Date Issued: January 22, 2019

File: SC-2018-004488

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Wenzel et al v. West 15 Project Holdings Limited, 2019 BCCRT 87

Between:

Helmut Wenzel and Ellen Wenzel

Applicants

And:

West 15 Project Holdings Limited

Respondent

INTRODUCTION

1.      This is a dispute about the repair costs for an air conditioning unit. The applicants, Helmut Wenzel and Ellen Wenzel, say that the respondent, West 15 Project Holdings Limited, sold them a home with a defective air conditioner and seek reimbursement for repair costs of $3,617.87. The respondent says it is not responsible for this amount.

2.      The applicants are self-represented but appear to have had some assistance from a third party who is a lawyer. The respondent is represented by Rebecca Nguyen.  

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, 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.

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 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.

ISSUE

7.      The issue in this dispute is whether the respondent must reimburse the applicants for the $3,617.87 of claimed air conditioner repair costs.

EVIDENCE AND ANALYSIS

8.      In a civil claim such as this, an applicant bears the burden of proof on a balance of probabilities. With the exception of evidence about a proposed settlement agreement (which I did not read given the Act’s provisions about keeping settlement discussions confidential), I have considered all of the information submitted by the parties. However, I will refer only to that which is necessary to provide context to my decision.

9.      The applicants purchased a strata lot in a newly constructed building in North Vancouver in 2014. The building was covered by a new home warranty program. Among other things, the warranty included a 2-year warranty for defects in materials and labour supplied for the gas, electrical, plumbing, heating, ventilation and air conditioning delivery and distribution systems. The respondent engaged contractors, including ITC Construction Group (ITC), to deal with issues that arose under the warranty.

10.   The applicants say that, shortly after they moved into the unit, they began to have issues with the heating and cooling system, which was a combined air conditioner and heat pump unit. They were concerned about temperature regulation and leaks in the ceiling. They say they advised the respondent and employees of ITC of the issue, but it was not addressed. A July 14, 2017 email exchange between representatives of the strata and ITC refer to this issue persisting for over a year. According to evidence from a former member of the strata council, representatives of the developer and ITC attended at the applicants’ home approximately 20 times.

11.   On November 17, 2017, a technician hired by ITC attended at the applicants’ home to service the air conditioning unit. Although the technician believed that the problem with the air conditioning unit was fixed, the applicants continued to have problems.

12.   In a November 23, 2017 email, the strata counsel president advised a representative of ITC that the strata had engaged another contractor to perform repairs to the applicants’ air conditioning unit. That contractor identified and fixed problems with the installation of the air conditioning unit. The contractor issued an invoice for $4,736.46, which included the cost of a diagnostic tool the strata intended to keep for its own use. The strata deducted the amount of the tool, and charged back the remainder of the invoice to the applicants.

13.   The applicants seek reimbursement of $3,617.87 in repair costs from the respondent. They say the respondent is responsible for this amount as they failed to repair the air conditioning unit.

14.   The respondent says that the applicants did not provide any evidence to establish their claims. According to the respondent, ITC repaired the air conditioning unit on November 17, 2017, and the applicants did not provide any evidence that they contacted ITC or the respondent to allow an additional repair.

15.   I am satisfied that ITC and the respondent were aware that the November 17, 2017 work had not been successful. The November 23, 2017 email from the strata council president to ITC clearly stated that additional work was required to “get the machine operating properly”. I also note that this email message was carbon copied to a representative of the respondent. Although the respondent submits that there is no evidence that ITC was contacted to allow the repair, I am satisfied that both ITC and the respondent were aware of the failed repair and ongoing issue.   

16.   My finding that the respondent was aware of the persisting problems with the air conditioning unit is not determinative. I am not satisfied that the evidence presented by the applicants establishes that the respondent is liable for the associated repair costs under the home warranty as they assert.

17.   According to the 2-5-10 Home Warranty Sticker included in the applicants’ evidence, the warranty is not provided by the respondent itself, but rather by an insurance company. There is no indication that the respondent or the insurer intended for the respondent to assume direct liability for any claims made. I note that the insurance company is not named as a party in this dispute.

18.   Further, I am not satisfied that the applicants have shown that they gave appropriate notice of a claim in compliance with the warranty. The 2-5-10 Home Warranty Sticker states that “all notice(s) of a claim must be provided to the [respondent] and [the insurer] in writing prior to the expiry of the applicable warranty coverage”. Although the applicants have established that they advised the respondent and ITC of the problems with the air conditioning unit, there is no indication in the evidence before me that the applicants gave the required written notice to the insurer and the respondent before the September 11, 2016 expiry date, or at all.

19.   I find that the applicants have not proven their claim that the respondent is responsible for the costs of repair for their air conditioning unit under their new home warranty. I decline to make an order for reimbursement.

20.   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. The respondent did not make a claim for reimbursement. As the applicants were unsuccessful, I decline to make an order for reimbursement of their claimed tribunal fees and dispute-related expenses.  

ORDER

21.   I dismiss the applicants’ claims and this dispute.