Date Issued: February 28, 2023

File: SC-2022-003468

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ochoa v. Knoles & Ryan Developments Inc. (Doing Business As Servicemaster of Victoria), 2023 BCCRT 165

Between:

ALEJANDRO OCHOA

Applicant

And:

KNOLES & RYAN DEVELOPMENTS INC. (Doing Business As SERVICEMASTER OF VICTORIA)

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This dispute is about alleged unpaid work to supply and install insulation and drywall.

2.      The applicant, Alejandro Ochoa, says he supplied and installed insulation and drywall for the respondent, Knoles & Ryan Developments Inc. (doing business as Servicemaster of Victoria) (Servicemaster) at one of its projects, but has not been paid for his work. Mr. Ochoa claims $2,626.50 for his unpaid invoice.

3.      Servicemaster does not dispute that it has not paid Mr. Ochoa’s invoice. Servicemaster says its customer would not let Mr. Ochoa return to complete the work because the partially completed work was substandard. Servicemaster says Mr. Ochoa’s drywall work had to be removed and redone at Servicemaster’s expense. Servicemaster did not file a counterclaim.

4.      Mr. Ochoa is self-represented. Servicemaster is represented by an employee or principal.

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.

ISSUE

9.      The issue in this dispute is to what extent, if any, Servicemaster must pay Mr. Ochoa $2,626.50 for his unpaid invoice.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, as the applicant Mr. Ochoa must prove his claims on a balance of probabilities (meaning more likely than not). I have reviewed all the parties’ submissions and evidence but refer only to what I find relevant to provide context for my decision.

11.   It is undisputed that Servicemaster contracted with Mr. Ochoa for him to supply and install insulation and drywall at one of its projects. It is also undisputed that Mr. Ochoa did not complete the drywall work. Servicemaster says its customer did not want Mr. Ochoa to return to their home to complete the work. It is undisputed that Servicemaster told Mr. Ochoa not to return to its customer’s home to complete the work.

12.   Mr. Ochoa submitted an April 17, 2022 invoice in evidence. The invoice totals $2,656.50. The invoice lists a fixed amount of $2,530 for supplies and labour, plus $126.50 for GST. As noted, Mr. Ochoa only claims $2,626.50. Although I infer this was likely the result of a typographical error, I have not considered Mr. Ochoa’s claim for any amount in excess of the $2,626.50 claimed in his application for dispute resolution.

13.   Mr. Ochoa says the $2,656.50 invoice is for the partial work he completed on Servicemaster’s project. Servicemaster does not argue that Mr. Ochoa charged for any work he did not perform, or suggest that the invoice is unreasonable or inflated. Rather, Servicemaster only alleges that Mr. Ochoa’s drywall work was deficient. Servicemaster says the drywall had to be removed and redone by another drywaller. As Servicemaster did not file a counterclaim, I find it claims a set off for the costs to redo Mr. Ochoa’s drywall work from the $2,626.50 Mr. Ochoa claims is owing.

14.   Mr. Ochoa provided photographs that I find show installed insulation and partially installed drywall. I also find the total invoiced amount not obviously unreasonable. On balance, I find Mr. Ochoa has proven that he is entitled to payment of the claimed $2,626.50 for his unpaid invoice, subject to any set-off for proven deficiencies.

Set-off

15.   As noted, Servicemaster says Mr. Ochoa’s work is deficient. When a customer alleges that a contractor’s work was below the required standard, they must prove the deficiencies. See Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61. Generally, an allegation that a professional’s work was below a reasonably competent standard requires expert evidence to prove. This is because the standard expected of professionals in a particular industry is generally outside the common knowledge of ordinary people. 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.

16.   Servicemaster provided photographs showing what it says are deficiencies with Mr. Ochoa’s drywall work. I find the photographs show areas where the drywalling appears to be incomplete. However, it is undisputed that Mr. Ochoa was not permitted to return to the worksite to complete the drywalling. Given this, I find the photographs do not show any obvious deficiencies in the partially completed drywall work. I find whether Mr. Ochoa’s partial drywall installation was substandard is outside common knowledge and therefore requires expert evidence. Servicemaster does not allege any deficiencies with Mr. Ochoa’s insulation installation.

17.   There is no expert evidence in this dispute that proves Mr. Ochoa’s drywall work was substandard. Although Servicemaster provided submissions on how it says Mr. Ochoa’s drywall work was deficient, Servicemaster did not say how its representative was qualified to provide an opinion on drywall work. Further, even if it did, Servicemaster is the respondent in this dispute so I find that any expert opinion its representative could provide would have little weight given Servicemaster’s interest in the dispute’s outcome.

18.   Further, even if Mr. Ochoa’s drywall work was deficient, which I find unproven, I find Servicemaster has not proven the amount of any set off for the alleged deficiencies. Although Servicemaster says it hired a new drywaller to remove and redo Mr. Ochoa’s work at its own expense, Servicemaster did not provide evidence that shows it incurred any costs to do so, such as an invoice from another drywaller.

19.   Given all the above, I find Servicemaster has not proven that it is entitled to any set off for the alleged deficiencies. I find Mr. Ochoa is entitled to payment of $2,626.50 for his unpaid invoice.

20.   The Court Order Interest Act applies to the CRT. However, Mr. Ochoa waived his right to interest, so I order none.

21.   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. Mr. Ochoa was successful in this dispute. So, I find Mr. Ochoa is entitled to reimbursement of $125 in CRT fees. Neither party claimed any dispute-related expenses, so I award none.

ORDERS

22.   Within 30 days of the date of this order, I order Servicemaster to pay Mr. Ochoa a total of $2,751.50, broken down as follows:

a.    $2,626.50 in debt, and

b.    $125 in CRT fees.

23.   Mr. Ochoa is entitled to post-judgment interest, as applicable.

24.   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.