said that the men likely ate their lunch during one of the delay times. (And we know from Mr. Leitch s evidence that he allowed for a 1-hour lunch break in the estimate for which Mr. Steenstra would not be charged.)

13 Mr. Henderson said that none of the men documented the delays or the times of the delays on the day of the move. 13. Mr. Henderson said that he could not verify that the time lines in the Details of Delayed Charges were accurate. 14. Mr. Henderson admitted that the information in the Details of Delayed Charges was strictly an estimate when Mr. Vader was reconstructing the day 2.5 years after the move. 15. Mr. Steenstra did have a tree trimmer with a bucket truck travel with the convoy on the day of the move. 16. Mr. Steenstra admits that there was a delay for about 1 hour in front of the cemetery delay number 3 referred to above while the tree trimmer did some more trimming. 17. Mr. Steenstra says there may have been a 5 minute delay around the School House Road delay number 4 referred to above. 18. Mr. Steenstra denies that there were any other delays. 19. Therefore, the only delay in dispute is delay number 2. But according to Mr. Henderson, it was only 15 minutes long. I find that length of time to be insignificant. 20. As I have already found based on the evidence, the total time for Hydro One on the move day was not any greater than the time that Mr. Leitch used to prepare his estimate. 21. Therefore, if there had been no delays, it is clear from the evidence that the move would have been completed in less time than was contemplated by the estimate. Result: Hydro One gave Mr. Steenstra an estimate for $ 17, Mr. Steenstra has paid that amount. The difference between what Mr. Steenstra had paid and the amount being claimed in this lawsuit is $ 6,739.31, which is the difference between the estimate and the final bill. I acknowledge that the difference is within the +/- 50% range referred to in the estimate. However, for the reasons that I have stated above, I am not satisfied that Hydro One has proven on a balance of probabilities that it is entitled to collect that additional amount. Accordingly, the Plaintiff s Claim is dismissed. Costs: I do not know what written Offers to Settle were made. Therefore, I will delay making a ruling on costs until after I receive further submissions. Hopefully the parties can agree on the costs of this trial without further intervention by me.

14 14 However, if they cannot, each of them may provide me with copies of any written Offers to Settle and make brief written submissions (no more than 3 pages in length), within 30 days of the release of these Reasons. Prior to providing the written submissions to me, I want the parties to exchange their submissions with each other. If I am asked to rule on costs in this action, I will be considering the following: 1. The fact that this trial consumed the better part of 3 days; 2. Any written Offers to Settle as provided for in Rule 14; 3. The fact that the letter and attached document entitled Details of Delayed Charges which were marked as Exhibit 2 were not produced until after the Settlement Conference (which was held 8 months after this lawsuit was commenced and more than 2.5 years after the move); 4. The fact that a great deal of trial time was consumed by evidence concerning the irrelevant issues of what time the Hydro One crews were to show up and what delays there were on the day of the move; 5. The fact that Mr. Leitch was called by Hydro One to testify as a witness after the Defence had completed its case. (If he had been the first witness to testify, the trial may have been shortened because it may have become clearer to everyone sooner that the start time and the delays were irrelevant). 6. Rule In making the above comments, I do not want anyone to think that I am putting all of the blame on Mr. Schoenleber for the undue length of the trial. He did not have charge of this file until after the Settlement Conference was held. I also do not know what his instructions were from Hydro One about calling Mr. Leitch as a witness. Norman B. Pickell, Deputy Judge