Date Issued: January 11, 2022

File: SC-2021-004321

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Janik v. Bains, 2022 BCCRT 24

Between:

SLAWOMIR JANIK

Applicant

And:

DEVINDER KAUR BAINS also known as DEVINDER PARHAR and JASBIR SINGH BAINS

Respondents

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant, Slawomir Janik, says that the respondents, Devinder Kaur Bains (also known as Devinder Parhar) and Jasbir Singh Bains, hired him to renovate 2 bathrooms in their home. Mr. Janik says that he completed the first bathroom and half the second bathroom when the parties’ working relationship broke down. He says that they owe him $3,644 in labour and materials.

2.      The respondents say that there were deficiencies in Mr. Janik’s work and deny that he completed half of the second bathroom. They say that they do not owe him anything and ask me to dismiss his claims.

3.      I will address the respondents by their first names in this decision because they share a last name and did not indicate how they would prefer to be addressed. I intend no disrespect in doing so.

4.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.      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.

6.     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, the parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

7.      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.

8.      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.

ISSUES

9.      The issue in this dispute is whether the respondents owe Mr. Janik anything for the bathroom renovations, and if they do, how much. To determine this, I must answer the following questions:

a.    Were there any deficiencies with Mr. Janik’s work on the first bathroom?

b.    Is Mr. Janik entitled to be paid for anything for returning a bathtub and shower door?

c.    Is Mr. Janik entitled to be paid anything for his labour on the second bathroom, and if so, how much?

d.    Has Mr. Janik been fully reimbursed for his materials costs for both bathrooms?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, Mr. Janik 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.

11.   Mr. Janik and Devinder signed a written contract on March 22, 2021, for Mr. Janik to renovate 2 bathrooms in the respondents’ home. The relevant terms are as follows. Devinder would pay $5,000 in labour for each bathroom, in $600 installments for each day that Mr. Janik worked. Devinder would supply and pay for all materials. Devinder would pay extra for any additional work not specifically included in the contract.

12.   Here I will briefly address Jasbir’s role in this dispute. He is not a party to the written contract. There is no evidence that he had anything to do with hiring Mr. Janik. In his submissions, Mr. Janik says that he claimed against Jasbir because Jasbir co-owns the home with Devinder. I find that the mere fact of being a co-owner does not make Jasbir a party to the contract or otherwise make Jasbir responsible for anything Devinder owes Mr. Janik under the contract. I therefore dismiss Mr. Janik’s claims against Jasbir.

13.   Mr. Janik started working on the first bathroom on March 22, 2021. The parties generally agree that Mr. Janik completed the first bathroom on April 15, 2021, although as discussed below Devinder argues that there were some deficiencies in his work. Devinder ultimately paid Mr. Janik $5,600 for the first bathroom, including the agreed $5,000 for labour and a further $600 for materials.

14.   Mr. Janik worked on the second bathroom between April 16 and April 26, 2021. The parties agree that on April 26, 2021, the parties’ working relationship broke down. While the parties dispute exactly what happened that day, they generally agree that Mr. Janik demanded to be paid for his work to date on the second bathroom and Devinder refused. They also agree that Mr. Janik then quit and never returned. I find that the disputed details are not relevant to the outcome of this dispute. I find that both parties accepted that their contract was terminated as of April 26, 2021.

15.   Later that day, Mr. Janik emailed Devinder to demand payment for the work he did up to that point. He said that the second bathroom was 50% complete, so he demanded $2,500 of his $5,000 flat fee for labour. He also said he had spent $1,344 in materials for both bathrooms but had only been paid $600. Finally, he demanded $400 for wasted time because he said Devinder had ordered the wrong bathtub and shower door for the first bathroom. So, his total demand was $3,644, which is also the amount he claims in this dispute.

16.   Devinder later hired another contracting company, Mr. Handyman, to complete the second bathroom. Mr. Handyman charged $5,384.20.

17.   I turn next to the applicable law. Mr. Janik argues that he is entitled to be paid a reasonable sum for his work on the second bathroom based on “quantum meruit”, which is a Latin term meaning “value for work done”. I agree, and Devinder does not specifically dispute this point.

18.   Rather, although Devinder does not use these exact words, I find that she argues that she is entitled to a set-off for deficiencies and incomplete tasks, and that the net result is that she owes Mr. Janik nothing. When a party alleges deficiencies in a contractor’s work, they must prove that the contractor failed to perform the work in a reasonably competent manner. See Absolute Industries Ltd. v. Harris, 2014 BCSC 287, at paragraph 61. With those principles in mind, I turn to the specific issues.

Were there any deficiencies with Mr. Janik’s work on the first bathroom?

19.   Devinder says that the first bathroom was only 90% complete. She says that Mr. Janik did not install the towel bars or shower door. Mr. Janik says he did. With respect to the towel bars, Mr. Janik took several photos of the first bathroom on April 16, 2021, but none show the wall where a towel bar would likely be installed. However, Devinder provided no supporting evidence for this allegation. I find that Devinder has not proven that Mr. Janik failed to install the towel bars.

20.   Turning to the shower door, Mr. Janik’s photos show that it was not installed as of April 16, 2021. Mr. Janik admits this. He says that Devinder had initially ordered the wrong shower door and the replacement shower door had not arrived yet. He says that it arrived on April 19, 2021, and that he installed it on that day. There are no photos of the first bathroom after April 19, 2021. Mr. Janik provided a statement from AZ, a subcontractor who worked with him on April 23 and 26, 2021. AZ said that they saw that the first bathroom was complete but does not specifically say anything about the shower door.

21.   On balance, I find that Mr. Janik likely installed the shower door on April 19, 2021, as he alleges. I say this primarily because Devinder does not say that she had to hire someone else to do it or that she ended up doing it herself. Devinder also did not mention the shower door in her emails to Mr. Janik after he quit. There are no photos from after April 19, 2021, showing the shower door missing. There is also nothing in Mr. Handyman’s invoice to suggest that it installed the shower door.

22.   Devinder also says that the grout was cracking. However, she provided no supporting evidence of this, such as a photo. I find this allegation unproven.

23.   Finally, Devinder says that she had to hire a plumber to fix Mr. Janik’s faulty work. She says that there were issues with the water pressure and that the bathtub drain was installed “upside down”. Mr. Janik denies both allegations. He says that nothing he did would have affected the water pressure and that it is impossible to install a bathtub drain upside down. He says any drainage problems were likely because of debris rather than faulty installation.

24.   I agree with Mr. Janik. The plumber’s 2 invoices are both from August 2021, months after Mr. Janik finished his work. Both invoices say that the plumber removed debris from the tub drain and pipes. I recognize that in the first invoice, the plumber wrote on the invoice that they “believed” that part of the drain was “upside down”. I find that this is not a detailed enough statement to prove that Mr. Janik incorrectly installed the bathtub drain. In any event, the plumber noted on the second invoice that the drain was flowing normally after removing debris. There is no suggestion that the plumber reinstalled any of the drain’s parts. As for water pressure, the first invoice says that the plumber cleaned a cartridge. Neither invoice says anything about any defective work that would have affected water pressure.

25.   I therefore find that Devinder has not proven any defects in Mr. Janik’s work.

 

Is Mr. Janik entitled to be paid for anything for returning a bathtub and shower door?

26.   Mr. Janik says that the first bathroom was nearly complete on April 13, 2021, but Devinder had ordered the wrong bathtub and shower door. He says that these errors cost him 2 days of work. He says he was not paid for this additional work. He claims $400 in compensation because it was outside the scope of the original contract. Devinder does not deny ordering the wrong bathtub and shower door. She also does not deny that Mr. Janik returned them to the store for her.

27.   However, I am not satisfied that Mr. Janik has proven that he lost 2 days of work. I find that the only wasted time that Mr. Janik has proven is that he had to return the 2 items to the store. He does not say how long this took. On a judgment basis, I award $50 for this extra work.

Is Mr. Janik entitled to be paid anything for his labour on the second bathroom, and if so, how much?

28.   Mr. Janik says that he had completed roughly 50% of the work for the second bathroom. He says that he demolished the old bathroom, completed the plumbing, including cutting the concrete, and installed the shower base with panel walls.

29.   Devinder does not dispute these details but disputes that it represents 50% of the work. She does not say what percentage she thinks Mr. Janik completed. She relies on the fact that she paid Mr. Handyman $5,384.20 in labour, more than the $5,000 Mr. Janik was going to charge, to complete the second bathroom. She suggests that this proves that Mr. Handyman did almost all of the work. I find that Mr. Handyman’s invoice shows that it had to do a considerable amount of work to complete the bathroom. However, I find that the value of this evidence is limited by the fact that different contractors do not necessarily charge the same rate.

30.   As mentioned above, Mr. Janik provided a written statement from AZ, who was working with Mr. Janik on April 26, 2021. AZ said that Mr. Janik completed more than 50% of the second bathroom. Overall, I place little weight on this evidence. In many respects, AZ’s statement simply repeats Mr. Janik’s allegations, including about things that AZ would have no firsthand knowledge of, such as what happened on days that AZ was not working. AZ said they often work with Mr. Janik. Overall, I find that AZ is not a neutral witness.

31.   With that, I find that there is little objective evidence to judge how much of the second bathroom Mr. Janik had completed. Mr. Janik says that he worked 7 hours with his 2 subcontractors on April 16, 2021, and that he worked with AZ on April 23 and 26, 2021. He says that he worked from April 19 to 22, 2021, by himself. This totals 7 working days because Mr. Janik did not work weekends. Other than April 16, 2021, he does not say how long he worked on any other day. I note that the parties agree that Mr. Janik often worked only partial days, although they dispute whose fault this was.

32.   Given this lack of detail, I find that the best way to estimate how much of the second bathroom Mr. Janik completed is to compare the time worked on the first and second bathrooms. The first bathroom took around 4 weeks to complete, although I recognize that the evidence is not clear that he worked every day during this time. It is also not clear whether Mr. Janik had any subcontractors helping him with the first bathroom. Mr. Janik had worked a full week on the second bathroom, plus April 16 (a Friday) and April 26 (a Monday). On a judgment basis, I find that $1,500 is a reasonable sum for the work Mr. Janik did on the second bathroom, which represents just over 25% of $5,000.

Has Mr. Janik been fully reimbursed for his materials costs for both bathrooms?

33.   Based on the invoices Mr. Janik provided, I find that he spent $845.02 in materials for the first bathroom and $384.42 for the second bathroom, for a total of $1,229.44. Devinder does not dispute any of these invoices. Mr. Janik does not explain how he calculated $1,344, which is the amount he claims for materials, so I find he is only entitled to $1,229.44. Because Devinder has only paid $600 towards materials, I find that she owes a further $629.44.

34.   In summary, I find that Mr. Janik is entitled to a total of $2,179.44. I order Devinder to pay him this amount.

35.   The Court Order Interest Act (COIA) applies to the CRT. Mr. Janik is entitled to pre-judgment interest on the from April 26, 2021, his last day of work, to the date of this decision. This equals $6.99.

36.   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. Janik was partially successful, so I find that he is entitled to reimbursement of half of his $175 in CRT fees, which is $87.50.

37.   Mr. Janik claims $250 in dispute-related expenses for expert reports from 2 plumbers. One charged $150 and the other charged $100. Mr. Janik asked them the same series of questions. For the most part, I find that Mr. Janik’s questions did not relate to plumbing issues. For example, he asked both plumbers to answer whether the first bathroom was “100% finished” based on Mr. Janik’s own description of the work, photos, and witness statements. However, Mr. Janik did ask them about Devinder’s allegations about the water pressure and bathtub drain. Even though I did not need to consider this evidence because I found Devinder’s allegations unproven, I find that it was reasonable for Mr. Janik to get expert evidence about these issues. That said, I fail to see why Mr. Janik required 2 plumbers to say essentially the same thing. Given that Mr. Janik was only partially successful and unnecessarily got 2 reports, on a judgment basis I award him $75 for half the cost of one of the reports.

38.   The respondents did not claim any dispute-related expenses or pay any CRT fees.

ORDERS

39.  Within 30 days of the date of this order, I order Devinder to pay Mr. Janik a total of $2,348.93, broken down as follows:

a.    $2,179.44 in debt,

b.    $6.99 in pre-judgment interest under the COIA, and

c.    $162.50 for $87.50 in CRT fees and $75 for dispute-related expenses.

40.  Mr. Janik is entitled to post-judgment interest, as applicable.

41.   I dismiss Mr. Janik’s claims against Jasbir.

42.   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.

43.  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.