Date Issued: June 11, 2021
File: SC-2020-007513
Type: Small Claims
Civil Resolution Tribunal
Indexed as: 0459478 B.C. Ltd. dba Paul Davis
Greater Vancouver v. Kim,
2021 BCCRT 648
Between:
0459478 B.C. LTD. DBA PAUL DAVIS GREATER VANCOUVER
Applicant
And:
JUNGHO KIM, JONGYI LEE, and Saeyun Kim
Respondents
And:
0459478 B.C. LTD. DBA PAUL DAVIS GREATER VANCOUVER
Respondent by counterclaim
And:
GORE MUTUAL INSURANCE COMPANY
Respondent by THIRD PARTY CLAIM
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair
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INTRODUCTION
1. This dispute is over restoration services provided by the applicant, 0459478 B.C. Ltd. dba Paul Davis Greater Vancouver (PDGV), at a property (Property) owned by the respondents Jungho Kim and Jongyi Lee. The respondent Saeyun Kim (also known as Aaron Kim) is their son and lived at the Property. PDGV claims $4,364.10 for its “emergency mitigation” work.
2. The respondents say PDGV was negligent in its attempt to repair the water damage because it failed to properly identify the cause of the damage and left the Property damaged.
3. Without intending any disrespect, for the rest of this decision I will refer to the respondents by their first names, for clarity and ease of reference. Jungho counterclaims and seeks an order that PDGV pay unspecified Property repair costs. Jungho also filed a third party claim against his insurer, Gore Mutual Insurance Company (Gore), for $4,905, which is what he says are the Property repair costs. Jungho says Gore failed to adequately supervise and instruct PDGV. Gore did not participate in this proceeding and is in default, as discussed below.
4. PDGV is represented by an employee. Jungho represents himself and Jongyi. Saeyun, a lawyer, 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. 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. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.
7. 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.
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 tribunal considers appropriate.
ISSUES
9. The issues in this dispute are:
a. Is PDGV entitled to the claimed $4,364.10 for its restoration work from any of the respondents?
b. Is PDGV responsible for Jungho’s subsequent Property repair costs?
c. Must Gore pay Jungho for its alleged failure to adequately instruct and supervise PDGV?
EVIDENCE AND ANALYSIS
10. In a civil claim like this one, the applicant PDGV has the burden of proving its claims, on a balance of probabilities. The same burden applies to Jungho in his counterclaim against PDGV and in his third party claim against Gore. While I have reviewed the evidence and submissions before me, I have only referenced below what I find is necessary to give context to my decision. I note Jongyi and Saeyun chose not to submit any documentary evidence, despite having the opportunity to do so.
11. On April 11, 2019, the Property was damaged by water. On April 18, 2019, Saeyun signed a work authorization and agreement (Authorization) for PDGV to conduct restoration and repairs at the Property. PDGV performed some work, but did not complete it. Saeyun lived at the Property and represented himself as agent for Jungho and Jongyi. PDGV, Jungho, Jongyi, and Saeyun agree to those facts.
PDGV’s claim
12. PDGV claims payment of its August 23, 2019 invoice for $4,364.10 for “emergency services and mitigation”, which related to its investigation and asbestos abatement work before it advised Gore it thought the leak resulted from a perimeter drainage issue. Since Gore declined coverage, PDGV did no repairs or restoration work beyond limited water extraction. PDGV submits there was a 2nd source of loss, namely failed caulking around an upstairs bathtub. Gore asked PDGV to investigate that caulking issue on June 26, 2019. It is undisputed PDGV did not do any substantive investigation as Jungho had already reapplied caulking around the bathtub, as set out in PDGV’s report to Gore. I address the respondents’ argument below, namely that the failed caulking was the only leak source and that PDGV’s investigation caused unnecessary damage to the Property.
13. PDGV relies on the Authorization signed by Saeyun, saying he agreed to be responsible for its invoices if Gore denied payment. PDGV essentially argues Jungho and Jongyi are also liable, because Saeyun acted as their agent.
14. Saeyun argues he signed the Authorization under duress, because he felt pressured to have the repair work completed quickly. I find there was no duress given Saeyun did not object and did not take any steps to avoid the contract (see Dairy Queen Canada, Inc. v. M.Y. Sundae, 2017 BCCA 442). However, nothing turns on it given my conclusion below.
15. Saeyun also argues that the Authorization does not mention anything about a cause of loss investigation, which he says is inherently different from the task of repairing. I agree. I find the Authorization set out Saeyun’s agreement that PDGV could repair and restore the Property and that he agreed to be liable for PDGV’s associated invoice. There is nothing in the Authorization that mentions an investigation into the cause of loss, and so I find Saeyun did not authorize such an investigation, which I find included PDGV’s asbestos abatement work. While PDGV may have done some admittedly limited water extraction work, its invoice provides no breakdown of that cost and the evidence shows the invoice is primarily for the investigation and abatement work.
16. So, I find that Saeyun is not responsible for PDGV’s invoice for cause of loss investigation and asbestos abatement, because that is not what he agreed to in the Authorization. Given the above, I dismiss PDGV’s claim against Saeyun. I next consider whether Jungho and Jongyi must pay PDGV’s invoice.
17. Unlike in my earlier decision relied on by Saeyun, 0459478 B.C. Ltd. dba Paul Davis Greater Vancouver v. To, 2020 BCCRT 1162, I find Jungho, as the insured, likely authorized Gore to instruct PDGV to investigate the cause of loss. I say this because PDGV submitted Gore’s April 16, 2019 message from Gore that it had received “the signed nonwaiver letter back” and that PDGV could “proceed looking for the cause of loss”. In To, Ms. To expressly denied signing such a waiver. Here, neither Jungho nor Jongyi denied signing the nonwaiver letter. So, I find Jungho and Jongyi likely authorized Gore to do the investigation work.
18. Yet, as in To, the difficulty for PDGV is that there is no evidence before me that Jungho or Jongyi agreed to pay PDGV’s invoice for the investigation and abatement work, if Gore denied payment under the insurance claim. It is undisputed Gore hired PDGV, not the respondents. I do not have a copy of the nonwaiver letter in evidence before me, so I cannot conclude it set out Jungho’s or Jongyi’s agreement to pay PDGV’s invoice. Gore is PDGV’s client and so if PDGV wanted to rely on the nonwaiver letter, I find it likely could have obtained a copy and submitted it in evidence. I found above that in signing the Authorization Saeyun did not agree to pay for the investigation work as Jungho’s and Jongyi’s agent. Given all the above, I find PDGV’s claim against Jungho and Jongyi also cannot succeed and I dismiss it.
Jungho’s counterclaim against PDGV
19. Jungho and Saeyun both say PDGV caused unnecessary Property damage by opening up walls as part of the asbestos abatement. They say that had PDGV heeded their advice that the damage arose from dripping water from the upstairs bathroom, all of that damage would not have occurred.
20. In essence, Jungho says the water leak originated from only the failed caulking. He says PDGV was negligent in failing to determine the caulking as the leak source at the outset. So, Jungho wants PDGV to pay for the Property repair costs.
21. In contrast, PDGV says there were 2 separate water issues, and their investigation and asbestos abatement services for the 1st cause of loss related to a perimeter drainage issue, which Gore undisputedly denied under the insurance policy and so PDGV did not do any restoration work. I note there is no evidence PDGV held itself out as having specialized plumbing expertise.
22. In particular, in PDGV’s April 18, 2019 preliminary report, it wrote Gore that the cause of loss was still unknown and its guess was that there was a drain failure in the shower. PDGV submits it determined on May 21, 2019 that the leak was caused by a perimeter drainage issue, and that an unnamed third party plumber (undisputedly hired by Jungho) confirmed this on June 17, 2019. In contrast, Jungho denies his plumber confirmed there was a perimeter drainage issue causing the leak in question, and says the plumber did not know the leak’s cause. However, Jungho admits the plumber suggested repair to the exterior drainage but says this was unrelated to the basement bathroom leak at issue. None of the parties submitted any evidence from a plumber.
23. When a party alleges defective work, they must prove that the work was defective (see Lund v. Appleford Building Company Ltd., 2017 BCPC 91 at paragraph 124). Here, this means that Jungho must prove that PDGV’s work fell below the standard of a reasonably competent restoration service.
24. Generally, when an issue is outside the knowledge of an ordinary person, expert evidence is required (see Bergen v. Guliker, 2015 BCCA 283). I find expert evidence is required here in order to determine the applicable standard for PDGV’s work.
25. As noted, Jungho says the failed caulking was the only issue. He relies on his “handyman” Hosik So’s April 7, 2021 affidavit that says he fixed the caulking on July 2, 2019 and was not aware of any problems after. Hosik So’s affidavit does not address whether there was an earlier, separate, perimeter drainage issue. The affidavit also does not address the appliable standard of care for a business like PDGV. So, I find Hosik So’s evidence unhelpful in determining whether PDGV acted reasonably.
26. Significantly, there is no statement from a plumber in evidence about what they found or their conclusions about the leak’s source. I am not prepared to accept hearsay evidence about what the plumber said, particularly given the parties’ conflict about it. Since Jungho hired the plumber, I find he was in the best position to provide evidence to support his position, but he did not do so. Jungho bears the burden of proof in his counterclaim. In the absence of expert evidence, I am unable to conclude the leak was caused only by the failed caulking. I am also unable to conclude PDGV was negligent in the steps it took.
27. At the same time, I found above Jungho and Jongyi likely authorized PDGV’s investigation, although I found there was insufficient evidence they agreed to pay for that work. Since they authorized it, and given the absence of expert evidence about the investigation’s reasonableness, I find Jungho cannot succeed in his claim that the investigation was unauthorized or unreasonably done. It is undisputed the home had asbestos. Further, Saeyun’s submissions make it clear he did not stop PDGV from tarping off parts of the basement with opaque plastic to deal with the asbestos issue. I find this shows that Saeyun, who undisputedly acted as Jungho’s agent, knew PDGV was undertaking an investigation that would likely result in some damage to the Property. For the reasons above, I dismiss Jungho’s counterclaim against PDGV.
28. Even if I had found PDGV liable, I would not have allowed the damages as claimed, since the July 21, 2019 invoice for $3,675 is largely in a foreign language and simply says “Interior/Exterior – Restoration”, which I find is not clearly limited to repair of the investigation work PDGV did. I also note that part of Jungho’s claim appears to be for lost rental income, but the Dispute Notice limited his claim to “the costs of the repairs”. Given I dismiss Jungho’s counterclaim, nothing turns on it.
Jungho’s claim against Gore
29. First, I note Jungho’s claim against Gore was framed as a third party claim, which is a claim for indemnity. As a third party claim, Jungho’s claim against Gore is unsuccessful because PDGV’s claim against Jungho was unsuccessful, in that there is nothing for Gore to indemnify Jungho for. However, even if Jungho had intended to file a “stand alone” claim against Gore, it would not succeed, as explained below.
30. As noted above, Gore is in default, because it was deemed served with the Dispute Notice and did not file a Dispute Response as required. Generally speaking, liability is assumed when a party is in default. However, in the circumstances and on the evidence before me I find that assumption is rebutted.
31. The correspondence in evidence shows that on June 17, 2019 “ClaimsPro” denied insurance coverage because the policy did not insure direct or indirect water damage caused by “continuous or repeated seepage or leakage of water”. I infer that ClaimsPro acted on Gore’s behalf, which is undisputed. I have found above that Jungho has not proved PDGV acted negligently. I also found above Jungho instructed Gore to proceed with the investigation. It follows that Gore is not liable for the Property repair costs. I note there is no argument that Gore should cover the repair costs under the policy, presumably because blocked perimeter drainage and failed caulking both amount to continuous or repeated seepage or leakage.
32. I dismiss Jungho’s claim against Gore for the reasons above, and I say the same about Jungho’s claimed damages as I did above in paragraph 28. I would not have allowed lost rent damages in any event, as Gore did not have notice of that remedy.
Conclusion
33. 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. I see no reason to deviate from that practice here. PDGV and Jungho were unsuccessful in their claims and the remaining respondents did not pay fees or claim expenses, so I make no order for fees and expenses.
ORDER
34. I order that all claims and this dispute are dismissed.
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Shelley Lopez, Vice Chair |