Small Claims Decisions

Date Issued:  July 24, 2018

File: SC-2017-004647

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Larix Landscape Ltd v. Raynor, 2018 BCCRT 363

Between:

Larix Landscape Ltd

Applicant

And:

Robyn Raynor

Respondent

INTRODUCTION

1.         The respondent Robyn Raynor contracted with the applicant Larix Landscape Ltd to do some landscaping work. The applicant claims $550 for an outstanding invoice balance, which the respondent disputes because of alleged deficiencies and damage that the applicant failed to properly correct. 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 126, 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. 

ISSUEs

6.         The issues in this dispute are:

a.    Did the applicant fail to fulfill its agreement with the respondent?

b.    To what extent does the respondent owe the applicant the claimed $550 for the outstanding invoice balance?

EVIDENCE AND ANALYSIS

7.         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.

8.         On June 29, 2017, the applicant sent the respondent its “Proposal” for $1,085, plus GST, for a total of $1,139.25. It describes 3 things:  1) remove an Emerald Cedar and cut the stump flush with ground level ($185), 2) prune English Laurel hedge, “max all sides with Hedger” ($650), 3) remove pampas grass and stumps (loader) ($250).

9.         The work was done in around July 2017. The applicant’s September 28, 2017 invoice #487 was issued after the applicant started this tribunal proceeding on September 1, 2017. The invoice bills $1,084.76 for “tree services”, less $150 for “dispute discount”, plus GST. The invoice reflects the respondent’s September 28, 2017 cheque for $439.25, leaving a $542.25 balance owing.

10.      I accept that the applicant reasonably removed the Cedar and pruned the Laurel hedge, which is not particularly disputed by the respondent. This amounts to $835 plus GST. I find that it is undisputed that the applicant failed to remove the pampas grass as it agreed to do, and thus the applicant is not entitled to the related $250 plus GST charge for that item.

11.      However, the respondent says the applicant “botched” the contract and devastated her landscaping. In particular, the applicant repeatedly failed to follow her request that she be present when work was being done, which the applicant does not deny in its submissions. I accept that the respondent damaged her property, which is not particularly disputed. The applicant removed the respondent’s flower bed, cut down her 32-year old waterfall Japanese Maple tree and removed a mature Dracnea. The evidence also indicates the applicant mixed in bark mulch in inappropriate areas.

12.      The respondent says in its attempt to correct these deficiencies, the applicant attended without her permission or presence. The respondent says the applicant planted 2 heather shrubs in the “desecrated lower bed” along with a “young spindly Maple”. The respondent says the applicant caused further damage in its attempt to correct its original errors.

13.      The applicant admits its crew erroneously removed an “old scraggly Dracnea” and a “small 18” Maple”. The applicant denies any other damage. The respondent says she told the applicant she did not want the heather the applicant offered as a “fix”. I find the applicant has not proved the heather was an appropriate solution to the damaged flower bed. I also find the applicant’s replacement of the Maple tree was inadequate.

14.      In support of her position, the respondent submitted a July 15, 2017 invoice from “VPAT9 Marketing Group”, for $249.38. This invoice detailed the applicant’s errors, and in particular with respect to the applicant’s replacement Maple tree, with the remark “total non-professional job”. The applicant did not specifically address this opinion in its submissions, except to say that the replacement Maple was planted correctly. I accept that the respondent reasonably spent this $249.38 to address concerns with the replacement Maple tree.

15.      The respondent values her 32-year old Maple at around $400 or $450, which the applicant says is excessive. On a judgment basis, bearing in mind the size differences in the photos before me, I find the likely value is around $350.

16.      As noted above, the respondent did not file a counterclaim. However, I find the respondent’s claimed damages are sufficiently connected to the parties’ contract that those damages, if proven, are a reasonable or “equitable” set-off to anything reasonably owing under the applicant’s invoice. This is consistent with the court’s conclusion in Dhothar v. Atwal, 2009 BCSC 1203, where the court found the claimed set-off arose from the same course of dealings, the same parties, and is “so connected with the plaintiffs’ claim that it would be unjust to allow the plaintiffs to enforce their claims without taking into account the set-off claimed”. In that case, the court found the set-off claimed will engage the issues requiring resolution (see also Wilson v. Fotsch, 2010 BCCA 226 (CanLII) for a description of the criteria for equitable set-off). That is the scenario in the dispute before me.

17.      The amount of the respondent’s set-off is about $850:  pampas grass removal ($250), re-landscaping to correct the applicant’s damage ($249.38), replacement Maple tree ($350). This $850 exceeds the $550 claimed by the applicant.

18.      Given my conclusions above, I find the applicant has not proved its claims. I dismiss its dispute. In accordance with the tribunal’s rules, as the respondent was unsuccessful it is not entitled to reimbursement of its tribunal fees.

ORDER

19.      I order that the applicant’s claims, and therefore this dispute, are dismissed.