Date Issued: November 1, 2021

File No: SC-2021-001579

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Aslan Electrical, Plumbing, Gasfitting, Refrigeration & Sheetmetal Services Ltd. v. McNaught, 2021 BCCRT 11551155

Between:

ASLAN ELECTRICAL, PLUMBING, GASFITTING, REFRIGERATION & SHEETMETAL SERVICES LTD.

Applicant

And:

CHARLENE MCNAUGHT

Respondent

And:

ASLAN ELECTRICAL, PLUMBING, GASFITTING, REFRIGERATION & SHEETMETAL SERVICES LTD.

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about the installation of kitchen appliances. Aslan Electrical, Plumbing, Gasfitting, Refrigeration & Sheetmetal Services Ltd. (Aslan) is the applicant in the primary claim and the respondent in the counterclaim. Charlene McNaught is the respondent in the primary claim and the applicant in the counterclaim.

2.      Aslan installed a sink, faucet, dishwasher and a hood fan in Ms. McNaught’s kitchen. Ms. McNaught has not paid Aslan’s invoices. Aslan claims $1,931.53 in unpaid work and expenses.

3.      Ms. McNaught denies Aslan’s claims. She says that Aslan agreed to not charge her for its installation services because it allegedly damaged her property. Ms. McNaught also claims that Aslan has overcharged her. Ms. McNaught claims $3,165.34 for damage to her home.

4.      Aslan denies Ms. McNaught’s counterclaim. Aslan said it has already repaired Ms. McNaught’s property at no charge and says that it is not responsible for any further alleged damage.

5.      Ms. McNaught is self-represented. Aslan is represented by its general manager.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

ISSUES

10.   The issues in this dispute are:

a.    Does Ms. McNaught owe Aslan a debt for unpaid work? If so, how much does she owe?

b.    Does Aslan owe Ms. McNaught compensation for damage to her kitchen? If so, how much does it owe?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Aslan, as the applicant, must prove its claims on a balance of probabilities. Ms. McNaught has the same burden of proving her counterclaims. 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.

 

Aslan’s claim for unpaid work

12.   Ms. McNaught signed Aslan’s work authorization form on June 22, 2020. By doing so, I find that she entered a binding contract with Aslan on those terms.

13.   The parties’ contract had the following relevant terms:

a.    Aslan would hookup Ms. McNaught’s dishwasher, supply water to her refrigerator, install a kitchen sink and a hood fan.

b.    Ms. McNaught would pay Aslan $98 per hour for labour. This rate increases for overtime.

c.    Ms. McNaught would pay Aslan for materials, mileage and vehicle expenses and permits.

d.    Overdue accounts are charged 19.6% interest annually.

14.   Aslan sent Ms. McNaught undated plumbing and electrical invoices totaling the claimed $1,931.53 in February 2021. As noted, Aslan also says that it performed 10.5 hours of repair services at no charge to address Ms. McNaught’s complaints.

15.   The plumbing invoice charged $1,278.47 for work completed on July 23, 2020. The plumbing invoice says that Aslan installed the kitchen sink and faucet and that it connected water lines to the dishwasher and refrigerator. The invoice charged $784 for 8 hours of labour. The invoice also charged $30 for a truck expense and $403.59 for materials.

16.   The electrical invoice charged $653.06 for work completed on August 18, 2020. The electrical invoice says that Aslan connected the wiring to the dishwasher, installed an outlet for the range hood, installed ducting and installed the hood. Aslan charged $343 for 3.5 hours of labour. Aslan also charged $15.20 for mileage, $144 for an electrical permit and $119.76 for materials.

17.   It is undisputed that Ms. McNaught has not paid any portion of Aslan’s invoices.

18.   Ms. McNaught says that she does not owe Aslan the invoiced amounts because Aslan verbally agreed to not charge her for the work after damaging her property. This is supported by a May 20, 2021 witness statement from TM, a co-owner of Ms. McNaught’s house. However, as a co-owner of the property, I find that TM is likely interested in the result of this dispute and I give her statement little weight.

19.   Aslan denies any such verbal agreement. In the absence of further evidence, I find that both parties’ submissions are equally likely. So, I find that Ms. McNaught has not proved that the parties agreed to change the contract and I find that the parties remain bound by their original contractual obligations.

20.   Based on Aslan’s invoices, I am satisfied that Aslan performed the scope of the described work. However, Ms. McNaught disputes the amounts invoiced.

Permit

21.   Ms. McNaught says that Aslan is not entitled to the $144 permit fee on the electrical invoice because she says that a permit was not required for the project. However, Ms. McNaught does not provide any evidence supporting this submission. Aslan provided a copy of an electrical permit issued to hookup a dishwasher and install a range outlet at Ms. McNaught’s property. Since Aslan obtained a permit to perform the electrical work, I am satisfied that the permit was likely necessary. I find that Ms. McNaught does owe Aslan the permit fee under the parties’ contract.

Vehicle and travel expenses

22.   Ms. McNaught argues that Aslan is not entitled to the $30 truck charge on the plumbing invoice and the $15.20 mileage fee on the electrical invoice.

23.   The contract says that Ms. McNaught is responsible for vehicle charges, which I find includes the truck fee. Further, I find that this amount is reasonable. So, I find that Ms. McNaught is responsible for the truck charge.

24.   Ms. McNaught also argues that Aslan’s $15.20 mileage expense is excessive. Aslan charged Ms. McNaught for 16 kilometers of travel at the rate of $0.95 per kilometer. Aslan’s electrical invoice says that it performed the installation work on July 23, 2020. The invoice also says that Aslan returned to the property multiple times to perform non-charged work between July 27 and August 18, 2020. I infer that this relates to Aslan’s non-charged repair work. Since Aslan did not charge Ms. McNaught for the repair work, I find that Aslan is not entitled to mileage expenses for these repairs. So, I find that Aslan is only entitled to its travel expense for July 23, 2020.

25.   Aslan provided GPS records which showed its vehicles mileage to various addresses. However, without a further explanation, I find that I am unable to accurately determine which trips were related to this project. Ms. McNaught provided a copy of an online mapping application showing that Aslan’s office is located 2 kilometers from her property, which Aslan did not dispute. Other than travelling to and from Ms. McNaught’s property, Aslan did not say that it needed to make additional trips on July 23, 2020 for the project. Based on the above, I find that Aslan is entitled to 4 kilometers of travel expenses for travel to and from Ms. McNaught’s property on July 23, 2020. At the rate of $0.95 per kilometer, which I find reasonable, Ms. McNaught is responsible for $3.80 in mileage expenses

PEX tube

26.   Ms. McNaught argues that she is not responsible for Aslan’s $65 charge for 100 feet of PEX tube. Ms. McNaught says this tubing was already in place at the rough-in stage of the kitchen renovation. Since Aslan did not dispute this submission, or provide a receipt for these materials, I find that Aslan has failed to prove that Ms. McNaught is responsible for this expense.  

Sink strainers

27.   Ms. McNaught also argues that she is not responsible for Aslan’s $66.60 charge for 2 sink strainers. She says that she did not request sink strainers and that these parts were not necessary for a sink installation. Since Aslan did not dispute this submission, or provide a supporting receipt, I find that Aslan has failed to prove that Ms. McNaught is responsible for this expense.

Dishwasher hose

28.   Ms. McNaught argues that Aslan’s $38.61 charge for a dishwasher hose was excessive. Though Ms. McNaught acknowledges that the hose was necessary, she says that Aslan could have purchased a shorter, cheaper hose. In the absence of supporting evidence, I find Ms. McNaught’s argument that a shorter hose could have been used is speculative. I find that the dishwasher hose expense is reasonable and find that Ms. McNaught is responsible for this expense.

Shop supplies

29.   The invoices include expenses totaling $30 for shop supplies. Ms. McNaught says that she should not be responsible for these expenses because they are not itemized. Although I do not agree that small, nominal expenses necessarily need to be itemized, Aslan does have the burden of proving Ms. McNaught’s debt. In response to Ms. McNaught’s submissions, Aslan has not provided any submissions explaining these expenses or stating that these expenses were necessarily incurred for this project. I find that Aslan has not proved that Ms. McNaught is responsible for the shop fees.

Inefficient work

30.   Ms. McNaught also argues that the plumbing invoice should be reduced because Aslan’s worker was inexperienced and slow. Ms. McNaught says that charges of 8 hours of labour to install the plumbing for the sink, a faucet, and hook up a dishwasher was excessive. However, Ms. McNaught did not provide any evidence showing how much time these tasks typically take. Without a supporting estimate, quote or a plumber’s opinion, I find that Ms. McNaught has not proved that Aslan’s plumbing work was unreasonably slow. So, I find that Ms. McNaught is responsible for Aslan’s labour charges.

Unlevelled dishwasher

31.   Ms. McNaught says that Aslan’s work was deficient because the dishwasher was installed in a unlevel position, which Aslan did not dispute. Ms. McNaught provided supporting photographs showing the dishwasher appearing to be in a nonlevel position. Based on the photographs, and Aslan’s lack of a response to this allegation, I find that the dishwasher was installed improperly. On a judgement basis, I find that Ms. McNaught is entitled to a deduction of 1 hour of labour from Aslan’s invoices to correct this installation. At Aslan’s hourly rate, this is $98.

Ms. McNaught’s assistance

32.   Ms. McNaught also argues that Aslan’s invoice should be reduced because she had to go to a hardware store to buy parts for the project. However, since Aslan charged Ms. McNaught on an hourly basis, I find that Ms. McNaught’s personal contributions to the project does not change the amount she owes Aslan.

33.   Based on the above, I find that Aslan has overcharged Ms. McNaught by $271 plus $32.52 in tax. So, after deducting this amount from Aslan’s $1,931.53 invoices, I find that Ms. McNaught’s owes Aslan $1,628.01 for unpaid work, subject to her counterclaim for negligence discussed below.

Ms. McNaught’s claim for negligence

34.   Ms. McNaught claims that Aslan negligently damaged her property while performing its work. Specifically, Ms. McNaught claims that Aslan damaged her ceiling and the walls while installing the hood fan . She also claims that Aslan damaged her stove griddle by stepping on it.

35.   To prove negligence, Ms. McNaught must show that Aslan owed her a duty of care, Aslan breached the standard of care, Aslan sustained damage, and the damage was caused by Aslan’s breach (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

36.   I accept that Aslan owed Ms. McNaught a duty to avoid damaging her property while making its work.

Ceiling blemishes

37.   Ms. McNaught provided a photograph that appeared to show multiple, faint blemishes on the ceiling. Since Aslan does not deny responsibility for damaging her ceiling paint damage, I find that Aslan negligently caused the blemishes.

38.   Aslan says that it performed touch up painting to the ceiling. This is supported by Aslan’s August 18, 2020 work order. Aslan says that it sent a worker to put the final coat of paint over the blemishes but Ms. McNaught denied access. Since McNaught did not dispute this submission, I accept it as accurate. Ms. McNaught says that a professional painter was needed to perform the paint repairs.

39.   In the CRT decision in Agecoutay v. Anghel (dba J.A. Transmission), 2021 BCCRT 332, a vice chair found that a contractor is not responsible for damages or deficiencies when the contractor is not given a reasonable opportunity to address any non-urgent deficiencies in their work. While non-binding, I find the reasoning in Agecoutary persuasive and apply it here.

40.   I find that Ms. McNaught has not established that Aslan’s touch up repairs were improper or that a professional painter was required. Further, by preventing Aslan from applying a final paint coat, Ms. McNaught did not give Aslan a reasonable opportunity to repair the fingerprint blemishes. So, I find that Aslan is not responsible for this deficiency and I dismiss Ms. McNaught’s claim for painting expenses.

Wall and ceiling drywall damage

41.   Ms. McNaught claims that she had to install a tile backsplash to cover wall damage Aslan allegedly caused behind the hood fan. Ms. McNaught provided a May 20, 2021 statement from TM who witnessed some of Aslan’s work. TM says that the electrician ripped the tin strapping off the vent, damaging the wall and ceiling. Ms. McNaught provided a photograph dated July 24, 2020 showing a gash in the ceiling and wall near the hood fan. Since Aslan does not deny doing this, I accept TM’s statement that Aslan damaged the drywall as being accurate.

42.   However, Aslan says that it repaired the damage at no charge. Aslan provided August 17, 2020 work orders that say that 2 Aslan workers repaired the drywall damage. Without providing photographs showing the drywall damage after Aslan’s repairs, I find that Ms. McNaught has not proved that Aslan left the drywall in a damaged condition and I dismiss this claim.

Griddle

43.   Ms. McNaught provided a photograph showing a contractor stepping on Ms. McNaught’s stove griddle while working on the project. Aslan does not deny damaging the griddle and it says that it has offered to replace it. Since Aslan does not deny responsibility for damaging Ms. McNaught’s stove griddle, I find that Aslan negligently caused this damage.

44.   Ms. McNaught did not provide a quote or price listing for the griddle’s cost, but she says a supplier told her it costs $104.11 plus tax. Since Aslan does not dispute this amount, and since this price appears to be reasonable on a judgment basis, I find that I find that Aslan owes Ms. McNaught $116.60 for damaging her griddle.

45.   For the above reasons, I find that Ms. McNaught owes Aslan $1,628.01 for unpaid work. However, Aslan owes Ms. McNaught $116.60 for damaging her property. After offsetting these claims, Ms. McNaught owes Aslan $1,511.41.

Interest, CRT fee and dispute-related expenses

46.   The contract provides 19.6% interest for overdue accounts. So, Aslan is entitled to pre-judgment contractual interest on the $1,511.41 debt for unpaid work from the date that Aslan sent its invoices to the date of this decision. Since the invoices were sent on an unspecified date in February 2021, I find that the pre-judgment interest began on February 28, 2021. This equals $199.66.

47.   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 Aslan was partially successful in its claims, I find that it is entitled to reimbursement of one-half of its CRT fees, being $67.50. Since Ms. McNaught was generally unsuccessful in her counterclaims, I find that she is not entitled to reimbursement of her CRT fees. Neither party requested reimbursement of dispute-related expenses.

ORDERS

48.   Within 30 days of the date of this order, I order Ms. McNaught to pay Aslan a total of $1,778.57, broken down as follows:

a.    $1,511.41 in debt for unpaid work,

b.    $199.66 in pre-judgment contractual interest, and

c.    $67.50 in CRT fees.

49.   Aslan is entitled to post-judgment interest, as applicable.

50.   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.

 

51.   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.