Date Issued: February 21, 2020

File: SC-2019-006630

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Larix Landscape Ltd. v. Roxana McKenzie Enterprises Ltd.,
2020 BCCRT 210

Between:

LARIX LANDSCAPE LTD.

Applicant

And:

ROXANA MCKENZIE ENTERPRISES LTD.

Respondent

And:

LARIX LANDSCAPE LTD.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about payment for irrigation work.

2.      The applicant Larix Landscape Ltd. (Larix) says the respondent Roxanna McKenzie Enterprises (RME) failed to pay for irrigation work it completed. Larix says RME verbally agreed to have it add an extra zone and then failed to pay the $500 charge.

3.      RME counterclaims, saying the installed irrigation system did not work. RME says it had to hire another company to check the system and fix it. RME asks that Larix be ordered to pay $3,000 for repair and property damage costs.

4.      Larix is represented by business contact JC. RME is represented by its principal RS.

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.      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.

ISSUES

9.      The issues in this dispute are:

a.    whether Larix completed the irrigation add-on zone work as agreed and satisfactorily, such that RME must pay it the claimed $500 charged, and

b.    on the counterclaim, whether RME has proven that Larix’ irrigation work was defective, such that Larix must pay RME $3,000 for repairs to it and for property damage.

EVIDENCE AND ANALYSIS

10.   In this civil claim, Larix bears the burden of proof on a balance of probabilities, to prove it completed the irrigation work and was not paid for it.

11.   Because RME alleges that the irrigation work is defective, the burden of proof to establish the defects is on RME: Lund v. Appleford Building Company Ltd. et al, 2017 BCPC 91 at paragraph 124. RME also bears the burden of proof in its counterclaim.

12.   I only refer to the evidence and submissions below as I find necessary to provide context for my decision.

13.   From April 23 to 26, 2019, Larix did an irrigation installation for RME. It is undisputed that the installation was done at a residential property.

14.   Larix says that RS verbally requested a further extension of the irrigation to a zone not covered by their initial agreement. Larix says RME agreed to a price of $500 for this zone extension.

15.   RME denies requesting or agreeing to a zone extension. RME says that Larix returned to the property to walk-through and address some deficiencies in their initial job, not to be paid for additional work.

16.   On June 28, 2019, RME says that Larix and a landscaper, Acacia Landscape Inc., (Acacia) had a site meeting at the property. Acacia’s invoice records a 1.25-hour site meeting with RS and Larix “re deficiencies in Larix install”. Acacia charged RS $106.25 for this meeting. I find that RME asked Acacia to be present at that site meeting. I find no basis for Larix to have to pay for Acacia’s presence at the site meeting.

17.   On June 28, 2019, Larix says it installed the zone extension an irrigation system for RME. According to Larix’ timesheets, Larix workers spent 2 hours at the property.  However, the time sheets do not explain what work was done during those 2 hours.

18.   Larix agrees that, on a walk-through after the work was completed, a couple of missed nozzles and one missed blow out were identified and fixed. I find this was likely the during the June 28, 2019 walk-through.

19.   On June 28, 2019, Larix invoiced RME a total of $4,568.76, broken down as $3,841.22 for irrigation installation, $500.00 for a zone extension of the irrigation, tax and 5% contractual interest charges on the overdue balance of $524.28. The invoice records a $4,034.00 payment from RME, leaving $534.76 owing. Larix says the June 28, 2019 invoice proves it initially invoiced RME for the zone extension before doing the work. However, Larix did not file an earlier invoice in evidence.

Claim re: Zone Extension

20.   I find that the $534.76 is the $500 zone extension charge claimed in this dispute, plus tax and interest.

21.   I find that Larix never paid the $534.76. However, for the reasons given below, I dismiss Larix’s claim to the $500 for the zone extension. I say this because Larix has not met the burden of proving that it was asked to do additional work, rather than just fixing up minor deficiencies in the work already completed.

22.   I find that Larix has not proven that the June 28, 2019 work was for 2 hours’ installing a zone extension. I make this finding because Larix has the burden of proof. It was unable to provide a written agreement showing the request for a zone extension. RME contests the alleged verbal agreement. The time sheets show 2 hours of work, and Acacia’s time sheets record that the site meeting to discuss deficiencies to that point took 1.25 hours. I find it more likely than not that the remaining .75 hours were spent by Larix to address the issues raised during the walk-through, and not to install extra irrigation.

23.   For these reasons, I dismiss Larix’s claim for $500 payment for the zone extension.

Counterclaim

24.   I now turn to the counterclaim. RME says Larix’ irrigation installation was done improperly.

25.   In the counterclaim, RME claims $3,000 for “cost to repair damages and fix system”. RME says it had to hire another company to check the irrigation system and address the problems.

26.   RME filed some photographs of parts of the installed irrigation. In one photograph, a line can be seen partly uncovered. However, the photograph also appears to show that mulch was moved off the top of the irrigation line before the photograph was taken. I find that RME has not proven a deficiency, because there is no proof that the lines had to be covered and were uncovered when first installed.

27.   Based on the evidence, I find that RME has not proven that Larix breached the contract between them to provide irrigation.

28.   However, RME’s counterclaim also includes an allegation that the irrigation work was negligent. To succeed in a negligence claim, RME must prove that Larix fell below the standard of care for installation of this type of irrigation system, and that the failure to meet the standard caused RME’s claimed damages.

29.   In most cases involving a claim of professional negligence, expert evidence is required to prove the professional standard of care.

30.   RME relies upon a document RS describes as “information received from my expert regarding cost of repair and remediation”. The document is a “Build Estimate” prepared by Acacia. I find that the Build Estimate provides an estimate for a more extensive irrigation project than the original one installed by Larix. RME’s desire to re-do or extend aspects of its installed irrigation does not prove that Larix failed to satisfactorily install the earlier irrigation.

31.   However, the Build Estimate refers to (a) a “repair” of a ¾ zone line in the garden bed that was not fully inserted and (b) excavating and retrenching existing zone lines to an “appropriate depth” per Irrigation Industry Association of British Columbia (IIABC) Standards for Landscape and Irrigation Systems January 2008 Edition. The Build Estimate does not specify how much of Acacia’s $5,349.75 estimate would be spent on these two repairs.

32.   I find that the Build Estimate is not an expert report about the standard of care for irrigation such as that installed by Larix. I say this because the document is an estimate, not an expert opinion. As well, contrary to the tribunal rules, the author does not outline their qualifications to provide expert opinion evidence. However, there remains an issue about whether the implication that the existing irrigation was not entrenched at an appropriate depth is a deficiency in Larix’ work.

33.   Some cases have found that the standard of care owed by a home inspector is simply that of a reasonable visual inspection done in accordance with the relevant provincial standards (see Biggs v. Harris, [1999] O.J. No 4831). By analogy to Biggs, I will consider whether there are relevant standards for irrigation installation that set or inform the standard of care in this dispute.

34.   RME relies on the January 2008 IIABC Standards for Landscape Irrigation Systems (Standards). The Standards say that they represent 2008 “minimum” standards for landscape irrigation systems. The Standards also say that special circumstances may require customized specifications related to a particular project.

35.   The Standards set “coverage” for residential landscaping over irrigation piping at 8-12 inches. However, Larix says that some of the irrigation it installed was a “drip line” buried under bark mulch, which is routinely installed at a much shallower depth. RME did not address this factual issue.

36.   I find that I cannot accept the Standards to prove the required standard of care. I say this because the Standards speak to 2008 guidance, whereas this dispute arose in 2019. More importantly, I do not have admissible expert evidence that interprets the Standards as applied to the disputed project. The Standards themselves suggest that customization is an important part of irrigation work. Given the customization aspect, I find RME is unable to rely only on Standards and a Build Estimate as the needed expert evidence.

37.   I find that any deficiencies in the work were repaired at the June 28 site visit. After that, the service calls made by Acacia appear to be for ongoing service of the system and for upgrades to it, not to fix work done improperly.

38.   I find that RME has not proven any breach of contract or negligence by Larix. Even if I had found that the Standards set a minimum depth for irrigation piping that had not been used by Larix or some other deficiency, I would have dismissed the counterclaim because RME did not prove that the claimed $3,000 damages were caused by that failure.

39.   For these reasons, I dismiss RME’s counterclaim.

40.   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 neither party was successful, I make no order for reimbursement of tribunal fees or dispute-related expenses.

ORDER

41.   I dismiss the claims and counterclaims, and this dispute.