Date Issued: May 25, 2022

File: SC-2021-008701

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Jeftic v. Citywide Sundecks Ltd., 2022 BCCRT 612

BETWEEN:

MILOS JEFTIC

 

APPLICANT

AND:

CITYWIDE SUNDECKS LTD. and PAUL BULAT

 

RESPONDENTS

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      This dispute is about the installation of a new vinyl deck. The applicant, Milos Jeftic, hired the applicant company, Citywide Sundecks Ltd. (Citywide), to install a new vinyl deck on his home. The respondent, Paul Bulat, is Citywide’s Managing Director.

2.      Mr. Jeftic says that Citywide improperly contracted out the work to another company who poorly installed the vinyl decking. Mr. Jeftic also says Citywide failed to reconnect a downspout drain pipe, which led to his drain tiles becoming clogged with disturbed organic material. Additionally, Mr. Jeftic says Citywide caused damage to his home’s stucco. In total, Mr. Jeftic seeks $4,885.09, which includes $3,103.10 in damages for allegedly contracting the work and deficiencies, $1,181.99 for reinstalling the downspout and clearing the drain tiles, and $600 for stucco repairs.

3.      The respondents say all work was completed by Citywide employees and that the clogged drain tile was likely due to it collapsing on itself due to age. The respondents further say they are not responsible for any stucco damage, further to the parties’ contract.

4.      Mr. Jeftic represents himself. Mr. Bulat represents both himself and Citywide.

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

6.      Section 39 of the CRTA says that the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary.

7.      Section 42 of the CRTA says that 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.    To what extent, if any, is Mr. Jeftic entitled to $3,103.10 for Citywide allegedly contracting out the work and deficiencies?

b.    To what extent, if any, is Mr. Jeftic entitled to $1,181.99 for clogged drain tile and Citywide’s failure to reinstall the downspout?

c.    To what extent, if any, is Mr. Jeftic entitled to $600 for stucco repair?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant Mr. Jeftic must prove his claims on a balance of probabilities (meaning “more likely than not”). While I have read all of the parties’ submitted evidence and arguments, I have only addressed those necessary to explain my decision.

11.   At the outset, I dismiss the claims against Mr. Bulat. Corporations are distinct legal entities, separate from their directors and officers. Mr. Jeftic makes no claims against Mr. Bulat personally, and the undisputed evidence is that Mr. Jeftic’s contract was with Citywide.

12.   Mr. Jeftic and Citywide entered into a contract on September 28, 2020 for Citywide to reconstruct Mr. Jeftic’s two decks and cover them with vinyl. The contract is not signed, but the parties do not dispute the document contains their agreement. Therefore, I find the unsigned contract forms the parties’ agreement.

13.   It is unclear when the deck construction and vinyl installation actually took place, but Mr. Jeftic says Citywide’s work was deficient in several ways, each of which is discussed below.

To what extent, if any, is Mr. Jeftic entitled to $3,103.10 for Citywide allegedly contracting out the work and deficiencies?

14.   First, Mr. Jeftic says Citywide improperly and fraudulently contracted out the work at Mr. Jeftic’s home. Mr. Jeftic says the individuals who installed the vinyl on his deck were JL and his teenage son. Mr. Jeftic relies on branding from JL’s truck that advertised a decking company different from Citywide. Mr. Jeftic says he would not have selected Citywide if he knew the work would not be completed by Citywide employees. So, Mr. Jeftic seeks $1,103.10 for this, saying he would have hired a lower priced contractor. The $1,103.10 claimed is the price difference between the lower priced contractor and his contract with Citywide.

15.   Citywide says it has employed JL since May 2017 and that JL is a certified Duradek Authorized Applicator, and provided JL’s certificate from June 2017 that indicates JL’s employer is Citywide. Citywide says JL’s son is a labourer for the company, under JL’s instruction. Citywide also provided the certification of another employee, MT, who performed some of the vinyl work at Mr. Jeftic’s home. MT is also noted as an employee of Citywide on their Duradek certificate.

16.   So, I find Citywide did not improperly contract out the work for Mr. Jeftic’s deck as alleged. I find nothing turns on the fact JL may have been driving a truck with a different company listed on it, as the evidence is clear JL is a certified employee of Citywide.

17.   Also, I do not accept Mr. Jeftic’s argument that it was improper for JL’s son to be working on the vinyl. JL is the certified applicator, and there is no allegation JL was not performing the work, with his son’s assistance. I dismiss Mr. Jeftic’s claim for $1,103.10. I also note the lower quote was for a different product than that installed by Citywide.

18.   Mr. Jeftic says Citywide’s workers did a poor job of installing the vinyl decking. He says some seams cracked and ripped allowing water under them which has “adversely affected the durability and structural integrity” of the wooden decks. These seams have admittedly been repaired by Citywide. Mr. Jeftic also says Citywide failed to place flashings quickly enough which Mr. Jeftic says resulted in water damage to his home’s wooden framing and insulation.

19.   Citywide acknowledges it could have placed the flashings sooner, but denies the delay resulted in any lasting damage. Neither party explained how long it took for the flashings to be installed. Citywide says it offered to purchase a new section of insulation for Mr. Jeftic, but that Mr. Jeftic declined saying it would dry out. Mr. Jeftic denies this.

20.   Mr. Jeftic sought a quote via email to remediate the allegedly water damaged wood and insulation “if necessary” from Masters Remediation. Masters Remediation estimated $1,600 to $1,800 for Mr. Jeftic’s requested repairs. However, I find nothing in the evidence establishes that the wood or insulation needs to be replaced.

21.   When a customer alleges that a contractor’s work fell below a reasonably competent standard, the customer must prove the deficiencies (see: Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61). Generally, expert evidence is required to prove a professional’s or trade’s work was below a reasonable standard (see: Bergen v. Guliker, 2015 BCCA 283). The two exceptions to this rule are when the deficiency is not technical in nature or where the work is obviously substandard (see: Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196 at paragraph 112).

22.   Mr. Jeftic says expert evidence is not needed in this case because it is obvious that Citywide was “grossly careless”. I disagree. I find Mr. Jeftic has not established what the standard of care is for vinyl installation and flashing installation, and therefore has not proven that Citywide fell below that standard. As noted above, the seams have been fixed, and the flashings have been placed. I do not know how long the flashings were missing, so I am unable to determine whether the delay was unreasonable. As well, Mr. Jeftic did not provide any evidence, other than his own assertion, that any of the wooden decking has been structurally compromised due to water.

23.   On balance, I find Mr. Jeftic has not shown Citywide was negligent in its vinyl decking installation, or that there are any outstanding deficiencies. I dismiss Mr. Jeftic’s claim for damages related to any deficiencies.

To what extent, if any, is Mr. Jeftic entitled to $1,181.99 for clogged drain tile and Citywide’s failure to reinstall the downspout?

24.   First, Mr. Jeftic says Citywide’s failure to cover exposed drain tile led to his drain tile becoming clogged and requiring a plumber to flush the line out. Mr. Jeftic says the drain tile would not have become clogged if Citywide had acted as a “prudent deck builder” and covered the drain tile. Citywide says the drain tile is subgrade and does not meet the necessary Building Code. Citywide also says it is more likely the clay drain tile was broken and collapsed in on itself, which is the why the plumbers had difficulty clearing it.

25.   Mr. Jeftic provided two plumbing invoices. The first, from Moe’s Plumbing & Heating Inc. (Moe’s), charged $309.75 for an initial call out. The invoice states the technicians found the drain tile was “cracked” and the “lines were also found to be dirty”. The second invoice, from ATA Plumbing & Drain Cleaning Ltd. (ATA), charged $694.24 to “hydro jet” the drain line, including labour and materials.

26.   I note neither Moe’s nor ATA’s invoice explains what caused the drain tile clog. Citywide says Moe’s invoice describing the “cracked” drain tile shows that the drain tile was failing and is not Citywide’s responsibility. Mr. Jeftic says the cracks were “insignificant”, but I find nothing in the evidence supports that assertion.

27.   Mr. Jeftic argues the drain tile did not fill with dirt and soil because of where or how it was positioned (as argued by Citywide), but rather it filled because it was left exposed. The problem for Mr. Jeftic is that he has the burden of proving that is the case. Here, Mr. Jeftic elected not to get expert evidence as he says the issue is non-technical. I disagree. I find determining why the drain tile clogged, whether it was due to dirt and soil from being left exposed or from the drain tile’s positioning, or whether the drain tile cracked and collapsed on itself, is a matter outside ordinary knowledge and so requires expert evidence. Given there is none, I find I am unable to determine the cause of the clogged drain tile. Therefore, I find Mr. Jeftic has not proven Citywide must reimburse him for any expenses related to the clogged drain tile.

28.   Mr. Jeftic also claims Citywide failed to reinstall a downspout connecting the drain on the top deck with the drain tile. Mr. Jeftic says he paid a plumbing company to install the downspout and do some work related to the drain tile in another area. He submitted an invoice from ATA for $357.40, and says Citywide should be responsible for half this cost, to install the downspout.

29.   I note that ATA’s invoice states it was for “diverting storm piping to side of shed”. There is no mention of any installation of a downspout. Also, in reviewing the parties’ detailed contract, I find there is no mention of installation of a downspout.

30.   For the above reasons, I find Mr. Jeftic has not proven he is entitled to any compensation for Citywide’s alleged failure to install a downspout.

To what extent, if any, is Mr. Jeftic entitled to $600 for stucco repair?

31.   Finally, Mr. Jeftic says Citywide damaged various parts of his home’s stucco exterior when removing the old decks and railings. Mr. Jeftic says although Citywide came back to patch the areas, the repairs fell “well short of the standard of care that is to be expected of a reasonably prudent deck builder”. Mr. Jeftic complains the repairs are not the same texture or colour as the existing stucco. Mr. Jeftic submitted an email chain with an individual who he says is a stucco repair person, who quoted “around $600” to repair and paint the stucco.

32.   Citywide says its contract specifically states it will take care during removal and handling of original materials, but that it is not responsible for damage that may occur. The contract further states any exterior or interior painting is outside the contract’s scope. Despite this, Citywide says that out of good faith, it repaired some of the stucco that had cracked and fallen off during demolition for free. It denies owing Mr. Jeftic anything for further repairs.

33.   Mr. Jeftic does not deny the parties’ contract contains a limitation of liability for damage in removing original items, but says it was not specifically brought to his attention. He argues the clause is too onerous. Though a contract’s term may be onerous, it does not mean it is unenforceable. Although Mr. Jeftic says the clause was not brought directly to his attention, he does not deny that he was aware of the clause. The parties’ contract is only 5 pages, and I find the limitation was not buried or otherwise hidden. I find Mr. Jeftic agreed to be bound by the contract’s terms, which he does not deny. Therefore, I find Citywide’s limitation clause is enforceable, and applies to the stucco damage. So, I find Mr. Jeftic is not entitled to compensation for the stucco repairs.

34.   I note that even if I found the limitation of liability clause was not enforceable, despite claiming Citywide’s stucco repair “fell below the standard of care”, again, Mr. Jeftic failed to provide any expert evidence as to what the applicable standard of care was in this situation, and how Citywide specifically fell below it. Based on the photos, I am not satisfied the stucco repair was obviously substandard, so I find expert evidence would have been necessary.

35.   I further note that even I had found Citywide was responsible for the stucco repairs, I would not have awarded the full $600 claimed as the contract clearly excludes any exterior painting, which was included in the repair quote provided by Mr. Jeftic.

36.   In summary, I dismiss all of Mr. Jeftic’s claims.

37.   Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As Mr. Jeftic was not successful, I find that he is not entitled to reimbursement of his paid tribunal fees. Neither respondent paid tribunal fees or claimed dispute-related expenses.

ORDER

38.   I order Mr. Jeftic’s claims, and this dispute, dismissed.