Date Issued: January 25, 2019

File: SC-2017-005832

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Whieldon & Son Logging Ltd. v. Broadbent et al, 2019 BCCRT 100

Between:

Whieldon & Son Logging Ltd.

Applicant

And:

David Broadbent and Karen Broadbent

RespondentS

And:

Whieldon & Son Logging Ltd., Inklein Construction Inc., and Denny Klein

 

RESPONDENTS BY COUNTERCLAIM AND THIRD PARTY CLAIM

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      This dispute is about landscape work. The applicant (and respondent by counterclaim) Whieldon & Son Logging Ltd. (Whieldon) says the respondents David Broadbent and Karen Broadbent (the Broadbents) owe it the $1,389.13 balance of its invoice for work Whieldon performed at the respondents’ property.

2.      Karen Broadbent (Ms. Broadbent) says the tribunal does not have jurisdiction to hear this matter because Whieldon’s cause of action arises under the Builder’s Lien Act. Ms. Broadbent also says the work Whieldon performed was substandard and deficient and that she does not owe the balance of the invoice. Ms. Broadbent also counterclaims against Whieldon. She wants Whieldon to pay her $4,999 for the cost of repairing its substandard work and completing its unfinished work. She also wants Whieldon or its agents to stop going to her home or work and to stop harassing her at work, and she wants an order for $1 in punitive and aggravated damages.

3.      Ms. Broadbent added subcontractors Inklein Construction Inc. (Inklein) and Denny Klein as third parties to the dispute. She says Whieldon’s claim should be against Inklein, not her, and she wants Whieldon’s claim against her dismissed. She also wants Whieldon and Inklein to reimburse her dispute-related expenses in the amount of $1,080.41.

4.      Inklein says Whieldon hired them to perform work at the property, and that they performed the work in accordance with their agreement.

5.      Karen Broadbent and Denny Klein are self-represented. Whieldon and Inklein are each represented by employees or principals. The named respondent David Broadbent is not participating in this dispute, as discussed further below.

JURISDICTION AND PROCEDURE

6.      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. 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.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, she said” scenario. Credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanor in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the recent decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized the tribunal’s process and that oral hearings are not necessarily required where credibility is in issue.

8.      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.

9.      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

10.   The issues in this dispute are:

a.    Does the tribunal have jurisdiction to resolve Whieldon’s claim?

b.    If so, do the Broadbents owe Whieldon the $1,389.13 balance of its invoice?

c.    Does Whieldon owe Ms. Broadbent for the cost of repairing or completing its allegedly deficient or unfinished work?

d.    Do Inklein or Denny Klein owe Ms. Broadbent for deficient or incomplete work?

e.    Is Ms. Broadbent entitled to punitive or aggravated damages?

EVIDENCE AND ANALYSIS

11.   In a civil claim like this one, the applicant Whieldon must prove their claim on a balance of probabilities, which means I must find it is more likely than not that Whieldon’s position is correct. This burden is on Ms. Broadbent in her counterclaim and in her third party claim.

12.   I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision.

13.   Ms. Broadbent owns property in Mission, British Columbia (the property). It is undisputed that she retained Whieldon in March 2017 to fall, cut, chip and remove 5 trees from the property and paid Whieldon $2,520 for the work. It is undisputed that in May 2017 Ms. Broadbent retained Whieldon to fall and remove 2 more trees from the property. There is no question Whieldon felled, cut and chipped the first 5 trees, and felled the additional 2 trees. However, the parties dispute whether Whieldon removed the debris from these 7 trees at the time the they were felled.

14.   It is undisputed that on June 12, 2017 Whieldon sent Ms. Broadbent a quote for $16,800 for additional work on the property. The quote in evidence contains no information about the work to be done. In her submissions Ms. Broadbent set out a detailed list of the work included in the quote, however it is unclear where that information came from. It is undisputed that the work quoted generally included building a driveway on the side of the property and building a tiered retaining wall in the backyard. Whieldon sent a revised quote on June 14, 2017 which was just for excavator work and transportation. The amount of this quote is not in evidence.

15.   It is undisputed that between June 21, 2017 and July 5, 2017, Whieldon and Inklein conducted most of the work at the property which included building a driveway on the side of the property and building a tiered retaining wall in the backyard of the property. Inklein returned on July 27 and 28, 2017 to complete the work.

16.   On June 21, 2017 Ms. Broadbent paid Inklein $2,000. While there are several versions of the same invoice in evidence it is undisputed that on July 12, 2017 Whieldon sent Ms. Broadbent a revised invoice for $15,212.13 which includes the falling and removing of the 2 trees in May 2017 and Whieldon and Inklein’s work on the driveway and backyard up until July 5, 2017 (the main invoice). On July 18, 2017 Ms. Broadbent paid Whieldon $13,823.00 leaving an outstanding balance of $1,389.13. This is the amount Whieldon claims in this dispute. 

17.   On July 30, 2017, Whieldon sent Ms. Broadbent an invoice for $2,562.00 for the work Inklein performed on July 27 and 28, 2017 (the second invoice). Ms. Broadbent paid this invoice in full because she said it “was not worth it” to dispute the invoice, although she does not deny that Inklein performed the work stated on the invoice. 

Does the tribunal have jurisdiction to resolve Whieldon’s claim?

18.   Ms. Broadbent says the tribunal has no jurisdiction to resolve this dispute because Whieldon’s cause of action arises under the Builder’s Lien Act. She cites Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 0014 to support her position, but that case is about a claim for wrongful dismissal from employment and makes no reference to the Builder’s Lien Act.

19.   Whieldon may have had the option of bringing a claim under the Builder’s Lien Act, but that is not what it has done here. Whieldon’s claim against the Broadbents is a debt claim, not a claim of lien. Section 118 (1) (a) gives the tribunal authority to resolve debt claims. I find the tribunal has jurisdiction to resolve this dispute.

Do the Broadbents owe Whieldon the $1,389.13 balance of its invoice?

20.   There was some irregularity in the tribunal process. A Dispute Response was filed apparently by David Broadbent. However, Ms. Broadbent later contacted the tribunal and said she had done this and wanted it removed, which the tribunal did. Ms. Broadbent then filed her own Dispute Response. On this basis, the tribunal proceeding progressed with only Ms. Broadbent participating. It is unclear if the applicant effectively served the named respondent David Broadbent. Ms. Broadbent says “David” is her partner and agent, but she says his surname is not Broadbent and he has not been named correctly in this dispute. Both Ms. Broadbent and David have refused to reveal David’s correct surname to the parties or to the tribunal, and there is nothing in evidence indicating his correct legal name. In any event, based on the evidence before me David Broadbent is not the person Whieldon has a claim against. Ms. Broadbent’s evidence is that David was her agent and that any agreements with Whieldon or Inklein were with her, not David. This is not disputed. For these reasons I dismiss Whieldon’s claim against the named respondent David Broadbent.

21.   I do note that a great deal of Ms. Broadbent’s evidence relies on conversations David had with Whieldon and Inklein in her absence, which is hearsay. While the tribunal is permitted to accept hearsay evidence, for the following reasons I place little weight on it. Considering that David is Ms. Broadbent’s partner and agent, and the extent to which all parties to the dispute say he was involved, I would expect direct evidence from David despite the fact that he was not properly named as a party to the dispute. Ms. Broadbent has not explained the absence of David’s evidence. There is no evidence that Ms. Broadbent ever communicated directly with either Whieldon or Inklein until after the work at her property was completed, aside from receiving quotes and invoices from them by email.  

22.   There is some dispute about which parties had contracts with each other. Whieldon and Inklein both say that Whieldon hired Inklein as a subcontractor to conduct the work at the property. Ms. Broadbent says she hired Whieldon for the tree removal and that she directly hired Inklein as a general contractor for the remainder of the work, although her submissions on this point are contradictory. As proof of her contractual relationship directly with Inklein Ms. Broadbent says she paid Inklein the $2,000 retainer directly on June 21, 2017 and received separate invoices from Whieldon and Inklein. While there is no dispute she paid Inklein $2,000 directly, the evidence shows Inklein invoiced Whieldon, and then Whieldon send Ms. Broadbent the main invoice for all the work at the property. It was only after David requested a more detailed breakdown of the work that Whieldon forwarded Ms. Broadbent the invoice it had received from Inklein (the Inklein invoice).

23.   Additionally, on July 12, 2017 David sent a text to Whieldon asking if Inklein was working for him or for Whieldon. Whieldon responded that Inklein was working for Whieldon. I also note that Ms. Broadbent’s payment of $13,823.00 on July 18, 2017 was to Whieldon, not Inklein. Similarly, her payment of $2,562.00 for the second invoice was to Whieldon, not Inklein. There are no communications in evidence indicating Ms. Broadbent or David independently hired Inklein to perform the work. On balance, I find Ms. Broadbent’s agreement is with Whieldon, and that she does not have a contract directly with Inklein.  

24.   The next question is the nature of the agreement between Whieldon and Ms. Broadbent. Whieldon and Inklein both say their representatives discussed the scope of the work to be completed with David at the property, and that David was on site 80 percent of the time supervising their work. Whieldon says David did not want a fixed price contract, and both Whieldon and Inklein say David asked to be billed on a “materials and labour basis.” Ms. Broadbent denies this and says the only agreement between her and Whieldon is contained in its initial quote for $16,800 and the revised quote. Given the absence of direct evidence form David and given that the quotes in evidence do not contain any details about the work to be performed, I prefer the evidence of Whieldon and Inklein on this point. I find the initial quote for $16,800 is not Whieldon’s entire agreement with Ms. Broadbent. I find the main invoice and the second invoice to be the best evidence of the agreement between Whieldon and Ms. Broadbent. I find the main invoice, the second invoice and the Inklein invoice to be the best evidence of the work Whieldon and Inklein completed at the property.

25.   Ms. Broadbent claims there are some overlapping charges on the main invoice, and I agree. There are text messages in evidence between David and Whieldon indicating that Whieldon did not remove the tree debris from the first 5 trees it felled on the property in March 2017, or the additional two trees it felled in May 2017, until the rest of the yard work commenced in June 2017. However, the March 2017 invoice for the first 5 trees for $2,520, which Ms. Broadbent paid immediately, included the cost of removing the tree debris. The main invoice includes a fee of $960 plus tax for falling and removing 2 trees, as well as all of Inklein’s work. The Inklein invoice, the amount of which is included in the main invoice, shows charges totaling $960 plus tax for dump fees. Ms. Broadbent claims the debris from the 7 trees was included in the materials which incurred these dump fees. I note that neither Whieldon nor Inklein deny this. On balance, I find Whieldon charged Ms. Broadbent twice for the removal of the 7 trees.

26.   The question is what portion of the tree falling and removal costs can be attributed to the removal of the tree debris. As most of the expertise and labour relates to the falling and cutting of the trees, on a judgment basis I find 10 percent of the fees Whieldon charged for the trees can be attributed to their removal. Whieldon charged Ms. Broadbent a total of $3,528 for all 7 trees, and 10 percent equals $352.80. Therefore, I find Whieldon has overcharged Ms. Broadbent $352.80 for tree debris removal, and this amount must be deducted from the outstanding balance of the main invoice. I find the adjusted outstanding balance of the invoice is $1,036.33.

27.   Ms. Broadbent also raised concerns about other specific charges on the main invoice and said the excavator and labour hours billed are excessive. However, Ms. Broadbent was not at the property when the work was completed, and much of her evidence about these charges is speculative. There is insufficient evidence for me to find that any other charges on the invoices were improper, incorrect or excessive.

Does Whieldon owe Ms. Broadbent for the cost of repairing or completing its deficient or unfinished work?

28.   When a party such as Whieldon 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 professional manner consistent with the standards of the trade, and that they will perform the task using the necessary skill and care required. I find that such terms were implied into the contract between Whieldon and Ms. Broadbent. For Ms. Broadbent to succeed in her counterclaim, she must prove that Whieldon breached this implied warranty or else did something wrong that allows her not to pay the balance of the invoice or else entitles her to damages.

29.   Ms. Broadbent says the rock supplied and installed on the driveway is not the type of rock the parties agreed upon, or what a “normal person” would expect to be installed on a driveway for vehicles. Whieldon says it used 3 loads of 3-inch crushed rock as a base for the driveway to provide a stable foundation and to allow for drainage. Whieldon and Inklein both say they recommended to David that they apply a top coat of ¾-inch crushed rock to finish the driveway after the work in the backyard was completed, but that David declined that option to save costs. Ms. Broadbent denies that conversation took place or that either Whieldon or Inklein gave David the option for a top coat on the driveway. She says the quote states the driveway was to be finished with an asphalt mix although the quote in evidence does not contain that information. Given my finding that the quote is not the basis of the parties’ agreements, and given the problems with Ms. Broadbent’s hearsay evidence from David, I prefer Whieldon and Inklein’s evidence on this point. I find there was no agreement for Whieldon or Inklein to finish the driveway with a top coat.   

30.   Ms. Broadbent says the slope of the driveway Whieldon and Inklein built prevented her tenant from parking their motor home on it, which was the driveway’s purpose. Whieldon says the slope of the driveway should have posed no difficulties for parking a properly maintained motor home. I am unable to determine from the photographs that the slope of the driveway is anything out of the ordinary. I find Ms. Broadbent has not established this claim.

31.   Ms. Broadbent says the rock retaining wall was not completed as agreed and needed repairing, and that the drain rock between the large rocks was left undistributed and not levelled. Whieldon and Inklein deny this, and say they installed the drainage properly and back filled all the big rocks with drainage material. Both Inklein and Whieldon say they received positive feedback from David throughout the course of their work. The photographs in evidence are unhelpful in determining whether there were deficiencies in their work on the retaining wall. Again, there is no direct evidence from David, which I would expect in the circumstances. On balance, I am not satisfied Ms. Broadbent has established that Whieldon’s work on the retaining wall was deficient or in breach of their agreement.  

32.   Ms. Broadbent submitted an invoice she paid to a different landscaper in March 2018 for finishing a third tier of a retaining wall in the back yard of the property, adding more boulders to the front entrance dividing the property from the neighbours’, digging up the driveway, installing landscaping ties in the driveway, and backfilling the driveway with asphalt mix. I have already found Whieldon did not agree to finish the driveway with a top coat. Whieldon says at the time they completed the work they suggested adding more rocks to the side of the driveway wall to retain the neighbor’s yard, but David declined. Whieldon says they also recommended installing another row of rock in the backyard to bring the level up to the neighbor’s lawn, but that David also declined this advice. In the absence of direct evidence from David, I prefer Whieldon’s evidence on this point.

33.   I find Ms. Broadbent has not established that Whieldon breached the implied warranty in the contract or else did anything wrong entitling her not to pay the balance of the invoice or entitling her to damages. I dismiss Ms. Broadbent’s counterclaim against Whieldon. I order Ms. Broadbent to pay Whieldon the adjusted outstanding balance of the invoice of $1,036.33. Whieldon is entitled to interest under the Court Order Interest Act.

Do Inklein or Denny Klein owe Ms. Broadbent for deficient or incomplete work?

34.   I have already found Ms. Broadbent’s contract was with Whieldon, not Inklein. However, Ms. Broadbent says Inklein agreed to clean up the rock and debris it dumped on her neighbours’ property, and to repair damage its excavator caused to her neighbor’s lawn and retaining wall. Ms. Broadbent says Inklein failed to uphold its end of this agreement, and that the neighbor has not been compensated. However, the photographs alone are insufficient to prove this allegation, and the neighbours are not parties to this dispute. I find Ms. Broadbent has not established that Inklein is liable for any actionable wrong, and I dismiss Ms. Broadbent’s third party claim against Inklein.

35.   Denny Klein is a principal of Inklein, and there is no evidence he had a contractual relationship with Ms. Broadbent, or that he is personally responsible for anything at issue here. I dismiss Ms. Broadbent’s third party claim against Denny Klein.

Is Ms. Broadbent entitled to punitive or aggravated damages?

36.   It is undisputed that Whieldon hired process servers to serve the Broadbents with the Dispute Notice. On October 26, 2017, a process server unsuccessfully attempted to serve the Broadbents at the property. On November 7, 2017 a process server unsuccessfully attempted to serve Ms. Broadbent at her place of work. Ms. Broadbent submitted emails showing that a process server emailed the Dispute Notice to two partners at the law firm where she worked on November 22, 2017.

37.   Ms. Broadbent says Whieldon knew she did not live at the property and knew where she lived because her address was on the cheques she paid them. She says Whieldon had her email address, but that the applicant made no attempt to contact her at her home or work before sending a process server to her workplace, harassing her and her coworkers.

38.   The tribunal’s rules allow an applicant to serve a Dispute Notice in various ways, including in person. While it may not have been the least disruptive means of serving the Dispute Notice, Whieldon was within its rights to hire a process server to attempt to serve Ms. Broadbent at the property and later at her place of work.

39.   It is undisputed that Whieldon’s process servers emailed the Dispute Notice to two partners at the firm where she worked. I find these actions to be inappropriate in the circumstances, as they are not contemplated by the rules and they are a breach of Ms. Broadbent’s privacy. However, there is no indication that Whieldon instructed its process servers to take this course of action, and I do not find that these actions amounted to harassment by Whieldon.   

40.   Ms. Broadbent also claims that a principal of Whieldon made threatening comments to David, however in the absence of direct evidence from David, I find that Ms. Broadbent’s hearsay evidence is insufficient to establish that Whieldon or its agents harassed David.

41.   Ms. Broadbent has not established that Whieldon or its agents harassed her or David. She says Whieldon’s process servers also harassed her tenants and colleagues, however there is no direct evidence from any of them amounting to harassment, and they are not parties to this dispute.

42.   There is no evidence Whieldon or its agents have gone to the property, Ms. Broadbent’s home, or her work, or otherwise attempted to contact her since November 22, 2017. I do not find it appropriate or necessary to make an order prohibiting Whieldon from attending any of these locations. I dismiss Ms. Broadbent’s harassment claims.

43.   Ms. Broadbent seeks aggravated and punitive damages. Aggravated damages are awarded to compensate for intangible emotional injuries, while punitive damages are awarded in exceptional cases as punishment for egregious conduct. In these circumstances, including the fact that I have dismissed Ms. Broadbent’s harassment claims against Whieldon, I find there is no legal basis to award Ms. Broadbent aggravated or punitive damages.

44.   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. In this case Whieldon was substantially successful, and so I find they are entitled to their tribunal fees. Whieldon also claims $183.75 for process server fees, however I find that emailing the Dispute Notice to Ms. Broadbent’s coworkers was inappropriate, and a breach of her privacy. I exercise my discretion under rule 129 and I decline to award Whieldon these expenses. Ms. Broadbent’s counterclaim and third party claim were unsuccessful so she is not entitled to tribunal fees or dispute-related expenses.

ORDERS

45.   Within 14 days of the date of this order, I order Ms. Broadbent to pay Whieldon a total of $1,228.44, broken down as follows:

a.  $1,036.33 as payment for the amount owing on the invoice,

b.  $17.11 in pre-judgment interest under the Court Order Interest Act, and

c.   $175 in tribunal fees.

46.   Whieldon is entitled to post-judgment interest, as applicable.

47.   Whieldon’s claim against David Broadbent is dismissed. Ms. Broadbent’s counterclaim and third party claims are dismissed.

48.   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.

49.   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.