Date Issued: March 17, 2020

File: SC-2019-003917

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Abhroudi v. Omni Gas Ltd., 2020 BCCRT 309

Between:

ABBAS ABHROUDI

Applicant

And:

OMNI GAS LTD. and MUKHTIAR SAMRA

RespondentS

And:

OMNI GAS LTD.

Respondent by COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      The applicant, Abbas Abhroudi, claims the respondents failed to properly install his gas services. Mr. Abhroudi claims: $4,751.50 and “an order to fix the faulty gas work” to meet requirements set by the District of North Vancouver (District) plus $248.50, for a permit renewal necessitated by the faulty work’s repair.

2.      The respondent Omni Gas Ltd. (Omni) was the sub-trade that did the gas work. Omni is in default, as discussed further below. The respondent Mukhtiar Samra was the general contractor on Mr. Abhroudi’s construction project and in his third party claim Mr. Samra says Omni is responsible.

3.      Mr. Abhroudi and Mr. Samra are each self-represented. Omni failed to file a Dispute Response as required and has not participated in this dispute. So, Omni is in default, as discussed below.

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. 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.

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, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

Preliminary issue

8.      As noted above, the applicant seeks an order that the respondents fix the faulty work. An order for a person to do something is what is known in law as ‘injunctive relief’. I do not have jurisdiction under section 118 of the CRTA to grant injunctive relief, except in certain circumstances that I find do not apply here. Specifically, there was no agreement between the applicant and either respondent to “fix faulty work”. The agreement was to do the job at the outset. I cannot conclude that the required fix is simply completing the original job. I find I cannot grant an order that the respondents fix any faulty work. Plus, an order for specific performance (completion of a contract) is generally only granted where compensation would not be reasonably sufficient. Since the applicant attached a precise dollar figure, $4,751.50, and given the facts involved I find monetary compensation would be sufficient.

9.      However, the applicant did not originally file any evidence in support of either of his monetary claims. In the circumstances of this dispute, I decided to invite the applicant to provide supporting evidence and Mr. Samra had an opportunity to respond. The evidence provided and my conclusions are set out below.

ISSUE

10.   Were Mr. Abhroudi’s gas services properly completed, and if not, to what extent are Omni and Mr. Samra each responsible for his claimed damages?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, Mr. Abhroudi must prove his claim, on a balance of probabilities. In turn, Mr. Samra must prove his third-party claim against Omni. I have only referenced the evidence and submissions as necessary to give context to my decision.

12.   Mr. Abhroudi hired Mr. Samra to assist with his home renovation project, with construction beginning in August 2017. Mr. Samra then hired Omni as a sub-contractor to complete the necessary plumbing and gas work. The issue in this dispute is that Omni completed its work without obtaining the required plumbing and gas permit from the District, and when the District later inspected it found Omni’s work to be non-compliant. All of this is undisputed.

13.   Mr. Samra submits that Omni completed its job and he paid it in April 2018. Omni’s failure to obtain the required permit and Omni’s deficiencies were not discovered until the District did a final inspection on the project. This is also undisputed.

14.   The evidence shows Mr. Abhroudi’s contract was with Mr. Samra. While there is no written contract in evidence between Mr. Abhroudi and Mr. Samra, given the parties’ submissions and Mr. Samra’s role on the project I find Mr. Samra agreed to be responsible for the work he sub-contracted out to Omni. While not directly on point, the court’s comments in Busselton Construction Ltd. & Other v. Reno, 2003 BCSC 1290 at paragraph 15 also indicate a contractor such as Mr. Samra is responsible to the homeowner for a sub-contractor’s conduct. In short, Mr. Samra’s liability to Mr. Abhroudi is based on their contract.

15.   There is no evidence Mr. Abhroudi had a contract with Omni. Rather, Mr. Abhroudi’s claim against Omni is based on negligence. I note in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85 at paragraph 22 the court concluded that a contractor can be held liable in negligence for defects and the associated repair costs. In Winnipeg, the defects were found to be dangerous, but the decision does not say danger is a necessary element.

16.   I note there is no evidence before me from a third party saying Omni’s work was defective. However, both Mr. Abhroudi and Mr. Samra say it was. Similarly, I have no evidence from the District saying Omni did the work without a required permit. However, Omni is in default. In particular, on December 16, 2019 the tribunal served Omni with the Dispute Notice by mail in accordance with the tribunal’s rules, and also sent it by email. Under the tribunal’s rules, the service was deemed received within 10 days, and the Dispute Response due 14 days after that. Omni did not file a Dispute Response as required.

17.   Where a respondent is in default, liability is assumed. This means that because the respondent Omni refused to participate, it is generally reasonable to assume that the applicant’s position is correct on the issue at hand. I therefore find Omni failed to apply for the required District permit and I also find it did not reasonably complete the work to the required standards. The fact that Mr. Samra supports Mr. Abhroudi in his claim against Omni supports my conclusion about Omni. I find Omni was negligent. For these reasons, I find Mr. Abhroudi is entitled to damages for repair costs. I find Mr. Samra and Omni are equally responsible to Mr. Abhroudi for his proved damages.

18.   I turn then to the amount of damages that is appropriate. As noted above, Mr. Abhroudi claims $4,751.50 plus $248.50 for a permit, for a total of $5,000.

19.   Mr. Samra agrees Mr. Abhroudi hired TAG Engineering (TAG) to fix Omni’s deficiencies and comply with the District’s requirements. In evidence are a retainer agreement with TAG and 2 invoices from TAG dated November 8 and 15, 2019, for $1,050 and $1,785 respectively. These total $2,835.

20.   Mr. Abhroudi also provided a January 28, 2020 “Quotation /Agreement” from Eho Power Air for $3,150. The agreement with Eho Power Air covers materials and labour to replace various ducting, and to install a balancing damper and a new diffuser base, in accordance with the approved engineering plan from TAG. Mr. Abhroudi submits Eho Power Air has not yet completed the repair work.

21.   Together, the above figures total $5,985. In his submissions, Mr. Abhroudi says he has spent over $6,000 to address Omni’s failures. However, the tribunal’s small claims monetary limit is $5,000 and Omni only had notice of Mr. Abhroudi’s $4,751.50 claim for repair costs. I therefore find Mr. Abhroudi is entitled to $4,751.50 in damages for repairs.

22.   The Court Order Interest Act (COIA) applies to the tribunal. There is no evidence Mr. Abhroudi has paid Eho Power Air yet, and so I do not award COIA pre-judgment interest on the $3,150. As for the $2,835 total to TAG, I find Mr. Abhroudi is entitled to COIA pre-judgment interest from November 15, 2019, a date I find most reasonable in the circumstances, to the date of this decision. This equals $18.78.

23.   Given my conclusions above, I find Mr. Samra and Omni are jointly and severally liable to Mr. Abhroudi, which means Mr. Abhroudi can collect the $4,770.28 award from either Omni or Mr. Samra. I will address Mr. Samra’s third party claim against Omni and the parties’ respective claims for tribunal fees below.

District permit fee - $248.50

24.   Mr. Abhroudi says Mr. Samra agreed that all work would be completed by December 2018, before his renovation permit expired on May 16, 2019. Mr. Samra does not deny this, and says Omni is responsible for delays caused by its failure to obtain the appropriate plumbing permit and by the need for Omni’s work to be fixed.

25.   Based on the parties’ submissions and the fact Omni is in default, I find that Omni’s negligence led to unreasonable delays in the construction project, which in turn led to Mr. Abhroudi having to incur the building permit extension expense.

26.   Mr. Samra says he was not obligated to obtain the required plumbing and gas permit, because only the registered homeowner or the licensed contractor can do so. I accept his evidence on this point, which is undisputed. However, as noted above I find Mr. Samra’s agreement with Mr. Abhroudi was that he would be responsible for the work he chose to sub-contract out to Omni. I have found above Omni was negligent. So, as above I find Mr. Samra and Omni are equally responsible to Mr. Abhroudi for his proved damages. I turn then to the amount of the permit fee claim.

27.   Mr. Abhroudi provided a District “Building Permit” that indicated it was a “first 6 month extension” with a November 16, 2019 expiry date, and a District receipt for $252.50 that support his claim. I assume Mr. Abhroudi rounded this claim down to $248.50 in order to bring his claims within the tribunal’s $5,000 small claims monetary limit. I find Mr. Abhroudi is entitled to reimbursement of $248.50.

28.   I find Mr. Abhroudi is entitled to COIA pre-judgment interest on the $248.50, calculated from May 9, 2019 to the date of this decision. This equals $4.17.

29.   Mr. Samra and Omni are jointly and severally liable for the total $252.67 award and Mr. Abhroudi may collect from either of them.

Third party claim – Mr. Samra against Omni

30.   Mr. Samra filed a third-party claim against Omni for $5,000. Generally, this means that to the extent Mr. Samra proves Omni is responsible for the damages claimed by Mr. Abhroudi, Mr. Samra is entitled to an order that Omni indemnify Mr. Samra for those damages.

31.   For clarity, an order to indemnify means that Omni must reimburse Mr. Samra for the money Mr. Samra pays to Mr. Abhroudi for Mr. Abhroudi’s claim.

32.   I have found above Mr. Abhroudi is entitled to a combined award of $5,000 ($4,751.50 + $248.50), plus $22.95 in COIA pre-judgment interest for a total of $5,022.95. I find that Mr. Abhroudi and Mr. Samra agree that Omni was the negligent party, as discussed above. Again, Omni is in default and so I find Omni must indemnify Mr. Samra for the $5,022.95 I have ordered payable to Mr. Abhroudi.

Fees and expenses

33.   Under section 49 of the CRTA and tribunal rules, a successful party is usually entitled to reimbursement of tribunal fees paid and reasonable dispute-related expenses. Neither Mr. Abhroudi nor Mr. Samra claim expenses. Like COIA interest, tribunal fees and dispute-related expenses are excluded from the tribunal’s small claims monetary limit.

34.   Mr. Abhroudi expressly claims Omni is responsible for his $175 in paid tribunal fees. He does not claim fee reimbursement from Mr. Samra. So, I order Omni to pay Mr. Abhroudi $175 in tribunal fees, because Mr. Abhroudi was successful in his claim.

35.   Mr. Samra claims reimbursement from Omni for the $125 he paid in tribunal fees. I order Omni to pay Mr. Samra $125 in tribunal fees.

ORDERS

36.   Within 30 days of this decision, I order the respondents, OMNI GAS LTD. and MUKHTIAR SAMRA, to pay the applicant ABBAS ABHROUDI a total of $5,022.95, broken down as follows:

a.    $5,000 in damages, and

b.    $22.95 in pre-judgment interest under the Court Order Interest Act.

37.   Within 30 days of this decision, I order the respondent OMNI GAS LTD. to pay the applicant ABBAS ABHROUDI $175 in tribunal fees.

38.   Within 40 days of this decision, I order the third party respondent OMNI GAS LTD. to indemnify MUKHTIAR SAMRA for a total of $5,022.95.

39.   Within 40 days of this decision, I also order the third party respondent OMNI GAS LTD. to pay MUKHTIAR SAMRA $125 in tribunal fees.

40.   Mr. Abhroudi and Mr. Samra are each entitled to post-judgment interest, as applicable.

41.   Under section 48 of the CRTA, the tribunal will not provide the parties with the order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

42.   Under section 58.1 of the CRTA, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.