File: SC-2018-009045
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Hurd v. Hwang, 2019 BCCRT 550
Between:
Ernest Hurd
Applicant
And:
Mi Jeong Hwang
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
INTRODUCTION
1. This dispute is about payment for renovation work. The applicant, Ernest Hurd, says the respondent, Mi Jeong Hwang, owes him for work she hired him to do in November 2018. The applicant claims $5,000, the small claims monetary limit of the Civil Resolution Tribunal (tribunal), and has waived the excess. The applicant also wants the respondent’s tenant to apologize for his rude remarks, though the tenant is not a party to this dispute.
2. The respondent says the applicant keeps changing the terms, wanting different amounts than agreed, and that he is asking for too much money.
3. The applicant is self-represented. The respondent is represented by a family member. For the reasons that follow, I dismiss the applicant’s claims.
JURISDICTION AND PROCEDURE
4. These are the tribunal’s formal written reasons. 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 9.3(2), 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 is to what extent, if any, the respondent owes the applicant $5,000 for renovation/construction services done in November 2018.
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. The applicant’s original October 31, 2018 document titled “Estimate” totalled $9,435, and sets out an itemized breakdown for multiple electrical upgrades, additional parking, kitchen cabinetry work, new bathroom fan installation, fire door installation, and miscellaneous hole repairs. At the bottom of the document, it states “I have estimated hours based on experience. Materials are what they are. There may or may not be additional charges based on what [actually] is found while under renovation”. The Estimate required a 50% e-transfer of $4,717.50, after which the applicant would begin working on the job.
11. Before construction began, the respondent gave the applicant a 50% deposit of $4,717.50, as referenced above. When the applicant texted the job was over 80% complete, he requested another $3,000, which the respondent paid on November 14, 2018. The respondent then paid another $1,717.50 on December 3, 2018, bringing her total payments to $9,435, which was the amount of the applicant’s original Estimate.
12. The applicant submits that he only ever gave an estimate and that he performed a number of ‘extras’ that the respondent must pay for: painting, tiling, carpet cleaning, hall light relocation, new kitchen sink “etc.”. The applicant says the respondent never told the applicant not to do the work. For the reasons set out below, I find the applicant has not proved he is entitled to any additional compensation beyond what the respondent has already paid him.
13. The applicant submits he spent 150 man hours on the job (the applicant and “G”) at a rate of $50 per hour, plus $8,000 for material, for “an approximate job cost of over $15,000”. The applicant submits that the “real cost of the job” was more than 60% over the original estimate. However, while the applicant claims $5,000 in this dispute, the only invoice I have before me is one dated November 27, 2018 that totals $3,013.50. The applicant does not explain the discrepancy.
14. The applicant submits that “there was no real formal contract”. I agree, but find the parties’ contract was for the work and pricing set out in the Estimate, plus agreed-upon extras that I find the applicant agreed would not exceed $1,000. More on the extras below.
15. On November 4, 2018, the applicant signed a document stating the completion date would be around November 24, 2018, the date the permit expired. In the same document, the applicant wrote that the “extras” “should not exceed $1,000”. The applicant submits the “extras were a blind guess”, and like the language used in his Estimate, he “didn’t know”. The applicant says he intentionally used the word “should” to mean maybe, so that he would be covered for unknowns. While the applicant may have wanted to give himself ‘wiggle room’, what he did was agree to an approximate $1,000 for extras. Based on this wording, I find the onus was on the applicant to alert the respondent if the extras ran significantly over, which he did not do.
16. The applicant says the $1,000 quote for extras was just a “number plucked from the air” because the respondent demanded some idea as to completed costs. Yet, in a later text message (undated in the evidence before me), the applicant said the job was 80% complete and requested the $3,000 (which the respondent paid on November 14) and added “we said the extra wouldn’t exceed $1000”. I find this supports the conclusion that the applicant agreed to limit the extras to $1,000, unless the parties agreed otherwise. The applicant had not given any indication that the “extras” would actually cost about $6,000, a significantly higher figure than $1,000.
17. Further, the applicant has not explained how he did not know the extras would reach around $6,000 when at 80% complete he said they would not exceed $1,000. The applicant has given no explanation for why he did not check with the respondent for approval, when he admits she was clearly concerned about limiting the cost of the extras.
18. The respondent says the applicant charged her for 2 bathroom fans ($168 and $48.99), but only 1 bathroom fan was installed. The applicant does not explain the discrepancy.
19. In any event, apart from the fan receipts provided by the respondent, the applicant has provided no receipts to support any additional charges for materials, such as the $200 replacement sink. Thus to the extent the applicant now claims for the cost of materials, I dismiss those claims.
20. In support of the total job hours that the applicant values at $7,475, the applicant provided a November 25, 2018 email, apparently sent to an address not belonging to the respondent or her representative, in which he says he worked 149.5 hours between November 6 and November 25, 2018. I place little weight on this email as it was sent at the end of the job, and there is no evidence it was ever sent to the respondent.
21. Further, I find an implied term in the applicant’s contract with the respondent was that he would complete the work in a professional manner. I find he has not proved he did so.
22. As noted, the only invoice before me is dated November 27, 2018, for a total of $3,013.50. It is a lump sum, with unpriced items for Suite A: adding 1 bathroom fan, vented by the applicant, 1 rangehood vented and supplied by the applicant, “might need to re-wire and add plugs” for 2 fire doors, 2 new wall thermostats, new CO/smoke or smoke detectors per code. The applicant does not explain the speculative “might need” aspects of this invoice.
23. For Suite B, the applicant listed in the $3,013.50 invoice unpriced items for smoke/CO or smoke detectors to code and relocation of washer and dryer. However, the applicant had texted the respondent that after meeting with an inspector, there was no need to change the washer/dryer location. The applicant does not explain the discrepancy.
24. It is undisputed the applicant never finished the Suite B work, but he blames the tenant’s behaviour and as noted says he only charges for his time and had not billed for the work was not done. Yet, there is no explanation before me from the applicant as to why the Suite B items were included in the November 27, 2018 invoice.
25. The respondent provided examples of the applicant’s poor paint job, which based on the photos was clearly uneven both in texture and in terms of a colour match. The applicant admits the paint he bought was poor quality. He also says because he charged for his time, he did not fix every hole in the plywood wall because it would have taken 3 to 4 hours longer. However, the result is that the respondent would have paid for a repainted wall that needed to be re-done, given the holes. There is no evidence the respondent agreed to a “quick and dirty” paint job in order to save money.
26. The applicant says he told the respondent that he would, on his own time, repaint the “east bedroom”. That never happened. The respondent says at that point she no longer trusted the applicant and did not want him to return. In the circumstances, including the exchanges with the respondent’s tenant, I find this was reasonable. The applicant charged for the poor paint job, which as noted must be re-done. The respondent also notes the applicant charged for hours of vacuuming and shampooing the carpet, and yet stipple bits of paint remained.
27. The respondent also says the applicant improperly installed a roof vent, causing a leak through the bathroom fan installed by the respondent, after the snow melted on March 7, 2019. The respondent says he installed it properly, using roof tar as appropriate, but that when he installed it he noticed there was evidence of water damage on the ceiling plywood. He says he never took any photos because he did not think it important at the time. The applicant does not explain why he did not draw the water damage to the respondent’s attention, given she was his client.
28. The applicant says the parties never did a walk-through at the end of the job to identify deficiencies. The applicant appears to argue that it is the respondent’s fault for not doing that walk-through and that had it been done, the deficiencies would have been identified and he would have fixed them. I disagree with the applicant: the onus is on him to show he did a professional job and is entitled to the further payment claimed.
29. On December 1, 2018, the respondent installed 2 locks on the doors going into the house, which he said he would only remove when he received the final invoiced amount. The respondent called the police and the applicant removed the locks. I agree with the respondent that this was done to exert pressure on her to make further payment. The applicant’s conduct does not show the respondent owed more.
30. The applicant says the parties then agreed to a settlement “in the early $12,000 range” for the total job. At that point, the applicant had not yet told the respondent he had not finished the work in Suite B. Later, on what appears to be December 5, 2018, the applicant reneged on the settlement agreement and said he was going to start a legal proceeding the next day. In these circumstances, I find the respondent is not bound by any settlement agreement, which the applicant repudiated.
31. As for the applicant’s request that the respondent’s tenant apologize, I dismiss this claim. First, the tenant is not a party to this dispute. Second, a forced apology is generally not particularly productive. I find I do not need to address the details of the applicant’s dispute and heated exchange with the respondent’s tenant.
32. In summary, in light of the unexplained discrepancies in the applicant’s evidence and lack of supporting documentation such as receipts, and given the deficiencies noted, I find the applicant has not proved he is entitled to any further payment.
33. The applicant was not successful in his claim. In accordance with the Act and the tribunal’s rules, I therefore dismiss his claims for reimbursement of tribunal fees.
ORDER
34. I dismiss the applicant’s claims and this dispute.
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Shelley Lopez, Vice Chair |