Date Issued: April 15, 2021

File: SC-2020-008083

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Van Hees v. Clear Marine Inc., 2021 BCCRT 386

Between:

DERK VAN HEES

Applicant

And:

CLEAR MARINE INC.

Respondent

INTRODUCTION

1.      This dispute is about a repair of a sailboat’s “dodger”, which is a frame-supported canvas roof that protects the boat’s driver from weather. The applicant, Derk Van Hees, hired the respondent, Clear Marine Inc. (Clear Marine), to replace the canvas and vinyl window panels on the dodger of his Cataline 27 sailboat, using the existing aluminum frame. Mr. Van Hees says Clear Marine failed to size the canvas properly to fit the frame. Mr. Van Hees claims a $2,443.25 refund, which is what he paid to Clear Marine.

2.      Clear Marine says it verbally told Mr. Van Hees that his frame was substandard for the work requested and required replacement. Clear Marine says Mr. Van Hees instructed it to proceed with the work anyway because he would replace the frame later when he could afford it. Mr. Van Hees denies ever wanting to replace the frame and denies Clear Marine ever told him before the work was done that there were problems with the frame. Clear Marine says its work was professionally done and without defects, blaming the frame, which Mr. Van Hees denies.

3.      Mr. Van Hees is self-represented. Clear Marine is represented by an employee or principal, AG.

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). 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.

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. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. In the circumstances here, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, where the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

6.      Under section 42 of the CRTA, 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, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUE

8.      The issue in this dispute is whether Clear Marine is responsible for its replacement dodger not reasonably fitting the sailboat’s aluminum frame, and if so, what is the appropriate remedy.

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, as the applicant Mr. Van Hees bears the burden of proving his claim, on a balance of probabilities. While I have reviewed the parties’ submitted evidence and arguments, I have only referenced below what I find is necessary to give context to my decision.

10.   As referenced above, in late May 2020 Mr. Van Hees hired Clear Marine to replace the canvas and vinyl window panels on his sailboat’s dodger.

11.   The parties agree Mr. Van Hees told Clear Marine to replace only the canvas and vinyl window panels, and use the existing aluminum frame. Mr. Van Hees says this was because the canvas was discoloured and mildewed, and he had no intention of replacing the frame. As noted above, Clear Marine says it verbally told Mr. Van Hees before it did the work that the frame was substandard and required replacement, but that Mr. Van Hees instructed it to proceed anyway saying he wanted to defer the expense of replacing the frame. Mr. Van Hees denies this conversation occurred. More on this below.

12.   It is undisputed Clear Marine completed the job on May 28, 2020 and on June 5, 2020 invoiced Mr. Van Hees $2,443.25, which he paid. On June 1, 2020, Mr. Van Hees emailed Clear Marine with concerns about the dodger.

13.   In particular, Mr. Van Hees found that rainwater would pool on the dodger’s top, with furrows in the material running on both sides. Mr. Van Hees sent Clear Marine photos of the dodger, which are in evidence and show water pooling on its top along with rippling rather than a taut fit. Mr. Van Hees says these problems created distortion and visibility issues when driving the boat. I accept this undisputed evidence, which is supported by photos showing rippling in the vinyl windows with the objects seen through them distorted.

14.   Later on June 1, 2020, Clear Water’s representative J responded to the photos, and said “this is surely a framing issue”, offering a strut solution and noting that the “only other option would be to replace all the framing with stainless steel” at a much higher cost. J did not mention in this email anything about Mr. Van Hees’ alleged earlier instruction to proceed despite Clear Marine’s alleged verbal advice the existing aluminum frame was inadequate. Mr. Van Hees immediately responded to J, noting the original dodger did not have these problems, and had 1 tensioning strap in the middle that prevented water pooling. He wrote that the frame may be adjusted to “resolve the loose fit” and instructed Clear Marine to proceed with “those adjustments”.

15.   Later on June 1, 2020, Clear Marine emailed back and told Mr. Van Hees that it understood the old dodger “did not have these issues prior”. Clear Marine wrote that due to the higher quality window vinyl, the cover was putting extra pressure on the framing. There is nothing in this email indicating Clear Marine had advised Mr. Van Hees that the frame was substandard or that it had ever told Mr. Van Hees this. Rather, I find this email shows Clear Marine’s assessment of the problem at that point was that its new dodger did not fit the existing frame because of the type of vinyl windows Clear Marine used.

16.   Later in the week of June 1, 2020, Clear Marine installed the strut, and Mr. Van Hees took his boat out for the summer. On September 1, 2020, Mr. Van Hees emailed Clear Marine that the strut had not solved the problems. On September 18, 2020, Clear marine emailed Mr. Van Hees that “after discussing things further”, it had decided the only fix was a new dodger frame made out of stainless steel. Clear Marine wrote the existing frame was “much too weak to support the weight of the new canvas and window vinyl”. I find this email is inconsistent with Clear Marine’s argument that it told Mr. Van Hees the existing frame was substandard before it started the job. Further, there is no written statement from the Clear Marine employee or salesperson who allegedly gave this advice to Mr. Van Hees. Given the above, I find Clear Marine did not realize the frame would be a problem until after it fabricated and installed the new dodger.

17.   Further, I find it unlikely Mr. Van Hees would have knowingly agreed to Clear Marine’s proposed canvas and windows choices if he had known the existing aluminum frame would not likely support them.

18.   In summary, given the parties’ communications I find Clear Marine never identified the existing frame was inadequate, until after Mr. Van Hees identified the issues with the new dodger’s fit.

19.   I turn to the applicable law.

20.   Generally, the question sail construction is a matter outside ordinary knowledge and so requires expert evidence (see Bergen v. Guliker, 2015 BCCA 283). However, here I can readily see from the submitted photos that the dodger does not fit the existing aluminum frame properly and Clear Marine admits this.

21.   Clear Marine argues the admitted substandard outcome was a result of the existing frame being made of aluminum, and that its new dodger needed a stronger stainless steel frame. Yet, Clear Marine agreed to fabricate and install the new dodger to the existing frame, with tension “to the desired tightness”, as set out on Clear Marine’s estimate and June 2020 invoice. Given I have found above Mr. Van Hees was never told of any concerns about the existing frame, I find it was Clear Marine’s responsibility under the contract to provide a dodger that fit the existing aluminum frame. It did not do so, as again it is undisputed the dodger does not tightly fit the aluminum frame.

22.   Given my conclusions above, I find Clear Marine breached the parties’ contract for failing to provide a dodger that properly fit the aluminum frame.

23.   I turn to the appropriate remedy.

24.   Clear Marine submitted its own September 17, 2020 “Estimate” of $828.55 to replace the existing frame with a stainless steel frame. Mr. Van Hees says a replacement frame would not solve the cutting and sewing errors in the canvas. Mr. Van Hees submitted some measurements of the canvas and vinyl windows, but there is no explanation in these documents critical of Clear Marine’s work. So, I do not rely on them.

25.   However, Clear Marine’s submissions are that it “still believes” the issues are the frame and not their installation. I find this is speculative and does not meet Clear Marine’s burden of establishing a stainless steel frame is in fact required. Further, without any independent expert evidence, I find Clear Marine has not proven a stainless steel frame would remedy the defective dodger. In other words, I find there is insufficient evidence that a new stainless steel frame would reasonably resolve the admitted issues or that the dodger Clear Marine provided would work with a new frame. So, I find a full refund is the most reasonable outcome and find Clear Marine must refund Mr. Van Hees the $2,443.25.

26.   The Court Order Interest Act (COIA) applies to the CRT. I find Mr. Van Hees is entitled to $12.07 in pre-judgment interest under the COIA on the $2,443.25, calculated from the June 5, 2020 invoice date.

27.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to the recovery of their CRT fees and reasonable dispute-related expenses. Mr. Van Hees was successful and so I find Clear Marine must reimburse his paid $125 in CRT fees. Mr. Van Hees is also entitled to reimbursement of $47.68 for a BC Registry search of Clear Marine, an expense I find reasonable.

ORDERS

28.   Within 30 days of this decision, I order Clear Marine to pay Mr. Van Hees a total of $2,628.00, broken down as follows:

a.    $2,443.25 in damages,

b.    $12.07 in pre-judgment COIA interest, and

c.    $172.68, for $125 in CRT fees and $47.68 in dispute-related expenses.

29.   Mr. Van Hees is entitled to post-judgment interest as applicable.

30.   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.

31.   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.