Date Issued: February 1, 2021

File: SC-2020-005433

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Turnau v. Dragonfly Homes Ltd., 2021 BCCRT 121

Between:

PIERRE TURNAU

Applicant

And:

DRAGONFLY HOMES LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Rama Sood

INTRODUCTION

1.      This dispute is about insulation. The applicant, Pierre Turnau, hired the respondent, Dragonfly Homes Ltd. (DHL), to build a house with attached garage. Mr. Turnau says DHL did not install insulation according to the contract’s specifications. Mr. Turnau seeks $2,534.41 for the cost of installing additional insulation.

2.      DHL denies Mr. Turnau’s claim. It says it complied with the contract terms.

3.      Mr. Turnau is self-represented. DHL is represented by its owner.

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.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. 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 in the interests of justice.

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.

ISSUES

8.      The issues in this dispute are:

a.    Whether DHL breached the parties’ contract by failing to install the specified insulation, and

b.    If so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

9.      In this civil claim, Mr. Turnau as the applicant bears the burden of proof on a balance of probabilities. I have reviewed the evidence and submissions but refer to them here only to as I find necessary to explain and give context for my decision.

10.   The parties signed a construction agreement on July 1, 2016. According to the contract terms:

a.    DHL agreed to build a home in a professional manner in accordance with B.C. building code standards.

b.    The home would be built according to the approved plans, blueprints, and specifications in Schedule A (paragraph 2(b)). While the parties did not provide a copy of Schedule A, they did submit blueprints and contract specifications which I infer were in Schedule A.

c.    The blueprints took precedence over other documents if there was a discrepancy (paragraph 2(c)).

d.    Mr. Turnau would inspect the home with DHL and note any omissions or deficiencies in writing (paragraph 8(b)).

e.    Upon Mr. Turnau taking possession, the home would be considered complete and in full compliance with the contract (paragraph 8(d)).

f.     If DHL did not build the home according to the contract terms, it would have to fix any default within 15 days of receiving notice from Mr. Turnau. If DHL failed to comply, Mr. Turnau could finish the construction in accordance with the plans and specifications and DHL would pay the difference between Mr. Turnau’s costs and the contract price (paragraph 14).

11.   DHL built a 1,800 square foot house and a 2,400 square foot attached garage for Mr. Turnau. The parties agree the house and garage were completed in March 2017.

12.   Mr. Turnau says DHL agreed to R60 insulation in the house and garage ceilings. Mr. Turnau provided an “Attic Application Coverage Chart” (chart) that showed the R rating was based on the insulation’s thickness. The thicker the insulation, the higher the R rating. DHL did not dispute the chart’s accuracy and so I accept that it is accurate for industry standards. I infer that R ratings are standardized and so the chart applied to the garage as well as the house. According to the chart, the minimum thickness for R60 is 22.3 inches.

13.   Mr. Turnau says in June 2017, workers trampled down some of the ceiling insulation while installing security equipment. The parties agree this work was unrelated to the parties’ contract.

14.   Mr. Turnau says in April 2019 he hired FI, an insulation company, to check the insulation in the house and garage ceilings. Mr. Turnau says FI informed him that the insulation thickness was 6 inches to 14 inches. Mr. Turnau says FI added 67 bags of insulation to bring it to R60 in the ceilings. He says 15 bags were required to repair the trampled insulation and the other 52 bags were required to bring the insulation to R60. Mr. Turnau paid FI $3,265.50. He says since DHL did not install R60, it should reimburse him $2,534.42 for the 52 bags.

15.   DHL says that the parties agreed to R60 in the house and R28 in the garage. It says the subtrade it hired installed 80 bags of insulation in the ceilings in 2017, which met the contract’s specifications.

How much insulation was DHL supposed to install?

16.   Mr. Turnau says the blueprints and contract specifications were part of the contract and both indicated the ceilings’ insulation to be R60. I find the blueprints and contract specifications were incorporated by reference and formed part of the parties’ 2016 contract. According to paragraph 2(c) of the contract, the blueprints take precedence over other plans and specifications. I have reviewed both the blueprints and the contract specifications submitted by the parties, keeping in mind that the blueprints prevail if there is any discrepancy. I find that according to both, the house and garage ceilings insulation was supposed to be R60. My reasons are as follows.

17.   The contract specifications broke down the details about the materials used during construction in various parts of the house and garage. Under the heading “Insulation”, the specifications stated “Ceilings – Blown. R-60 min”, which I infer meant a minimum of R60 would be installed in the ceilings.

18.   DHL says the contract specifications were only for the house ceiling. It says usually insulation is not installed in the garage ceiling unless the garage floor is insulated as well, which was not done with Mr. Turnau’s garage. It says while R12 rigid below grade was installed in the house floor, there was no R12 rigid below grade in the garage. I infer this meant that DHL installed R12 insulation beneath the house floor but not beneath the garage floor.

19.   Mr. Turnau provided a blueprint of the “slab on TYP frost footing” that stated “R12 rigid insulation to FTG”. He says this blueprint showed R12 rigid insulation was installed under the garage floor. Since DHL did not dispute the blueprint, I accept that R12 was installed in the garage floor. Since the slab blueprint contradicts DHL’s allegation, I find the contract specifications indicated R60 would be installed in both ceilings.

20.   Even if I am wrong about the contract specifications, I find the blueprints also indicated R60 blown insulation in both ceilings.

21.   The parties provided several different sets of blueprints. Mr. Turnau submitted a 12 page set of blueprints that he says he emailed to DHL on June 28, 2016 (June blueprints). Page 9 of the blueprints showed the outside wall section of the garage which included the garage roof. It indicated R60 blown insulation in both the house and the garage ceilings.

22.   Mr. Turnau also submitted a 5 page set of blueprints DHL emailed to him on August 21, 2016 (August blueprints). These were less detailed and did not indicate the R rating in the walls or ceilings.

23.   DHL says the blueprints showed R28 in the garage ceiling and R60 in the house ceiling. The 1 page of blueprints DHL submitted showed a cross-section of the house and garage. It indicated R60 blown insulation in the house ceiling. It did not show the garage roof or that the garage ceiling would be insulated.

24.   I find the June 2016 blueprints were the most detailed. Since DHL did not dispute them or explain how it determined the garage ceiling insulation was supposed to be R28, I find the parties relied on the June blueprints. I also find the June 2016 blueprints specified R60 blown insulation in both ceilings. As I mentioned above, the blueprints prevail over other documents in case of any discrepancy.

Did DHL use R60 in the ceilings?

25.   DHL says CPI, the company that installed the insulation originally, used 80 bags of insulation to install R60 in the house ceiling and R28 in the garage ceiling. Mr. Turnau says 80 bags would be insufficient.

26.   According to the chart, the minimum insulation thickness is 10.4 inches for R28 and 22.3 inches for R60.

27.   Mr. Turnau provided an affidavit from RK, who is an installer with FI. RK stated in April 2019 he measured the insulation in the ceilings and it was 6 inches to 14 inches thick. RK attached 6 photographs which showed insulation throughout the ceiling and his measurements in various areas, including the deepest spot. RK did not state whether his measurements included the trampled insulation. Since Mr. Turnau stated only some of the insulation was trampled by the installers in 2017, I accept that the deepest point of untrampled insulation was 14 inches.

28.   RK stated he told Mr. Turnau that the insulation was not 22 inches deep and so did not meet the R60 value. He confirmed that 15 bags of insulation were installed to fix the trampled insulation and an additional 52 bags were installed to bring the insulation up to R60 in both ceilings. He also stated that he and his co-worker, PF, estimated 131 bags of insulation would be needed to insulate a 4,200 square foot house and garage to R60. I accept RK’s estimate as accurate since he has experience installing insulation.

29.   Mr. Turnau also submitted an affidavit from PF, the owner of FI. PF also stated that 131 bags of insulation would be needed to insulate a 4,200 square foot house and garage to R60. Aside from this, I give little weight to PF’s affidavit since it basically reiterated what he was told by either RK or Mr. Turnau and so is not helpful.

30.   DHL says it did not have the opportunity to measure the insulation before more was added. It says RK is a disgruntled former employee of CPI, the company that originally installed the insulation. DHL also says based on the trestles in the photographs, RK only measured the garage ceiling. DHL says photographs of the insulation in the house ceiling were taken by Mr. Turnau and questions their reliability.

31.   Even without RK’s measurements, I find DHL could not have installed R60 in both ceilings. I say this because according to the chart, for R60, 1 bag of insulation would cover up to 32 square feet. Since the ceilings’ area was 4,200 square feet, based on the chart, DHL would have needed 132 bags. This is consistent with both PF and RK’s estimate that 131 bags would be required to install R60 in a 4,200 square foot house.

32.   The chart also stated that for R28, 1 bag covered up to 68.6 square feet. If DHL installed R60 in the 1,800 square foot house and R28 in the 2,400 square foot garage, it would have needed at least 91 bags of insulation (1,800 ÷ 32 + 2,400 ÷ 68.6).

33.   Since DHL admitted CPI only used 80 bags, I find CPI could not have insulated the ceilings to R28 and R60, much less R60 for both ceilings.

 

Remedies

34.   According to paragraph 14 of the contract, DHL agreed to fix any default within 15 days of receiving notice from Mr. Turnau. Otherwise it would pay any additional cost above the contract price for Mr. Turnau to fix it.

35.   The parties disagree about when Mr. Turnau informed DHL about the insulation issue. Both parties were vague about the dates. Mr. Turnau says he called DHL in early November 2019 and had the insulation added in December 2019. He also sent an email to DHL on January 9, 2020 with the photographs that RK took.

36.   DHL says Mr. Turnau first contacted its owner, SC, in late November 2019 and that SC was out of the country at the time. DHL says by the time SC returned, FI had already added the insulation and so it did not have an opportunity to inspect the ceilings or measure the insulation. Neither party stated when SC returned and so I cannot determine whether it was within 15 days of hearing from Mr. Turnau.

37.   Faced with conflicting evidence from the parties about when DHL was notified, it is impossible to determine whether Mr. Turnau gave DHL 15 days’ notice about the insulation before FI added more. As noted above, the burden is on Mr. Turnau as the applicant to prove on a balance of probabilities that he complied with the contract terms. I find he has not met that burden on this issue. And so, I find Mr. Turnau did not comply with the notice period in the contract since he did not provide DHL with 15 days’ notice before adding more insulation. For this reason, I dismiss Mr. Turnau’s claim.

38.   DHL also says according to paragraph 8 of the contract, Mr. Turnau should have raised any deficiencies during the inspection. It says since Mr. Turnau did not do so, then he agreed the house and garage were built in compliance with the contract specifications. Given my reasons above, I find I do not need to address this issue.

CRT FEES

39.   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. Since he was unsuccessful, I dismiss Mr. Turnau’s claim for CRT fees. DHL did not claim any dispute-related expenses.

ORDER

40.   I dismiss Mr. Turnau’s claims and this dispute.