Date Issued: December 21, 2018

File: SC-2018-003702

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zhang v. Call 4 Heat Ltd., 2018 BCCRT 901

Between:

Qiu Yan Zhang

Applicant

And:

Call 4 Heat Ltd.

Respondent

INTRODUCTION

1.      The applicant, Qiu Yan Zhang, claims that the respondent, Call 4 Heat Ltd., improperly installed a boiler in her home. She wants to be reimbursed for the cost of the boiler and installation. She capped her claim at $5,000 in order to fall within the jurisdiction of the Civil Resolution Tribunal (tribunal). The respondent brings a counterclaim against the applicant claiming the cost of additional components it installed after the original boiler work was done, a third party inspection fee, a boiler installation permit, and several service calls made to the applicant’s home after initial installation. The applicant is self-represented. The respondent is represented by its principal, Mr. Zhou.

JURISDICTION AND PROCEDURE

2.      These are the formal written reasons of the 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.

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 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

6.      The issues in this dispute are:

a.    Is the respondent liable to repay to the applicant the cost of the boiler installation?

b.    Is the applicant liable to pay to the respondent the cost of any of the following:

                              i.        The additional components installed after the initial boiler installation;

                            ii.        The third party inspection fee from November 2017;

                           iii.        The boiler installation permit; or

                           iv.        The ten service calls made by the respondent to try to resolve the boiler issues.

EVIDENCE AND ANALYSIS

7.      I have reviewed all of the evidence and submissions but will only refer in these reasons to what is relevant to my decision. I allow the applicant’s claim and dismiss all of the respondent’s counterclaims for the reasons that follow.

8.      The respondent replaced the applicant’s boiler on November 22, 2016. The receipt for that work says a superhot boiler was to be replaced and refers to a one year warranty for labour and a one year warranty for the boiler “FR MFG”. The total cost on the receipt was $5,500 plus tax. That cost was not broken down and there were no additional terms included.

9.      The applicant says that in February 2017 the boiler started making a high-pitched noise intermittently that disturbed her and her tenants who reside in the same home. She submitted recordings of the noise made at three different times: a recording from November 2017, a recording from her tenant from April 2018, and a recording from the third party inspection company from May 2018. These recordings show that the noise got worse over time.

10.   The applicant first contacted the respondent about the noise in February 2017 and asked them to resolve the issue. Representatives of the respondent attended the applicant’s home several times between February and November 2017 to try to resolve the problem. They replaced various components of the heating system over the course of those visits. There is some dispute about the number of times a respondent representative attended, but it is unnecessary for me to decide that point for this decision.

11.   The applicant had a third party come in to inspect the boiler in November 2017. The third party did not hear the noise at that time but suggested that the problem was a sealed air vent. The third party charged the applicant $198.45 for the November 2017 visit. On or about November 16, 2017, the respondent attended the applicant’s home and paid to the applicant’s husband $200 to cover that inspection fee. The respondent also repaired the air vent identified as the problem at that time.

12.   The respondent claims there was an oral agreement between the respondent and the applicant’s husband that if the respondent paid the November 2017 third party inspection fee, the applicant would not pursue a claim against the respondent for the boiler issues. The applicant denies any such agreement. I find that there was no such settlement agreement between the parties. By November 2017, the applicant and her husband had spent significant time and effort to resolve the boiler issue, and the installation cost more than $5,000. I find it unlikely that the applicant would accept $200 as a resolution at that time.

13.   When the noise returned, the applicant asked that same third party to attend on May 2, 2018. The technician heard the noise at that time, as well as detected carbon monoxide coming from the boiler. The technician recommended shutting down the boiler immediately for safety reasons, and the third party replaced the boiler the next day.

14.   The applicant advised the respondent on May 3, 2018 that the boiler had been replaced and told the respondent that they could come and pick up the uninstalled boiler before May 25, 2018. The respondent did not pick up the boiler.

15.   The parties spent a lot of time addressing the installation of the boiler and whether or not it was done correctly. However, I do not need to decide whether the installation was improper because the applicant can rely on the BC Sale of Goods Act (SGA) for her claim.

16.   The SGA governs the sale of goods to consumers. Section 18 of the SGA implies warranties of quality and fitness for goods in some cases, even where there is no written warranty, or where other warranties, such as manufacturer’s warranties, are provided so long as those other warranties are not inconsistent with the SGA.

17.   Section 18(a) of the SGA says that if the buyer says expressly or implies that goods are being purchased for a particular purpose, there is an implied condition that the goods are reasonably fit for that purpose. Section 18(b) says that if goods are bought by description, there is an implied condition that the goods are of merchantable quality. Section 18(c) says that there is an implied condition that goods will be durable for a reasonable period of time having regard to the normal use to which the goods are put. These warranties and conditions apply whether or not the person providing the goods is the manufacturer.

18.   Concepts like “reasonably fit for purpose”, “merchantability”, and “reasonably durable” are not black and white and depend on the circumstances. In the circumstances of this dispute, I find that a boiler that makes an audible noise as loud as the one made by the applicant’s boiler starting less than 6 months after installation, and emits carbon monoxide less than 18 months after installation is not reasonably fit for use as a residential boiler, is not merchantable and is not reasonably durable. There was no suggestion that the applicant used the boiler in any unusual way. The respondent attended to try to resolve the issue several times but was unable to do so.

19.   The respondent argued that if the boiler was defective that was the manufacturer’s problem. It presented one email chain from November 2017 between Mr. Zhou and the manufacturer, where Mr. Zhou delivered one of the applicant’s audio recordings and provided his phone number and the applicant’s address. That email chain does not include any response from the manufacturer.

20.   I find that despite the potentially available manufacturer’s warranty, the applicant can rely on the SGA to make her claim against the respondent. The receipt for the boiler replacement work does not show that there is any inconsistency between the manufacturer’s warranty and any implied warranties under the SGA. Also, the respondent did not present the manufacturer’s warranty or any evidence that it had transferred the manufacturer’s warranty to the applicant. If the respondent had wanted to rely on the manufacturer’s warranty, it should have done so directly. The fact that it failed to do so does not mean that it is not liable to the applicant.

21.   I also dismiss the respondent’s counterclaims. All of the counterclaims, other than the claim for the cost of the boiler installation permit, are based on the assumption that the respondent was not liable to the applicant for the boiler issues. I have found that they are, indeed, liable for those issues because the boiler was not fit for purpose, merchantable or reasonably durable. Any costs related to that lack of fitness, merchantability or durability are to be borne by the respondent.

22.   With respect to the respondent’s claim for the cost of the boiler installation permit, I agree with the applicant that the respondent presented an all-in fee of $5,500 for the boiler installation. The respondent was the party who was aware that the permit would be required and who was responsible for applying for it. If they had wanted to be reimbursed for that fee in addition to the installation, they should have charged for it separately on the receipt rather than asked to be paid for it after the fact.

23.   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. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $175 in tribunal fees. The respondent is not entitled to reimbursement of any tribunal fees or dispute-related expenses.

ORDERS

24.   I allow the applicant’s claim and I dismiss all of the respondent’s counterclaims.

25.   Within 30 days of the date of this order, I order the respondent to pay to the applicant a total of $5,277.79, broken down as follows:

a.    $5,000 as reimbursement for the cost of the boiler replacement,

b.    $102.79 in pre-judgment interest under the Court Order Interest Act calculated from November 22, 2016 to the date of this decision, and

c.    $175 in tribunal fees.

26.   The applicant is entitled to post-judgment interest, as applicable.

27.   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.

28.   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.