Date Issued: November 19, 2020

File: SC-2020-004960

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Dealey (dba Alan Dealey Flooring) v. Davies, 2020 BCCRT 1305

Between:

ALAN DEALEY (Doing Business As ALAN DEALEY FLOORING)

Applicant

And:

GERALD DAVIES and SHERRI DAVIES

Respondents

INTRODUCTION

1.      The applicant, Alan Dealey (dba Alan Dealey Flooring), installed wood floors for the respondents, Gerald Davies and Sherri Davies. Mr. Dealey claims $2,058 for the flooring job.

2.      The Davieses refuse to pay. They say Mr. Dealey did not level the concrete subfloor or properly lay the flooring and they had to redo the floors themselves. The Davieses ask that the dispute be dismissed.

3.      Mr. Dealey is self-represented. The Davieses are represented by Ms. Davies.

JURISDICTION AND PROCEDURE

4.      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). Section 2 of the CRTA states that 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 the dispute’s parties that will likely continue after the CRT process has ended.

5.      Some of the evidence in this dispute amounts to a “he said, they said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

6.      Section 42 of the CRTA says 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.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is to what extent, if any, Mr. Dealey is entitled to the claimed $2,058 for the flooring job.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant, Mr. Dealey must prove his claims on a balance of probabilities. I have read the parties’ submissions, but only comment on the argument and evidence that I find relevant to provide context for my decision.

10.   The parties entered into a verbal contract for Mr. Dealey to install 800 square feet of engineered flooring in a portion of the Davieses’ new home. The Davieses supplied the flooring materials. As part of the job, Mr. Dealey agreed to level the concrete subfloor. The total job cost for installation plus preparation work was $2,058. These facts are not disputed.

11.   As noted, Mr. Dealey claims payment of $2,058 for the job. Ms. Davies says the flooring was deficiently installed and they owe nothing. She asserts that Mr. Dealey installed about 15 flawed boards and failed to properly level the subfloor. She says that Mr. Davies had to remove, relevel, and reinstall the entire flooring.

12.   I find an implied term of the parties’ agreement was that Mr. Dealey would perform the job in a professional manner consistent with trade standards.

13.   Where one party asserts deficient work, that party has the burden of proving the deficiencies (Lund v. Appleford Building Company Ltd. et al, 2017 BCPC 91). Here, the burden is on the Davieses to prove Mr. Dealey’s work was deficient.

14.   Normally, an assessment of the quality of a professional’s flooring work would require expert evidence, unless I find the assessment of it is within ordinary knowledge (see Bergen v. Guliker, 2015 BCCA 283). The Davieses did not submit an expert opinion about Mr. Dealey’s work. While I acknowledge the Davieses are builders themselves, I find they are not impartial and I do not know their experience installing floors. I have not, therefore, relied on the Davieses’ own opinions.

15.   Ms. Davies submitted 2 identical typed statements from witnesses that say they observed Mr. Davies uninstalling some flooring, leveling a transition area, and some damaged floorboards. They also describe their conversation with Mr. Davies about the flooring. I find the statements were likely written by the Davieses and are not in the witnesses’ own words because they are identical. The statements do not describe the witnesses’ relationship with the Davieses to allow me to assess their impartiality. For these reasons, I find the statements unreliable and I have put no weight on them.

16.   I find the video and photographs in evidence show no apparent flaws, damage, gaps or defects in the flooring boards installed by Mr. Dealey. I find the Davieses have not proven that Mr. Dealey installed any flawed boards.

17.   As for the uneven subfloor, Ms. Davies submitted a narrated video in which she describes “sponginess” and a “dip” when a person walks across the installed floors. After enlarging the video, I could see a depression in the floor when the person walks through a transition between 2 rooms. The video shows no other apparent problems with the flooring. I find it is within ordinary knowledge that the floor should not dip or unevenly depress as it did in the video when a person walks on it.

18.   Mr. Dealey asserts that he had a hard time leveling the transition area because of alleged “poor concrete work”. I find Mr. Dealey could have refused the leveling work or refused the job all together, but he did not. By accepting the job and proceeding with the subfloor leveling, I find he represented that he would produce a professional result. For the flooring work to be of reasonable professional quality, I find Mr. Dealey was required to adequately level the subfloor, and to avoid installing flooring on an unlevel subfloor. I find the sponginess or dip in the transition area was likely caused by Mr. Dealey failing to level the subfloor. I find Mr. Dealey’s work was deficient in this regard.

19.   I accept that Mr. Davies had to relevel the subfloor and reinstall several floorboards to fix the transition area. However, I do not accept the Davieses’ assertion that they had to redo the entire job because of Mr. Dealey’s deficient work in this area. There are photographs that show bare subfloor with installed flooring on either side. It appears from the photographs that sections of flooring could be inserted in those sections. Without an expert opinion, I find the Davieses have not proven that all the flooring had to be redone to address the uneven transition area.

20.   The parties dispute whether the Davieses provided Mr. Dealey with an opportunity to return to correct the subfloor deficiency. I have insufficient evidence to make a finding either way. However, I find nothing turns on this. Mr. Dealey admitted he was having difficulty leveling the transition between rooms. I find Mr. Dealey must have reasonably knew about the defect or did not verify the flooring was level before finishing the flooring. I find the Davieses were not required to invite Mr. Dealey back to redo the transition area.

21.   I find Mr. Dealey is not entitled to full payment for the job because of the subfloor deficiency. I have no specific evidence on the cost of redoing the transition area. On a judgment basis, I find that a 40% reduction is appropriate to compensate the Davieses for having to uninstall, level, and reinstall the flooring in that area.

22.   After the 40% reduction, I find the Davieses owe Mr. Dealey a total of $1,234.80 including GST for the flooring job.

23.    The Court Order Interest Act (COIA) applies to the CRT. As the parties had no agreement on interest, I find Mr. Dealey is entitled to pre-judgment interest under the COIA on the $1,234.80 debt from May 22, 2020, the date of the invoice to the date of this decision. This equals $4.80.

24.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I find Mr. Dealey was partially successful and is entitled to reimbursement of $62.50 in paid CRT fees. Neither party claimed dispute-related expenses.

ORDERS

25.   Within 30 days of the date of this order, I order the respondents, Gerald Davies and Sherri Davies to pay the applicant, Alan Dealey a total of $1,302.10, broken down as follows:

a.    $1,234.80 in debt,

b.    $4.80 in pre-judgment interest under the COIA, and

c.    $62.50 in CRT fees.

26.   Mr. Dealey is entitled to post-judgment interest as applicable under the COIA.

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 Province of British Columbia has enacted a provision under the COVID-19 Related Measures Act which says that statutory decision makers, like the CRT, may waive, extend or suspend mandatory time periods. This provision is expected to be in effect until 90 days after the state of emergency declared on March 18, 2020 ends, but the Province may shorten or extend the 90-day timeline at any time. 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.