Date Issued: January 9, 2018

File: SC-2018-003605

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Distinctive Deck & Rail Ltd. v. Rutherford, 2019 BCCRT 35

Between:

Distinctive Deck & Rail Ltd.

Applicant

And:

Robbie Rutherford

Respondent

And:

Distinctive Deck & Rail Ltd.

Respondent BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Michael J. Kleisinger

INTRODUCTION

1.      This dispute is about vinyl decking that Distinctive Deck & Rail Ltd. (Distinctive) installed at the home of Robbie Rutherford. Distinctive seeks payment of $3,914.40 for installing the vinyl decking. Mr. Rutherford says Distinctive incorrectly installed the vinyl decking and counterclaims for an order requiring Distinctive to remove and replace the vinyl decking or to pay for someone else to perform that work.

2.      The parties are self-represented, with Distinctive’s president representing it.

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 118 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.

4.      The tribunal has discretion to decide the format of the hearing. I decided to hear this dispute through written submissions, because I found that there were 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 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.

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, and order any other terms or conditions that the tribunal considers appropriate.

7.      Under section 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the jurisdiction of the tribunal. In his counterclaim, Mr. Rutherford asks that Distinctive remove a lien it placed on the title to his property. As the tribunal has no jurisdiction over liens, I have refused to resolve Mr. Rutherford’s claim with respect to the lien.

ISSUES

8.      The issues in this dispute are:

a.     Is Distinctive entitled to payment of its invoice?

b.    Is Distinctive required to replace the vinyl decking or pay for someone else to do so?

EVIDENCE AND ANALYSIS

Facts

9.      In 2017, Mr. Rutherford built a home which included a sundeck. He wanted vinyl decking put onto the sundeck.

10.   On April 12, 2017, the parties entered into a written contract. Distinctive agreed to install 497 square feet of vinyl decking onto the sundeck. Mr. Rutherford agreed to pay Distinctive $3,914.40, including tax, for this installation. The contract included a 60 month warranty for defective workmanship and material. The contract specifically excluded problems of ridges or nail protrusions caused by structural movement.

11.   On May 8, 2017, Distinctive told Mr. Rutherford what kind of plywood he should install on the deck. Mr. Rutherford’s contractor installed this type of plywood for Distinctive to cover with the vinyl decking.

12.   On May 17, 2017, Distinctive prepared the plywood surface and covered it with vinyl decking. It reported a “textbook installation with no apparent issues with the sub-surface.”

13.   On May 23, 2017, Distinctive invoiced the Mr. Rutherford $3,914.40, as agreed. He has not paid this invoice.

14.   On May 24, 2017, Mr. Rutherford reported that “worms” or “ridges” appeared on the vinyl decking in the joints between the plywood sheets. On June 3, 2017, the parties met to review the deck. Distinctive says that it explained to Mr. Rutherford that the deck’s subsurface was moving which caused the ridges to appear.

15.   Over time, more ridges appeared. On August 31, 2017, Distinctive visited Mr. Rutherford’s home with a representative of the vinyl manufacturer to inspect the vinyl decking. Mr. Rutherford was not in attendance. The manufacturer wrote to Mr. Rutherford and informed him that “the issue on your deck is not a vinyl issue, nor a vinyl installation issue. Our expert opinion is that there is movement in your framing, causing the vinyl to heave. The issue is not a bubble, but rather a heave of the plywood.” The manufacturer said that Distinctive had some ideas that could “mitigate the heaving” and suggested that Mr. Rutherford explore these options before tearing up the deck.

16.   Unsatisfied with this response, Mr. Rutherford has not paid the invoice.

17.   Mr. Rutherford included pictures of the ridges. They appear to follow the gaps in the underlying plywood joints. He says that some of the ridges are 33 feet in length and appear every 4 feet of the entire deck.

Positions of the Parties

18.   Mr. Rutherford says that the ridges appeared because Distinctive did not properly fill all of the spaces between the plywood joints. He included pictures from the manufacturer’s website showing various other decks with all underlying plywood joints filled and sanded. Based on this information, Mr. Rutherford says that Distinctive used improper techniques when it prepared the plywood and is therefore responsible for the imperfections in his deck.

19.   Mr. Rutherford included a $4,823.00 quote from another vinyl installer to remove and replace the existing vinyl. He did not include any evidence from this vinyl installer or anyone else to comment on Distinctive’s workmanship or the cause of the ridges. Other than his own views, Mr. Rutherford has not provided any evidence from those in the decking industry to support his claim that Distinctive improperly installed his deck, or that the cause of the problems lies with Distinctive’s work, rather than structural movement as Distinctive alleges.

20.   Distinctive says that it followed all of the manufacturer’s installation instructions. It says these problems have not occurred in its nearly 40 year history of installing decks. It says it prepared and covered Mr. Rutherford’s deck in the same manner as the other 300 to 400 decks it installs per year. Distinctive says that the proper practice is not to use fill for all of the joints because the plywood must be allowed to expand and contract when exposed to moisture. Distinctive provided an information sheet from the manufacturer to support its practice. Distinctive relies on the opinion of the manufacturer’s expert in support of its position that structural movement caused the ridges, rather than anything it did or failed to do.

Discussion

21.   Where a party holds itself out as qualified to perform a specific trade, the law implies a warranty into the contract that the tradesperson will perform the job in a workmanlike manner consistent with the standards of the trade and employ the proper skill and care required to perform the task at hand. I find that such terms were implied into the contract between the parties.

22.   In a “defective work” case such as this, the ultimate burden of proof is on the party asserting that a breach has occurred. The party must prove on a balance of probabilities that the other party breached the contract entitling him or her to damages for the breach (Lund v. Appleford, 2017 BCPC 91 at paragraph 124).

23.   To be successful in its claim, Distinctive must prove on a balance of probabilities that it performed its part of the contract and Mr. Rutherford breached the contract by not paying the invoice. For Mr. Rutherford to succeed, he must prove on a balance of probabilities that Distinctive breached the implied warranty discussed above or did something else that would entitled him to damages.

24.   Distinctive performed the work required under the contract; namely, it installed the vinyl decking onto Mr. Rutherford’s deck. It is entitled to payment of its invoice, unless Mr. Rutherford can prove, on a balance of probabilities, that Distinctive breached the implied warranty.

25.   On the evidence, I do not find that Mr. Rutherford has proven that Distinctive breached the implied warranty. He has not provided any independent evidence from others in the industry to support his claim that Distinctive installed the vinyl decking improperly. While Mr. Rutherford alludes to discussions he had with other decking installers which he says support his claims, I decline to attach any weight to that hearsay evidence, especially since Mr. Rutherford did not specify the names or qualification of those who purportedly made the supportive statements. Mr. Rutherford provided no written witness statements and no proper explanation for their absence.

26.   I find the Mr. Rutherford’s reliance on internet printouts showing various ways to install vinyl decking do not assist him to meet the burden of proof. There may be several acceptable ways to install vinyl decking. Even if accepted as evidence, the internet printouts do not prove that Distinctive’s method was incorrect, but only that there may be more than one acceptable way to complete the task. What is missing from Mr. Rutherford’s evidence is comment from professionals in the industry explaining that Distinctive failed to perform the task a workmanlike manner or employ proper materials and techniques. I find that Mr. Rutherford required such evidence to prove that Distinctive’s workmanship, rather than movement of the deck structure, is responsible for the ridges.

27.   Distinctive, on the other hand, provided evidence from the manufacturer that supports its position that it acted in accordance with industry standards and that an event outside of its control or responsibility (namely, the movement of the structure) caused problems with the deck.

28.   Based on my review of the evidence, I find that Distinctive is not responsible for the ridges appearing on the deck. Rather, the evidence suggests to me that it is more likely than not that structural movements led to the problems with the deck. Liability for ridges arising from structural movements is specifically excluded from the contact.

29.   I find Distinctive is entitled to payment of $3,914.40 under the parties’ contract. I make such an order.

30.   Based on my findings above, I dismiss Mr. Rutherford’s counterclaim.

31.   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 find that Distinctive is entitled to reimbursement of its tribunal fees in the amount of $125.00. It is also entitled to prejudgment interest under the Court Order Interest Act (COIA) from the delivery of its invoice to the date of this decision, which I calculate to be $70.53.

ORDERS

32.   Within 30 days of the date of this order, I order Mr. Rutherford to pay Distinctive a total of $4,109.93, comprised of the following:

a.    $3,914.40 for payment of the invoice;

b.    $70.53 in prejudgment interest under the COIA; and

c.    $125.00 in tribunal fees.

33.   Distinctive is entitled to post-judgment interest, as applicable.

34.   I dismiss Mr. Rutherford’s counterclaim.

35.   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.

36.   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.