Date Issued: June 11, 2020

File: SC-2019-010092

Type: Small Claims

Civil Resolution CRT

Indexed as: Zapton Construction & Renovations Ltd v. Coles, 2020 BCCRT 649

Between:

ZAPTON CONSTRUCTION & RENOVATIONS LTD

Applicant

And:

ANNEMARIE COLES

Respondent

INTRODUCTION

1.      This dispute is about a garage conversion project. The applicant contractor, Zapton Construction & Renovations Ltd (Zapton), claims $1,536.07 from the respondent homeowner, Annemarie Coles, for its unpaid invoice balance.

2.      Ms. Coles wanted her carport converted to a garage. At issue is that Zapton admittedly told Ms. Coles that an 8-foot garage door would fit her carport enclosure project. Zapton says that Ms. Coles hired a different contractor who changed the driveway height and that this made the garage door not fit. Zapton says Ms. Coles cannot reasonably hold it responsible for a re-order of the garage door.

3.      Ms. Coles says Zapton made a mistake in telling her an 8-foot garage door would fit, because she says “Building Code” requirements meant only a 7-foot door would fit. She says she should not have to pay the claimed $1,536.07, which she withheld from her payment for Zapton’s invoice as this was her cost for the 8-foot door.

4.      Zapton is represented by its principal, Daniel Zapton. Ms. Coles is self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT 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 CRT 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.

7.      The CRT 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 CRT 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 CRT may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

9.      At the end of the CRT’s facilitation process, the parties agreed that the respondent’s legal first name is Annemarie, not Mary. They agreed the style of cause should be amended accordingly, which I have done above.

ISSUES

10.   Which party is responsible for the change in the garage door’s size? Is Zapton entitled to payment of its $1,536.07 outstanding invoice balance?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, an applicant bears the burden of proof, on a balance of probabilities. I have only discussed the parties’ evidence and submissions to the extent necessary to give context to my decision.

12.   There is no written agreement between the parties in evidence and no invoices from Zapton. However, nothing turns on this as the parties agree on the following material facts:

a.    In the summer of 2019 Ms. Coles hired Zapton to convert her carport to a garage.

b.    Zapton gave Ms. Coles an estimate on about July 17, 2019.

c.    Before Zapton began work in August 2019, at Ms. Coles’ request it measured the opening for the garage door and told her she should order an 8-foot door, which she did at her own expense. Zapton says this was based on the existing sloped driveway.

d.    As discussed below, since the 8-foot door ultimately did not fit, Ms. Coles deducted the door’s $1,536.07 cost from her payment of Zapton’s invoice. It is undisputed the 8-foot door was a special order and Ms. Coles could not return it to the store.

e.    Sometime in August 2019, before Zapton’s work was complete, it was determined that in order to “pass inspection”, the asphalt needed to be removed from the garage.

f.     Ms. Coles hired a different contractor, CRW Concrete Services (CRW), to remove the asphalt from the carport and replace it with concrete, as well as replace the entire driveway. I find the evidence shows CRW levelled the slope, as discussed below. CRW is not a named party in this dispute.

g.    CRW’s driveway replacement was done in August 2019. Afterward, Zapton attempted to install the 8-foot door and found it would not fit. Ms. Coles then ordered and paid for a replacement 7-foot door, which Zapton installed.

13.   This dispute turns on who should bear the $1,536.07 cost of the 8-foot door that ultimately did not fit. Ms. Coles says as a builder Zapton should have known a 7-foot door would be the correct measurement and that an 8-foot door would never work. In contrast, Zapton says an 8-foot door was the correct measurement, before the driveway slab’s height was raised by CRW. Ms. Coles argues the slab’s height change did not impact the door’s fit. More on this below.

14.   I turn now to the applicable law. Ms. Coles essentially argues that Zapton’s work was negligent or deficient, in that she relied on his allegedly erroneous advice to buy an 8-foot door that was too big. The burden of proving a deficiency is on the party alleging it, which in this case is the respondent Ms. Coles (see Lund v. Appleford Building Company Ltd. et al, 2017 BCPC 91 at paragraph 124).

15.   I find that whether Zapton’s work was deficient or not requires expert evidence, because I find garage door installation is a technical matter outside ordinary knowledge (see Bergen v. Guliker, 2015 BCCA 283). Yet, Ms. Coles provided no expert evidence critical of Zapton’s work and also no evidence from CRW who presumably could have addressed the height of the concrete slab it poured.

16.   Zapton says the slab’s height became higher after CRW’s work. Zapton says Zapton’s quote included removal and replacement of the driveway, plus removal, replacement, and compaction of the subsoil. Zapton says CRW did not include the removal and replacement of the subsoil, and so the slab ended up thicker. Zapton submitted “before and after” photos of the garage’s exterior and slab, and I accept they show the concrete slab was raised.

17.   Zapton says when it was earlier asked to measure for the door, it recommended that Ms. Coles order a door that would roll all the way to the sloped driveway and still hang high enough in her garage. He says her plans changed, and so he cannot be held responsible for the 8-foot door no longer fitting the garage door opening.

18.   However, Ms. Coles submits that Zapton installed “screw piles for the foundation”, as per the municipal inspector’s requirements. Whether Zapton did or not does not address CRW’s raising of the slab.

19.   Ms. Coles says the height of the asphalt floor, which remained inside the garage until much later, did not change. However, Ms. Coles provided what I infer is her own handwritten diagram, submitted to show that the garage opening never would have permitted an 8-foot door. Her diagram shows a height difference between the “old floor” and the concrete slab. Quite apart from the fact Ms. Coles is not an expert in garage installation, I cannot conclude from Ms. Coles’ diagram that an 8-foot door would not have fit before CRW did its concrete work. Again, there is no evidence from CRW or any other garage door installer critical of Zapton’s measurement in the circumstances.

20.   On balance, I find Ms. Coles has not proven Zapton’s advice to buy an 8-foot door was deficient or negligent. So, I find Ms. Coles had no basis to deduct the 8-foot door’s $1,536.07 cost from her payment to Zapton. I find Ms. Coles must pay Zapton $1,536.07.

21.   Finally, I acknowledge Ms. Coles says that the 7-foot door ultimately installed by Zapton later did not work and needed to be re-aligned. Ms. Coles says she hired All West Glass on January 29, 2020 to do the repair, which cost her $264.75. The repair invoice says the work included, “track adjustment, levelling of door, balance of spring, reconnect and adjustments to operator”. Zapton says that if Ms. Coles had contacted it to adjust the door’s tension, it would have done so for free. Zapton says that it is not uncommon for garage doors to require adjustment. I accept Zapton’s evidence on this point, which is also undisputed.

22.   Ms. Coles did not file a counterclaim and I find there is no basis to order a set-off for the $264.75. All West Glass is not critical of Zapton in its repair invoice, and given the repair was done 5 months after Zapton’s installation of the 7-foot door, I find I have insufficient evidence to conclude the invoice is related to poor installation work as opposed to general routine maintenance as alleged by Zapton. I decline to order any set-off for the $264.75.

23.   The Court Order Interest Act (COIA) applies to the CRT. I find Zapton is entitled to pre-judgment interest under the COIA on the $1,536.07, from November 1, 2019 to the date of this decision. I use that date because I do not have Zapton’s invoice in evidence and it is when Zapton said it became aware of its claim. This interest equals $18.38.

24.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to the recovery of their CRT fees. I see no reason to deviate from that practice here. I find Zapton is entitled to reimbursement of the $150 it paid in CRT fees. No dispute-related expenses were claimed.

ORDERS

25.   I order the respondent Ms. Coles to pay the applicant Zapton a total of $1,704.45, broken down as follows:

a.    $1,536.07 in debt,

b.    $18.38 in pre-judgment interest under the COIA, and

c.    $150 in CRT fees.

26.   Zapton is entitled to post-judgment interest as applicable.

27.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision. The Minister of Public Safety and Solicitor General has issued a Ministerial Order under the Emergency Program Act, which says that tribunals may waive, extend or suspend a mandatory time period. The CRT can only waive, suspend or extend mandatory time periods during the declaration of a state of emergency. After the state of emergency ends, the CRT will not have this ability. A party should contact the CRT as soon as possible if they want to ask the CRT to consider waiving, suspending or extending the mandatory time to file a Notice of Objection to a small claims dispute.

28.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.