Date Issued: January 29, 2019
File: SC-2018-005050
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Bains v. Tarbuck, 2019 BCCRT 110
Between:
Indbir Bains
Applicant
And:
Daniel Tarbuck
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
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INTRODUCTION
1. This is a dispute about payment for electrical work. The applicant, Indbir Bains, says the respondent, Daniel Tarbuck, has failed to pay for work the applicant did at the respondent’s property on March 17, 18, and 24, 2018. The applicant claims $2,274.01.
2. The respondent says the job was a fixed price labour-only job, with $960 as the price. The respondent also says the respondent started but did not finish the work. The respondent further says the applicant’s work was done poorly and caused damage, and, that the applicant has been paid for the work he did.
3. The parties are each self-represented.
JURISDICTION AND PROCEDURE
4. 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.
6. 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.
7. 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.
ISSUE
8. The issue in this dispute is to what extent, if any, the applicant is entitled to payment of $2,274.01 for electrical services.
EVIDENCE AND ANALYSIS
9. In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.
10. It is undisputed the parties agreed that the applicant would do certain electrical work in the respondent’s unfinished garage, described as a “new panel and wiring installed”. The respondent advised the applicant that the underground wire to the garage was already installed and inspected. He said he needed outlets and lighting rough-in also.
11. There is no formal written contract. There is also no invoice, although the applicant offered one. The applicant’s work was done between March 17 and 24, 2018.
Hourly rate or fixed-price job?
12. In early March 2018, the parties exchanged emails in which the respondent noted the applicant’s stated rate was $60 per hour and that he wanted something lower, around $50 per hour. The applicant responded that $60 per hour was the best he could do for this job, which the applicant said would take him “two days all done”. This was before the applicant had seen the job site. On March 11, 2018, the respondent stated he wanted to proceed and asked for the applicant’s availability.
13. The respondent essentially submits that only the 12 hours for work done on March 17 is reasonable ($720), plus the $825 paid for materials and 1 hour of shopping time, given the work that was done and the alleged $960 fixed price contract. For the reasons that follow, I do not agree.
14. The respondent knew and expected the applicant to continue working after March 17, while the respondent was away. This supports a conclusion that the job would not necessarily be done in 1 day (with 2 electricians), as alleged by the respondent. Elsewhere the respondent says the job was to be finished in 4 hours on March 18, 2018, but I find the evidence does not support such an agreement.
15. Based on the early March 2018 emails, I reject the respondent’s submission that the applicant agreed to a maximum labour charge of $960. Instead, I find the parties’ contract was based on an hourly rate of $60 per hour, with an estimate that it would take 2 days to complete the work.
16. In coming to the above conclusion, I also acknowledge the parties’ April 12, 2018 text exchange in which the respondent asked the applicant to check his numbers because the quote was “to do the job in one day (with 2 electricians)”. The applicant responded, “Yeah, but your job wasn’t that simple as I thought” and that there was a lot of “stuff in the way” and they had to move stuff as they worked. I do not consider the applicant’s text in this context as any acknowledgement of a fixed price contract. Rather, it was an acknowledgement that the original time estimate was inaccurate because unforeseen challenges made the job take longer. I find the parties understood that the applicant was not promising or agreeing to a maximum of $960 or a fixed price of $960, because the applicant insisted on a $60 hourly rate. This conclusion is further supported by the fact that the initial email mentioned only “2 days”, rather than the number of hours or $960 figure.
17. On balance, I find the parties’ email exchange is the best evidence of their agreement, and I find it was not a guaranteed job of 2 days.
Scope of work
18. The parties agreed that the applicant would start the job on Saturday March 17, 2018, and the respondent was there in the morning to discuss the applicant’s questions about the layout and circuits, as requested. The respondent said that he would be leaving for a 2-week vacation that Saturday night, but the garage would remain open and ready for work.
19. While the respondent suggests the applicant should have contacted him during his vacation, I find that for the duration of the project the respondent’s instructions were to get the job done. This conclusion is most consistent with the parties’ text messages about the planned project.
20. Prior to March 17, the respondent provided the applicant with some wiring diagrams and a list of the circuits he wanted. The applicant denies there is any structural problem with passing wires through joists, as alleged by the respondent. The applicant says the respondent’s internet printout from a joist manufacturer supports the applicant’s position about the joists, in that the applicant used the ‘knockouts’ rather than creating new holes. On balance, I agree with the applicant. The applicant says he wired to meet the applicable building code (Code), although there is no inspection report because the parties’ agreement did not include getting one. The respondent has provided no evidence that the applicant’s work was not Code compliant, to the extent he alleges this.
21. The respondent says the wiring was routed incorrectly and the wrong materials were used. I infer this relates to the use of Teck armoured wiring. The respondent says much of the work done by the applicant had to be redone by the respondent at his own expense. However, the respondent provided no supporting evidence of this and has not filed a counterclaim.
22. Further, on March 17 when the job started, the respondent had texted the applicant not to forget the #3 wire, and “need about 4’ inside (to patch Teck into panel)”. This indicates that the respondent knew the Teck wiring (which is armoured) was being used, at least in part. More on the Teck wiring below.
23. The applicant acknowledges that he “minorly deviated” from the applicant’s diagram, but said that he had to do so, in order to accommodate the respondent’s other wishes and to complete the project to Code.
24. In particular, while the applicant routed the wire differently than the respondent’s diagram, I find this was reasonable in the circumstances. I accept that because the respondent had also requested that the service panel be wired so the respondent could easily move the panel later, the applicant was unable to route the wire from the top of the panel due to Code requirements. So, instead, the applicant routed the wire through the bottom of the panel and used Teck wire as the wire would have been exposed otherwise. I do not find this alteration to have been so significant that the applicant should not have proceeded or that it amounts to a breach of contract, in the circumstances.
25. Despite the respondent’s submissions otherwise, I find the evidence does not show the applicant improperly wired the respondent’s garage, given the parties’ agreement.
26. On April 6, 2018, the applicant texted the respondent and asked for a return call when the respondent was back from vacation, “so we can finish up the job and settle up”. Contrary to the respondent’s submission, this text shows the applicant intended to finish the job, which as noted above I find was on an hourly-rate basis.
27. On April 8, 2018, the respondent texted back and said he was just looking at the work now and that it was “mostly fine” but he wanted to know why the applicant used Teck wiring, and that it should have been standard wiring (NMD 90). The respondent’s text also asked why the applicant did not following the wiring diagram the respondent had provided, as the “100A run” was supposed to go over the rafters.
28. The applicant replied that the wholesaler did not have the NMD in the size needed and that Teck was also less expensive. The applicant said he ran it from the bottom because he could not enter it from the back of the panel, which is consistent with the applicant’s submission for this decision, as discussed above. The applicant said the respondent has to add a lug onto “the bus bar” and that this was “easily done”. The respondent has not refuted this particular statement.
29. On balance, I find the respondent’s “mostly fine” comment on April 8, 2018 indicates substantial satisfaction with the applicant’s work, contrary to the respondent’s later submission for this decision.
30. On April 9, 2018, the respondent asked the applicant when he could finish up, as the rough-in for the car charger was not done and that “the cut-off” should not be flush-mounted. The applicant never completed the car charger rough-in. The respondent does not deny he never gave the applicant the manual for the EV Charger, which indicated copper wiring was required, rather than the aluminum wiring the applicant bought. On balance, I find the evidence shows the “fix” for this wiring concern was relatively simple and does not warrant any deduction from the applicant’s bill in the circumstances.
31. Also on April 9, the respondent asked for the applicant’s hours worked, saying he could guess from his security cameras but wanted the applicant’s list. The applicant responded and said he did not follow all of the applicant’s concerns and would be happy to discuss. The applicant provided the hours worked as 48 in total: 12 on March 17, 18 on March 18, 13 on March 24, and 5 on March 25. The respondent later texted that the first 12 hours on March 17 were not in question and could be paid anytime, but otherwise the hours provided “don’t add up”. Yet, the respondent provided no security camera footage or related evidence to contradict the hours claimed. As noted above, the respondent was away on vacation as of March 18.
32. On balance, I accept the applicant’s evidence of the 48 hours total labour time, given the parties’ exchanges. I say this in part because the respondent has not explained the absence of the security footage that he otherwise said proved the applicant’s hours were inflated.
Amount claimed
33. As noted, there is no invoice and no documented record of payments, which contributes to the overall evidence being somewhat unclear. That said, an invoice is not necessarily required to order payment for services rendered.
34. On March 11, 2018, the applicant says he asked for a $1,000 deposit, with the remainder of the job to be paid when the respondent returned from vacation. It was understood the respondent was leaving on Saturday March 17, 2108 for a 2-week vacation. The applicant says that on March 17, 2018 the respondent paid for 1 hour of shopping plus materials the applicant bought, for a total of $820. The respondent says he paid $825 cash on March 17. The applicant provided 2 invoices for materials it bought for the job on March 17, 2018, for $762.38. The $762.38 plus $60 for an hour of shopping comes to $822.38, close to the $820 or $825 paid. Bearing in mind the principle of proportionality, I find the most reasonable conclusion is that the $822.38 account was satisfied, but nothing more.
35. As referenced above, the applicant’s text message stated that his 2-man team worked 48 hours in total, and I infer 1 hour of that relates to the 1 hour of shopping paid on March 17. This leaves 47 hours, and at $60 per hour, this totals $2,820. There is no evidence that the parties discussed tax and whether the applicant’s rate included tax or whether it was added onto the total. I therefore infer that tax was included.
36. Yet, the applicant in this dispute claims only 36 hours of labour, given he expressly claims $2,160 for “outstanding labour”. I am unable to precisely reconcile the 11-hour difference between the 47 hours noted above and the 36 hours claimed. On balance, I find it likely refers to a separate $720 cash payment the respondent says he made on April 14, 2018, which would represent 12 hours, not 11. I find a reduction of the applicant’s claim to $2,100 is therefore appropriate.
37. Thus, I find that this dispute is about the applicant’s 35 hours of labour charges at $60 per hour, for a total of $2,100, which I find is reasonable, plus $114.01 for aluminum wire the applicant bought for the respondent’s electric car (EV Charger).
38. Elsewhere in the parties’ exchanges the respondent had offered to pay for the EV Charger wiring, which I find is appropriate given the above circumstances. I find the respondent must pay the applicant the $114.01 plus $2,100, which totals $2,214.01.
39. The applicant is entitled to pre-judgment interest on the $2,214.01 under the Court Order Interest Act (COIA), from March 25, 2018, the day after the applicant’s work was completed. This equals $26.75.
40. In accordance with the Act and the tribunal’s rules, as the applicant was successful, I find he is entitled to reimbursement of $125 in tribunal fees.
ORDERS
41. Within 14 days of this decision, I order the respondent to pay the applicant a total of $2,365.76, broken down as follows:
a. $2,214.01 in debt,
b. $26.75 in pre-judgment interest under the COIA, and
c. $125 in tribunal fees.
42. The applicant is entitled to post-judgment interest, as applicable.
43. 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.
44. 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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Shelley Lopez, Vice Chair |