Date Issued: November 5, 2021

File: SC-2021-003202

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Podas v. B.C. Fireplace Service Inc., 2021 BCCRT 1170

Between:

NICHOLAS PODAS

Applicant

And:

B.C. FIREPLACE SERVICE INC.

Respondent

INTRODUCTION

1.      The respondent, B.C. Fireplace Service (BC Fireplace) installed a gas fireplace for the applicant, Nicholas Podas. Mr. Podas says that BC Fireplace used inappropriate copper pipe that was not “to code”, which caused the fireplace to malfunction. He claims $200 for a service call that BC Fireplace made that he says was unnecessary. He also claims $1,075 that he says he paid another company, Pipe Rite Manufacturing Ltd. (Pipe Rite), to install new copper pipe, for a total claim of $1,275.

2.      BC Fireplace agrees that the pipes feeding the fireplace caused the issues with the fireplace. However, BC Fireplace says that it did not install the problematic pipes and that there was nothing wrong with the copper pipe BC Fireplace did install. It asks that I dismiss Mr. Podas’s claims.

3.      Mr. Podas is self-represented. BC Fireplace is represented by its owner.

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.      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. In some respects, both sides to this dispute call into question the credibility, or truthfulness, of the other. However, in the circumstances of this dispute, I find that it is not necessary for me to resolve the credibility issues that the parties raised. I therefore decided to 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 pay money or to do or stop doing something. The CRT’s order may include any terms or conditions the CRT considers appropriate.

8.      Mr. Podas submitted evidence past the CRT’s deadline. BC Fireplace had an opportunity to comment on the evidence in its submissions and did not object to it. Bearing in mind the CRT’s mandate that includes flexibility and informality, I reviewed the late evidence but do not admit it because I find that it is irrelevant to the outcome of this dispute.

ISSUES

9.      The issues in this dispute are:

a.    Did BC Fireplace use improper piping when it installed Mr. Podas’s fireplace?

b.    If so, what are Mr. Podas’s damages?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, Mr. Podas as the applicant must prove his case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision. I note that both parties provided evidence about why and how their working relationship broke down, which I will not address as I do not find it relevant to the piping issue.

11.   BC Fireplace first installed a fireplace in Mr. Podas’s house on July 10, 2019. A municipal inspector signed a Certificate of Completion about the installation after an inspection on July 11, 2019. Mr. Podas complained that the first fireplace did not work properly, so BC Fireplace replaced it with another fireplace on July 22, 2019, at no cost as it was under warranty. BC Fireplace says that as part of this second installation, it installed about 6 feet of copper pipe from the mechanical room to the fireplace.

12.   BC Fireplace serviced the fireplace on September 12, 2019, and February 14, 2020 both because Mr. Podas reported that the flame was not functioning properly. During the February service, BC Fireplace noticed sediment coming through the gas line. On February 21, 2020, BC Fireplace sent Mr. Podas a written recommendation to install a filter to protect the fireplace from the sediment. Mr. Podas did not have a filter installed. BC Fireplace charged $161.25 for the February service, which I find is the basis for Mr. Podas’s $200 claim since it is the only BC Fireplace invoice in evidence. Mr. Podas does not explain the price difference.

13.   Mr. Podas asked BC Fireplace again about a filter in September 2020, but again decided against installing one.

14.   In October 2020, Mr. Podas asked for a refund because the fireplace was not functioning properly again. On October 6, 2020, BC Fireplace responded that the issue was not a warranty issue but was caused by sediment in the gas line. BC Fireplace therefore declined a refund. At this point, the parties’ working relationship rapidly deteriorated, and Mr. Podas engaged Pipe Rite to help him diagnose and solve the issue with the fireplace.

15.   The problems with the fireplace persisted. In a March 11, 2021 email to Mr. Podas, a Pipe Rite employee said that the ongoing issues with the fireplace were from a foreign material either from the gas provider or the pipes supplying the fireplace. I find that this is consistent with BC Fireplace’s explanation. In another email the next day, a different Pipe Rite employee said that they were working on diagnosing the sediment’s source, which could be from the natural gas supplier, black iron pipe, or copper pipe. It is undisputed that the black iron pipe is part of Mr. Podas’s pre-existing gas pipe system.

16.   On April 7, 2021, Pipe Rite provided a quote to remove “defective piping” in the mechanical room and install new copper pipes to the fireplace. The quote was for $1,024.17, and Mr. Podas had this work done. I find from context that this is the basis for Mr. Podas’s $1,075 claim. Again, Mr. Podas does not explain the price difference. Mr. Podas says in his submissions, which he wrote in August 2021, that the fireplace has worked fine since then.

17.   As mentioned above, Mr. Podas alleges that BC Fireplace installed inappropriate or faulty copper pipe, which caused the ongoing sediment problem. When there is an allegation that is outside an ordinary person’s common knowledge, expert evidence is generally necessary to prove it. See Bergen v. Guliker, 2015 BCCA 283. I find that whether BC Fireplace’s installation fell below the standard of a reasonably competent fireplace installer is beyond common knowledge and is technical in nature, so Mr. Podas’s allegations require expert evidence to prove them.

18.   To that end, Mr. Podas relies on a letter from Robert Calder, a Pipe Rite employee who was involved with Pipe Rite’s work for Mr. Podas, dated July 22, 2021.[i] Calder said that they were a senior journeyman technician with 17 years of experience. I find that they have the necessary qualifications to provide an expert opinion about what caused the fireplace to malfunction, which BC Fireplace does not dispute. I therefore accept Calder’s letter as expert evidence under the CRT’s rules. I note that there is another undated letter from Pipe Rite about the same issue, but it is unclear who the author was. I have not relied on that letter as expert evidence because the author’s qualifications are not in evidence. In any event, the conclusions are largely the same as in Calder’s letter.

19.   In their letter, Calder said that they attended Mr. Podas’s house and found the fireplace’s internal filter clogged with debris. Calder said that they took some copper pipe back to their shop and cut it up, and more sediment fell out. The photos show piles of small black flakes coming out of the cut pipe. Calder said that this was a “direct result” of the copper pipe that delivered gas to the fireplace, which they said BC Fireplace had installed. He said that the pipe did not conform to the “natural gas installation code” and was not suitable for use because it had been manufactured about 20 years ago.

20.   I find that Calder’s report does not prove that it is more likely than not that BC Fireplace installed copper pipes that caused the buildup of sediment. I reach this conclusion for 2 reasons.

21.   First, I find that Calder’s letter does not establish that BC Fireplace installed the copper pipe that Calder removed and replaced. BC Fireplace says that Calder must have inspected and removed pipe that BC Fireplace did not install. BC Fireplace says that it always uses new copper pipe and denies using used or old copper pipes in Mr. Podas’s house. BC Fireplace also says that it used 3/8” pipe in the installation, but the copper pipe Calder referred to was 1/2” pipe. Finally, BC Fireplace points to the undated opinion letter referred to above, which referred to issues with the “drip leg”, which BC Fireplace says is in a different place in the pipe system, beyond where BC Fireplace did work.

22.   I find that there is no objective evidence that would allow me to resolve these conflicts in the evidence. For example, there are no photos or videos of Pipe Rite’s removal of the copper pipe that would show where it was relative to the fireplace. There is no schematic or explanation of the piping system as a whole. Calder also did not say how they determined that the copper pipe they removed is the same copper pipe that BC Fireplace installed. On balance, I find that Mr. Podas has not proven that BC Fireplace installed the copper pipe that Calder considered defective.

23.   Second, even if the copper pipe Calder removed is the same pipe that BC Fireplace installed, Calder did not explain how or why the copper pipe caused the sediment to build up. While Calder found sediment in the pipe when they opened it up, they did not explain how they could tell that the copper pipe caused the sediment, as opposed to BC Fireplace’s assertion that the sediment formed upstream in the piping system. As mentioned above, an earlier Pipe Rite email suggested that existing black iron piping might be to blame, which is what BC Fireplace alleges. Calder did not explain how they ruled out this possible source. Calder also did not explain what about the pipe was not “to code”.

24.   Mr. Podas argues that BC Fireplace provided no objective evidence to support their position about what caused the sediment to form. I agree that BC Fireplace did not provide an expert opinion about the sediment’s cause. To the extent that BC Fireplace offers its own opinion in its submissions, I have not relied on it. This is because an expert’s role is to help the CRT understand technical matters, not to advocate for a party. This means that an expert must be neutral, and BC Fireplace is not neutral because it is an interested party. However, as mentioned above, Mr. Podas has the burden to prove that BC Fireplace was responsible for the sediment. BC Fireplace does not have to prove that it was not responsible for the sediment.

25.   Mr. Podas makes 3 other arguments. First, he says that he has never had any issues with any other gas appliance in his house, including the old fireplace in the same location. He says that this means that there must have been something wrong with BC Fireplace’s installation. As a matter of common sense, I agree that this could suggest that the sediment was specific to BC Fireplace’s work. However, BC Fireplace says that this is not necessarily true because different appliances have different internal components that could react differently to sediment. I find that this is a technical issue, which would require expert evidence, and there is none. Calder did not say anything about this issue.

26.   Second, as mentioned above, Mr. Podas points to the fact that between April 2021 and August 2021, the fireplace worked perfectly. I am not persuaded that this proves that replacing the copper pipe has conclusively solved the sediment issue. I find that the fireplace likely got little use during this time given the time of year. The timing of BC Fireplace’s visits to Mr. Podas’s house, described above, suggests that it takes time for sediment to build up to the point where it causes the fireplace to malfunction.

27.   Finally, Mr. Podas says that BC Fireplace has repeatedly claimed that the natural gas supplier is responsible for delivering “dirty gas” to Mr. Podas’s house. Mr. Podas says that there is no such thing as dirty gas. I find that Mr. Podas misunderstands BC Fireplace’s position. I find that BC Fireplace has consistently said that the problem likely lies somewhere in the piping in Mr. Podas’s house, not with the supplier.

28.   In summary, I find that the evidence before me is inconclusive. It is possible that BC Fireplace installed copper pipe that was unsuitable for its purpose, which caused sediment to build up, negatively affecting the fireplace’s performance. However, I find that Mr. Podas has not proven this on a balance of probabilities. I dismiss Mr. Podas’s claims.

29.   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. Mr. Podas was unsuccessful, so I dismiss his claim for CRT fees and dispute-related expenses. The respondent did not claim any dispute-related expenses or pay any CRT fees.

ORDER

30.  I dismiss Mr. Podas’s claims, and this dispute.