Date Issued: October 25, 2021
File: SC-2021-002061
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Denbury dba Islander Roofing and Siding v. John, 2021 BCCRT 1126
Between:
MATTHEW DENBURY (Doing Business As ISLANDER ROOFING
AND SIDING)
Applicant
And:
ELIZABETH JOHN also known as LIZ JOHN
Respondent
And:
MATTHEW DENBURY (Doing Business As ISLANDER ROOFING
AND SIDING)
Respondent BY COUNTERCLAIM
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REASONS FOR DECISION |
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Tribunal Member: |
Chad McCarthy |
INTRODUCTION
1. This dispute is about payment for a roof replacement. The respondent, and applicant by counterclaim, Elizabeth John also known as Liz John, hired the applicant, and respondent by counterclaim, Matthew Denbury (Doing Business As Islander Roofing and Siding), to remove and replace the metal roof on a shop building. Mr. Denbury says he completed the work and repaired some leaks under his warranty, but Ms. John told him not to return, so he could not investigate or repair any additional leaks. Mr. Denbury claims $3,900.96 for the unpaid balance of the roofing work.
2. Ms. John says Mr. Denbury’s roofing work and repairs were substandard and further repairs are needed, so she should not have to pay the claimed $3,900.96 balance. She also counterclaims $5,000, the monetary limit in the Civil Resolution Tribunal’s (CRT’s) small claims jurisdiction, for anticipated repairs to the allegedly defective roof. Mr. Denbury denies owing anything.
3. The parties are each self-represented in this dispute.
JURISDICTION AND PROCEDURE
4. These are the CRT’s formal written reasons, which 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. 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.
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.
8. I find that between the $3,900.96 withheld payment and the $5,000 counterclaim, Ms. John is effectively claiming $8,900.96 for repairing roof deficiencies. This exceeds the CRT’s $5,000 small claims limit. I find that by pursuing her CRT counterclaim, Ms. John has abandoned her claim to any amount over $5,000. Given the outcome of my decision below, nothing turns on this finding.
ISSUES
9. The issues in this dispute are:
a. Is Mr. Denbury entitled to an additional $3,900.96 for roofing work?
b. Is Ms. John entitled to compensation because Mr. Denbury’s work was deficient and requires future repairs?
EVIDENCE AND ANALYSIS
10. In a civil proceeding like this one, Mr. Denbury must prove his claim on a balance of probabilities (meaning “more likely than not”). Ms. John must prove her counterclaim to the same standard. 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.
Is Mr. Denbury entitled to an additional $3,900.96 for roofing work?
11. The undisputed evidence is that Mr. Denbury and his crew removed the metal roof on Ms. John’s shop building, and replaced it with a new membrane, metal roof, and skylights. The parties signed an October 11, 2020 agreement for the work, with the total cost to be determined based on an hourly rate and set out in an invoice when Mr. Denbury announced that the work was completed. An undated invoice in evidence shows that the work to re-roof the building was performed from October 28, 2020 to November 8, 2020, and that Ms. John had paid a total of $7,138.14 by November 23, 2020. The invoice said that the claimed $3,900.96 remained outstanding.
12. Ms. John does not take issue with the rates or hours charged by Mr. Denbury, or say that he did not perform the tasks identified in the invoice. She does not deny that she would have owed him $3,900.96 if his work had been performed to a reasonable standard of quality, although she says it was not. So, I allow Mr. Denbury’s claim for $3,900.96, exclusive of any set-off or damages for deficiencies, which I address below.
Is Ms. John entitled to compensation because Mr. Denbury’s work was deficient and requires future repairs?
13. The parties agree that the roof had leaks after the work was initially completed. So, Mr. Denbury replaced the new roof membrane with an upgraded membrane at no additional charge. Mr. Denbury says the new membrane cost approximately $2,000, but was included in his warranty against leaks and similar deficiencies. Mr. Denbury also replaced skylight flashing with different colour material at Ms. John’s request, which Ms. John says was leaking, and applied foam sealant to other roof areas, for free. Ms. John says other leaks occurred after these repairs.
14. Mr. Denbury says that given the building’s structure and age, it was common and expected that there would be some leaks even in a new roof surface, and that he committed to addressing any leaks at no additional charge. He says he advised Ms. John not to pursue interior renovations until he identified and repaired the source of any further leaks. I find Mr. Denbury told Ms. John to hold off on interior renovations, which she does not directly deny, but she disregarded that advice and chose to complete drywall work, ceilings, and other interior renovations.
15. Photos and a video in evidence show partially complete drywall with water collected behind a wall membrane, as well as damp spots on what appears to be an unfinished ceiling and floors. It is not entirely clear when the water and damp spots shown were present, and whether they occurred before or after Mr. Denbury’s repairs. The photos also show the new roof and skylight flashing, although I cannot determine, based on ordinary knowledge and experience, whether any of those items were installed according to industry standards or were leaky.
16. I find it was an implied term of the parties’ agreement that the roofing work would be of reasonable quality (see Lund v. Appleford Building Company Ltd. et al., 2017 BCPC 91 at paragraph 124). I find the issue of whether this work was of reasonable quality is a subject outside of ordinary knowledge and experience that requires expert evidence to prove (see Bergen v. Guliker, 2015 BCCA 283). I find that the mere existence of leaks in the new roof requires proof, but not necessarily expert evidence.
17. Ms. John says that there continued to be roof leaks, including one near an electrical panel, although none of the photos in evidence appear to show these ongoing leaks. Ms. John says there may be other roof and skylight leaks that are not visible now that the interior walls and ceilings are complete. Ms. John says that Mr. Denbury did not provide her with a leak-free roof, his skylight flashing and other work was deficient, and the crew damaged some roof trim with a ladder as shown in photo evidence. It is undisputed that Ms. John wrote Mr. Denbury through her lawyer and told him not to return to her property, although the letter is not in evidence. Mr. Denbury says Ms. John did not allow him to reasonably repair further problems. Mr. Denbury also says he remained available to diagnose and repair any additional leaks, but he requested payment of the outstanding invoice before performing further warranty work.
18. Ms. John says that another roofer said Mr. Denbury’s work was substandard and the whole roof should be replaced. I place no weight on this submission because it is hearsay, and is not supported by direct statements from the roofer. Ms. John submitted a June 18, 2021 proposal from Jake’s Roofing Ltd. to re-flash the skylights “as needed” for $3,450. I find this proposal is not expert evidence, as it did not provide an opinion on whether the skylight flashing was defective or the cause of any defects, and did not say why any of the flashing needed replacing.
19. Ms. John also submitted an undated letter from her ex-husband, KT, who said he was a retired licensed builder and was familiar with roofing practices. However, KT did not say that he had any education or training in roofing, or any experience constructing or repairing roofs. On this basis alone, under CRT rule 8.3(3) I find the evidence does not show KT is qualified to give expert opinion evidence on roofing. Given Ms. John’s relationship with KT, I also find KT is not sufficiently neutral. I find KT’s letter is not expert evidence and I give no weight to his opinion about the quality of Mr. Denbury’s work. However, I accept KT’s letter as evidence of what he observed, including that Ms. John has kept tarps over the skylights, and that the initial leaks gave him concerns about moving forward with drywalling. KT said the roof is not leak-free, but gave no further detail about any alleged ongoing leaks.
20. Ms. John says her contractor would also write a statement if need be. CRT staff advised the parties about the requirement for evidence to support claims, but Ms. John submitted no contractor statement, without explanation. So, I find there is no expert evidence before me. Given my finding that expert evidence is required to prove that roofing work was of poor quality, I find Ms. John has not met her burden of proving that any specific aspects of Mr. Denbury’s roofing work were substandard.
21. Having said that, Mr. Denbury does not deny that his crew damaged the roof trim with a ladder, but he says he was not given an opportunity to investigate and verify any further roof leaks. Although Mr. Denbury replaced the entire metal roof, and some leaks undisputedly occurred because of defects in that roof, I find that Ms. John has not provided sufficient evidence of any other ongoing roof leaks, including how many, where they occurred, and what caused them. I find this includes the tarp-covered skylight flashing, which the submitted evidence fails to show is substandard or continues to leak. Further, I also find Ms. John’s speculations that there may be unnoticed roof leaks behind interior drywall and ceiling surfaces are unproven.
22. So, I find that Mr. Denbury is only responsible for the roof trim damage. Although Ms. John forbade Mr. Denbury from performing further repairs, Mr. Denbury also says that he refused to fix anything else until Ms. John paid the remainder of the invoice. So, I find Mr. Denbury’s refusal is at least partly responsible for the lack of further repairs. I find that an award of damages is appropriate.
23. The evidence and submissions provide no information about the likely cost of repairing the roof trim damage. The only proposal and estimate in evidence is for work on the skylights, not on the trim. On a judgment basis, given the cost evidence for membrane replacement and other roof work, I find that the cost of repairing the roof trim damage is likely $500. I allow Ms. John’s counterclaim for damages in part, in the amount of $500.
CRT FEES, EXPENSES, AND INTEREST
24. In Mr. Denbury’s submissions about his claim for prejudgment interest, he says he “decided against pursing the collection of any interest accumulated to date.” I find Mr. Denbury has abandoned his claim to interest on the amount he is owed.
25. Under section 49 of the CRTA, and the 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. I find Mr. Denbury was substantially successful in his claim, in that he was awarded only $500 less than the claimed amount, so he is entitled to reimbursement of the $125 he paid in CRT fees. I find Ms. John was substantially unsuccessful in her $5,000 counterclaim, so she is not entitled to any reimbursement, and Mr. Denbury paid no CRT fees for the counterclaim. Neither party claims CRT dispute-related expenses.
ORDERS
a. $3,400.96 in debt for unpaid roofing fees less repair costs, and
b. $125 in CRT fees.
27. Mr. Denbury is also entitled to post-judgment interest under the Court Order Interest Act, as applicable. I dismiss the parties’ remaining claims.
28. 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.
29. 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.
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Chad McCarthy, Tribunal Member |