Date Issued: January 19, 2023

File: SC-2022-002719

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Changfoot v. Day, 2023 BCCRT 55

Between:

KENT CHANGFOOT

Applicant

And:

SHANNON DAY and ADAM DAY

Respondents

And:

KENT CHANGFOOT

Respondent BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      Shannon Day and Adam Day hired Kent Changfoot for a large residential renovation. The Days have undisputedly not paid Mr. Changfoot’s $1,416.73 final invoice. Mr. Changfoot says that he completed all the work required by the parties’ contract. He claims $1,416.73. He is self-represented.

2.      The Days say that they did not agree in advance to the amounts Mr. Changfoot charged in the final invoice. They also say that he failed to complete the project and performed substandard work. They ask that I dismiss Mr. Changfoot’s claim. They also counterclaim for $5,000. They say it will take a lot more for another contractor to complete the job and fix Mr. Changfoot’s errors. However, they limited their claim to $5,000 to fit within the Civil Resolution Tribunal’s (CRT) small claims monetary limit. The Days are self-represented.

3.      Mr. Changfoot denies any substandard or incomplete work and asks that I dismiss the Days’ counterclaim.

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. 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 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.

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.

ISSUES

8.      The issues in this dispute are:

a.    Did Mr. Changfoot substantially complete the project? If so, is he entitled to be paid the final invoice?

b.    What, if any, deficiencies have the Days proven?

c.    What, if anything, are the Days’ damages?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, Mr. Changfoot as the applicant must prove his claims on a balance of probabilities, which means “more likely than not”. The Days must prove their 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.

10.   I will start with the applicable law. As a general principle, contractors are entitled to payment upon substantial completion of a project. If there are deficiencies (which is relatively common in construction work), the customer may counterclaim for damages (as the Days have done here). The customer must prove any alleged deficiencies. See Balfor (Canada) Inc. v. Drescher, 2021 BCSC 2403, at paragraph 16, and Absolute Industries Ltd. v. Harris, 2014 BCCA 287.

11.   In general, expert evidence is required to prove whether a professional’s work fell below a reasonably competent standard. This is because an ordinary person does not know the standards of a particular profession or industry, which I find includes construction. The exceptions to this general rule are when the work is obviously substandard, or the deficiency relates to something non-technical. See Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112. With that in mind, I turn to the facts.

12.   Mr. Changfoot provided a detailed estimate on December 21, 2021, for extensive renovations to the Days’ property, which included work in their home, a suite, and a coach house. The estimate was for $97,803.17. The Days say that they did not go ahead with everything in the estimate, but it is clear that the project was a substantial renovation.

13.   The project started on January 7, 2022. On February 16, 2022, Mrs. Day sent Mr. Changfoot a text asking when the suites would be done. She said that renters were moving in on February 20. Mr. Changfoot finished late on February 19.

14.   Mr. Changfoot sent the invoice at issue in this dispute on February 22, 2022. It was initially for $1,932, but Mr. Changfoot later applied a $515.27 credit because he realized he had, on a previous invoice, overcharged the Days. The net final invoice was therefore the claimed $1,416.73.

15.   In an April 13, 2022 email, Mr. Day said that they would not pay the final invoice unless Mr. Changfoot returned to complete the project and fix some deficiencies. Mr. Changfoot did not agree to return. I address the Days’ allegations about what was incomplete or deficient later in this decision.

 

Is Mr. Changfoot entitled to payment of the final invoice?

16.   It is undisputed that the work in the final invoice was not included in the initial estimate. It is also undisputed that the parties did not discuss the cost of this additional work in advance. The Days argue that the invoice is “null and void” because there was no agreement about cost. I disagree. I find that for work outside the estimate, there was an implied term in the contract that Mr. Changfoot would charge a reasonable amount. Even if there was no such term, the law provides for payment of a reasonable sum for work done in the absence of an agreement, a principle called “quantum meruit”, meaning “value for work done”.

17.   The Days only argument about the reasonableness of Mr. Changfoot’s final invoice is about handle installation. Mr. Changfoot charged $420 to install 42 kitchen and bathroom handles. The Days say this is excessive. Mr. Changfoot says that it is “within industry standards”. He says that each handle required specialty screws and drilling. The Days do not say what a reasonable amount would have been for this work or provide any evidence to support their assertion that it was excessive. I see nothing obviously unreasonable about charging $10 to install each handle.

18.   The final invoice undisputedly represented a small fraction of the project’s total value. Even taking the Days’ arguments about incomplete and deficient work at face value, I find that Mr. Changfoot substantially completed the project. So, I find that Mr. Changfoot is entitled to be paid for his final $1,416.73 invoice, subject to any proven deficiencies, which I address next.

The Laundry Room Closet

19.   The Days argue that Mr. Changfoot built a laundry closet too small. A photo of the closet shows that the all-in-one washer dryer that the Days bought does not fit. Mr. Changfoot does not dispute this but says that Mrs. Day told him they were buying a smaller, stacking washer dryer.

20.   The Days say that they confirmed the dimensions of the all-in-one unit with Mr. Changfoot on January 10, 2022. They provided as evidence a screen capture of a FaceTime conversation from that day. It shows Mrs. Day’s face on one screen and an in-store display setting out the specifications of an all-in-one washer dryer, including its dimensions. They say that Mrs. Day was at home while Mr. Day was at a hardware store, and she showed the screen to Mr. Changfoot so he could verify that the dimensions would work. They say that Mr. Changfoot confirmed it would fit.

21.   Mr. Changfoot denies that this conversation happened. He says that the Days initially wanted an all-in-one, but he persuaded them to get a stacking set because it would be cheaper and simpler to build a smaller closet. He also says that the framing for the laundry closet was already done by January 10, 2022, relying on a January 9 invoice that included a charge for framing the closet. However, in his Dispute Response, Mr. Changfoot says that he did not start working on the laundry closet until “the next day” after delivering the January 9 invoice. He does not explain the discrepancy, so I find that the invoice is not an accurate record of what work was complete on January 9, 2022.

22.   Mr. Changfoot also relies on a statement from a person who helped build the closet, who confirmed that it was for a stackable washer dryer. However, this person does not say that they spoke to the Days about this issue, so I find the statement is of little value. It simply reflects Mr. Changfoot’s perspective.

23.   Mr. Changfoot also argues that a larger closet would leave insufficient clearance between the closet and the bathroom’s toilet, contrary to BC Building Code requirements. I find this allegation unproven, as there are no measurements of the bathroom in evidence.

24.   On balance, I prefer the Days’ evidence on this point. I find it unlikely that they would have taken a screen capture of a FaceTime conversation about a washer dryer unless they were still weighing their options about what type of washer dryer to buy. If they had already decided to build a closet for a stacking set, as Mr. Changfoot alleges, it would make no sense to communicate about the dimensions of an all-in-one unit.

25.   I find that Mr. Changfoot breached the parties’ contract by failing to build a closet to the Days’ specifications. According to a quote from another contractor in evidence, it will cost $1,911 to reframe and replumb the closet. I find that there is nothing objectively unreasonable about this, as I accept it will be considerable work to redo the closet. I allow this aspect of the Days’ counterclaim.

The Walls and Baseboards

26.   The Days say that many aspects of Mr. Changfoot’s finishing of the walls and baseboards were “horrifically below acceptable”. They provided many photos to support their argument. However, for the most part, the photos in evidence show what I find are minor aesthetic flaws in Mr. Changfoot’s work, such as tiny paint splatters and slight imperfections in walls. The standard for any professional is reasonable work, and I find that the Days are effectively trying to hold Mr. Changfoot to a standard of perfection. However, I accept that there are also some aspects of the finishing, such as exposed nail heads on a baseboard and a small wall that Mr. Changfoot did not paint at all, that were obviously below a reasonably competent level.

27.   The Days say that their new contractor will charge a total of $3,633 to repair and finish the drywall, baseboards, and painting. First, I find that the estimate lacks detail to prove that this entire cost is associated with fixing any mistakes or gaps in Mr. Changfoot’s work.

28.   More importantly, I find that the claimed damages are disproportional to the defects. While repair costs are the typical way to measure damages for substandard construction work, a homeowner may only be entitled to the reduction in market value where repair costs are disproportionate to the loss in value. See D. Karrasch Construction Ltd. v. Telosky, 2010 BCSC 423.

29.   There is no evidence before me of the loss in market value because of the minor flaws. I find that it is minimal, as a matter of common sense. On a judgment basis, I find that $400 is reasonable compensation for the finishing issues.

Exterior Light Fixture and Bathroom Mirror

30.   The Days say that Mr. Changfoot installed an exterior light fixture upside down, which is clearly shown in a submitted photo. Mr. Changfoot does not deny that he installed it, or that he did so incorrectly. I find it obvious that this was not reasonably competent.

31.   The Days also say that Mr. Changfoot failed to install a bathroom mirror. Mr. Changfoot essentially admits this by stating that the Days had not purchased the mirror during the time he was there. Still, hanging the mirror was part of the parties’ contract and the Days undisputedly paid Mr. Changfoot to hang the mirror.

32.   The Days did not provide any evidence about how much it cost to flip the exterior light cover or install the bathroom mirror. They simply say that they hired someone else to do these tasks. I find that these 2 issues were minor, and likely took little time to correct. On a judgment basis, I find that $50 is a reasonable sum for these 2 issues.

Interior Lights

33.   The Days allege that multiple interior light fixtures did not work. Mr. Changfoot says that the lights worked when he left, and in any event, he was not ultimately responsible for the lights because the Days hired his electrician directly.

34.   The Days’ evidence and submissions about which lights did not work are somewhat confusing and unclear. Mrs. Day sent Mr. Changfoot a text on February 19, 2022, about a light not working in a “downstairs bedroom”. In submissions, the Days say that 2 interior lights in the coach house never worked. The contractor’s estimate says that there are 3 lights that do not work (but does not say where they are). The Days only provided direct evidence of only one light that did not work (a video of a fan with an integrated light). Again, it is unclear where this light is.

35.   Ultimately, I find that the Days’ evidence about the lights falls short of proving that Mr. Changfoot’s work fell below a reasonable standard when it came to installing any interior lights. The Days’ contractor’s estimate is vague about the lights, saying only that they would charge $600 to “inspect and repair” 3 lights. It says nothing about why the lights were not working. There is no other evidence, such as from an electrician, about whether Mr. Changfoot’s installation was to blame for any malfunctioning lights. Given the above, I dismiss this aspect of the Days’ counterclaim.

Exterior Lock

36.   The Days say that Mr. Changfoot improperly installed a lock and handle for the coach house’s exterior door. The Days say that their locksmith said it was the “worst he has ever seen”. There is no direct evidence from the locksmith. The Days’ statement about what the locksmith allegedly said is hearsay. The CRT has discretion to accept hearsay evidence, but I find it would be unfair to do so here because it is expert evidence about a central issue and lacks detail. So, while I agree with the Days that the photos show the door behind the lock mechanism and handle was roughly cut, I find that it is not obvious that the work is substandard. In the absence of expert evidence, I find that the Days have not proven that the lock did not work or that it was installed improperly. I dismiss this claim.

37.   In summary, I find that Mr. Changfoot is entitled to be paid $1,416.73 for the final invoice. I also find that the Days have proven $2,361 in damages for incomplete or deficient work. The net result is that I order Mr. Changfoot to pay the Days $944.27.

38.   The Court Order Interest Act (COIA) applies to the CRT. However, the Days undisputedly have not hired a contractor to fix the laundry closet or the finishings, so I order no prejudgment interest for that portion of their damages. There is no evidence about when the Days hired someone to fix the exterior light or hang the bathroom mirror, so I award interest on the $50 from May 30, 2022, when they filed their Dispute Notice, to the date of this decision. This equals $0.56.

39.   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 both parties were partially successful, so I order no reimbursement of any CRT fees or dispute-related expenses.

ORDERS

40.  Within 30 days of the date of this order, I order Mr. Changfoot to pay the Days a total of $944.83, broken down as follows:

a.    $944.27 in damages, and

b.    $0.56 in prejudgment interest.

41.  The Days are entitled to post-judgment interest, as applicable.

42.  I dismiss the parties’ remaining claims.

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