Date Issued: October 8, 2021

File: SC-2021-002380

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Barry (dba Matrix Metal) v. T. C. C. Contracting Co. Ltd.,

2021 BCCRT 1080

Between:

SEAN BARRY (Doing Business As MATRIX METAL)

Applicant

And:

T.C.C. CONTRACTING CO. LTD.

Respondent

INTRODUCTION

1.      This dispute is about payment for steel stair construction work. The applicant, Sean Barry (Doing Business As Matrix Metal), says the respondent, T.C.C. Contracting Co. Ltd. (TCC), has failed to pay in full for the stair work he performed. Mr. Barry says that TCC owes more than the original estimate because TCC changed the project’s measurements and it requested additional work. Mr. Barry claims $3,375 in unpaid work.

2.      TCC denies Mr. Barry’s claim. TCC says it did not request any changes or additional work. TCC says it has already fully paid Mr. Barry the agreed fixed contract price.

3.      Mr. Barry is self-represented. TCC is represented by an employee or principal.

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.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, or a combination of these. Though I found that some aspects of the parties’ submissions called each other’s credibility into question, I find I am properly able to assess and weigh the documentary evidence and submissions before me without an oral hearing. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always necessary when credibility is in issue. Further, bearing in mind the CRT’s mandate of proportional and speedy dispute resolution, I decided I can fairly hear this dispute through written submissions.

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.

ISSUE

8.      The issue in this dispute is whether Mr. Barry performed unpaid work for TCC, and if so, how much does TCC owe Mr. Barry?

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicant, Mr. Barry, must prove his claim on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

10.   TCC hired Mr. Barry to install a steel stair assembly as part of a construction project TCC was performing for a third party. TCC says the contract was for a $6,638.10 fixed price, including all labour, materials and GST. Mr. Barry argues that $6,638.10 was only an estimate.

11.   In the absence of a formal written contract, I find that the parties’ agreement was based on their emails. Mr. Barry sent TCC a January 13, 2021 email providing a “ball park estimate” of around $6,000. TCC replied on January 15, 2021 offering a $6,000 fixed price. Mr. Barry sent TCC a January 16, 2021 email offering “6.6K.” The email included a detailed estimate of $6,638.10 for labour, materials, laser cutting, delivery and GST. TCC agreed to these terms in a January 17, 2021 email and it signed and dated the $6,638.10 estimate

12.   Mr. Barry says that the $6,638.10 price was only an estimate that could change depending on how the project progressed. However, TCC specifically requested a fixed price in its January 15, 2021 email. Further, Mr. Barry’s January 16, 2021 email says that he was cutting his “labour extremely tight” and the project may not be profitable for him if there were any “hiccups.” I find that the parties emails are consistent with a fixed price contract. So, I find that TCC agreed to pay Mr. Barry a fixed price of $6,638.10 to install the steel stair assembly.

13.   TCC provided a receipt showing payment of a $2,500 deposit on January 24, 2021. Based on Mr. Barry’s timesheet record, I find that he started working on the project on February 8, 2021.

14.   TCC provided an engineer’s structural drawing showing the planned stairs’ measurements. The parties agree that Mr. Barry was hired to build the stairs according to these specifications.

15.   Mr. Barry says that TCC changed the measurements during the project causing extra work. Specifically, Mr. Barry says that TCC asked him to move the first step 2 inches during the installation. Mr. Barry says that, as a result of this change, all of the precut stair pedestals needed to be moved which changed the step height tolerances. As a result, Mr. Barry says that he needed to recut all of the step pedestals at his shop. Mr. Barry also says that TCC changed the design to expose the steel plates at the top and bottom of the stairs. Mr. Barry said that this required additional polishing work which was not included in the contract price.

16.   TCC says that it did not request any changes to the project’s specifications. TCC says that the only additional work performed by Mr. Barry were corrections of his own mistakes.

17.   During the project, the parties exchanged numerous text messages discussing the stairs’ measurements. I find that the text messages do not support Mr. Barry’s submission that TCC asked to move the first step 2 inches. Rather, I find that Mr. Barry generally asked TCC if alternate measurements were acceptable in their text messages. Further, Mr. Barry sent TCC text messages on February 11, 2021 saying that he “messed up” and mixed up the measurements. Mr. Barry’s February 11, 2021 text messages also say that he would not charge TCC to recut the step pedestals to 3 inches because that was the height originally requested. I find that this is consistent with the structural drawing. Also, the text messages do not refer to any changes to the exposure of the steel plates at the top or bottom of the stairs as Mr. Barry claims.

18.   For the above reasons, I find that the parties’ text messages do not support Mr. Barry’s claim that TCC requested changes or additional work.

19.   Further, TCC provided a March 24, 2021 report from Leo Torrente, an engineer. As an engineer, I am satisfied that Mr. Torrente has sufficient expertise as required by CRT rule 8.3 to provide an expert opinion about the stairs’ assembly.

20.   Mr. Barry argues that Mr. Torrente’s report is unfair because Mr. Barry was unable to access the site to perform his own expert witness investigation. Mr. Barry sent letters and left voicemail messages in June 2021 asking the property owner and TCC for expert witness access to the site. Mr. Barry says that TCC did not respond to his requests. Mr. Barry says that the property owner was initially going to allow access but they said that they needed to consult TCC first. Mr. Barry says that the property owner blocked his communications the next day. TCC says it blocked Mr. Barry’s text messages and emails after this dispute started. TCC also says that it told its client, the property owner, to also block communications from Mr. Barry because he was allegedly threatening them. Neither party provided a statement from the owner.

21.   Although TCC admits telling the property owner not to communicate with Mr. Barry, I find that Mr. Barry has not established that TCC had the ability to allow or deny access to property it did not own when Mr. Barry requested access. Further, I find that Mr. Barry has not established that his lack of access to the site, 4 months after he completed his work, was the result of TCC’s conduct rather than the third party property owner’s independent decision outside of TCC’s control.

22.   Further, I find that Mr. Torrente’s engineering report was prepared as part of the construction project, rather than specifically prepared for this dispute. As such, I find that there is no evidence before me suggesting that Mr. Torrente did not prepare his report independently or that he improperly advocated for TCC. I find that there is no basis to exclude Mr. Torrente’s report and I have considered it in my decision.

23.   Mr. Torrente’s report says that the stairs’ steel members were installed in accordance with the structural drawings. Based on this report, I am satisfied that the project was completed according to the original design specifications and that the measurements were not changed as Mr. Barry claims.

24.   Based on Mr. Torrente’s report, and Mr. Barry’s text messages that he mismeasured his work, I find that TCC did not make any changes to the contract or request additional work. So, I find that Mr. Barry was only entitled to the agreed $6,638.10 fixed price. Since it is undisputed that TCC has already paid Mr. Barry this amount, I find that Mr. Barry is not entitled to any further payment.

25.   For the above reasons, I dismiss Mr. Barry’s claim.

CRT fees and dispute-related expenses

26.   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. I see no reason in this case not to follow that general rule. Since Mr. Barry was not successful in this dispute, I find that he is not entitled to reimbursement of CRT fees or dispute-related expenses. TCC did not request reimbursement of dispute-related expenses.

ORDER

27.   I dismiss Mr. Barry’s claim and this dispute.