Date Issued: December 20, 2018
File: SC-2018-004470
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Luso Concrete (2007) Ltd v. Triple Crown Ventures Ltd., 2018 BCCRT 892
Between:
Luso Concrete (2007) Ltd
APPLICANT
And:
Triple Crown Ventures Ltd.
RESPONDENT
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REASONS FOR DECISION |
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Tribunal Member: |
Megan Volk |
INTRODUCTION
1. This is a dispute about nonpayment for concrete services. The applicant, Luso Concrete (2007) Ltd, says the respondent, Triple Crown Ventures Ltd., breached an agreement between the parties by not paying for the cement services invoiced. The applicant claims $729.75 in debt.
2. The applicant and respondent are each represented by an employee or a principal.
JURISDICTION AND PROCEDURE
3. 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 relationships between parties that may continue after the dispute resolution process has ended.
4. The tribunal may decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. I find that I can fairly resolve this dispute by writing based on the documents and written positions before me because there are no significant issues of credibility or other reasons that might require an oral hearing.
5. The tribunal may accept as evidence information that it considers relevant, necessary, and appropriate, whether 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.
6. 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
7. The issue in this dispute is whether the respondent owes the applicant payment for cement services under the parties’ contract.
EVIDENCE AND ANALYSIS
8. The applicant bears the burden of proof on a balance of probabilities. I have commented upon the relevant evidence and submissions only to the extent necessary to give context to these reasons.
9. The parties agree the respondent hired the applicant for pumping, placing, and finishing concrete services in October 2016. The applicant invoiced the respondent for the work. It is undisputed that the applicant’s operator did the work itemized in the invoice.
10. In February 2018 the respondent paid part of the invoice deducting $145 for off-site washing and $550 for repairs. The respondent made deductions because the applicant’s operator allegedly dumped cement waste on site improperly and damaged a sidewalk with the pump. It is undisputed that the outstanding amount is $729.75, the amount claimed.
11. The applicant does not deny the damage but says its operator performed the services as instructed by the respondent’s site supervisor. Further, the applicant says the supervisor signed the work order and the respondent did not raise deficiencies or damage within the deadline set out.
12. The respondent says the operator ignored the supervisor’s instructions not to dump the cement waste on site and parked on the sidewalk before the supervisor arrived. The respondent denies that the supervisor signed the work order. The respondent says that when it received the invoice the supervisor reported the deficiencies and damage to the applicant.
13. After the work, the respondent paid another concrete company to fix the damaged sidewalk for $550. And, the respondent says that in December 2017 it demanded payment from the applicant for the cost of the repairs. There is no evidence or submissions before me from the applicant to dispute this evidence, and I accept it.
14. The respondent did not file a counterclaim. The respondent claims the applicant was negligent in conducting the work agreed to causing damage. Although a counterclaim was not filed, I find the respondent’s claimed damages arose from the same course of dealings and are sufficiently connected to the parties’ agreement that those damages, if proven, should be set-off against anything reasonably owing under the applicant’s invoice (see Wilson v. Fotsch, 2010 BCCA 226 (CanLII) for a description of the criteria for equitable set-off).
15. I accept that the supervisor did not sign the work order. The person who signed included the name of a different company in signing and there was no evidence of a connection between that person or company and the respondent. However, I do not find anything turns on this.
16. On the evidence, I find the operator dumped concrete waste on site. The applicant did not deny that waste was dumped and told the respondent that concrete must be dumped before the pump leaves the site. However, there is no evidence before me of the cost to clean up the concrete waste.
17. It is undisputed that the operator washed the pump off-site. The applicant refused to pay that cost arguing that the operator had dumped the waste on site. There is no evidence before me that off-site washing is unnecessary when the waste is dumped on site. Consequently, I find that the applicant is entitled to the off-site washing fee.
18. Further, particularly given the applicant’s argument of delay in starting the work, I find that the operator parked on the sidewalk before the supervisor arrived. I accept that the supervisor saw the placement of the pump when he arrived and did not instruct the operator to move the pump. I find that the supervisor, in not instructing otherwise, agreed to have the pump do the work while on the sidewalk.
19. There is no evidence before me about when the sidewalk cracked except that the crack was not present before the pump was on the sidewalk and it was cracked after. Given that the pump was on site for over 3 hours, I am unable to say whether the crack occurred before the supervisor intervened and allowed the pump to work on the sidewalk. Given that, I find the respondent is not entitled to set off the cost of the sidewalk repairs from the applicant’s invoice.
20. Given my conclusions above, I find the applicant is entitled to the outstanding invoice balance of $729.75 and interest under the Court Order Interest Act (COIA) from November 10, 2016.
21. In accordance with section 49 of the Act and the tribunal’s rules, I find the applicant is entitled to reimbursement of its $125 in tribunal fees and $11 for dispute related expenses incurred in serving the Dispute Notice.
ORDER
a. $729.75 for outstanding invoice fees,
b. $15.19 in pre-judgment interest under the COIA,
c. $125 for tribunal fees, and
d. $11 for dispute related expenses.
23. The applicant is entitled to post-judgment interest, as applicable.
24. 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.
25. 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.
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Megan Volk, Tribunal Member |