Date Issued: September 10, 2021

File: SC-2021-001102

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Turnbull v. Langevin (dba Solid Rock Professional Services),
2021 BCCRT 984

Between:

RODERICK G TURNBULL

Applicant

And:

STEVE LANGEVIN (Doing Business As SOLID ROCK PROFESSIONAL SERVICES)

Respondent

INTRODUCTION

1.      The applicant, Roderick G Turnbull, hired the respondent, Steve Langevin (doing business as Solid Rock Professional Services), to seal his asphalt driveway.

2.      Mr. Turnbull paid Mr. Langevin’s $770.28 invoice. Mr. Turnbull says the seal coat was defective and within a year began to flake off the driveway. He claims $3,444 to remove and replace the driveway seal coat, based on a quote from another contractor.

3.      Mr. Langevin denies the claim. He concedes that the sealant was defective, but he says there is no warranty on the labour or the sealant, and the defective sealant is a supplier or manufacturer’s issue.

4.      Both parties are 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). 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.

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. 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.

7.      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.

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, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

9.      After the stated deadline for evidence submission, Mr. Turnbull submitted additional photos of his driveway before and after Mr. Langevin applied the seal coat. Mr. Langevin had the opportunity to respond to the late evidence, so I find there is no prejudice to him in admitting it. Bearing in mind the CRT’s flexible mandate, I admit the late evidence, although I find it of marginal relevance given Mr. Langevin concedes the sealant was defective.

ISSUES

10.   The issues in this dispute are:

a.    Was there a warranty on Mr. Langevin’s labour or product?

b.    If so, did Mr. Langevin breach the warranty?

c.    If so, what remedy is appropriate?

EVIDENCE AND ANALYSIS

11.   As the applicant in this civil dispute, Mr. Turnbull must prove his claim on a balance of probabilities, meaning more likely than not. I have considered all the parties’ evidence and submissions, but only refer to what is necessary to explain my decision.

12.   On or about July 9, 2019, Mr. Langevin power washed and applied sealant to Mr. Turnbull’s driveway. The invoice showed the total cost was $770.28. Mr. Turnbull paid the invoice on August 10, 2019. None of this is disputed.

13.   Mr. Turnbull says in April 2020, he noticed patches of the seal coat had come off. Photos from that time show the seal coat appears to be thin in some areas, and cracked in others. This is corroborated by photos and by Mr. Langevin, who says when driving by he noticed 5 driveways, including Mr. Turnbull’s, “already peeling away.” The parties got in touch and Mr. Langevin said he would contact the sealant supplier. Mr. Langevin says he pursued the supplier and manufacturer but was unable to reach a satisfactory resolution. As of the date of submissions, Mr. Langevin had not refunded Mr. Turnbull or returned to address the peeling seal coat.

14.   Mr. Turnbull says Mr. Langevin guaranteed the 2019 seal would last at least 3 if not 4 years. Mr. Langevin says there is no written warranty on the product or labour. However, Mr. Langevin also says “I always tell that it will last between 3 to 4 years before need re seal” (reproduced as written).

15.   Because the parties did not provide a written contract, I find their agreement was oral. Oral contracts are enforceable, but their terms are often more difficult to prove than written terms. A warranty is one such term. A warranty may be either a representation about the existence of a present fact, or a promise to bear the risk of loss that will flow from the failure of a fact to occur in the future: see Gallen v. Butterley, 1984 CanLII 752 (BC CA).

16.   Mr. Langevin does not dispute that he told Mr. Turnbull that the seal “will” last 3 to 4 years, during the formation of their contract. I find it therefore does not matter that there was no written warranty. I find Mr. Langevin agreed to bear the risk of loss if the seal did not last at least 3 years. It is therefore unnecessary to consider whether an implied warranty under the Sale of Goods Act applied.

17.   Mr. Turnbull provided an email from Darrin McGillis of Steelhead Asphalt Sealing & Maintenance. Mr. McGillis said that he has been sealing asphalt for over 10 years. I accept his evidence as expert evidence under the CRT’s rules. He said he inspected Mr. Turnbull’s driveway on May 19, 2021, and found the sealant had peeled and flaked off in some areas. He said this could be because the sealant did not cure and was not dry overnight, or because the product was not mixed properly before being applied, or because too much water was added.

18.   Mr. Langevin does not dispute that the seal coat was deficient, or challenge Mr. McGillis’ findings. Instead, Mr. Langevin says that the sealant he used may have been defective or may have been frozen in transport. He says he has been working hard to get the sealant supplier and manufacturer to replace the defective sealant. However, he provided no evidence to support these assertions and he did not make a third party claim in this dispute against the sealant supplier or manufacturer. In any event, I find that whether the problem was with the product’s manufacture, transportation, application, or something else, responsibility for satisfying the warranty falls solely on Mr. Langevin..

19.   In Lind v. Storey, 2021 BCPC 2, the court stated an owner must give their contractor a reasonable opportunity to correct the deficiencies in its work. Based on the parties’ emails and a demand letter from a lawyer Mr. Turnbull retained, I am satisfied that Mr. Turnbull gave Mr. Lund every reasonable opportunity to correct the driveway seal.

20.   Given the above, I find Mr. Langevin breached the 3-year warranty on the driveway seal by failing to correct the peeling seal coat.

21.   Damages for breach of contract are intended to put the innocent party in the position they would have been in if the contract has been performed. Mr. Turnbull provided a quote from Power Paving to remove the failing sealant for $2,200 and to re-seal the driveway for $1,080. The total cost with GST is $3,444, which is what Mr. Turnbull claims in this dispute. Nothing in the quote suggests Mr. Turnbull would receive anything more or better than what Mr. Langevin originally agreed to provide. And since Mr. Langevin does not contest the Power Paving quote, I accept it as the best available evidence of damages. I order Mr. Langevin to pay Mr. Turnbull $3,444.

22.   There is no evidence that Mr. Turnbull has paid for Power Paving’s re-sealing yet, so I do not order any interest under the Court Order Interest Act.

23.   Mr. Turnbull did not claim reimbursement of the $125 he paid in CRT fees or any dispute-related expenses, so I make no order.

ORDERS

24.   Within 14 days of the date of this order, I order Mr. Langevin to pay Mr. Turnbull $3,444.00.

25.   Mr. Turnbull is entitled to post-judgment interest under the Court Order Interest Act, 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 in effect until 90 days after June 30, 2021, which is the date of the end of the state of emergency declared on March 18, 2020, 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.