Burnside and Woodside
Claims of unpaid bills dog Woodside company
GreenGym founders Guy Chaham (above) and Deb Merry are working with MyFitCity supporters Maritime Heart Centre, Stepping Up Halifax and Recreation Nova Scotia – among others – to make Halifax the ‘most fit city in Canada’ via the installation of 40 outdoor fitness parks.
Editor's Note: In the February issue of The Burnside News, we took a look at what's going on in the Woodside Industrial Park. This included a short article on some of the recent accomplishments of GreenGym, producer of outdoor fitness equipment. After the story ran, we received multiple calls informing us our article didn't tell the whole story on GreenGym and asking us to dig a little deeper. The article below is the result of our efforts to respond to these reader requests.
Dave Valley is not happy.
"I'm pissed off, dejected, sad," says the co-owner of Precision Powder Coating Inc., located on Simmonds Drive.
The source of his frustrations is an ongoing legal dispute with GreenGym Inc., a manufacturer of outdoor fitness equipment, concerning 20 unpaid invoices which total $48,697.92.
"I do an honest day's work and I expect to be honestly paid," Valley says. "I shouldn't have to take you to court, you know what I mean?"
Precision isn't the only company having problems getting paid by GreenGym. Metalium Inc. of Moncton recently settled a suit with GreenGym, while TG Welding & Fabrication Limited secured a judgement against the company in Nova Scotia small claims court. Canadian Maritime Engineering Limited has a small claims court case pending later this month.
Efforts to receive comment from GreenGym for this story were not responded to.
The biggest court action to date is the one by Precision. On November 17, 2011, Precision filed a lawsuit with the Nova Scotia Supreme Court. In its statement of claim, Precision says, "GreenGym.ca owes money to Precision for a debt resulting from the provision of labour and materials by Precision to GreenGym.ca for the powder coating of exercise equipment."
The unpaid invoices in question range in date from November 25, 2010 to September 8, 2011.
The lawsuit is asking for the principal amount of $48,697.92, plus four per cent prejudgment interest ($208.26), for a total of $48,906.18. It's also asking for four per cent prejudgment interest "after the date of calculation to the date of judgment," costs and "such other relief as this Honourable Court may award."
None of these allegations have been proven in court.
In its statement of defence, which was filed on December 16, 2011, GreenGym questions the quality of Precision's work.
"The Equipment is intended for outdoor installation and, therefore, must be weatherproof," it says. "At all material times, Precision knew, or ought to have known, the intended purpose of the equipment."
The statement of defence goes on to say that upon installing the equipment in various municipal parks in Nova Scotia, Quebec and British Columbia, "GreenGym became aware of serious issues with the work completed by Precision." These issues included "significant signs of rusting" on the equipment.
"GreenGym states that the work which was completed by Precision was not carried out in a good and workmanlike manner and was defective, deficient, and negligent," says the statement of defence.
As a result, GreenGym says it had to "retain the services of qualified technicians to apply new powder coating to the Equipment."
"GreenGym states that the work completed by Precision is of no value to GreenGym as Precision breached an expressed or implied warranty of good workmanship in the contract and at common law," says the statement. "GreenGym therefore states that no amount is owed to Precision as a consequence of work undertaken or, in the alternative, that if any monies are owed, which is expressly denied, the cost of remediating Precision's deficiencies and the other losses and expenses caused by Precision to GreenGym should be set off against any amount found owing to Precision by GreenGym."
GreenGym then asks the court to dismiss Precision's actions, with costs. Once again, these allegations have yet to be proven in court.
GreenGym also filed a statement of counterclaim at the same time, alleging that "It has suffered general and special damages as a result of deficient and negligent work undertaken by Precision." In the counterclaim, Green Gym asks for special damages in an amount to be determined before trial (including the cost to "remediate Precision's deficient work"), general damages (including damages for loss of reputation), prejudgment interest, costs of the defence and counterclaim, and "Such further and other relief as the Honourable Court deems just."
These allegations have yet to be proven in court.
Precision has filed a statement of defence to the counterclaim, which states "it did not expressly guarantee or warrant that the powder coated equipment would not rust or suffer from any other defects." It also says that at no time did GreenGym complain about the "quality or the fitness" of the powder coated products or that "Precision did not provide services in a skilled and workmanlike manner."
Precision says that GreenGym was responsible for ensuring the equipment was properly sandblasted prior to powder coating.
"Precision further states that on various occasions, GreenGym.ca brought in equipment to be powder coated that was not properly sandblasted, and Precision refused to powder coat the equipment until it was properly sandblasted," says the document.
It goes on to say Precision refused to powder coat the equipment on some occasions and that Guy Chaham, the president and owner of GreenGym, "demanded that Precision proceed with the powder coating, even though the Equipment was not properly sandblasted."
"Precision further states that they made GreenGym.ca aware that if the Equipment was not properly sandblasted prior to the powder coating, then the powder coating might not properly adhere to the Equipment," says the document.
It also says the work completed by Precision "was carried out in a good and workmanlike manner and that it was not defective, deficient and/or negligent."
Precision says the powder coating performed did not cause the equipment to rust or suffer from other defects and if the equipment rusted or suffered any other defects, GreenGym was responsible for this because it failed to ensure the equipment was properly sandblasted prior to the powder coating being applied.
Precision has requested the action be dismissed with costs. Again, none of these allegations have been proven in court.
Richard Bureau, the lawyer representing Precision, says his client is looking at the option of a summary judgment application, "which is a process whereby we argue that the defence they filed is frivolous. If you do that, then you can get an instant-type judgment," Bureau says.
The claim involving TG Welding & Fabrication Limited, which filed a claim with Small Claims Court on Jan. 18, 2012, is for $16,019.91 plus interest and costs. In question was the non-payment of 20 invoices.
The matter was heard before Justice David Parker on the evening of Feb. 23. Jack Goldston, the co-owner and CEO of TG Welding, was present, but there were no representative for GreenGym present. Judge Parker ruled in favour of TG Welding in the amount of $17,542.34, which included interest and courts costs.
After the proceeding, Goldston spoke with the Burnside News. He says the money owed was in relation to parts that his company had machined for GreenGym's equipment. Prior to launching the legal action, Goldston says he spoke with Chaham on a regular basis and admits he was surprised he had to take the matter to Small Claims Court.
"Actually, they (the conversations) were always positive," Goldston says. "He was very cordial. He told me what was going on. He seemed very forthright. He told me that things were tight, but he had things in the fire that he thought between, you know, loans and investors and sales, that he'd be able to meet his obligations. So everything was positive, it just dragged on far too long and it got to the point where we couldn't wait any longer or didn't want to wait any longer."
Goldston even left a message for Chaham on the day of the Small Claims Court hearing.
"I just wanted to know if he wanted to settle, rather than come to court," Goldston says. "He was non-responsive."
A third case involving Metalium Inc. of Moncton, a steel distributor, has been settled. It filed a claim with Small Claims Court for $5,664.43 on November 1, 2011, citing six unpaid invoices from July 13 to 21, 2011. In its statement of defence, GreenGym denied Metalium's claims.
"Yes, it's been resolved," says James Green, Metalium's regional manager for Atlantic Canada, but he declined to provide more detailed information.
The other action involves a claim by Canadian Maritime Engineering (CME) Limited, which was filed with the Small Claims Court on Jan. 6, 2012. It's claiming $10,303.35 plus costs in relation to three invoices that weren't paid.
In its statement of claim, CME says it was hired "to sandblast, prime and coat the gym equipment provided by the Defendant in order to make the equipment weather proof for its intended use."
"The Claimant has never received any payment from the Defendant for the work performed, despite repeated requests from the Claimant and the Claimant's legal counsel," says the document.
CME's allegations have not yet been proven in court. The matter was originally scheduled to be heard in Small Claims Court on February 20, 2012, but will now be heard on March 27, 2012.