Date Issued: February 6, 2023

File: SC-2022-004041

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Magna Bay Enterprises Ltd. v. Armour, 2023 BCCRT 104

Between:

MAGNA BAY ENTERPRISES LTD.

Applicant

And:

RONALD J ARMOUR

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      The applicant, Magna Bay Enterprises Ltd. (Magna), says it did certain excavation, trucking, and construction work (work) for the respondent, Ronald J Armour, but has not been paid in full. Magna claims $1,435.60 for the unpaid work.

2.      Mr. Armour says the parties agreed to a $35,000 cap for the work, which Mr. Armour paid despite Magna abandoning the job and not finishing the work. So, Mr. Armour says they owe Magna nothing further.

3.      Magna is represented by its president. Mr. Armour is self-represented.

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. Some of the evidence in this dispute amounts to a “it said, they said” scenario. 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. 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

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 do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is whether Mr. Armour owes Magna the claimed $1,435.60 for the work.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant, Magna must prove its claims on a balance of probabilities (meaning “more likely than not”). I have reviewed all the parties’ submitted evidence and argument but refer only to what I find relevant to provide context for my decision.

10.   It is undisputed that in early 2022, Mr. Armour hired Magna, doing business as First Choice Septic & Contracting, to do certain construction work at their property. There was no written agreement between the parties. However, based on the invoices in evidence, I find Magna’s work included preparing the pad before Mr. Armour could bring their manufactured home to the site, and installing a new septic system.

11.   Magna’s April 4, 2022 invoice in evidence shows that it started the work on March 10, 2022. In the April 4 invoice, Magna billed Mr. Armour $21,517.34 including GST for the pad preparation work. It is unclear exactly when, but some time before May 4, 2022, Mr. Armour undisputedly paid Magna $30,000.

12.   According to Magna’s May 4, 2022 invoice, it did further work after April 4 including installing the septic tank. The May 4 invoice totaled $36,435.60, which included the previously invoiced pad preparation work. After deducting Mr. Armour’s $30,000 payment, the May 4 invoice noted a $6,435.60 remaining balance. Mr. Armour undisputedly paid $5,000 towards this remaining balance on May 15, 2022. As noted above, Magna claims for the remaining $1,435.60.

13.   I turn to the heart of the parties’ dispute. Mr. Armour says the parties had a verbal agreement that Mr. Armour would pay Magna no more than $35,000 for the work. Magna disagrees. It says there was no agreement to do the work on a “contract price”. Instead, Magna says it charged Mr. Armour “by the hour cost plus” for the work.

14.   In support of its argument that there was no $35,000 cap for the work, Magna relies on the invoices in evidence. These invoices are detailed and include hourly rates for labour and other charges. Based on these invoices, and the absence of any supporting evidence to the contrary, I find it more likely than not that Mr. Armour agreed to pay Magna on a time and materials basis for the work.

15.   In particular, I find the burden is on Mr. Armour to prove Magna agreed to a $35,000 price cap, since they are the party alleging that agreement. However, other than Mr. Armour’s assertions, there is no evidence before me that the parties discussed or agreed to this cap. So, I find it unproven that the parties agreed to a $35,000 cap for the work.

16.   Since I have found there was no $35,000 cap, I will now consider whether Magna is entitled to the $1,435.60 it claims. It is undisputed that Magna did not finish the project. However, Magna says it charged Mr. Armour only for the work it completed and that it is entitled to the $1,435.60 remaining balance.

17.   Mr. Armour does not specifically dispute that Magna did the work it claims for. Rather, Mr. Armour says Magna unnecessarily changed the septic tank’s location without proper approval which led to increased costs.

18.   Magna says the septic tank’s location had to be changed because Mr. Armour decided to place the manufactured home in a different spot than that shown in the original drawings. Magna says the home’s new location did not leave enough room for the septic bed and tank to be placed in accordance with British Columbia’s sewerage system standards of practice. So, Magna says the septic tank’s location had to be changed in order to meet the applicable codes. Magna further says Mr. Armour agreed to the changes.

19.   Magna provided a statement from AK, an environmental technologist with Kala Geosciences Ltd. (Kala), the planner for the site’s wastewater system. AK says Mr. Armour made building footprint alterations which restricted the space originally allocated for the septic system. AK says Magna’s changes to the tank’s location were “sound and of good judgment” and the changes were required to comply with the BC Sewerage System Regulation and Standard Practice Manual.

20.   Mr. Armour provided no evidence to support their allegation that Magna’s changes to the septic tank’s location were unnecessary. It is also not clear from the evidence before me to what extent changing the septic tank’s location resulted in increased costs. In any event, given the lack of any contradictory evidence from another wastewater system planner or other similarly qualified expert, I find Magna’s changes to the septic tank’s location were necessary and appropriate. I find the invoiced amount reflected the parties’ agreement for reasonably necessary time and materials. So, I order Mr. Armour to pay Magna the outstanding $1,435.60.

21.   The Court Order Interest Act (COIA) applies to the CRT. However, Magna expressly waives any claim for pre-judgment interest, so I make no order for it.

22.   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 see no reason in this case not to follow that general rule. I find Magna is entitled to reimbursement of $125 in CRT fees. Neither party claims reimbursement for any dispute-related expenses, so I order none.

ORDERS

23.   Within 14 days of the date of this decision, I order Mr. Armour to pay Magna a total of $1,560.60, broken down as follows:

a.    $1,435.60 in debt for the unpaid work, and

b.    $125 in CRT fees.

24.   Magna is entitled to post-judgment interest under the COIA, as applicable.

25.   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.