Date Issued: August 28, 2018

File: SC-2017-007592

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zampini v. Nedcan Constuction Ltd., 2018 BCCRT 481

Between:

Nick Zampini

Applicant

And:

Nedcan Construction Ltd.

RespondenT

AND:

Nick Zampini

RESPONDENT BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Susan E. Ross

INTRODUCTION

1.         The applicant, Nick Zampini, is a commercial painter. The respondent, Nedcan Construction Ltd. (Nedcan), is a renovation contractor. Their dispute is over work Nedcan subcontracted Mr. Zampini to perform at the home of Nedcan’s customer.

2.         Mr. Zampini claims Nedcan failed to pay him fully for his services. Mr. Zampini seeks an order that Nedcan pay him $3,800.

3.         Nedcan counterclaims that Mr. Zampini failed to properly finish the services he contracted to do and his poor workmanship caused Nedcan to lose both the customer and money on the project. Nedcan seeks an order that Mr. Zampini pay it $5,000, consisting of $3,000 as reimbursement of the money Nedcan paid Mr. Zampini for his services, plus $2,000 in compensation for Nedcan’s loss of its customer.

JURISDICTION AND PROCEDURE

4.         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.

5.         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 the parties had sufficiently enough explained the claim and counterclaim through documents, photos and their own statements.

6.         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.

7.         Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.         The issues in this dispute are:

a.    What were the terms of the parties’ contract?

b.    Does Nedcan owe Mr. Zampini money for his services under the contract?

c.    Does Mr. Zampini owe Nedcan money for services it paid for but did not receive from him under the contract?

d.    Did Mr. Zampini fail to provide his contracted services resulting in loss to Nedcan on its contract with its customer?

EVIDENCE AND ANALYSIS

9.         In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. This means Mr. Zampini must prove that he is entitled to payment for services rendered. It also means Nedcan must prove its counterclaim for a refund and for losses relating to its lost renovation contract.

10.      The substance of this dispute and the parties’ submissions is that:

(1)  Mr. Zampini says he did what he was contracted to do, which included applying patching and silicone to the windows and sills, but not the replacement or repair of rotten wood. The customer was satisfied with his work. Nedcan was aware of the rotten wood and the need for its replacement and repair by a carpenter when it subcontracted Mr. Zampini to paint, putty and silicone.

(2)  Nedcan says that, done properly, Mr. Zampini’s work would have repaired or replaced rotten wood on the windows and he had verbally agreed to bring in a carpenter for that. Mr. Zampini’s work was substandard and significantly contributed to Nedcan’s loss of the renovation contract and need to settle with the customer at a loss on the project.

11.      I find the materials provided by the parties establish the following course of events.

12.      On December 16, 2016, Nedcan provided an itemized quote for an estimated $67,000 project of exterior and interior work on its customer’s home. The quote included a $9,000 item for the repair, and where applicable replacement, of windowsills.

13.      On May 18, 2017, Mr. Zampini provided a quote to Nedcam for subcontracted work on the project. He quoted to provide all labour and materials for restoration work on dry boards, filling in gaps, sanding and primer at a cost of $5,700. The quote included painting of soffits, fascia, all exterior walls and existing new window trims. Nedcan replied that the price looked good. It asked Mr. Zampini to schedule his quoted work into his agenda and to also provide a quote for the sill plates to be repaired with fill/bondo, “so they look nice and waterproof again.” Mr. Zampini texted back a photo of a wood filler product. He said he was confident in using that product along with some silicone for the seams but would have to charge an extra $700 for “fill sand primer and finish.” Nedcan agreed, “as long al the horizontal sils and glas strips are water proof and look nice” (reproduced as written).

14.      On June 14, Mr. Zampini issued an invoice to Nedcam for $6,800, broken down into painting ($5,700), plus extras of silicone and fill of sills and caulking of windows ($700), glazing kitchen windows ($250), and side door and four light fixtures ($150). The next day, Mr. Zampini reported that the job was finished and he wished to be paid. Nedcan paid him $3,000, reported to the customer that Mr. Zampini said his work was done and requested the customer’s confirmation of satisfaction. The remaining balance of $3,800 is the amount Mr. Zampini claims in this dispute.

15.      On June 19, Nedcan met with its customer. The customer followed up with a message confirming their agreement for the $9,000 item for window repair and replacement to be removed from the renovation contract so the customer could get that done independently. Nedcan replied that the $9,000 item could not be fully removed because a large part had been repaired by Mr. Zampini, but expressed confidence all parties come to a happy agreement.

16.      The hoped for happy resolution did not happen.

17.      Nedcan messaged Mr. Zampini that he had not repaired the windows according to Nedcan’s and the customer’s request and, specifically, that the sills were soft and the paint was already coming off. Nedcan was therefore removing $950 from Mr. Zampini’s invoice on account of window work and would not pay the balance until he re-painted the repaired sills.

18.      In a June 25 letter, the customer terminated their renovation contract with Nedcan, specifying five reasons only one of which was about Mr. Zampini’s work. The customer described that reason as Nedcan presiding over a subcontractor painting over rotten window sills when replacement was clearly required in most of the places.

19.      By the end of July, Nedcan brought a Provincial Court small claims action against the customer for $24,218 owed on the $101,387 renovation contract. Nedcan’s notice of claim made the following statement about its June 19 on-site meeting with the customer:

…we discussed and agreed on removing the windowsill repairs from Nedcan’s contract and let[ting] a third party, hired by the [customer’s] family, take care of this. The reason for this was that the painter Nedcan Construction hired and would take care of these repairs, decided to just caulk the windowsills and paint over them. Needless to say, this was an unacceptable practice….

20.      The customer’s response in Provincial Court was that the renovation contract had a $9,000 item for substantial window work which Nedcan attempted to do through a $950 subcontract for the superficial application of silicone and caulking by Mr. Zampini, a painter with no joinery experience. Following a settlement conference, the Provincial Court issued a payment order settling the action with a $10,000 payment from the customer to Nedcan.

21.      On December 27, 2017, Mr. Zampini initiated this dispute with the tribunal. In addition to the documents already referred to, the parties provided photos of the condition of and work on the windows. Mr. Zampini also provided two letters from the customer. The first letter, dated December 15, 2017, is addressed To Whomsoever It May Concern and says his paint work has been completed entirely to the customer’s satisfaction. The second letter, dated March 25, 2018, is addressed to the tribunal. The customer acknowledges that they were not part of conversations between the parties regarding their relative responsibilities for the window work, but continues to hold Mr. Zampini in high regard. They say the window work deficiencies were not a primary reason they terminated the renovation contract because by then it had already been varied to remove that work. Rather, the primary reasons for the termination were Nedcan’s failure to ensure the renovations had permits and were compliant under the building code.

22.      I find that Nedcan contracted to do more extensive work on the customer’s windows than it subcontracted with Mr. Zampini, who was contracted to do mainly painting along with some silicone sealing, caulking, and glazing on the windows. He carried out the work he was contracted to do. He warranted the suitability of wood filler he used, but he was not contracted to do, and did not do, carpentry or replacement respecting rotten wood that the windows in fact needed and the customer had contracted from Nedcan.

23.      I also find that Mr. Zampini did not cause Nedcan to lose its contract with the customer or to lose money on the project. Nedcan was the cause of its problems with the customer including with the scope of the project for window repair and replacement.

24.      Where the parties’ accounts vary, I prefer Mr. Zampini’s evidence. The documentation supports a subcontract with him for a much more modest amount of window work than Nedcan is asserting. It is also not reasonable or believable to conclude that for a mere $950 Mr. Zampini agreed to do the wider scope of window work fixed at $9,000 in the renovation contract or to bring on a carpenter. Finally, the evidence of the customer supports the credibility of Mr. Zampini’s claim.

25.      Mr. Zampini’s claim is allowed. He is entitled to payment of $3,800 under his contract with Nedcan. Nedcan’s counterclaim is dismissed.

26.      Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. There is no reason not to follow that general rule here. I find Mr. Zampini is entitled to reimbursement of $175 in tribunal fees.

ORDERS

27.      Mr. Zampini’s claims are allowed. Nedcan’s counterclaim is dismissed.

28.      Within 30 days of the date of this order, I order the respondent Nedcan Construction Ltd.  to pay the applicant Nick Zampini a total of $4,021.55, broken down as follows:

a.    $3,800 as payment under the parties’ contract,

b.    $46.55 in prejudgment interest under the Court Order Interest Act from June 14, 2017, when Mr. Zampini rendered his invoice, and

c.    $175 in tribunal fees.

29.       Mr. Zapini is entitled to post-judgment interest, as applicable.  

30.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made.  The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

31.     Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia.  A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.