Date Issued: November 26, 2021

File: SC-2021-002834

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Sell-my.com Holdings Ltd. v. 1253754 B.C. Ltd., 2021 BCCRT 1251

Between:

SELL-MY.COM HOLDINGS LTD. DBA BC SURVEYORS

Applicant

And:

1253754 B.C. LTD. and DAVID TARASENKO

RespondentS

INTRODUCTION

1.      This dispute is about payment for surveying services. The applicant, Sell-my.com Holdings Ltd. Dba BC Surveyors (BCS), was asked by the respondent David Tarasenko to provide surveying services for the respondent 1253754 B.C. Ltd. (125). BCS claims payment of its October 8, 2020 invoice for $1,084.90, which was for “property line layout for fencing and update drawing”. This invoice followed BCS’ paid July 2020 invoice for its topographical survey.

2.      The respondents say BCS should have staked the property’s fence-line when doing the July 2020 survey and so they say BCS is owed nothing for the October invoice. Mr. Tarasenko also says BCS’ contract was only with 125 and that Mr. Tarasenko only acted as BCS’ agent as a courtesy.

3.      BCS is represented by an employee or principal. 125 is represented by its owner, Sanj Parmar and Mr. Tarasenko. Mr. Tarasenko represents himself also.

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). 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 parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.

6.      Under CRTA section 42, 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 CRTA section 118, in resolving this dispute the CRT may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

ISSUES

8.      The issues are:

a.    Was BCS negligent or in breach of contract because it did not stake the property’s fence-line on its first visit to 125’s property?

b.    To what extent, if any, is BCS entitled to payment of its $1,084.90 invoice?

EVIDENCE AND ANALYSIS

9.      In a civil claim like this one, as the applicant BCS has the burden of proving its claim, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.

10.   There is no formal written contract in evidence. It is undisputed BCS was hired after Mr. Tarasenko called it on July 5, 2020 to perform a survey on 125’s 30-acre property. It is also undisputed BCS’ fee was based on an hourly rate for time and travel. I accept BCS did the topographical survey, which is undisputed, and note the survey in evidence that shows existing fence lines. BCS later undisputedly revised the survey in August 2020 to show lot dimensions from existing Land Title Office Records.

11.   I turn to Mr. Tarasenko’s role. On July 14, 2020, BCS emailed Mr. Tarasenko a site plan “showing contours and improvements” on the property and asked that he forward it to 125’s owner, Mr. Parmar.

12.   BCS’s first invoice is for $2,701.38, dated July 20, 2020 and addressed to 125. The description of services is “field survey and prepare site plan showing improvements and contours”, for survey dates July 7 and 8, 2020. On July 21, 2020, Mr. Tarasenko emailed BCS that it could bill Mr. Parmar’s company 125 directly. 125 undisputedly paid the invoice.

13.   At issue in this dispute is BCS’ October 8, 2020 invoice for the claimed $1,084.90. The description of services is “property line layout for fencing and update drawing” for a September 23, 2020 survey date. Again, the invoice is based on hourly rates and travel time and is billed to 125 only, not Mr. Tarasenko.

14.   I find BCS’ contract was with 125, not Mr. Tarasenko. I find the evidence clearly shows Mr. Tarasenko only acted as 125’s agent and that BCS knew this. As noted above, the invoices were addressed to 125 and BCS knew it was 125’s property being surveyed. The law of agency applies when the principal, in this case 125, gives authority to the agent, here Mr. Tarasenko, to enter into contracts with third parties on the principal’s behalf. So long as the agent discloses that they are acting as an agent for the principal, the agent will not generally be liable under a contract they make between the principal and a third party: Keddie v. Canada Life Assurance Co., 1999 BCCA 541. I find that applies here and I dismiss BCS’ claim against Mr. Tarasenko.

15.   I turn next to the respondents’ position that they had always asked for fence-line staking. They say BCS could have done that work in July and so its later return to do it on September 23, 2020 was wasted time. I discuss the parties’ relevant emails below.

16.   On August 4, 2020, Mr. Tarasenko emailed BCS and asked that it “add the perimeter measurements of the lot line – for fencing quotes purposes. I just noticed there were no perimeter measurements.” Notably, none of the earlier emails in evidence mention fence-line staking.

17.   While Mr. Tarasenko says that on July 10, 2020 BCS’ surveyor S said he would stake the fence-lines, I find there is no supporting evidence of this. I also find the parties’ emails, discussed further below, do not support that assertion.

18.   On September 20, 2020, Mr. Tarasenko said that he and Mr. Parmar had attended the property looking for “boundary markings Sanj asked to be staked out” but they could not find them. Mr. Tarasenko concluded, “Can you let me know if your guy put them in and if [not], can he go out and do that?”.

19.   On September 21, 2020, BCS responded that when S was onsite completing “the topo survey” he located pins on all lot sides with the exception of the property’s east side outside the existing fence. BCS wrote, “I am not sure if he staked these pins or just tied ribbon to the fence lines of trees??” BCS added that if Mr. Tarasenko wanted it, S could stake the 4 property corners, or, stake property lines at 50-feet intervals for fencing purposes. BCS asked Mr. Tarasenko what his preference was.

20.   Later on September 21, 2020, Mr. Tarasenko emailed BCS back, “Yes, we would like to have the fence line staked just to make sure we don’t spend a bunch of money and stray over a property line by accident. We will probably be safe and stay just a bit inside, but we can discuss this.”

21.   The respondents argue that Mr. Tarasenko’s September 20 and 21, 2020 emails support their position that they had asked that the fence-line be staked “at the very beginning”. I disagree. I find the tenor of the emails show that staking the entire fence-line was a new request. If BCS had agreed to stake the entire fence-line at the outset as part of its July work, I find it more likely that Mr. Tarasenko would have complained that it had not been done. I also find the parties’ email exchange more likely supports a conclusion that the “boundary markings” in Mr. Tarasenko’s September 20 email referred to the property’s 4 corners, not staking the entire fence-line at 50-foot intervals across the entire 30-acre property.

22.   Further, even if BCS ought to have staked all four property corners or boundaries in July, I find nothing turns on its failure to do so. I say this because as noted I find Mr. Tarasenko expressly gave BCS fresh instructions to return to stake the entire fence-line at 50-foot intervals. The evidence shows fence-line staking is a different thing than just staking the property’s 4 corners or boundaries. I find insufficient evidence that staking the entire fence-line was ever part of BCS’ original contract when the work was completed in July 2020.

23.   Further, BCS’ work was undisputedly billed based on time. While the respondents say BCS could have staked the entire fence-line on its first visit, I find insufficient evidence to support this conclusion. I find whether this could have been completed is a technical matter outside ordinary knowledge and would require expert evidence (see Bergen v. Guliker, 2015 BCCA 283). Here, the only expert evidence I have was submitted by BCS: a September 1, 2021 quote from Advanced Surveying Ltd. (Advanced). Advanced wrote that given the property’s 30-acre size, it would not anticipate being able to complete both the topographical survey and the property line layout in one day. Advanced quoted $1,600 for the survey portion plus $1,100 for the layout, plus GST. I accept this evidence as expert evidence under the CRT’s rules about surveying requirements.

24.   In short, I find BCS could not have done both the topographical survey and the fence-line staking all in one day, and so there is no evidence the October 2020 invoice was wasted time as the respondents allege.

25.   Finally, even if BCS’s surveyor S had verbally indicated he could stake the fence-line as he did the survey work in July, I find there is insufficient evidence that the respondents reasonably believed S had authority to bind BCS to such an agreement. S was not a party to any of the emails setting up the contract and the respondents’ submissions show they knew S was only BCS’ field employee doing the survey work. So, I find any verbal assurance from S did not bind BCS and does not show that completion of the fence-line staking was actually possible as part of the July work without taking more time and costing more money. Given this, I find the fact that there is no statement in evidence from S makes no difference to my analysis.

26.   In summary, I find BCS is entitled to payment of the claimed $1,084.90, which is less than what Advanced quoted to do the same ‘property layout” or fence-line staking work. I note that other than arguing the fence-line staking could have been done in July (a position I have rejected above), they did not dispute the amount of the October invoice.

27.   The Court Order Interest Act (COIA) applies to the CRT. BCS is entitled to pre-judgment COIA interest on the $1,084.90, calculated from the invoice’s November 7, 2020 due date to the date of this decision. This equals $5.14.

28.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. I find BCS is entitled to reimbursement of $125 in paid CRT fees. No dispute-related expenses are claimed.

ORDERS

29.   Within 21 days of this decision, I find 125 must pay BCS a total of $1,215.04, broken down as follows:

a.    $1,084.90 in debt,

b.    $5.14 in pre-judgment interest under the COIA, and

c.    $125 in CRT fees.

30.   BCS is entitled to post-judgment interest, as applicable. I dismiss BCS’ claims against Mr. Tarasenko.

31.   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.

32.   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 BC.