Date Issued: December 3, 2018

File: SC-2018-000798

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 3937748 Manitoba Ltd. v. Sinden, 2018 BCCRT 792

Between:

3937748 Manitoba Ltd.

Applicant

And:

Ryan Sinden

Respondent

And:

3937748 Manitoba Ltd.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Jordanna Cytrynbaum

INTRODUCTION

1.      This dispute is about invoices for home renovation services.

2.      The applicant 3937748 Manitoba Ltd. says that the respondent agreed to the fee it charged for services and that it is entitled to the outstanding balance. The applicant seeks $4,992.59 in payment of his claim, consisting of $3,942.59 for the outstanding balance on his account, plus $1,050 in interest.

3.      The respondent Ryan Sinden refused to pay the outstanding balance on the invoices because he says that: a) the parties agreed to a discounted fee; and b) he was forced to complete the work himself at additional cost after the applicant failed to finish the job. Mr. Sinden also counterclaims for the cost of additional living expenses and other he paid while waiting for the work to be complete and other unspecified damages. Mr. Sinden seeks $5,000 in payment of his counterclaim.

4.      The applicant was represented by its principal or employee named Larry Kisiloski. Mr. Sinden was self-represented.

JURISDICTION AND PROCEDURE

 

5.      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.

6.      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.

7.      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.

8.      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; or

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

ISSUE

9.      The issues in this dispute are as follows:

a.    Is the applicant entitled to payment of its outstanding account in the amount of $3,942.59 for home renovation services?

b.    Is the applicant entitled to interest totaling $1,050?

c.    Is Mr. Sinden entitled to be reimbursed for the cost of additional living expenses and other unspecified damages totaling $5,000 due to the applicant’s delay in completing home renovation services?

10.   For the reasons that follow, I find that neither party has proven their claim, and that both the claim and counterclaim should be dismissed.

EVIDENCE AND ANALYSIS

Evidence

11.   In a civil dispute such as this, the applicant bears the burden of proof on a balance of probabilities. This means that the applicant must prove its claim, and Mr. Sinden must also prove his claim.

12.   Mr. Sinden retained the applicant to install countertops and cabinets in his kitchen and laundry room (work). As set out in greater detail below, the timeliness and quality of this work is in dispute.

13.   The parties filed submissions containing both their arguments and evidence. I will not refer to all of the evidence or deal with each point raised. I will refer only to the evidence and submissions that are relevant to my determination, or to the extent necessary to give context to these reasons.

14.   Despite having filed lengthy submissions, it appears that there are a number of gaps in the evidence. Examples of this are noted below.

15.   Around mid-2015 Mr. Sinden hired the applicant to install new kitchen countertops and cabinets in his home. Thereafter, in around late 2015 Mr. Sinden asked the applicant to install countertops and cabinets in the laundry room.

16.   The applicant put only 2 documents into evidence (the invoices):

a.    The first is an invoice for the kitchen job. It is dated July 7, 2015 and totals $11,741.74.

b.    The second is an invoice for the laundry job. It is dated December 3, 2015 and totals $3,247.51.

17.   The applicant has not provided a breakdown of what services it says it completed, the value of those services, what services were paid for, what services remain outstanding, and the value of those services. Rather, the applicant simply asserts that it is owed the outstanding balance on the invoices totaling $3,942.59 (balance).

18.   Mr. Sinden disputes that the applicant is entitled to payment of the balance. In particular, Mr. Sinden complains that the applicant did not perform the work in a timely manner. Mr. Sinden also says that the quality of the materials and workmanship was poor, and that the applicant failed or refused to correct numerous deficiencies in the work. Finally, Mr. Sinden says that he was entitled to withhold payment of the balance because: a) he claims the parties agreed to discount the applicant’s fee by 15% as a result of excessive delays; and b) he had to hire others to complete the work at additional cost after the applicant failed or refused to complete the work, and that he is entitled to set-off this amount against the balance.

19.   The documents Mr. Sinden put into evidence consist largely of email communications between the parties, quotes from the applicant and Mr. Sinden’s communications with others about issues with the applicant’s work.

20.   The documents in evidence say very little about the terms and conditions on which the parties agreed the applicant would perform the work. For example, based on the evidence before me, it appears that the parties did not initially discuss:

a.    the scope of work related to these jobs, and the standard to which the jobs would be finished; or

b.    a deadline for the applicant to complete the work.

21.   By November of 2015 Mr. Sinden told the applicant he was concerned about how long it was taking the applicant to complete the work. By that time, it had been approximately 4 months since he hired the applicant to do the kitchen job. Mr. Sinden also expressed concerns about the quality of the applicant’s work.

22.   In spite of Mr. Sinden’s concerns, in about mid-December 2015, he hired the applicant to install cabinets and a countertop in his laundry room.

23.   By December 23, 2015, the applicant had still not fixed the outstanding deficiencies or completed the work. Mr. Sinden reiterated his frustration over how long it was taking to complete the work and told the applicant the situation was unacceptable. Mr. Sinden said that he expected the applicant to complete all work on the kitchen and the laundry room jobs by January 15, 2016. The applicant responded on December 28, 2015 and confirmed it would “make sure this is done.”

24.   On January 13, 2016 Mr. Sinden wrote the applicant and said he was confirming the parties’ conversation from the day before. Mr. Sinden stated that the parties had agreed the applicant would discount the remaining work on the kitchen invoice by 10% to compensate Mr. Sinden for the delays of some 7 months in completing the job. Mr. Sinden further stated that if the work was not complete by January 15, 2016 that he would be seeking further discounts. There is no response from the applicant in evidence. However, based on subsequent communications in evidence, the applicant did not deny having agreed to a 10% discount.

25.   The next communication in evidence is dated February 27, 2016. By then, the applicant had still not completed the work. Mr. Sinden said that the situation was unacceptable. Mr. Sinden said that unless the applicant provided him with a 15% discount for the overall price of the work, he intended to terminate the agreement, hire someone else to finish the work and commence litigation. The parties went back and forth for some weeks discussing the terms each was prepared to accept to have the applicant complete the work. The outcome of these discussions and any agreement they may have arrived at is not in evidence. Mr. Sinden says the applicant agreed to a 15% discount on the overall price of the work. The applicant denies that it agreed to such a discount.

26.   The next communication in evidence is from April 3, 2016. On that date, Mr. Sinden’s wife wrote the applicant and referred to an earlier email Mr. Sinden wrote the applicant on March 31, 2016. The March 31 email is not in evidence. Ms. Sinden set out what she said Mr. Sinden wrote on March 31, 2016, including that:

a.    the applicant had still failed or refused the complete the work;

b.    Mr. Sinden was terminating the agreement; and

c.    Mr. Sinden would be hiring others to complete the work and would set-off the cost of doing so from the amount owed to the applicant, less 15%.

27.   The applicant’s response was to demand payment of the balance.

The applicant’s claim

28.   The applicant claims it is entitled to payment of the balance of the invoices, plus interest. The applicant disputes that it agreed to discount its work by 15% and disputes that Mr. Sinden is entitled to withhold payment for the cost to complete outstanding work.

29.   It seems that each party had different expectations about the terms and conditions of their agreement. Indeed, the parties’ submissions are full of arguments about what was included in the applicant’s scope of work, who was to blame for delays in the work, and what work was deficient.   

30.   The contract does not specify a time for completion of the work. In the absence of such an express term, the time for performance will be a reasonable period of time. What is reasonable will depend on the circumstances. See for example A.A.A. Aluminum Products Ltd. v. Grafos, 2015 BCSC 2128 at paras. 19 – 21.

31.   On the evidence, I find that after 7 months, the applicant had still not completed the work. I find that this was excessive, particularly given earlier correspondence from the applicant stating that it would only take weeks to complete. While the applicant raises numerous arguments in this dispute as to why Mr. Sinden is to blame (in whole or in part) for its delays in completing the work, it does not appear that the applicant raised these issues at the time. Rather, the applicant seemed to have accepted Mr. Sinden’s position that there were deficiencies and the applicant committed to completing the work. I therefore cannot accept that Mr. Sinden was to blame for the delays, and I conclude the applicant did not complete the work within a reasonable period of time.

32.   I am satisfied that beginning in December 2015, Mr. Sinden provided the applicant with notice that he considered the applicant to be in breach of its obligations under their agreement. I also find that Mr. Sinden advised the applicant on multiple occasions that if it did not complete the work in short order, he would:

a.    consider the applicant to have fundamentally breached (or repudiated) the agreement by refusing to perform its obligations;

b.    accept the applicant’s repudiation and terminate the agreement;

c.    seek the cost of completing the work from the applicant; and

d.    sue the applicant for other damages.

33.   On the available evidence, I find it is more likely than not that the applicant agreed to discount its work to give the applicant an opportunity to complete the work and avoid litigation. I therefore find that the applicant initially agreed to discount its work by 10% of the cost of the kitchen invoice, and then subsequently agreed to discount its overall work by 15%.

34.   I am satisfied that by or about late March, 2016 the applicant had still failed or refused to complete the work. On that basis, I find that Mr. Sinden was entitled to terminate the agreement. I also find that Mr. Sinden was entitled to set-off the cost to complete the unfinished work against the balance, less a 15% discount (discounted balance).

35.   There is little evidence as to what was needed to complete the work, or how much it cost Mr. Sinden to complete the work. Mr. Sinden says he was able to find ways to finish the work at reduced rates and suggests that he spent approximately $375 of the discounted balance to complete the work. I accept Mr. Sinden’s submission and find that he was entitled to set-off this work against the discounted balance. What is not clear, however, is what, if any, of the applicant’s services it did not get paid for. As noted above, the applicant has not provided a breakdown of what services it says it completed or the value of those services. I am therefore unable to find that any part of the balance claimed for is owed.

36.   The applicant also claims entitlement to $1,050 in interest, but does not explain how it arrives at this figure or provide documents in support of this claim. The invoices and quotes are silent on the subject of interest – as is the correspondence in evidence. I therefore find, that there was no agreement to pay interest on the balance.

37.   The applicant has failed to prove that it is entitled to payment of the balance or interest. I therefore dismiss the applicant’s claims. Given that the applicant is not successful, I find that it is not entitled to reimbursement for tribunal fees or dispute-related expenses.

Mr. Sinden’s counterclaim

38.   As noted above, it is not clear how Mr. Sinden arrives at his counterclaim of $5,000.

39.   Mr. Sinden claims that he was unable to move into his home until after the kitchen and laundry room cabinets and countertops were installed. He does not, however, explain why this was the case.

40.   Mr. Sinden also says that he had to pay rent for an extended period of time and suffered significant stress and inconvenience because the applicant failed to live up to its obligations. Mr. Sinden does not set out details of his living situation while he waited for the work to be completed, how much he paid in monthly rent or additional expenses, the time period he is claiming for, or how he values his counterclaim.  In the circumstances, I find that Mr. Sinden has not proven his claim.

41.   Given these findings, I dismiss Mr. Sinden’s counterclaim. Mr. Sinden was not successful, so I find that he is not entitled to reimbursement for tribunal fees or dispute-related expenses.

ORDER

42.   Based on my conclusions above, I order that the applicant’s claim is dismissed, and that the respondent’s counterclaim is also dismissed.