Date Issued: January 11, 2022

File: SC-2021-004418

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Mokarami v. Mahan Counter Top Ltd., 2022 BCCRT 26

Between:

ROKSANA MOKARAMI and MEYSAM FAZADOUST

Applicants

And:

MAHAN COUNTER TOP LTD.

Respondent

And:

ROKSANA MOKARAMI and MEYSAM FAZADOUST

RespondentS BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      Roksana Mokarami and Meysam Fazadoust (owners) hired Mahan Counter Top Ltd. (Mahan) to install new backsplashes and countertops in their kitchen. The owners say that Mahan’s work was so deficient that they need to replace them. They claim $5,000.

2.      Mahan denies that its work was substandard and says that the owners never paid its outstanding invoice. It counterclaims for $1,680, the amount it says is outstanding under the parties’ contract.

3.      Mrs. Mokarami represents both owners. Mahan is represented by its owner, Mohammad Mehrabi.

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.      I note that some of the parties’ submitted correspondence was in Farsi. Neither party provided a translation. The CRT’s rules require all evidence to be translated into English, so I have not considered any of the parties’ correspondence in Farsi.

ISSUES

9.      The issues in this dispute are:

a.    Do the owners owe Mahan $1,680 for its outstanding invoice?

b.    Are there any deficiencies in Mahan’s work, and if so, what compensation is appropriate?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the owners must prove their claims on a balance of probabilities. Mahan must prove its counterclaims to the same standard. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

11.   The owners hired Mahan on May 3, 2021, to cut and install quartz countertops and backsplashes in their kitchen and a bathroom. The work in the bathroom is not at issue in this dispute. The owners agreed to pay a total of $4,000 plus GST for a total of $4,200. They paid a $2,520 deposit the same day, leaving $1,680 to be paid upon completion. The owners undisputedly have not paid this $1,680 balance. Mahan was responsible for measuring the kitchen so that the quartz was properly cut. None of this is disputed.

12.   To understand the owners’ allegations, it is necessary to set out the kitchen layout in some detail. The allegations all relate to one kitchen wall. At the rough center of the wall is the kitchen sink. There is a window above the kitchen sink. To the left of the sink is bare countertop running to the left corner with cabinets above. To the right of the sink is a stretch of countertop, an oven, and then more countertop running to the right corner. The countertop from the left corner to the oven is a single slab with a cutout for the sink. Above and to the oven’s right is a cabinet, which is in the corner. Above and to the oven’s left is another cabinet. The backsplash along the wall is in 3 pieces: one from the left corner to the window, another underneath the window, and a third above the oven. The oven backsplash is essentially a large rectangle with cutouts on either side to accommodate the cabinets.

13.   On May 25, 2021, 3 Mahan installers attended to install the countertops and backsplashes. During the installation, Mr. Fazadoust removed the corner cabinet. The parties dispute why he did so and whose idea it was. I return to this issue below. In any event, just as he removed the cabinet, the oven backsplash fell onto the floor and it broke. The falling oven backsplash damaged the oven door and hardwood floor.

14.   The Mahan employees glued the oven backsplash back together and installed it. The parties dispute whether Mr. Fazadoust agreed to this fix, but I find that nothing turns on it, given my conclusions below.

15.   After the Mahan employees left, FM, who I understand was a Mahan director, asked the owners to pay the balance owing. In response, Mr. Fazadoust texted FM to raise several issues with the quality of Mahan’s work. Over the following weeks, Mahan continued to demand payment while the owners insisted that Mahan address the deficiencies in Mahan’s work. Neither party budged.

16.   Before turning to the owners’ allegations, I will briefly address Mahan’s claim for payment of its invoice. It is well-established that a contractor is entitled to be paid if it substantially completes its work. If the customer believes that there are defects in the contractor’s work, they may bring a claim for damages, as the owners have here, but they still must pay the invoice. See Belfor (Canada) Inc. v. Drescher, 2021 BCSC 2403. With that, I find that the owners are responsible for Mahan’s $1,680 invoice.

17.   When a customer alleges that a contractor’s work was below a reasonably competent standard, they must prove the deficiencies. See Absolute Industries Ltd. v. Harris, 2014 BCSC 287, at paragraph 61. Generally, an allegation that a professional’s work was below a reasonable standard requires expert evidence to prove. The 2 exceptions to this rule are when the deficiency is not technical in nature or where the work is obviously substandard. Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112. The owners did not provide any expert evidence, but they say that the defects they allege are clear and obvious.

18.   With that, I turn to the owners’ allegations.

The Oven Backsplash

19.   There are 3 allegations about the oven backsplash. First, the owners say that Mahan measured the notches for the cabinets wrong, making it impossible to reinstall the corner cabinet. Second, they say that the cutouts for the kitchen outlets are the wrong shape and size, making them unusable. Finally, they say that it was Mahan’s fault that the oven backsplash fell and broke because Mahan told Mr. Fazadoust to remove it. They say that the glue holding the 2 pieces together is ugly.

20.   Mahan generally denies the owners’ allegations but does not specifically address the issue with the cabinet notches other than to say that everything fit “perfect”.

21.   The owners provided photos that show that the corner cabinet is 14.5 inches wide. Other photos show that there is only 14 inches between the corner of the room and the edge of the oven backsplash. The owners also provided a photo of the cabinet up against the wall, which shows that it overlaps with the oven backsplash and cannot sit flush against the wall. I therefore accept the owners’ allegation that they cannot reinstall it because the backsplash is too wide. I find that this is clear evidence that Mahan either measured wrong or cut the quartz wrong. Either way, I find that this is obviously below the standard of a competent installer.

22.   Turning to the outlets, the owners say that Mr. Fazadoust tried to install the covers for the electrical outlets, a light switch, and a telephone line but the holes in the slab were either in the wrong place or were the wrong size. They say that as a result, it was impossible to install the covers, either because the slab covered the screw holes or because the outlet’s “ears” did not sit flush against the slab, which was necessary for a snug fit. They also say that were unsightly gaps between several of the covers and the backsplash.

23.   Again, Mahan does not specifically address this allegation although in an email to Mr. Fazadoust it suggested that Mr. Fazadoust must not have been installing them correctly. Mahan did not describe what it thought Mr. Fazadoust was doing wrong. Based on the photos and videos in evidence, I find that Mahan cut the outlet holes incorrectly. I find that they are clearly either the wrong size or in the wrong place. I accept the owners’ evidence that these errors go beyond aesthetics and affect the function of the outlets. Again, I find that this is obviously below the standard of a competent installer.

24.   In terms of the appropriate remedy, the owners rely on email correspondence and quotes with another countertop company, Valley Granite Products (VGP). On September 3, 2021, Mr. Fazadoust sent photos of the problems with the oven backsplash and the way the backsplashes fit over the outlets and asked if they could be fixed. VGP said that the backsplashes would need to be replaced. I accept this evidence because it is common sense. Mahan custom cut the quartz, which I accept cannot be undone. I therefore find that the owners are entitled to the cost of replacement backsplashes. Because the owners have proven significant errors in Mahan’s measuring or cutting, I find that they are entitled to this compensation regardless of whose fault it was that the oven backsplash broke.

25.   On September 13, 2021, VGP provided a $4,177.55 quote for new backsplashes along the length of the wall. I accept that this quote is reasonable even though it is about the same amount that Mahan charged for the whole job. I say this because Mahan admits in its submissions that it underquoted the job by “at least $2,000”. However, I note that the owners asked VGP to quote for a taller oven backsplash than the one Mahan had installed. So, I find that a deduction is appropriate to avoid overcompensating the owners. VGP’s quote indicates that the oven backsplash alone would cost $2,367.29. This is not broken down into labour and materials. On a judgment basis, I deduct $300 from VGP’s quote to account for the taller oven backsplash. I find that the owners are entitled to $3,877.55 to replace the backsplashes.

The Countertop

26.   The owners make 2 allegations about the countertop. First, they say that the kitchen sink is off center. Second, they say that the countertop is too long.

27.   With respect to the kitchen sink, the owners say that the BC Building Code requires the sink to be centered, which Mahan confirmed in an email to the owners although it denied that the sink was not centered properly. I accept that the photos and videos in evidence show that it is off center by around half an inch. The issue is particularly apparent underneath the sink, where the gap between the sink and the cupboard edge is noticeably different on each side. I find that this is an obvious error.

28.   As for the countertop’s length, the owners say that because it is too long their oven does not fit in the gap between the 2 countertops. Mahan denied this is in an email to Mr. Fazadoust but does not specifically address the photos in evidence. I find that these photos show that they could not slide the oven all the way into the gap because the oven’s control panel is slightly wider than the rest of it. I find that the gap between the cupboards is clearly not wide enough for the oven. Again, I find that this is an obvious error.

29.   In terms of remedy, Mr. Fazadoust asked VGP about fixing the uncentered sink. VGP said that it could not fix it because doing so would cause the counter to “land short of the stove”. I infer from this that VGP could shorten the countertop but that doing so would increase the size of the oven gap. VGP does not appear to be aware that the absence of a gap between the countertop and the stove is itself a problem. It appears that shortening the countertop might solve both of the countertop’s issues. Ultimately, with this uncertainty, I find that the owners have not proven that replacing the countertop is necessary. There is no evidence about how much the proposed fix would cost. On a judgment basis, I award $500 to fix the countertop.

The Caulking

30.   The owners say that within days of the installation, there was significant cracking and peeling between the countertop and the backsplash, as well as between the oven backsplash and backsplash under the window. I accept that the owners’ photos show some cracked caulking, but without expert evidence I find that I cannot conclude that this was the result of substandard work by Mahan. I find this allegation unproven.

Damage to Oven and Floor

31.   As for the damage to the oven and floor, as mentioned above, the parties disagree about whose fault it was that the oven backsplash fell. The owners say that during installation, Mahan asked Mr. Fazadoust to remove the corner cabinet, which he agreed to do. Mahan says that Mr. Fazadoust is lying. It says that Mr. Fazadoust decided on his own to remove the corner cabinet, for unknown reasons.

32.   I find that I do not need to decide this issue because either way I find that the owners are not entitled to compensation for the damaged oven and floor. I say this because it is unclear from the evidence why the oven backsplash actually fell. I find that the most likely explanation is that it was not secured yet and Mr. Fazadoust bumped it or knocked it off. Even if I accepted that Mahan asked Mr. Fazadoust to remove the cabinet, it was still his responsibility to do so safely.

33.   In summary, I find that the owners have proven $4,377.55 in damages. The net result after deducting the $1,680 they still owe Mahan is that Mahan must pay the owners $2,697.55.

34.   The Court Order Interest Act (COIA) applies to the CRT. The owners are entitled to pre-judgment interest from May 25, 2021, the installation date, to the date of this decision. This equals $7.68.

35.   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 find that the parties were both partially successful. Mahan paid $125 in CRT fees while the owners paid $175 in CRT fees. I find that the appropriate result is for Mahan to reimburse the owners $25 for CRT fees so that each party is responsible for half of the total CRT fees paid. Neither party claimed any dispute-related expenses.

ORDERS

36.  Within 30 days of the date of this order, I order Mahan to pay the owners a total of $2,730.23, broken down as follows:

a.    $2,697.55 in damages,

b.    $7.68 in pre-judgment interest under the COIA, and

c.    $25 for CRT fees.

37.  The owners are entitled to post-judgment interest, as applicable.

38.   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.

 

39.  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.