Date Issued: February 12, 2019

File: SC-2018-004965

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Sahabaldin v. MAHAN COUNTER TOP LTD., 2019 BCCRT 170

Between:

Mojgan Sahabaldin

Applicant

And:

MAHAN COUNTER TOP LTD.

Respondent

INTRODUCTION

1.      The applicant, Mojgan Sahabaldin, says she paid the respondent, MAHAN COUNTER TOP LTD. a $3,000 deposit to make and install new kitchen and bathroom countertops and sinks in her home. The applicant says the countertops were cut and installed improperly. The applicant also says the respondent never installed the countertop or sink in the second bathroom. The applicant seeks a return of her $3,000 deposit.

2.      The respondent says the applicant is not entitled to a refund. It says the kitchen and bathroom countertops were installed with no issues, and after that the applicant “irrationally” decided she did not want them and asked to have the kitchen countertop removed. The respondent says the bathroom countertop is still in place in the applicant’s home.

3.      The applicant is self-represented. The respondent is represented by Moh Mehrabi, an employee or principal.

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.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, 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 that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

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. 

ISSUES

8.      The issue in this dispute is whether the applicant is entitled to a refund of her $3,000 deposit for new countertops and sinks.

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 addressed the evidence and arguments to the extent necessary to explain my decision.

10.   On October 10, 2017, the respondent prepared a written document setting out a price of $5,000 including taxes for the supply and installation of quartz countertops in a kitchen and 2 bathrooms, as well as under-mount sinks in each room. While this document is labelled “invoice”, I find it is actually an estimate provided in advance of the work, and forms the contract between the parties. In an updated invoice dated January 29, 2018, the respondent added an extra $100 for a window mantle, and an extra $200 for the installation of the under-mount kitchen sink.

11.   Around late January 2018, the respondent installed the countertops in the kitchen and in 1 bathroom. The applicant says the installed countertops had the following deficiencies:

•        There were obvious physical flaws in the respondent’s workmanship, and the countertops did not fit.

•        The respondent’s measurements were incorrect, so the sinks did not fit property into their openings. There was a gap between the sinks and the countertops, which would result in moisture and mould accumulation.

•        The kitchen countertops were not mounted vertically flush with the sinks, which resulted in an unnecessary gap.

•        The kitchen countertop/sink arrangement did not allow the cabinet doors to close properly.

•        The kitchen countertop should have been cut in 2 pieces, but instead was cut in 4 pieces. This resulted in unnecessary and unsightly joints.

12.   Mr. Mehrabi, on behalf of the respondent, says there are no problems with the countertops, and they were installed correctly.

13.   Based on the evidence before me in this dispute, I find the applicant has not met the burden of proving these claimed deficiencies.

14.   First, the applicant did not provide photos or other evidence to show problems with the installed bathroom countertop. She did not provide a report or invoice from another countertop installer or contractor indicating problems with any of the countertops. For that reason, I find there was no deficiency with the installed bathroom countertop.

15.   Second, I find the applicant has not proven any of the alleged deficiencies in the kitchen countertops. Again, there is no evidence from another contractor indicating problems with the kitchen countertop installed by the respondent. The respondent provided 2 photos of the respondent’s staff removing the kitchen countertop, but this does not prove deficiencies since the applicant’s emails of February 11 and 15, 2018 confirm that the she asked the respondent to remove it.

16.   The applicant provided a photo showing that the kitchen countertop did not extend over the entire width of the dishwasher door. In the applicant’s photo, the dishwasher door appears to be slightly open, so it is not persuasive evidence of a deficiency. The respondent’s photo of the installed kitchen countertop shows that the dishwasher door sticks out from the countertop about 1 inch. The respondent says it used standard width countertops, and that the overhang is typical. The applicant did not provide evidence from another contractor or professional to show that the countertop installation was incorrect, or to confirm that the dishwasher was installed correctly, since the photos show it was installed after the countertop. For these reasons, I find there is no deficiency with regard to the width of the countertop over the dishwasher.

17.   I also find the applicant provided no photos or other evidence to prove there were gaps around the sinks, poor fit, or other “physical flaws”, as alleged. While she says the cabinet doors did not close properly, either due to the countertop or the size of the sinks, I find the photos in evidence do not show this. In the respondent’s photo all of the cabinet doors appear to be closed evenly and completely. In the applicant’s photo of the cabinet doors under the kitchen sink, the doors are wide open. I can see no indication that the sinks do not fit, or that the doors would not have room to close. The applicant did not provide other photos showing problems with cabinet door closure or fit. I therefore find the applicant has not proven these alleged deficiencies.

18.   While the applicant says the kitchen countertop should have been cut in 2 pieces rather than 4, there is no evidence that this was part of the agreement between the parties, or that this is contrary to the reasonably acceptable standard for such work. The October 10, 2017 estimate only sets out the type, depth, and colour of quartz to be used, and does not specify any particular cutting pattern or piece size. I therefore find this was not part of the parties’ agreement.

19.   Since I find the applicant has not proved any deficiencies with the installed kitchen or bathroom countertops, I find she is not entitled to any remedy for deficiencies, such as a return of her $3,000 deposit. In the Dispute Notice, the applicant says the respondent did not return corrected countertops. However, the evidence shows that the original kitchen countertop was removed at her request, and there was no agreement that the respondent would correct or return it. Again, because I find the applicant did not prove that the countertops were defective, I conclude that she is not entitled to any remedy in this regard. Some of the applicant’s emails to the respondent say the respondent agreed to refund $1,000 after removing the kitchen countertop, but the emails do not confirm that the respondent ever made that agreement.

Second Bathroom

20.   The applicant says the contract between the parties included replacing the countertop in the main bathroom upstairs, but the respondent did not do this work. The respondent did not respond to this allegation, and did not provide evidence of any work performed in the second bathroom, so I accept the applicant’s submission that no work was done. The respondent’s October 2017 and January 2018 estimates/invoices clearly state that the quoted price included new countertops and sinks in 2 bathrooms, as well as in the kitchen.

21.   The parties agree that the applicant only paid the $3,000 deposit, and did not pay the remaining balance. Since the applicant did not pay the full bill, and did not prove that the work in the kitchen and first bathroom was defective, I find she is not entitled to any refund for unperformed work in the second bathroom. While the respondent never provided the second bathroom countertop, the applicant never paid for it.

22.   For these reasons, I dismiss the applicant’s claims. She is not entitled to any refund of her $3,000 deposit.

23.   The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicant was unsuccessful and so I dismiss her claim for reimbursement of tribunal fees and registered mail costs.

24.    

ORDER

25.  I dismiss the applicant’s claims and this dispute.