Repairs in the Normal Course of Business

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	1924
Page Categories:	[Tort Law], [Contract Law]
Citation:	Repairs in the Normal Course of Business, CLNP 1924, <7K>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2022/05/31

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Kitchener-Wilmot Hydro Inc v Sturm, 2014 CanLII 1847 (ON SCSM)

1. On September 14, 2012, the defendant drove her car into a hydro pole owned by the plaintiff and it sues her for the cost of replacing it. The court reserved judgment for further consideration of the damages issues. For the following reasons, the plaintiff’s claim is allowed in part and judgment is granted in the amount of $6,084.82, plus interest.

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13. There are a handful of cases dealing with whether and to what extent overhead costs may be claimed as damages in a negligence case. Before reviewing those, it is useful to start with first principles.

14. The relevant measure of damages in tort is the restitutio in integrum principle, which requires the court to place the plaintiff, insofar as possible, in the position it would have been in had the tort not been committed: Barber v. Vrozos (2010), 2010 ONCA 570 (CanLII), 269 O.A.C. 108 (C.A.), at para. 86. The plaintiff must prove causation of damages based on the “but for” test - in other words it must prove that the damages would have occurred but for the defendant’s negligence: Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333 at para. 21-23.

15. Damages may be assessed through estimation if a reasoned estimation is possible based on the evidence: Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 41 O.R. (3d) 161 (C.A.), leave to appeal denied [1998] S.C.C.A. No. 516.

16. Turning from the general to more specific authorities, the plaintiff cited a single case: Guelph (City) Light & Heat Commissioners v. United Dairy & Poultry Co-operative Ltd., 1966 CanLII 192 (ON SC), [1966] 2 O.R. 467 (Co. Ct.), affirmed [1966] 2 O.R. 469n (C.A.). The defendant drove a truck into a power bank and the plaintiff sued for the cost of repair in the amount of $813. Of that sum, $279 was for emergency work to restore power and was not disputed. The dispute was over the balance of about $500 for replacement of two hydro poles which were about half-way through their expected useful lives when damaged. The plaintiff conceded a depreciation allowance on the replacement poles and materials but not on the labour component of the cost of repairs it effected using its own forces.

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20. In this matter, the plaintiff generated an “Invoice” for the charges claimed from Ms. Sturm (Exhibit 1, Tab 2). In fact and in law it is not an invoice at all but simply a request or demand for payment. Its designation as an invoice is materially misleading. But it contains a basic breakdown of the plaintiff’s claim for $10,270.62.

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33. I have no hesitation in dismissing the claim for an “Administration Fee.” On a balance of probabilities it is not proved that any of those items are costs that would not have been incurred but for this accident. On the contrary, the office functions involved would have been paid for in any event as part of the plaintiff’s normal business operations. For example, the plaintiff did not pay anything extra to the employee who picked up the phone to be told by the police about the damaged hydro pole.

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34. Turning to the materials component of the claim, I allow those items in full, consisting of the materials amount of $920.42 as reduced by the depreciation allowance of $518.10. The net amount is $402.32. I reject the defendant’s contention that the damaged pole was already rotten.

35. I allow the amount paid to Badger to clean out the hole, in the amount of $850.

36. Turning to the truck expense, the amount claimed is $845.97 (Exhibit 1, Tab 6A, second page). The hours appear accurate based on the evidence. I disallow 2 of the hours for the third line truck because that was the night crew which the evidence indicates was in place, regardless of this specific call, until 11 p.m. Those two hours resulted in no cost to the plaintiff that would not have been incurred but for this accident. The other hours do represent an extra cost caused by the defendant because they were after the plaintiff’s regular hours of operation. The total hours allowed is 29.5.