File: SC-2020-000394
Type: Small Claims
Indexed as: Tami D. Teather (dba Park Royal Construction) v. May, 2020 BCCRT 497
Between:
TAMI D. TEATHER (Doing Business As PARK ROYAL CONSTRUCTION)
Applicant
And:
ARTHUR MAY
Respondent
And:
TAMI D. TEATHER (Doing Business As PARK ROYAL CONSTRUCTION)
Respondent BY COUNTERCLAIM
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
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INTRODUCTION
1. This dispute is about residential drainage work done in December 2019 by the applicant (and respondent by counterclaim), Tami D. Teather (Doing Business As Park Royal Construction), who is also known as Troy Teather. Mr. Teather says Arthur May, the respondent (and applicant by counterclaim), agreed to pay him hourly but failed to pay his bill. Mr. Teather claims an outstanding balance of $4,086.78.
2. Mr. May says Mr. Teather’s claimed hours unreasonably exceeded a $7,400 to 7,500 verbal estimate he alleges Mr. Teather gave a couple days into the project. Mr. May also says when he terminated the contract Mr. Teather’s employees attempted sabotage by rolling 2 large boulders into the trench dug by Mr. Teather’s crew, causing damage. Mr. May also says Mr. Teather failed to return his drill. Mr. May claims a total of $5,000 in damages. Mr. Teather denies Mr. May’s allegations.
3. Both parties are self-represented.
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. Bearing in mind the tribunal’s mandate of proportional and speedy dispute resolution, and I find I can fairly hear this dispute through written submissions.
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.
8. Although claiming total damages in excess of $7,000, Mr. May expressly reduces his claims so that they fall under the tribunal’s $5,000 small claims monetary limit.
ISSUES
9. The issues in this dispute are:
a. Did Mr. Teather reasonably fulfill the parties’ drainage project agreement, and if so to what extent is he entitled to the claimed $4,086.78 invoice balance?
b. Did Mr. Teather breach the parties’ contract by failing to reasonably keep to an alleged $7,400 to $7,500 verbal estimate, and if so, to what extent is Mr. May entitled to damages?
c. Did Mr. Teather or his crew “sabotage” the drainage project, by rolling boulders into the dug trench, and if so to what extent is Mr. May entitled to damages?
d. Did Mr. Teather fail to return Mr. May’s drill, and if so to what extent is Mr. May entitled to compensation?
EVIDENCE AND ANALYSIS
10. In a civil claim such as this, Mr. Teather must prove his claim and Mr. May must prove his counterclaim, each on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.
The drainage contract, and whether Mr. Teather fulfilled or breached it
11. In December 2019, Mr. May required drainage work, and was admittedly anxious to have it completed by Christmas Day, 2019. Broadly speaking, the project involved digging a long and deep trench, splitting rocks, cutting tree roots, and then laying drainage pipe. This is undisputed.
12. The parties agree there was no written fixed price contract. I accept Mr. Teather’s undisputed evidence that he does jobs “by the hour only”. Mr. Teather’s $86 hourly rate plus 10% overhead plus GST is not in dispute. As discussed further below, what is in dispute is whether Mr. Teather gave any sort of binding estimate to Mr. May about how many hours the project would take.
13. The evidence shows Mr. Teather and his crew worked on the project daily from December 19 to December 28, 2019, with the exception of Christmas Day and Boxing Day. In particular, Mr. Teather texted Mr. May daily, setting out the hours each of his crew members worked each day. It is undisputed Mr. May was regularly observing the progress of Mr. Teather’s work.
14. It is also undisputed that mid-day on December 28, 2019 Mr. May terminated the parties’ contract because he felt Mr. Teather had made insufficient progress for the hours billed. Mr. May says he had paid $8,087.63 but alleges Mr. Teather had by then only completed either 60% or 2/3 of the project.
15. I turn then to the heart of this dispute. Mr. May alleges that on the 2nd or 3rd day of the job, Mr. Teather gave him a verbal $7,400 - $7,500 estimate for the entire project. Significantly, Mr. May argues this alleged global estimate meant Mr. Teather’s final total hours needed to fit within that estimate within “reasonable leeway”. Given my conclusions below, I find I do not need to discuss the case law cited by Mr. May about whether an estimate is binding.
16. Based on the following, I find the weight of the evidence shows Mr. Teather never gave Mr. May a $7,400 to $7,500 estimate for the entire project:
a. By December 24, 2019, Mr. Teather had advised Mr. May his crew had worked 89.5 hours, which after the 10% overhead and GST would have been over $8,000. Yet, Mr. May expressed no concern and Mr. Teather’s crew to returned to work on December 27 and 28.
b. Mr. May admits that he paid $2,100 on Friday, December 27th and told Mr. Teather that he would “pay him the rest” on Monday. Mr. May says this was because he “needed to buy some time to determine just how much all this was costing”. At that point, the “rest” was around $2,000. Not surprisingly, Mr. Teather was upset when Mr. May refused to pay the rest during the parties’ verbal discussion on December 28, 2019, after Mr. Teather and his crew had done an additional 21 hours of work for Mr. May on December 27 and 28.
c. Mr. May did not mention the $7,400 to $7,500 estimate in the parties’ daily written communications until Mr. May’s December 29, 2019 email. Mr. May is not precise about the date or time the estimate was given, which I find suggests his memory of the discussion is not reliable.
d. I find Mr. Teather’s admittedly providing Mr. May with a “quick rundown of the fees” on his phone’s calculator does not prove Mr. Teather gave the alleged estimate. Mr. Teather says his calculation was to show the daily cost if 3 workers worked. The evidence shows the number of crew members and their respective hours worked varied daily. I find the variance supports Mr. Teather’s version of events, because it suggests Mr. May was looking to get a sense of the average daily cost, which in fact varied day to day. Mr. May bears the burden of proof to show that the alleged global estimate was given. I find he has not met that burden. All of the evidence before me supports a conclusion Mr. Teather worked only on the basis of an hourly rate.
e. The fact that Mr. May required Mr. Teather to send his crew’s worked hours to him daily is inconsistent with Mr. May’s submission that he was content to rely on a verbal $7,400 to $7,500 estimate for the entire job, without ever documenting that estimate.
f. The fact that Mr. Teather continued, daily, to send Mr. May his crew’s breakdown of hours supports the conclusion that he did not give any sort of binding quote for the entire job.
g. That Mr. May admits it was “imperative” for him that the drainage project be completed by Christmas also supports a conclusion he wanted Mr. Teather and his crew to spend whatever hours were reasonably required to try and get the job done. I also note there is no evidence before me that Mr. Teather ever agreed to complete any aspect of the job by a particular date.
17. Mr. May terminated the parties’ contract part-way through the job. The fact that Mr. May incurred expenses to finish the contract does not mean that Mr. Teather agreed to the job on anything but an hourly rate basis. Given my conclusion that the parties’ agreement was that Mr. May would pay Mr. Teather based on an hourly rate, with no global or total estimate, I find I do not need to consider Mr. May’s damages. I dismiss his counterclaim for breach of contract. I will address below whether Mr. Teather’s hours worked were reasonably spent such that he is entitled to payment of his invoice balance.
Mr. Teather’s claim for payment
18. The next question is whether Mr. Teather has proved the hours claimed as set out in his invoices, and, whether those hours were reasonably spent.
19. Based on the parties’ daily text messages and Mr. Teather’s invoices, on balance I accept Mr. Teather’s claimed $4,086.78 accurately represents the 110.50 hours claimed, together with the applicable 10% overhead charge, GST, and a $588.25 credit for returned materials.
20. In his statement, Mr. May says Mr. Teather and his crew were “sluggish”. Mr. May’s neighbour NC emailed Mr. May that Mr. Teather’s crew was working hard, which does not support Mr. May’s position. Mr. May submitted a statement from his daughter PM, who lived in the home and observed the crew working and says they were slowed down during 2 to 3 days of rainy weather because they did not wear waterproof gear. I am not prepared to conclude Mr. Teather’s hours were inflated on the basis of the crew’s allegedly being somewhat slower during 2 or 3 rainy days out of 8 days worked.
21. While Mr. May alleges Mr. Teather or his crew had alcohol on their breath and/or did not have sufficient food with them, I find Mr. May has not proved these allegations. A close-up photo of two crumpled beer cans does not prove Mr. Teather or his crew left the beer cans or were negligent or slow. The fact that Mr. May offered snacks and drinks to the crew also does not mean he is entitled to any set-off.
22. Mr. May also alleges various deficiencies in Mr. Teather’s drainage work. The burden is on Mr. May to prove those alleged deficiencies (see Lund v. Appleford Building Company Ltd. et al, 2017 BCPC 91 at paragraph 124). Whether the drainage work was done properly or poorly is not within ordinary knowledge. Rather, I find it requires expert evidence from a qualified tradesperson.
23. Mr. May submitted a February 26, 2020 email from Robert Rees of Budget Drainage. Mr. Rees’ relevant comments were:
a. The trench was not graded correctly when he first saw the work, but it “wouldn’t take much work to correct”.
b. The trench should have been gravel-filled around the pipe, instead of only dirt fill, to prevent the pipe from bowing under pressure of the backfill. However, Mr. Rees did not attribute a cost to this alleged short-fall.
c. Mr. Rees criticized Mr. Teather’s failure to remove native fill from the excavation area. He added that the “trench area close to the sump had two very large rocks close to the top edge making for very dangerous work area”. I infer those are the same 2 boulders discussed in Mr. May’s “sabotage” claim below. Mr. Rees does not attribute a cost to the removing the boulders.
d. Mr. Rees said “furnco couplings” are usually used, but did not say Mr. Teather was negligent in failing to use them.
e. Mr. Rees gave his pricing per item of various materials, from the same supplier that Mr. Teather used. To the extent Mr. May argues it, Mr. Rees did not say Mr. Teather’s materials costs were unreasonable, and I do not know the total amount of materials that were used as they were not billed in Mr. Teather’s invoices that are at issue.
f. Mr. Rees’ estimated price, had he done the entire project, was $11,500 plus tax.
g. Mr. Rees then concluded that “it looked to be a completely amateur attempt at a very basic drainage problem”. Other than the issues noted above, Mr. Rees did not explain this criticism.
24. I do not accept Mr. Rees’ comments as expert opinion under the tribunal’s rules. Tribunal rule 8.3(2) requires that an expert state their qualifications, which Mr. Rees did not do. Mr. Rees also did not expressly address the fact that Mr. Teather was fired suddenly mid-way through the project, and whether the steps Mr. Rees says should have been done could reasonably have been done in the later stages, after Mr. Teather’s termination. As discussed below, I also do not accept that Mr. Teather is responsible for the boulders being in the trench. The fact that another contractor quoted less to complete the job than Mr. Teather could do does not in itself mean Mr. Teather’s claimed hours are unreasonable.
25. On balance, I find the weight of the evidence supports a conclusion Mr. Teather is entitled to the claimed $4,086.78, without deduction. I say this because, a) I do not accept Mr. Rees’ opinion as expert evidence, b) Mr. Rees’ completion estimate provided no breakdown for what was allegedly attributable to Mr. Teather’s negligence as opposed to work that simply was yet to be done, and c) as discussed below, I do not agree the boulders found in the trench are Mr. Teather’s responsibility.
26. I find Mr. Teather is entitled to the claimed $4,086.78. The Court Order Interest Act (COIA) applies to the tribunal. Mr. Teather is entitled to pre-judgment interest under the COIA on the $4,086.78, from December 28, 2019. This equals $28.60.
Alleged sabotage
27. Mr. May alleges that on December 28, 2019, shortly after Mr. May fired the crew, Mr. Teather’s workers deliberately pushed two boulders into the dug trench, or otherwise caused them to fall into the trench. However, in his submissions, Mr. May frames this as a negligence claim. Mr. May does not suggest he saw the boulders fall.
28. It is undisputed and I accept that if Mr. Teather’s workers did purposefully cause the boulders to fall into the trench, as their employer Mr. Teather would be vicariously liable for their workplace conduct.
29. I acknowledge Mr. May’s submission that an adverse inference should be drawn against Mr. Teather for failing to submit evidence from his own workers about the boulders, citing Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146 at paragraph 67. I decline to do so, for the reasons that follow.
30. First, PM says Mr. May told her in the morning of December 28, 2019 that he had terminated Mr. Teather’s services. She says she checked the trench site a few minutes apart, and on the 2nd occasion she saw there were 2 large boulders in the trench near the sump, that had not been there minutes before. PM wrote that one of the workers saw her looking at the boulders and said something like “that one just fell in. It was gonna go and it just fell in.” I find PM’s evidence does not assist Mr. May in proving Mr. Teather’s workers purposefully pushed boulders into the trench. It is undisputed that no one saw the boulders fall in the trench and no one saw any of Mr. Teather’s workers do anything to make them fall.
31. Second, it is undisputed that Mr. May did not mention any concern about the boulders until 1.5 months after the contract ended, when Mr. May filed his counterclaim. I find if Mr. May reasonably believed Mr. Teather’s workers had intentionally caused the boulders to fall in the trench, or if he thought Mr. Teather was negligent in letting the boulders fall, Mr. May would have raised the concern before filing his counterclaim.
32. Third, if the workers were still Mr. Teather’s employees, in the circumstances they would not be independent witnesses anyway, since Mr. May alleges they are the ones who pushed the boulders into the trench. I find nothing would be gained by their giving evidence.
33. Mr. May claims $2,000 for “diminished value” of the project as a result of the sabotage and inability to lay new pipe at the sump’s base. Yet, there is no expert evidence that once completed the project would have any diminished value. Mr. Rees’ comments do not address any reduced value, and I find they also are insufficient to prove Mr. Teather was responsible for the boulders otherwise having fallen into the trench. I dismiss this $2,000 claim. I also dismiss Mr. May’s $2,000 claim for punitive damages. Punitive damages are reserved for reprehensible, harsh, and vindictive conduct, which I find is not proved here.
The drill
34. Mr. May says he loaned Mr. Teather a hammer drill. Mr. May says he has not seen his drill since December 28, 2019, the date he ended the contract. Mr. May claims $169.99 plus tax for the drill’s replacement cost.
35. It is undisputed that Mr. May only first raised the missing drill after he filed his counterclaim, 1.5 months after Mr. Teather had worked on the job. I do not agree Mr. May’s submitted photo of a drill next to the trench proves Mr. Teather took the drill. I am left with a “he said, he said” about the drill, and Mr. May has the burden of proof. In any event, I find it more likely than not that if Mr. May had been missing his drill and thought Mr. Teather responsible, he would have raised it with Mr. Teather earlier. I dismiss this aspect of Mr. May’s counterclaim.
Tribunal fees & dispute-related expenses
36. Under section 49 of the CRTA and tribunal rules, as Mr. Teather was successful I find he is entitled to reimbursement of $175 in paid tribunal fees. As Mr. May was unsuccessful in his counterclaim, I dismiss his claim for reimbursement of tribunal fees. No dispute-related expenses were claimed.
ORDERS
37. Within 21 days of this decision, I order the respondent Arthur May to pay the applicant, Tami D. Teather (dba Park Royal Construction), a total of $4,290.38, broken down as follows:
a. $4,086.78 in debt,
b. $28.60 in pre-judgment COIA interest, and
c. $175 in tribunal fees.
38. Mr. Teather is entitled to post-judgment interest as applicable. Mr. May’s counterclaims are dismissed.
39. 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. The Minister of Public Safety and Solicitor General has issued Ministerial Order No. M086 under the Emergency Program Act, which says that tribunals may waive, extend or suspend a mandatory time period. The tribunal can only waive, suspend or extend mandatory time periods during the declaration of a state of emergency. After the state of emergency ends, the tribunal will not have this ability. A party should contact the tribunal as soon as possible if they want to ask the tribunal to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.
40. 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.
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Shelley Lopez, Vice Chair |