Date Issued: May 29, 2019

File: SC-2019-001182

Type: Small Claims

Civil Resolution Tribunal

Indexed as: BACICA et al v. R. BOCK ELECTRICAL, 2019 BCCRT 653

Between:

RYAN BACICA and ANNA BACICA

Applicants

And:

R. BOCK ELECTRICAL

Respondent

INTRODUCTION

1.      This dispute is about electrical repairs. The applicants, Ryan Bacica and Anna Bacica, say that the respondent, R. Bock Electrical, was hired to finish wiring in the applicants’ basement. The applicants submit that the respondent caused drywall damage and should pay for repairs and a related electrical permit fee.

2.      The respondent disagrees and says it is not responsible for these amounts. While the respondent makes no counterclaim, it does refer to being justified for claiming $1,700.00 as compensation for time spent on this dispute. The applicants submit that they would be entitled to the same amount for their time spent on this dispute.

3.      The applicants are represented by Ryan Bacica. The respondent is represented by Ray Bock, who I infer is an employee or principal of the respondent.

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 this case I am persuaded that an oral hearing is not necessary as there are no significant issues of credibility or other reasons that might require an oral hearing.

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.      The applicants objected to the respondent’s use of statements made during facilitation. I advised the parties that I would disabuse of myself of these references and proceed. I provided the parties an opportunity to respond to my proposal but received no response. I have proceeded accordingly.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make an order 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.

 ISSUES

The issues in this dispute are:

a.    whether the respondent owes the applicants for drywall damage repairs and an electrical permit fee; and

b.    whether the parties are entitled to compensation for time spent on this claim.

EVIDENCE AND ANALYSIS

Drywall Damage Repair Costs

9.      Aside from the cost of the claimed repairs, the parties largely agree upon the facts. As documented in an estimate signed on January 14, 2019, the applicants hired the respondent to make electrical additions and changes to their basement. The contract states that the price of the work is calculated based on an hourly labour rate plus the cost of materials, and the cost of an electrical permit.

10.   The parties exchanged several emails in January and February 2019. In a January 31, 2019 email, the respondent wrote that the work was still in progress and being performed in accordance with a January 17, 2019 electrical permit issued by Technical Safety BC. He stated that if his outstanding invoice was paid he would return to finish the job, including hooking up cables to an electrical panel.

11.   In a February 1, 2019 email, the applicants noted that the respondent accidentally cut a pre-existing wire. The applicants submit that this wire was initially concealed by spray foam installation. The respondent cut the wire while removing the spray foam insulation with a drywall knife, causing a nearby electrical plug to become inoperative. The respondent repaired the damage by running new wire inside the wall where the spray foam was removed. However, a section of drywall measuring approximately four by ten feet had to be cut out to run the new wire. The applicants claim for $240.00 in damages to repair and replace the drywall.

12.   I must consider the contract between the parties. Where a party 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 employ the proper skill and care required to perform the task at hand. This applies to the parties’ contract signed January 14, 2019.

13.   In a “defective work” case such as this, the ultimate burden of proof is on the party asserting that a breach has occurred. Here, the applicants must prove on a balance of probabilities that the respondent breached the contract entitling them to damages for the breach: Lund v. Appleford, 2017 BCPC 91. Where the standard of a competent member of a trade or profession is at issue, evidence of those carrying on that occupation is necessary unless the matter is on non-technical matters or those of which an ordinary person may be expected to have knowledge: Burbank v. R.T.B., 2007 BCCA 215.

14.   I find the applicants have not proved the respondent breached the contract. The respondent submits that at the time the wire was damaged a section of drywall had already been removed. However, the spray foam applied by the applicants concealed the wire that was eventually cut. In a February 6, 2019 email, the respondent’s representative wrote that he had no way of knowing that the wire was there before he started cutting into the spray foam. In his February 1, 2019 email, he wrote that he repaired the damage to the wire without charge, though he would have been justified in doing so.

15.   There is no independent expert evidence to establish whether the respondent performed his job in a professional manner consistent with electrical industry standards. While I acknowledge that such evidence is not necessary in every case, there is no evidence before me that refutes the respondent’s claim that the wire underneath the spray foam was undetectable before he started work.

16.   There is also a lack of evidence or submissions before me on whether the spray foam could have been removed without damaging the concealed wire. For example, it is unclear if the spray foam’s consistency necessitated removal with a sharp object or if the cut wire was in such a state that damage would have been inevitable during the respondent’s work.

17.   I considered whether the parties agreed that the respondent would cover the cost of replacing and repairing the drywall. However, the evidence and submissions do not support such a conclusion. The applicants submit that it was assumed that the respondent would provide compensation for such costs. In contrast, the respondent submits that he had the applicants’ approval to remove a section of drywall measuring four by ten feet to repair the cut wire but did not agree to cover costs in relation to replacing and repairing the drywall. Consistent with this, the respondent submits that one of the applicants, Ryan Bacica, said that the affected area would be concealed by a large TV cabinet and was therefore “not a big deal”.

18.   Furthermore, the signed January 15, 2019 contract does not indicate that the respondent is responsible for any drywall repair or replacement resulting from his work. In my view, this is significant as it is clear from the submissions and submitted photographs that the contemplated electrical work would affect drywall.

19.   In summary, I dismiss the applicants’ claim for drywall damage repair costs.

Electrical Installation Permit Fee

20.   The applicants claim $161.00 for an electrical permit. In a January 31, 2019 email, the respondent’s representative listed it as part of a breakdown of his invoice. According to a photograph of the first page of the January 17, 2019 electrical installation permit, the permit allows the respondent to install electrical equipment at the applicants’ residence. The permit was issued by Technical Safety BC (formerly known as the BC Safety Authority).

21.   The applicants submit that the respondent should not have cancelled the permit because Mr. Bock wrongly believed that the applicants wished for the respondent to stop further work.

22.   As noted in Kuo v. Kuo, 2017 BCCA 245, unless a contract is terminated, the parties must fulfill their obligations. Termination by repudiation occurs when a party shows an intention not to be bound by the contract and the innocent party elects to accept the repudiation.

23.   In a January 31, 2019 email, Mr. Bock wrote that he was willing to “come back and do all the work needed to finish the job”. He also noted that he was the only individual allowed to work under his permit. However, in their February 1, 2019 email, the applicants wrote that they had paid the respondent’s progress payment invoice and that their business with the respondent “is concluded”. The applicants showed an intention not to be further bound by their contract with the respondent.

24.   In a February 6, 2019 email, the respondent’s representative replied that he wanted his multi-meter back if it was at the applicants’ house and provided “final paperwork” as an attachment. This email shows that the respondent chose to accept the applicants’ repudiation of their contract. This terminated the contract.

25.   I find that the applicants are not entitled to the cost of the electrical installation permit. It is clear from the language of the permit that the respondent would not have been able to commence work for the applicants without obtaining and paying for the permit first. The respondent had no reason to refrain from cancelling his permit once his contact with the applicants was terminated. Further, the respondent submits that that the permit cannot be transferred to another person. Given the wording of the first page of the permit, I agree with this submission.

26.   In summary, I dismiss the applicants’ claim for the electrical installation permit fee.

Time Spent on the Claim

27.   The parties each made somewhat equivocal claims for reimbursement for time spent on this dispute. Consistent with tribunal rule 9.4 that says legal fees are only reimbursed in extraordinary cases, the tribunal generally does not award parties compensation for their time spent on dealing with the dispute. I see no reason to deviate from that practice here. This was not an extraordinary case calling for expenses for time spent and I therefore do not award them to any party.

28.   As the applicants were unsuccessful, in accordance with the Act and the tribunal’s rules, I dismiss their claims for reimbursement of tribunal fees.

ORDER

29.   I order that the applicants’ claim, and therefore this dispute, is dismissed.