Woolcott v. Rocheleau, 2010 CarswellOnt 4345.

Woolcott v. Rocheleau


Leslie Ann Woolcott and Theodore Anthony Rocheleau and Jo-Ann Marie Rocheleau


Ontario Superior Court of Justice


Stephen Bale D.J.


Heard: April 16, 2010

Judgment: April 23, 2010

Docket: Peterborough 352/09


© Thomson Reuters Canada Limited or its Licensors. All rights reserved.


Counsel: Leslie Woolcott, for Herself


Theodore Rocheleau, Jo-Ann Rocheleau, for themselves


Subject: Restitution; Contracts


Restitution and unjust enrichment --- Benefits conferred under ineffective transactions — Mistake, misunderstanding and uncertainty — Remuneration.


Rules considered:


Small Claims Court Rules, O. Reg. 258/98


R. 18.02 — referred to


Stephen Bale D.J.:




1        The plaintiff owns and resides at 208 Dublin Street, Peterborough. The property next door, at 206 Dublin Street, is owned by the defendants and occupied by their daughters. The defendants reside at Kingsville, Ontario, about a six-hour drive from Peterborough. The properties at 206 and 208 Dublin are served by a mutual driveway. Prior to the events in question in this action, no maintenance work had been done on the driveway since at least the year 2000 when the plaintiff purchased her property.


2        In early January of 2009, the plaintiff e-mailed the defendants informing them that the mutual driveway could "use some grading and a load of limestone spread over it to avoid further erosion and keep it in reasonable shape" and that preliminary estimates suggested that the total cost of the required maintenance would be about $1,000. In response, the defendants e-mailed the plaintiff stating that they were considering putting the house up for sale but that "if [they] still [had] the house come summer, [they] would consider for sure going halfer on the stone."


3        In early May of 2009, the plaintiff e-mailed the defendants informing them that she was hoping to get the work started, was in the process of obtaining a quotation and that it looked like it would be between $500 and $800 for each property owner. In response, the defendants e-mailed the plaintiff stating that they were going to "decline in doing any work towards the drive way and that total of the estimated cost to do the driveway", that they were going to reduce the listing price of their property and that they hoped that the new owners "will be more than happy in getting the driveway redone."


4        In late May of 2009, the plaintiff spoke with the defendants by telephone. She suggested to them that the driveway work would facilitate the sale of their property and offered to wait until they had sold the property to receive reimbursement for their share of the costs. By this time, she had entered into a contract for the work with Baker Masonry at a contract price of $1,500. The defendants asked that the plaintiff provide them with a copy of the contract and said that they would discuss it and get back to her within a week's time. The plaintiff did provide a copy of the contract to the defendants but received no response. Notwithstanding such lack of response, the plaintiff proceeded to have the work done and now brings this action to recover the sum of $787.50, being one-half of the amount paid by her to Baker.


Positions of the parties


5        The plaintiff's position is that the work done was reasonably necessary, that the amount paid was reasonable and that accordingly, the defendants should be held liable to reimburse her for one-half of the amount paid.


6        The defendants' position is that the work done and the cost of the work were excessive, that the work was necessitated by the fact that one of the plaintiff's downspouts drained onto the driveway causing the surface to erode, that they had not authorized the work to be done and that accordingly, they should not be held liable to reimburse the plaintiff.




7        The plaintiff and defendants are entitled to the equal use and benefit of the driveway and are equally responsible for its maintenance. Accordingly, while I understand the defendants' objection to paying for work done without their authorization, the plaintiff is entitled to reimbursement for one-half of the cost of the work, unless:


• the work done was not reasonably necessary;


• the amount charged for the work was unreasonable; or


• the work was necessitated by the fault of the plaintiff.


8        In his evidence, Mr. Rocheleau admitted that the driveway had "ruts and grooves" but said that vehicles didn't "bottom out". He said that he could see the necessity of a load of gravel but thought that the tamping that had been done was excessive and that a reasonable amount for his share of the work would have been about $400. He also said that he thought that most of the erosion had been caused by water running onto the driveway from the plaintiff's downspout. However, it was also apparent throughout the defendants' evidence and final argument that what bothered them most about the case was that the plaintiff had gone ahead with the work without their authorization. They were, at that time, concerned about their financial situation because of the bankruptcy of Chrysler and Mr. Rocheleau's recent heard surgery.


9        In support of her position, the plaintiff filed statements from Gord Baker of Baker Masonry and Steve Kidd of Steve Kidd Excavating. Copies of these statements had been served on the defendants in September of 2009 and were therefore admissible pursuant to rule 18.02 of the Small Claims Court Rules notwithstanding that neither of the authors was called as a witness at trial.


10        In his statement, Mr. Baker reviewed the work done and the reasons why it had become necessary. In his opinion, although water running onto the driveway from the plantiff's downspout was a contributing factor, so too was water running onto the driveway from the defendants' property. It was also his opinion that the water run-off from the two properties was a minor factor and that other contributing factors would have necessitated the work in any event. The statement from Mr. Kidd was to the same effect.




11        Given that Mr. Rocheleau was only at the property infrequently (he said that he had been there once in 2007 and thought that he had been there in 2008 but couldn't remember when) and that there was no evidence that he has any particular expertise in driveway maintenance, I accept the statements of Messrs Baker and Kidd to the effect that the work done was necessary and was necessitated by factors other than water running from the plaintiff's downspout. Furthermore, as there was no evidence from which I could conclude that the work could or should have been done for less than the amount charged by Baker, I am satisfied that the amount paid by the plaintiff was reasonable for the work done.


12        In these circumstances, the plaintiff will have judgment against the defendants for $787.50, together with prejudgment interest of $28.70 for a total of $816.20.


13        As the successful party, the plaintiff is also entitled to costs. I allow the plaintiff $175 for disbursements (court fees paid to issue the claim and list the action for trial), $50 for the preparation and filing of her claim and $50 as compensation for inconvenience and expense, for a total of $275, such costs to be paid by the defendants to the plaintiff forthwith.


Provided by WestLaw/eCarswell and retrieved on November 18, 2010. 

Contingency based collection means that payment for our work is contingent upon our success. If we are unsuccessful in our attempts to collect, you pay no fee.


Thank you so much for your help. You've made what could have been a stressful and frustrating experience less and almost enjoyable.

- Dawn K.