Date Issued: May 21, 2021

File: SC-2020-009121

Type: Small Claims

Civil Resolution Tribunal

Indexed as: D.M.S. Service Ltd. v. City Edge Housing Co-operative, 2021 BCCRT 553

Between:

D.M.S. SERVICE LTD.

Applicant

And:

CITY EDGE HOUSING CO-OPERATIVE

Respondent

INTRODUCTION

1.      This dispute is about unpaid plumbing services. The applicant plumbing company, D.M.S. Service Ltd. (DMS), claims $3,151.67 for its July 13, 2020 invoice which the respondent customer, City Edge Housing Co-operative (City Edge) has failed to pay.

2.      City Edge says DMS attended but did not know how to fix the issue, did an incorrect and possibly dangerous repair, and then submitted an excessive bill. City Edge asks that I dismiss the claim.

3.      DMS is represented by an employee. City Edge is represented by Corinna Lambert, a director.

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. 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 the circumstances of this dispute, 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, in which 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 find I can fairly 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 DMS’s work was defective, and to what extent, if any, DMS is entitled to payment of its $3,151.67 invoice.

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, as the applicant DMS bears the burden of proving its claims, 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.   In June 2020, City Edge hired DMS to investigate and fix a leaking pipe in one of City Edge’s residential units. DMS says it completed the work June 10, 2020, as shown on its July 13, 2020 invoice #14787 for $3,151.67. The evidence shows this work required DMS to use the building’s drawings to determine where to dig out the shut off valve to the affected unit, which had been covered with soil and plants.

11.   DMS’ invoice is detailed and shows it took some time to locate the shut off valve. DMS also had to order parts due to the leaking pipe’s location, and so had to return to complete the work. DMS’ invoice documents that City Edge failed to give notice to the fire alarm company and so DMS needed access to 7 residences in order to keep the alarms from ringing. I accept this undisputed evidence and accept that this added to the amount of time DMS reasonably spent. DMS’ invoice shows it ultimately replaced the leaking section of pipe, and that after a drying-out period turned the water back on slowly, and then reset all of the fire alarms and “Harlem valves”. Emails in evidence indicate that at the time of its repair DMS confirmed to City Edge that the repair was complete and there were no leaks.

12.   I find nothing turns on the fact City Edge’s representative signed DMS’ invoice in June or July 2020, since I find doing so did not indicate City Edge agreed the work was properly done. I also find it irrelevant that DMS’ 30-day warranty period had expired. What matters is whether DMS’ work was defective or substandard.

13.   About 6 weeks after DMS’ work, on July 29, 2020 City Edge emailed DMS that there was a leak “from the repair site”. DMS responded that it had checked after its June 2020 repair and found no leaks, but offered to open a new job order. There is no indication that City Edge responded and so DMS did not attend.

14.   The parties agree City Edge has refused to pay DMS’ invoice. City Edge says DMS failed to repair the leak and that its work was not to industry standard, which DMS denies. The parties also agree City Edge paid $1,333.50 to Fraser Valley Hydrant Services (FVHS) on January 6, 2021, to repair a leak. More on this below.

15.   The burden to prove breach of contract for defective or substandard work is on the party who alleges the breach: see Lund v. Appleford Building Company Ltd. et al, 2017 BCPC 91 at paragraph 124. Here, that burden rests with City Edge.

16.   Where the subject matter is technical, or beyond common understanding, it is often necessary to produce expert evidence to determine the appropriate standard of professional competence: see Bergen v. Guliker, 2015 BCCA 283. I find that a plumber’s competence is outside the scope of common understanding. So, I find expert evidence is necessary.

17.   City Edge did not submit any expert opinion critical of DMS’ work. I am not prepared to conclude that FVHS’ leak repair 6 months after DMS’ work means DMS’ work was substandard. While FVHS’ invoice is in evidence, it does not contain any comment critical of DMS. In particular, FVHS wrote “the leak from the pipe was caused by the old existing fittings being used instead of using new fittings”. However, I cannot tell from the face of the invoice that the leaking pipe FVHS fixed was the same one DMS fixed. I note that in its January 21, 2021 email FVHS describes one particular unit with a leaking pipe and yet other evidence, including City Edge emails and DMS’ invoice, indicates DMS fixed a different unit’s leaking pipe. I find it unproven FVHS fixed the same pipe DMS repaired.

18.   In any event, I would not accept FVHS’ invoice or January 21, 2021 email as expert evidence under the CRT’s rules as the technician’s qualifications are not set out. Further, FVHS did not say using the old fittings was negligent at the time the earlier repair was done, just that it identified the old fittings caused the leak. In other words, even if I accepted FVHS’ documentation as expert evidence and that FVHS fixed the same pipe DMS did, FVHS does not say using old fittings fell below the industry standard. I am also unable to conclude DMS’ work was defective based on City Edge’s submitted photos of a pipe.

19.   I turn then to the amount of DMS’ invoice. In total, DMS’ invoice reflects 21 hours of labour at $98.90 per hour. Given the complications described above, I accept that this time was reasonably spent. I say the same about the invoice’s $596.79 materials charge and $330 charge for a service truck. I have no evidence to the contrary and there is nothing obviously excessive about these charges in the circumstances.

20.   I also note that City Edge did not explain why it paid nothing towards DMS’ invoice, when a large portion of DMS’ time was spent trying to find the hidden valve and deal with alarms in other units.

21.   On balance, I find that it is unproven that DMS’ work was defective. Given my conclusions above, I find DMS is entitled to payment of its $3,151.67 invoice.

22.   DMS claims contractual interest at an unspecified rate. Its invoice refers to 26.8% annual interest on late payments. However, there is no evidence before me that City Edge agreed to pay contractual interest. Contractual interest cannot be unilaterally imposed in an invoice (see N.B.C Mechanical Inc. v. A.H. Lundberg Equipment Ltd., 1999 BCCA 775). Given the parties had no agreement about interest, the Court Order Interest Act (COIA) applies. I find DMS is entitled to pre-judgment COIA interest on the $3,151.67 from the July 13, 2020 invoice date to the date of this decision. This interest equals $12.13.

23.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. DMS was successful and so I find it is entitled to reimbursement of $200 in paid CRT fees. DMS did not claim for dispute-related expenses, and so I make no order for them.

ORDERS

24.   Within 21 days of this decision, I order City Edge to pay DMS a total of $3,363.80, broken down as follows:

a.    $3,151.67 in debt,

b.    $12.13 in pre-judgment interest under the COIA, and

c.    $200 in CRT fees.

25.   DMS is entitled to post-judgment interest, as applicable.

26.   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.

27.   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.