Small Claims Decisions

Date Issued:  February 6, 2018

File: SC-2017-002323

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Larix Landscape Ltd v. Ashmead, 2018 BCCRT 27

Between:

Larix Landscape Ltd

Applicant

And:

Matt Ashmead

Respondent

INTRODUCTION

1.         The respondent Matt Ashmead contracted with the applicant Larix Landscape Ltd (Larix) to do some landscaping work in his backyard, specifically a fence, gates, and a gravel driveway. Larix claims $625 for an outstanding invoice balance, which Mr. Ashmead disputes because of alleged deficiencies and damage that Larix caused. The parties are self-represented.

JURISDICTION AND PROCEDURE

2.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

3.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

4.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

5.         Under tribunal rule 121, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate. 

6.         I note that Larix admits Mr. Ashmead’s allegation that Larix destroyed 3 of Mr. Ashmead’s recycling bins, which Larix says it will reimburse. While I have considered this issue as part of Mr. Ashmead’s defence, because Mr. Ashmead did not make a counterclaim, I have not made any order that Larix pay Mr. Ashmead for the recycling bins.

ISSUEs

7.         The issues in this dispute are:

a.     Did Larix fail to fulfill its agreement with Mr. Ashmead?

b.     To what extent does Mr. Ashmead owe Larix the claimed $625 for the outstanding invoice balance?

c.      Should Mr. Ashmead pay Larix for its paid tribunal fees and $312.33 in claimed dispute-related expenses?

d.     Should Larix pay Mr. Ashmead $300 in claimed dispute-related expenses?

EVIDENCE AND ANALYSIS

8.         In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

9.         On August 18, 2016, Larix provided Mr. Ashmead with an estimate titled “proposal” for a fence, gates, and gravel driveway. The proposal defines the project as “Fence, Concrete Prep”. The proposal breaks down the estimate into various categories, including “concrete prep” for the road base, and “drainage”, “fence”, “fill pile”, and “gravel installation”. For the fence, the job description reads, “Install 50’ of four foot chain link fence with one double gate and one 3’ gate”, and the fence price was $2,199. The overall proposal totaled $4,230.32. There is nothing in this proposal that specifically addresses the mechanism for installing the fence posts, such as with concrete or into hard clay. While not entirely clear in the evidence before me, it appears Mr. Ashmead paid over $4,000 as the project quote apparently increased. Nothing turns on the exact amount paid by Ms. Ashmead, because this dispute is about Larix’ claim for $625.

10.      Larix began work in February 2017. Mr. Ashmead says the project was supposed to take only 3 to 4 days and instead it dragged on for weeks, which I accept and further find that Larix acknowledged in text messages with Mr. Ashmead or his wife. I accept the deficiencies remained uncorrected after 2 months, when in late April 2017 Mr. Ashmead took steps to correct them himself.

11.      On March 26, 2017, Mr. Ashmead wrote to Larix with his list of deficiencies, which primarily relate to an uneven and leaning fence and gates. Mr. Ashmead also claims Larix damaged his driveway (about $100) and recycling bins (about another $100). On March 29, 2017, Larix responded that it had stopped by “to complete all requirements”. Larix said it needed to “let the 2 posts set up for the gate posts until we can install the gates”. On March 30, 2017 Larix said it would send someone to reinstall the gates and make sure they were at the correct height, following which they could do the walkthrough Mr. Ashmead requested. In this email, Larix apologized “for all deficiencies of your project”, noting the 1 year warranty. Despite Larix’ submission that it wanted to correct the deficiencies, I have no evidence before me that would support a conclusion that Larix did so, and certainly no evidence that it reasonably corrected all deficiencies.

12.      As for the central issue in this dispute, I find the material point is not whether Larix expressly agreed to seat the fence and gate posts in concrete. It is clear Larix agreed to proper installation and in its own text messages to Mr. Ashmead (or his wife) Larix acknowledged that concrete was necessary to give extra support to the gate posts but asserted it was not necessary for the other fence posts. I find the fence is leaning which I infer arises from lack of proper seating of the fence posts. I do not accept Larix’ defence to the deficiency claim that the fence posts were properly seated when they left the site but that somehow they later began to lean. If the fence posts had been properly seated, I find Mr. Ashmead should have been able to reasonably expect under the contract that they would not begin leaning within a couple of months.

13.      I have considered the parties’ correspondence, Larix’ apology referenced above, and my review of the fence, gate, and driveway photos in evidence. I find that Larix has not established that it reasonably fulfilled its contract to install a fence and driveway for Mr. Ashmead. I find the fence and gate were leaning and lacked apparent stability. I further find that Larix did leave its equipment on Mr. Ashmead’s lawn for an extended period of time, which damaged the lawn. I find the value of these deficiencies, along with the $200 for the driveway and recycling bins, exceeds the $625 claimed by Larix.

14.      What about Larix’ argument that Mr. Ashmead was required to let him correct the deficiencies? I do not accept this argument. In reply, Larix submits “clients were travelling through process” and that it offers a 1 year warrant in all fence installations. The only evidence of Mr. Ashmead’s travel was in February 2017, before the deficiencies became a serious issue. I find that Larix has not established that it completed the deficiencies as reasonably would be required. Further, in late April 2017, Larix began threatening Mr. Ashmead’s wife over text, that he would report her failure to pay his invoice to her employer. I find that due to the passage of time and Larix’ threats in April 2017, Mr. Ashmead was entitled to correct the deficiencies himself without reliance upon Larix’ 1 year warranty.

15.      I dismiss Larix’ dispute. In accordance with the tribunal’s rules, I find because Larix was unsuccessful it is not entitled to reimbursement of its tribunal fees or its claimed dispute-related expenses.

16.      Mr. Ashmead claims $300 in dispute-related expenses for time and paperwork spent in dealing with this dispute. I see no reason to deviate from the tribunal’s rule 129 and its general practice in not making awards for a party’s time spent in bringing or defending a dispute. I dismiss Mr. Ashmead’s $300 claim.

ORDER

17.      I order that the applicant’s dispute is dismissed.

18.      I dismiss the respondent’s claim for $300 in dispute-related expenses.