Date Issued: February 19, 2020

File: SC-2019-007528

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tepedelen v. White Knight Painting Ltd., 2020 BCCRT 189

Between:

ADEM TEPEDELEN

Applicant

And:

WHITE KNIGHT PAINTING LTD.

Respondent

INTRODUCTION

1.      This dispute is about a staining job on a residential deck. The applicant, Adem Tepedelen, hired the respondent, White Knight Painting Ltd., to sand and stain his back deck and front stairs in the late spring of 2018. In the spring of 2019, the applicant noticed patches of bubbling in the stain coating, which the respondent agreed to fix. The applicant says the September 2019 repair job was unreasonably patchy in colour. The applicant says the respondent should have known the outcome would be patchy and told the applicant that before the repair job was done.

2.      The respondent says the bubbling seen in the spring of 2019 was due to an uncorrected original coating that had been applied by someone else. The respondent says the September 2019 repair was for protection and that it did not guarantee there would be no colour differences. The respondent says it has done what it can for the deck and is not responsible.

3.      The applicant is self-represented. The respondent is represented by its owner Robert Fuchs. For the reasons that follow, I dismiss the applicant’s claims.

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 (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.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me.

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.      Where permitted by section 118 of the CRTA, 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 in this dispute is whether the respondent must compensate the applicant for the patchy result in the deck repair.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant must prove his claim, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

10.   In June 2018, the applicant’s spouse hired the respondent to stain their back deck and front stairs, for $2,440.20. The 2018 contract describes the job as cleaning and the application of “one maintenance coat” of ‘Sikkens Cetol Dek’ product. Based on a June 15, 2018 email from the applicant’s spouse to the respondent, the applicant asked for a 2^nd coat on the deck (for an unspecified extra charge) because the stairs looked good. These facts are not disputed.

11.   It is also undisputed that the applicant had refused the respondent’s recommendation in 2017 and 2018 to strip the deck back to bare wood and apply a more appropriate product. Instead, I accept that the applicant chose to hire the respondent to apply a “maintenance coat” to “tie it over until” the applicant would later strip the deck. The contract wording supports this conclusion.

12.   As noted above, in the spring of 2019, the applicant noticed patches of bubbling on the back deck’s coating, which is apparent in the photos in evidence.

13.   In about early September 2019, the respondent began the repair work for the bubbling. After sanding, the exposed wood was considerably lighter than the rest of the deck, which is undisputed and is shown in the applicant’s photos.

14.   I agree with the applicant that the post-repair photos show a patchy deck, with what appears to be a worn, darker, deck surface in contrast to areas of freshly sanded and stained areas. The applicant says no one from the respondent mentioned any concern about how the final re-stained deck would look, after the partial sanding.

15.   So, this dispute is about whether the respondent should have known and warned the applicant there would have been a patchy result, so he and his spouse could make an informed decision about whether to proceed to have the bubbling fixed. Another aspect of the applicant’s claim is whether the respondent’s repair job was faulty, such that the patchiness could have been avoided. Here, the applicant’s argument is that the deck’s patchiness is due to the respondent having sanded the deck right down to bare wood, making the unstained deck surface so much lighter than the surrounding wood.

16.   I turn then to the respondent’s various arguments in defence. Under the 2018 contract’s heading “Colours”, it states that “In no way is [the respondent] financially responsible for colour changes. Colour changes will be treated as “latent damage.” Under the heading “Other”, the contract states that the respondent assumes no responsibility, except where outlined in the contract, for imperfections in surfaces to be stained, and does not guarantee against “cupping, buckling and shrinkage” as these surfaces expand and contract with atmospheric moisture changes. The contract does not provide for a warranty.

17.   The applicant says that the original 2018 contract is irrelevant, because he says Mr. Fuchs promised to “make good” with the September 2019 repair. The applicant points to Mr. Fuchs’ August 28, 2019 email in which he wrote, “We will go above and beyond and re-stain the affected areas this time, but this type of damage is not covered by our warranty.” I do not agree with the applicant that this statement meant Mr. Fuchs promised to make the September 2019 repair job perfect or without patchiness. I also do not agree that the original contractual terms do not apply. I find Mr. Fuchs’ statement was simply that because the original warranty terms did not apply, he would nonetheless “go above and beyond” and would re-stain the affected areas. That is what the respondent did. I find the respondent’s September 2019 repair, a year after the original staining job, was essentially a courtesy, bearing in mind the deck’s original condition and the normal 12 to 18 month life expectancy of the chosen deck coating. It is undisputed the deck stain likely had less than that, because the third party who originally stained it did not stain all sides, further to the manufacturer’s recommendations, so the deck was more susceptible to moisture.

18.   So, I find the contract’s exclusion for colour changes is the primary answer to the applicant’s claim about the September 2019 repair job. While not directly relevant to the applicant’s claim, which is about the patchy repair job, I say the same about the express language saying there was no guarantee against cupping, buckling and shrinkage, which I find applies to the bubbling found in the spring of 2019.

19.   The respondent also says it told the applicant’s spouse during their meetings about the deck stain being at the end of its life. The respondent reiterates that it has always advised to strip the deck, and that the repair job was to protect the deck until the applicant and his spouse could afford the proper job. In reply, the applicant says the discussions with his spouse are not relevant, because he was the one who later dealt with the respondent and its employees about the September 2019 repair.

20.   On balance, I find the weight of the evidence does not support the applicant’s position. There is no evidence before me from the applicant’s spouse and no explanation for its absence. If the respondent had not told the applicant’s spouse that the deck repair was for protection, I would have expected the applicant to provide a statement from his spouse to that effect. I find the respondent told the applicant’s spouse the repair work was for deck protection. I acknowledge the applicant’s statement that no one wants a patchy deck. However, the facts here are that the applicant and his spouse were putting off required deck maintenance. There is no evidence the respondent guaranteed the deck would not be patchy in appearance after the bubbled patches were sanded and re-stained.

21.   Next, what about the applicant’s negligence assertion, that the respondent sanded the deck down too much in doing the September 2019 repair? The applicant says the respondent agreed to repair the deck by “scraping, lightly sanding and re-staining the affected areas”. I do not have any documentation before me showing the respondent described the planned repair job this way. As set out in Mr. Fuchs’ August 28, 2019 email, I find the respondent only offered to re-stain the affected areas, with the implied requirement that the respondent would do whatever preparation work it considered necessary. Based on the evidence before me, I do not find that the respondent said it would only “lightly sand” the affected deck areas. I also have no evidence before me to conclude that the bubbling repair could have been accomplished with less sanding.

22.   Next, the applicant also says he was told the repaired areas would be “feathered in”, which he took to mean that the repaired areas would not stand out. I infer the applicant argues the respondent misrepresented the repair job. I find that even if the respondent said they would feather in the fresh stain, that does not mean the respondent guaranteed there would be no visible colour difference between the existing and freshly patched areas.

23.   Finally, should the respondent have expected the patchiness and warned the applicant? The respondent says that when it did the repair job in September 2019, the patchy result was unexpected because other areas scraped and sanded the year prior did not result in such a big difference in colour. I have no evidence to the contrary, and no expert evidence about what one should expect in various moisture conditions. As noted, the applicant bears the burden of proof and I find he has no met that burden.

24.   Given my conclusions above, I find the applicant’s claims must be dismissed.

25.   Under the CRTA and the tribunal’s rules, as the applicant was unsuccessful I find he is not entitled to reimbursement of tribunal fees. No dispute-related expenses were claimed.

ORDER

26.   I order the applicant’s claims and this dispute dismissed.