Date Issued: December 11, 2019

File: SC-2019-001624

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Lechinsky v. Kestenberg, 2019 BCCRT 1393

Between:

DAVID LECHINSKY

Applicant

And:

SHELLEY KESTENBERG

Respondent

And:

COLIN BRACKETT

Respondent BY THIRD PARTY CLAIM

INTRODUCTION

1.      The respondent, Shelley Kestenberg, hired the respondent by third party claim, Colin Brackett, as the general contractor for some home renovations. Mr. Brackett hired the applicant, David Lechinsky, as a subcontractor to paint the interior of the home.

2.      Mr. Lechinsky says that Mr. Brackett did not pay him in full and claims $3,134.98 from Ms. Kestenberg. He does not make a claim against Mr. Brackett.

3.      Ms. Kestenberg says that she paid Mr. Brackett in full for the renovations, which included money for Mr. Lechinsky’s painting work. She asks that Mr. Lechinsky’s claim against her be dismissed. In her third party claim, she asks for an order that if I order her to pay any money to Mr. Lechinsky, Mr. Brackett be required to pay it.

4.      Mr. Brackett admits that Ms. Kestenberg paid him in full for the renovations. He also admits that it was his responsibility to pay all subtrades, including Mr. Lechinsky. However, he says that he paid Mr. Lechinsky $3,000 in cash. He says that any further money that he may owe Mr. Lechinsky is offset by the fact that Mr. Lechinsky stole a set of Ms. Kestenberg’s keys. Mr. Brackett asks that I dismiss Ms. Kestenberg’s third party claim.

5.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

6.      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.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both sides to this dispute call into question the credibility, or truthfulness, of the other. However, in the circumstances of this dispute, I find that it is not necessary for me to resolve the credibility issues that the parties raised. I therefore decided that I could fairly hear this dispute through written submissions.

8.      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.

9.      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.

10.   I note that in a statement of facts, Mr. Lechinsky and Ms. Kestenberg both say that Mr. Lechinsky put a lien on Ms. Kestenberg’s home. They say that the lien is still in place. I assume that this is a lien under the Builders Lien Act (BLA).

11.   Only the Supreme Court of British Columbia can order remedies under the BLA. That said, neither Mr. Lechinsky nor Ms. Kestenberg have asked for any orders under the BLA. I therefore find that the claims before me are debt claims that fall under the tribunal’s small claims jurisdiction.

ISSUES

12.   The issues in this dispute are:

a.    Does Ms. Kestenberg owe Mr. Lechinsky any money for painting her home?

b.    If so, must Mr. Brackett pay Ms. Kestenberg some or all of the money she owes Mr. Lechinsky?

EVIDENCE AND ANALYSIS

13.   In a civil claim such as this, Mr. Lechinsky and Ms. Kestenberg must prove their respective cases on a balance of probabilities. I have read all the parties’ evidence and submissions but I will only refer to what is necessary to explain and give context to my decision.

14.   In the fall of 2018, Ms. Kestenberg hired Mr. Brackett as a general contractor on a renovation project in her home, which included painting all the home’s walls, ceilings, doors and trim. Ms. Kestenberg’s home is in a strata development.

15.   Mr. Brackett hired Mr. Lechinsky to do the interior painting. Mr. Lechinsky provided a written contract as evidence in this dispute, which he says Mr. Brackett signed. The contract is for $3,760, plus expenses and $50 per hour for any additional work. The second page appears to be signed but Mr. Brackett’s submissions suggest that he disputes its authenticity. I address this issue below.

16.   Mr. Lechinsky did the painting work under the contract between November 2 and December 1, 2018. There is no allegation that his work was substandard. During that work, Mr. Lechinsky got a set of keys for the home.

17.   Mr. Lechinsky says that Mr. Brackett paid him $3,100, while Mr. Brackett says that he paid Mr. Lechinsky $3,000. In any event, Mr. Lechinsky says that under their contract, he is entitled to a further $3,134.98, for materials and extra work.

18.   After completing the painting job, Mr. Lechinsky says that Mr. Brackett refused to pay him. So, Mr. Lechinsky showed up at Ms. Kestenberg’s home while she was moving and demanded that Ms. Kestenberg pay him. Ms. Kestenberg refused and demanded the return of her keys. It is undisputed that Mr. Lechinsky never returned the keys. He says that is because Mr. Brackett refused to meet with him to provide final payment. Ms. Kestenberg says that she changed her locks as a result. I address the issue of the keys more below.

19.   Ms. Kestenberg argues that she does not have a contract with Mr. Lechinsky and therefore has no legal obligation to pay him. She says that whether Mr. Brackett owes Mr. Lechinsky any money has nothing to do with her.

20.   Mr. Lechinsky argues that if Mr. Brackett does not pay him what he is owed, then Ms. Kestenberg should have to pay because she is the homeowner. Mr. Lechinsky says that Ms. Kestenberg is “hiding behind” Mr. Brackett and trying to “get out of being responsible” for the debt.

21.   In general, the legal doctrine called “privity of contract” means that a contract cannot give rights or impose obligations on persons who are not parties to the contract. Mr. Lechinsky does not allege that he and Ms. Kestenberg had a contract with each other. Rather, he wants Ms. Kestenberg to fulfill Mr. Brackett’s allegedly unmet obligations under his contract with Mr. Brackett. In this way, Mr. Lechinsky wants to impose Mr. Brackett’s contractual obligation to pay onto Ms. Kestenberg. I find that this would violate privity of contract. I find that Mr. Lechinsky has no legal right to collect the alleged debt from Ms. Kestenberg just because she owns the home. I find that if anyone owes Mr. Lechinsky money for the painting, it is Mr. Brackett. I address Mr. Brackett’s liability more below.

22.   As for the issue with the keys, Ms. Kestenberg argues that I should take into account the cost of replacing her locks when deciding how much, if anything, she owes Mr. Lechinsky. She did not counterclaim against Mr. Lechinsky for this cost. Because I find that Ms. Kestenberg does not owe Mr. Lechinsky anything, I do not need to consider this issue.

23.   For the above reasons, I dismiss Mr. Lechinsky’s claim against Ms. Kestenberg.

24.   I find that Ms. Kestenberg’s third party claim must also fail. As mentioned above, Ms. Kestenberg wants an order that Mr. Brackett pay any amount that I order Ms. Kestenberg to pay Mr. Lechinsky. Because I have not ordered Ms. Kestenberg to pay Mr. Lechinsky anything, Ms. Kestenberg has nothing to claim from Mr. Brackett. So, I dismiss Ms. Kestenberg’s third party claim.

25.   Mr. Lechinsky’s materials make it clear that he chose not to claim against Mr. Brackett because he considers Mr. Brackett to be unethical and dishonest. Mr. Lechinsky did not add Mr. Brackett as a respondent even after Ms. Kestenberg filed her Dispute Response, which raised the issue that Mr. Lechinsky should have claimed against Mr. Brackett. He chose not to do so.

26.   I therefore find that the question of whether Mr. Brackett owes Mr. Lechinsky any money is not properly before me. For this reason, I do not need to resolve what Mr. Lechinsky and Mr. Brackett agreed to, how much Mr. Brackett has already paid Mr. Lechinsky, or whether Mr. Brackett owes Mr. Lechinsky any further money.

27.   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. Mr. Lechinsky and Ms. Kestenberg were both unsuccessful so I dismiss their claims for tribunal fees. None of the parties claimed any dispute-related expenses.

ORDER

28.   I dismiss Mr. Lechinsky’s claims and Ms. Kestenberg’s third party claims, and this dispute.