Date Issued: January 6, 2020

File: SC-2019-007086

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Finney v. Tsui, 2020 BCCRT 16

Between:

FRANK FINNEY

Applicant

And:

WING PAN TSUI

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about payment for renovating 2 bedrooms. The applicant, Frank Finney, says the respondent, Wing Pan Tsui, refuses to pay the balance of his invoice for work done.

2.      The applicant seeks an order for $450.00 for installing extra pot lights, $550.00 for extra drywall work, and $500.00 in lost income. He says the respondent requested the additional work and the renovations were also unexpectedly difficult.

3.      The respondent disagrees. He says the applicant is only entitled to the original estimate of $3,250.00 for the work. The respondent says he already paid this amount, plus more.

4.      The parties are self-represented.

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. Some of the evidence in this dispute amounts to a “she said, he said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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 British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

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.      Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUE

9.      The issue in this dispute is whether the applicant is entitled to extra labour costs of:

a.    $450.00 for installing pot lights in the second bedroom,

b.    $550.00 for drywall work, and

c.    $500.00 in lost income.

EVIDENCE AND ANALYSIS

10.   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.

11.   As noted above, the respondent hired the applicant to renovate two bedrooms. I find that their agreement was both oral and partially documented in a June 28, 2019 estimate.

12.   The estimate says the applicant would do the following for $3,250.00:

a.    remove and install closets and organizers,

b.    remove a valance (decorative drapery) and wall skim/paint the area,

c.    remove and install window trim, door, and baseboards,

d.    install dimmable 4-inch pot lights, and

e.    cover all waste materials disposed at an appropriate site.

13.   The estimate also says the applicant would provide paint, mud (spackle), and fasteners. The respondent would supply other materials.

14.   The estimate provided two timeframe options for the work: July 2 to 13 and August 8 to 24, 2019. The respondent chose the first option.

15.   On July 3, 2019, the applicant contacted the respondent about installing the pot lights. He asked if he should purchase 4 lights for the respondent. The respondent replied it would be 4 lights in each of the 2 bedrooms. The respondent added the lights would be $20.00 each and $47.00 for each light switch. The respondent did not mention any other costs. He installed 8 lights in total.

16.   The applicant started work on July 4, 2019. The respondent paid the applicant a first draw of $1,250.00. On July 29, 2019, the applicant brought extra help to finish the job. The applicant completed the work on August 2, 2019.

17.   The applicant invoiced the respondent on August 9, 2019. The applicant noted he added the following extras totaling $1,020.00:

a.    $450.00 for installing 4 pot lights in the second bedroom,

b.    $20.00 for 2 electrical box ceiling covers, and

c.    $550.00 for drywall work related to valance removal.

18.   The applicant added the above $1,020.00 in extras to the June 2019 estimate of $3,250.00, for a total of $4,270.00. The applicant subtracted the July 4, 2019 payment. He mistakenly used $1,500.00, but the parties agree that the respondent actually paid $1,250. Using the correct figures, this left a balance owing of $3,020.00.

19.   In an August 10, 2019 email the respondent agreed to pay for the box covers. However, he disagreed about paying the other extra charges. He wrote that he would pay the $2,000.00 balance owing under the June 28, 2019 estimate and $20.00 for the box covers. The respondent also wrote that the June 28, 2019 estimate included the cost of screws and garbage disposal and screws. However, despite this, the respondent agreed to pay $375.98 for the screws and garbage removal.

20.   The respondent ultimately paid $3,250.00 for the work, plus $20.00 for ceiling covers and $375.98 for the screws and garbage removal.

21.   The applicant says the extra charges are justified for two reasons. First, he says the respondent requested and approved the extras, namely the $45.00 for the second bedroom’s 4 pot lights and the $550.00 for the valance-related drywall. Second, he says the work was more difficult than expected.

22.   The respondent says he did not approve any additional charges. Further, he says that he had to hire a contractor to fix deficiencies in the respondent’s work. He says the price in the June 28, 2019 estimate should apply.

23.   As noted in Sepco Estates Ltd. v. Dy, 2007 BCSC 1159 at paragraph 72, an “extra” is work that is substantially different from, and wholly outside, the scope of the work contemplated by the contract. Whether an item of work is an extra depends on the contract documents, the nature of the work performed, and the surrounding circumstances. If, under the contract, the item of work is one that the contractor is required to perform it cannot be an extra. This is true even if the contractor failed to realize he would be required to perform such work.

The $450.00 Claim for 4 Pot Lights in the Second Bedroom

24.   First, I find that installation of the 4 lights in the second bedroom is not an extra. The estimate lists what work must be done in both bedrooms. This includes the pot lights. Consistent with this, the applicant worked on closets, valances, trim, doors and baseboards of each bedroom. I find that the most reasonable interpretation of the estimate is that the parties intended pot lights to be installed in both bedrooms.

25.   The parties disagree on whether the respondent agreed to pay extra labour charges for the lights. I find it more likely than not that the respondent did not discuss the extra charges before the August 9, 2019 invoice. In a July 3, 2019 text message, the applicant discussed installing 4 lights instead of 8. However, the respondent clarified that 4 lights were needed in each bedroom. The applicant did not say he would charge more for the work or indicate that the work would take longer.

26.   The parties exchanged emails about the invoice on August 9 and 10, 2019. The respondent wrote that the estimate was for pot lights in both bedrooms. I find that the emails show that the respondent did not agree to extra charges for the pot lights (or the drywall work claimed) before the invoice was issued.

27.   The estimate also does not provide any basis for billing extra work. There is therefore little indication that the lights in the second bedroom were outside the scope of contemplated work prior to the August 9, 2019 invoice.

28.   The applicant says that the respondent’s attic was small and necessitated hiring extra labour. However, the applicant did not provide any evidence to support this submission. I find the applicant has not shown why the extra labour was unexpected or why the respondent should pay for it. Presumably the applicant could have considered the need for extra labour as part of the initial June 28, 2019 estimate.

29.   The applicant also says the respondent had his floors refinished midway through the bedroom renovations. He says this caused long delays. I find this submission vague as no details were provided. Further, it is unclear if the respondent acted unreasonably in hiring the floor refinishers. The applicant finished his work on August 2 rather than the originally contemplated finish date in mid-July 2019. Under the original timeline the work schedules of the applicant and the floor refinishers would minimally overlap.

30.   If I am wrong on the above points, I would still find against the applicant on the pot lights issue. The respondent provided photos of the installed pot lights. One photo shows a large gap where the pot lights are installed. The respondent also says the lights flickered when dimmed and he had to hire another contractor to fix this issue. He provided an August 15, 2019 invoice for $100.00 in this regard. The applicant says that the contractor might have caused the gap, but I find this to be speculative. I would not award $450.00 given these issues with the work. I dismiss the applicant’s claim for $450.00 for the pot lights.

The $550.00 Claim for Drywall Work

31.   I now consider the claim of $550.00 for drywall work related to valance removal.

32.   The applicant says this was more work than expected because the valances were not attached to the wall. Instead, they were constructed as part of the wall itself. As a result, extra work was required to prepare the wall for repainting. The applicant provided a photo showing that removing the valances removed part of the wall. The August 9, 2019 invoice is consistent with this. The claimed $550.00 is for wall furring, drywall, tape, mud, sanding and priming 2 bedroom walls after valance removal.

33.   For the following reasons, I decline to order payment of the $550.00 for the drywall work.

34.   I find that the drywall work (particularly wall furring) was outside the scope of the work contemplated by the parties’ agreement. The estimate says that the applicant would remove the valances and wall skim/paint the areas. I acknowledge the applicant’s photo supports the conclusion that additional surface preparation was necessary.

35.   However, the evidence before me, including the emails of August 9 and 10, 2019, support the conclusion that the respondent did not agree to the additional work in advance. This presents an added difficult for the applicant.

36.   In any event, I find that the applicant’s claim for $550.00 is more than offset by the respondent’s cost of fixing deficiencies in the applicant’s work.

37.   In addition to the flickering light issue discussed above, the contractor had to do further work on the closet door frames. The respondent provided photographs showing certain areas were left unfinished and unpainted. The contractor also installed the closet organizer. Installing the organizer was a listed item in the June 28, 2019 estimate but left undone by the applicant. The contractor charged $1,350.00 for the closet-related work.

38.   The applicant says the respondent wished for some of the areas to be left unfinished and unpainted. I find this unlikely and inconsistent with the applicant hiring the contractor. The applicant does not explain why it did not install the closet organizer as agreed. I find the contractor’s cost of $1,350.00 was reasonable.

39.   The respondent asked the applicant to return the respondent’s house key. He initially refused until early November 2019. The contractor replaced the respondent’s locks for $50.00 before then. I find this amount reasonable as well.

40.   I find it appropriate to offset the applicant’s claim of $550.00 for additional drywall work by the $1,400.00 charged by the contractor. As this is more than the claimed amount, I dismiss this portion of the applicant’s claim.

The $500.00 Claim for Lost Income

41.   Finally, the applicant claims $500.00 in lost income. The applicant claims for both lost income and additional labour costs during the same time period. On its face, this claim appears to be for double recovery. The applicant did not provide any evidence or submissions on this matter.

42.   I dismiss this claim.

 

 

TRIBUNAL FEES AND EXPENSES

43.   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. I see no reason in this case not to follow that general rule.

44.   The respondent is the successful party in this dispute. He paid no tribunal fees and does not claim dispute-related expenses. I therefore decline to make any orders for tribunal fees or dispute-related expenses.

ORDER

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