Date Issued: September 28, 2022

File: SC-2022-000370

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Seaboard Marine Services Inc. v. Myers, 2022 BCCRT 1069

Between:

SEABOARD MARINE SERVICES INC.

Applicant

And:

HALEY MYERS

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about boat maintenance and repairs.

2.      The respondent, Haley Myers, (who asked to be referred to as Haley in this dispute) hired the applicant, Seaboard Marine Services Inc. (Seaboard), to service and replace various parts on her boat. Seaboard says that Haley has failed to pay its invoice and claims $3,120.77.

3.      Haley says that when Seaboard completed its work, one of her boat’s engines was not running properly. She says Seaboard then removed the carburetor and told her it found debris, which was not covered by warranty. Haley says Seaboard demanded full payment for its previous work before it reinstalled the carburetor, for which it would bill her extra. Haley argues that Seaboard did not complete the job because it never provided a working carburetor. Haley says Seaboard refused her offer of partial payment until the job was complete, so she bought a new carburetor and paid someone else to install it. Haley did not file a counterclaim.

4.      Seaboard is represented by its owner, Dave Mills. Haley is 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. 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 in the interests of justice.

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.

9.      Both parties submitted late evidence after the CRT’s deadline. Seaboard’s evidence included an excerpt of a marine engines service manual, an invoice relating to the diagnosis of Haley’s carburetor, and Seaboard’s earlier inspection report of Haley’s boat. Haley’s late evidence consisted of a witness statement from CL, who installed the new carburetor in her boat.

10.   I find both parties’ late evidence is relevant to issues in this dispute. Since both parties had the opportunity to review the other’s late evidence and respond to it, I find there is no prejudice to either party in admitting the late evidence. So, consistent with the CRT’s flexible mandate, I allow the late evidence and have considered it below.

ISSUES

11.   The issues in this dispute are:

a.    Was Seaboard’s work deficient?

b.    To what extent, if any, is Seaboard entitled to the claimed $3,120.77 for its services?

EVIDENCE AND ANALYSIS

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

13.   The background facts are largely undisputed. Seaboard is a mobile marine mechanical repair company. In January 2021, Haley hired Seaboard to conduct a mechanical inspection of a boat she recently purchased. The boat has 2 engines: a starboard motor and a port motor. The inspection revealed some recommended maintenance and repair to the engines and fuel lines.

14.   In March 2021, Haley advised Seaboard that further to its inspection, she would like to replace the fuel lines on both engines. In April, she also confirmed that she wanted to rebuild both carburetors and replace a pully in the water pump. Seaboard agreed to take on these repair jobs.

15.   Haley submits that Seaboard did not complete the requested repairs within the estimated 10 to 14 days once it started the repairs on May 25, 2021. However, I find nothing turns on any alleged delay, as Haley does not specifically allege it was a breach of the parties’ contract or that she suffered any loss as a result. Rather, I find the main issue between the parties is the quality of Seaboard’s work, as discussed further below.

16.   On June 25, 2021, Seaboard emailed Haley that it had finished the repairs. The evidence suggests that Seaboard also sent its invoice to Haley the same day, though neither party provided a copy of that invoice.

17.   On June 27, Haley emailed Seaboard that the starboard engine would not idle. Seaboard confirmed it would come and look at the engine on June 29. Seaboard undisputedly took the starboard carburetor away for diagnosis by a third-party shop, CCC. Haley submits that Seaboard did not ask her permission to take the carburetor away. However, I find it very likely Haley would have expressly given her permission had Seaboard first requested it, as the evidence is clear that she expected Seaboard to get her boat operational. So, I find Haley gave Seaboard her implied consent to remove the carburetor for diagnosis.

18.   On June 30, Seaboard emailed Haley that CCC found debris in the carburetor, which CCC said was the cause of the engine’s failure to perform. Seaboard suggested in its email that the debris came from the fuel tanks and referred to its earlier email instructing Haley on the importance of her ensuring the fuel system and filters were clean. Seaboard said that since the debris finding was not covered under warranty, it had revised Haley’s invoice to account for the time to remove, clean, and reinstall the carburetor. Seaboard told Haley it would return to install the cleaned carburetor once she had paid its invoice.

19.   Haley responded that she would pay when the job was complete and her boat in operational condition. Haley took the position that Seaboard had not completed the initial job because it installed a starboard carburetor that was not working. Throughout the parties’ subsequent communications, while Haley offered to make a partial payment of Seaboard’s invoice, she refused to pay extra for the additional carburetor work. As the parties could not reach an agreement, Seaboard did not reinstall Haley’s starboard carburetor. As noted, Haley says she bought a new carburetor and paid CL to install it on July 7, 2021. It is undisputed that Haley has paid Seaboard nothing.

20.   Generally, a contractor like Seaboard is entitled to be paid upon substantial completion of the agreed work. If the customer believes the contractor’s work was substandard, they may bring a claim for damages. However, they must still pay the contractor’s invoice, subject to any deduction for deficient work. See Belfor (Canada) Inc. v. Drescher, 2021 BCSC 2403.

21.   While Haley initially took the position that Seaboard had not completed the agreed work, she now argues that Seaboard’s work was deficient because she says she later discovered that Seaboard improperly used a thread sealant on the fuel fitting connected to the carburetor, which she says clogged the carburetor. In other words, Haley says that Seaboard is responsible for the carburetor’s breakdown.

22.   So, as Haley does not dispute it, I accept that Seaboard completed the work the parties initially agreed to, including installing 2 new custom fuel hoses, a new water pump pulley, and 2 rebuilt carburetors. This means that Seaboard is entitled to be paid for its work, subject to proven deficiencies.

23.   Haley bears the burden to prove Seaboard’s work was substandard: see Absolute Industries Ltd. v. Harris, 2014 BCSC 287, at paragraph 61. An allegation that a professional’s work fell below a reasonable standard usually 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: see Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112.

24.   I find that whether sealant use clogged the carburetor is a technical issue that is outside the common knowledge of an ordinary person, and so expert evidence is required. Haley relies on CL’s statement. CL stated that they have a boat at the same marina as Haley’s boat, and that they offered to help her after Seaboard refused to reinstall the starboard carburetor until she paid its invoice. CL said a custom engine shop “verified” that sealant should never be used on pressure seals like the fuel hose fitting, as sealant can clog the carburetor. Haley also provided a photo showing a hose connection with what appears to be a white substance around the connection threads, that I infer is sealant.

25.   Seaboard says that it properly used sealant on the fuel hose connection threads. I note the service manual excerpt Seaboard provided also states that Loctite pipe sealant should be applied to the threads of fuel supply connections during installation. Further, CCC’s invoice states that the debris found in the carburetor was Teflon tape, not sealant, and Seaboard says it does not use Teflon tape.

26.   There is no evidence before me that CL is a boat mechanic or has any relevant experience that qualifies them to provide expert evidence about boat mechanics. So, I do not accept CL’s statement as expert evidence. Further, I find it would be inappropriate and unfair to rely on hearsay evidence of what the engine shop allegedly told CL about sealant use, as it is a central issue in this dispute. Finally, as neither CL nor the engine shop actually inspected the carburetor, I find their conclusion about what caused the carburetor issue is speculative, at best. For all these reasons, I place no weight on CL’s statement about how the carburetor became clogged.

27.   As noted, Haley bears the burden of proving Seaboard’s work was deficient. In the absence of any expert evidence, I find she has failed to meet that burden. So, I find Haley must pay Seaboard for its work.

28.   Seaboard’s invoice in evidence totals $3,274.02. Seaboard did not explain why it claims only $3,120.77, though I infer it is because the invoice includes a $139.32 charge for a 5% late payment fee that Seaboard is not claiming. In any event, I would not have ordered Haley to pay any such fee, as there is no evidence that she agreed to it in advance. Deducting the late fee, Seaboard’s invoice before tax is $2,786.40.

29.   Seaboard’s invoice includes a $330 charge to remove, clean and adjust, and reinstall the carburetor. As Seaboard undisputedly did not reinstall the starboard carburetor, I find it is appropriate to reduce its invoice for that work. I find the $330 charge represents 3 hours of labour at Seaboard’s standard $110 per hour rate. On a judgment basis, I find it reasonably took Seaboard 2 hours to remove and clean the carburetor, and that 1 hour is a reasonable estimate for reinstalling the cleaned carburetor. So, I find it reasonable to reduce Seaboard’s invoice by $110 for the reinstallation that did not occur.

30.   Therefore, I find Seaboard is entitled to payment of $2,676.40 for parts and labour, plus tax, for a total of $2,994.77.

31.   While Seaboard still has possession of Haley’s old starboard carburetor, Haley did not make a claim for its return or request a set-off for its value. In any event, I find the retained carburetor’s value is unproven on the evidence before me. So, I make no findings about this issue.

Interest, CRT fees, and dispute-related expenses

32.   The Court Order Interest Act applies to the CRT. Seaboard is entitled to pre-judgment interest on the $2,994.77 from June 30, 2021, the date Seaboard requested payment of its invoice, to the date of this decision. This equals $26.07.

33.   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 Seaboard was substantially successful, and so it is entitled to reimbursement of $175 in CRT fees.

34.   Seaboard also claims reimbursement of $112 in dispute-related expenses for a lawyer consultation fee. Under CRT rule 9-5(3), parties are not compensated for legal fees except in extraordinary circumstances. I find that there are no extraordinary circumstances in this dispute that would justify departing from this general rule. So, I dismiss Seaboard’s claim for reimbursement of its legal fees.

ORDERS

35.   Within 21 days of the date of this decision, I order the respondent, Haley Myers, to pay the applicant, Seaboard Marine Services Inc., a total of $3,195.84, broken down as follows:

a.    $2,994.77 in debt,

b.    $26.07 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in CRT fees.

36.   Seaboard is entitled to post-judgment interest, as applicable.

37.   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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.