Date Issued: November 26, 2019

File: SC-2019-004733

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Brandon Swartz, dba Splash Landscape v. Hoskinson,
2019 BCCRT 1329

Between:

BRANDON SWARTZ (Doing Business As SPLASH LANDSCAPE)

Applicant

And:

JOAN HOSKINSON and SUSANNE OSMOND GARDEN DESIGN LTD.

RespondentS

INTRODUCTION

1.      The applicant, Brandon Swartz, doing business as Splash Landscape (Splash), says he provided gardening services for the respondent Susanne Osmond Garden Design Ltd. at the respondent Joan Hoskinson’s home. Although Ms. Hoskinson made a partial payment of $3,617.25, Splash says neither respondent paid the $1,212.75 that remains owing for the gardening services provided.

2.      Ms. Hoskinson says the work was not completed to her satisfaction, and that she was charged for work on the municipal boulevard, which she did not authorize. For these reasons, she says Splash has already been paid in full. She asks that I dismiss the dispute.

3.      The applicant is represented by principal Brandon Swartz. The respondent Joan Hoskinson is self-represented. The respondent Susanne Osmond Garden Design Ltd. is represented by principal Susanne Osmond.

4.      Ms. Osmond says the dispute should be dismissed against her company because she only recommended Mr. Swartz and he was not acting as her subcontractor.

JURISDICTION AND PROCEDURE

5.      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 (CRTA) 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 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.

7.      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.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

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

9.      The issue in this dispute is whether either respondent must pay Splash $1,212.75 for lawn care services, or, whether the work was unauthorized or otherwise unsatisfactory so nothing further is owed.

EVIDENCE AND ANALYSIS

10.   In this civil claim, the applicant bears the burden of proof on a balance of probabilities. I have reviewed all of the evidence but only refer to the evidence and submissions as I find necessary to provide context for my decision.

11.   Based on the documents filed in evidence, I find the following facts:

a.    On March 28, 2019, Mr. Swartz texted Ms. Osmond and gave a $4,600 price for gardening services for Ms. Hoskinson.

b.    On March 29, 2019, Ms. Osmond emailed Ms. Hoskinson a quote of $4,600 for power raking, front and back lawn care, 2 passes of topdressing with lawn blend soil overseeding with soil amendments as needed, with work completed by Splash. I find that Ms. Osmond was passing along the quote from Mr. Swartz, and not acting as a contractor. I also find that the use of the word quote implied that the price was an estimate, depending on the complexity of the job, materials costs and other variables. I therefore find that the quote was an estimate only, for a job based on time and materials, and not for a fixed price.

c.    Ms. Hoskinson replied the same day, agreeing to go ahead.

d.    Splash completed the lawn care work on April 15 and 16, 2019.

e.    On April 17, 2019, Splash invoiced Ms. Osmond for $4,830.00 ($4,600 plus GST) for the gardening work. The invoice itemized the work completed, but not the number of hours spent in labour or the amount allocated to materials.

f.     I find that, as the agreement to complete the work was made between Mr. Swartz and Ms. Hoskinson, though communicating through Ms. Osmond, the invoice should have been issued to Ms. Hoskinson.

g.    On May 12, 2019, after Ms. Hoskinson asked for a more detailed invoice, Mr. Swartz provided an invoice breaking down the costs for power raking and the costs of soil and seed.  He did not break down the number of hours spent or provide an hourly rate for labour.

h.    On May 15, 2019, Mr. Swartz provided further details of the invoice in response to another request from Ms. Hoskinson. He wrote that labour was $3,635, material with delivery was $4,695 and lawn seed mix was $270.

i.      Ms. Hoskinson replied, asking for the “labour hourly rate and number of hours, the cost of materials per unit and the number of units.”

j.      On May 15, 2019, Mr. Swartz provided a further revised invoice, listing 61 hours of labour at $55 per hour. This totals $3,355 for labour, which is different to the amount in his earlier email. Mr. Swartz also included a materials cost breakdown for a total of $4,600 plus tax.

k.    On May 22, 2019, Ms. Hoskinson paid Mr. Swartz $3,617.25 by e-transfer. This did not match an invoice but was calculated by Ms. Hoskinson based on the number of hours she thought had been spent on the job.

l.      On May 23, 2019, Ms. Hoskinson wrote to Mr. Swartz explaining that she paid for 40 hours at $55 per hour, not the 61 hours reflected on the final invoice.

12.   In her email to Mr. Swartz on May 23, 2019, Ms. Hoskinson listed her concerns with the gardening work as follows:

a.    She did not receive an itemized invoice at first, but only upon request.

b.    Mr. Swartz charged for 61 hours of labour, when Ms. Hoskinson says she observed a 3-person crew work for 10 hours total.

c.    Some of the time the crew took phone calls, or breaks.

d.    Service was done to the municipality’s boulevard, without Ms. Hoskinson’s authorization. Ms. Hoskinson estimated this work at 20% of the total invoice.  She also wrote that she nonetheless agreed to pay for the municipality boulevard component of the service.

13.   I find that Ms. Hoskinson has already paid for the work to the boulevard. Therefore, it is not an issue in this dispute.

14.   The issue between the parties is whether Splash’s work was satisfactory and provided as invoiced, such that Ms. Hoskinson must pay the $1,212.75 invoice balance at issue.

15.   Ms. Hoskinson submits that she is unhappy with the quality of the work completed. However, she also submits that whether she is happy with the quality of the work is irrelevant to this dispute. Based on the communications she had with Mr. Swartz up until late March 2019, where she raised no concerns about the quality of the work, I find that Ms. Hoskinson was satisfied with quality of the work.

16.   The parties’ disagreement boils down to Ms. Hoskinson’s contention that only 40 person-hours were spent on the project, while Mr. Swartz’s revised invoice says it took 61 hours.

17.   I have found that the parties agreed for the job to be done on a time and materials basis. If he was proposing a fixed price, Mr. Swartz could have issued a detailed written quote directly to Ms. Hoskinson. If time spent did not impact the total cost, Mr. Swartz likely would have refused Ms. Hoskinson’s request to break down hours and the hourly rate for labour. Because he did not do so, I find that he has not proven Ms. Hoskinson’s agreement to a fixed flat rate for the job.

18.   Ms. Hoskinson says the crew only spent 40 person-hours total on the job. Ms. Hoskinson personally observed 3 crew working for 10 hours. This brings the total to 30 hours. The additional 10 hours would account for off-site time including picking up materials. Ms. Swartz did not provide evidence contradicting Ms. Hoskinson’s 40 person-hours estimate. In his evidence, he agreed that the parties had initially discussed the job taking 3 days, but he it only took 2. Mr. Swartz’ evidence was that he was also unsure how many labourers worked on the job. For these reasons, I accept Ms. Hoskinson’s evidence that the crew spent a 40 person-hours on the job.

19.   I find that Splash has been paid for the 40 hours of work on this job. I also find that the payment represents a reasonable value of the goods and services provided, meaning I would have reached the same conclusion under a contractual quantum meruit analysis, which refers to ‘value for the work done’ (see Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at paragraph 247). I dismiss the applicant’s claim against Ms. Hoskinson.

20.   I also dismiss the claim against Susanne Osmond Garden Design Ltd. because Ms. Hoskinson already paid the invoice and given my finding that the gardening services contract was between Ms. Hoskinson and Splash.  

21.   For these reasons, I dismiss the applicant’s claims and this dispute.

22.   Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Because the applicant was unsuccessful, I make no order for tribunal fees or dispute-related expenses.

ORDER

23.   The applicant’s claims, and this dispute, are dismissed.