Date Issued: February 2, 2022

File: SC-2021-005732

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Laface v. Ward Engineering and Land Surveying Ltd., 2022 BCCRT 124

Between:

NICOLE LAFACE and TERRENCE MITCHELL

Applicants

And:

WARD ENGINEERING AND LAND SURVEYING LTD.

Respondent

INTRODUCTION

1.      This dispute is about land surveying services.

2.      The applicants, Nicole Laface and Terrence Mitchell, hired the respondent, Ward Engineering and Land Surveying Ltd. (Ward), to complete a survey of their property. The applicants paid Ward an initial $1,000 retainer, and a further $1,500 to conduct a site visit and prepare a survey plan. The applicants say Ward told them the retainer was to secure Ward’s services and would be refunded, but instead Ward charged them for services they did not agree to. They also say Ward’s survey plan was inaccurate and not completed as agreed. The applicants seek a refund of the entire $2,500 they paid for the retainer and survey.

3.      Ward says the whole retainer was used for the time it took to deal with the applicants’ issues and requests, over and above the $1,500 it charged for the site visit and survey plan. Ward also says its survey was accurate and properly completed. Ward says it does not owe the applicants anything.

4.      Ms. Laface represents both applicants. Ward is represented by its owner, Peter Ward.

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 to this dispute call into question the credibility, or truthfulness, of the other. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. 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 in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, 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 do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Whether the applicants are entitled to any refund of the $1,000 retainer they paid to Ward, and

b.    Whether Ward’s survey plan was deficient, and if so, whether the applicants are entitled to any refund of the $1,500 they paid for the survey plan.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

11.   The applicants were involved in a disagreement with their neighbours over a concrete barrier the neighbours allegedly placed across an access road at one end of their property. Ms. Laface phoned Mr. Ward on February 16, 2021, seeking Ward’s assistance. The parties agree that the applicants paid Ward a $1,000 retainer on February 17, 2021. The parties also agree that before the applicants paid the retainer, Mr. Ward advised them that he charged $195 per hour. There is no other documentary evidence before me about the agreed terms of the paid retainer.

12.   The evidence shows Ms. Laface emailed Mr. Ward on February 17, 2021, attaching several documents related to the barrier disagreement, and requesting his opinion on them.

13.   The evidence also shows that Ms. Laface had previously emailed the Ministry of Transportation and Infrastructure (MoTI) requesting it remove the barrier from the access road. The MoTI responded to Ms. Laface on February 22, 2021, advising that it required a sketch plan from a legal land surveyor clearly showing where the barrier is located with respect to property boundaries. Ms. Laface forwarded the MoTI’s email to Mr. Ward. In response, Mr. Ward advised Ms. Laface that Ward’s cost to prepare the survey plan that the MoTI requested was $1,500 plus GST.

14.   The parties agree that the applicants paid Ward a further $1,500 on March 9, 2021, to complete a site visit and survey plan of the applicants’ property and the barrier. The evidence shows that Ward’s surveying team attended the applicants’ property on March 23, 2021, to conduct the site visit. It is undisputed that Mr. Ward did not attend the site himself. The evidence also shows that Mr. Ward provided Ms. Laface with an initial survey plan on April 22, 2021, and a revised plan on April 30, 2021.

15.   Ward provided Ms. Laface with a May 4, 2021 invoice showing charges of $1,500 for the survey and drawing, and a further $880.95 for consulting services, plus tax. The total of $2,500 including GST, is marked as paid. The applicants seek a refund of the entire $2,500 they paid to Ward. I turn first to the retainer.

The retainer

16.   The applicants say that Mr. Ward did not advise them that he would charge both an hourly rate and a fixed rate to complete the survey. They say the retainer was meant to secure Ward’s services, and it was to be returned once the scope of the job was determined. The applicants say Mr. Ward should have deducted only the cost of sending one email to the MoTI on February 23, 2021 and returned the balance of the retainer, as all other work was included in the quoted $1,500 for the survey.

17.   Mr. Ward says that he spent more than 5 hours of his time explaining to Ms. Laface the various types of surveys available, corresponding with the MoTI and other highways property departments, obtaining and reviewing relevant gazette notices (a filed notice that the MoTI is taking property for roads), and corresponding and meeting with the applicants both before and after completing the survey.

18.   On balance, I find Mr. Ward likely advised the applicants at the outset that he would use the retainer for work billed on an hourly basis. I say this because the evidence shows the applicants agreed to Mr. Ward’s $195 hourly rate, and they emailed him several documents, which I find they must have known he would have to review. I also find the applicants requested his opinion about the documents, which the evidence shows he discussed with them, and the applicants agree that Mr. Ward corresponded with the MoTI for them. I find all this work was done before the parties agreed to the additional cost for Ward to complete a site visit and survey plan for the applicants. The evidence also shows Mr. Ward corresponded with the applicants on several occasions after the survey was complete.

19.   Overall, I find there is nothing obviously unreasonable about the $880.95 plus GST Ward charged the applicants for consulting services in the May 4, 2021 invoice. So, I find the applicants have not established they are entitled to a refund of the $925 in total that Ward charged them out of the retainer.

20.   I note the remaining $75 of the retainer was applied to GST owing on the $1,500 for the survey plan, which I turn to next.

The survey plan

21.   The applicants say that they communicated specific requirements for the survey to Mr. Ward, as they had concerns about whether any pins on their property had been moved, and they wanted to locate a particular p.con monument (a type of survey post). The applicants say Mr. Ward failed to attend the site visit to ensure their concerns were addressed by using a new benchmark for the survey measurements, as agreed. They also say the survey plan did not adequately show the property boundaries, gazette notices, and barrier location.

22.   Ward says the agreement was to survey the concrete barrier and show its location in relation to the property boundaries. I find this is supported in the parties’ email evidence noted above. Ward denies that it also agreed to set a new benchmark, and says a new benchmark was unnecessary. The parties’ positions on this issue are in direct conflict, and I find I am left with an evidentiary tie. Given the applicants bear the burden of proof, I find the applicants have not proven Mr. Ward breached their contract by failing to use a new benchmark for the survey measurements.

23.   While they do not use this exact language, I find the applicants are also alleging that Mr. Ward was negligent in his preparation of the survey. To prove negligence, the applicants must show that Mr. Ward owed them a duty of care, that he breached the standard of care, that the applicants sustained damage, and that it was Mr. Ward’s breach of the standard of care that caused their damage (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 3).

24.   I accept that Mr. Ward owed the applicants a duty of care when completing a survey and plan of the applicants’ property. So, I turn to applicable standard of care.

25.   Generally, in claims of professional negligence, an applicant must show a breach of the standard of care through expert evidence. Here, I find expert evidence is necessary because preparing a land survey is technical and outside an ordinary person’s knowledge and experience (see Bergen v. Guliker, 2015 BCCA 283).

26.   The applicants did not provide any expert evidence in this dispute. They say they attempted to obtain an expert opinion, but the firms they contacted were unwilling to get involved in this dispute. Instead, the applicants refer to the Land Surveyors Act, the Survey and Plan Rules of the Association of BC Land Surveyors (Rules), and the British Columbia Land Surveyors Code of Ethics (Code of Ethics), and they argue that these documents set out the required standard of care for preparing land surveys. While I accept that these documents are likely relevant to determining the required standard of care of a reasonably competent land surveyor, I find that expert evidence is still required to explain the relevant provisions in these documents that establish the standard for the survey Ward was hired to prepare for the applicants.

27.   Further, I find the applicants’ assertion that Ward’s survey plan failed to include several requirements under the Rules and was incomplete, is not obvious on my own review of the survey plan. The applicants also allege Mr. Ward violated the Code of Ethics and provided as examples, several decisions of the board of management of the Association of British Columbia Land Surveyors, which is the regulatory body for land surveyors. Specifically, the applicants submit that Mr. Ward broke his alleged promise to personally attend the site visit, disclosed confidential information to the neighbours, and failed to properly supervise the field crew. However, I find the applicants have provided insufficient evidence to support these allegations of unprofessionalism.

28.   In the absence of any expert evidence critical of Mr. Ward’s professionalism, or his methodology and preparation of the survey, I find the applicants have not proven that Mr. Ward breached the required standard of care.

29.   Having failed to establish that Mr. Ward breached the standard of care, I find the applicants have not shown Mr. Ward was negligent in his preparation of the survey. I acknowledge that the applicants believe relevant pins and monuments demarking their property may have previously been moved, and that Ward failed to identify the undocumented movement. However, I find their bare assertions alone are insufficient, and the applicants have not proven that Ward’s survey plan was inaccurate or incomplete.

30.   Given it is undisputed that Ward conducted a site visit and produced a survey showing the location of the barrier in relation to the marked property boundaries, I find the applicants have not established that they are entitled to any refund for the survey. I dismiss the applicants’ claims.

31.   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. The applicants were unsuccessful and so I dismiss their claim for CRT fees. As the successful party, Ward did not pay any fees or claim any dispute-related expenses, so I make no order.

ORDER

32.   I dismiss the applicants’ claims, and this dispute.