Date Issued: May 17, 2023

File: SC-2021-007328

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Bagheri v. Caniversal International Services Ltd., 2023 BCCRT 415

Between:

MEHDI BAGHERI

Applicant

And:

CANIVERSAL INTERNATIONAL SERVICES LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about payment for renovation work.

2.      The applicant, Mehdi Bagheri, hired the respondent, Caniversal International Services Ltd. (Caniversal), to remove a gas fireplace and repair the wall behind the fireplace. Mr. Bagheri undisputedly paid Caniversal a $600 deposit. Mr. Bagheri says Caniversal’s drywall work was substandard and that Caniversal refused to address it in a timely manner. Mr. Bagheri says Caniversal agreed he should hire someone else to fix the drywall, which Mr. Bagheri says cost him $1,500. Mr. Bagheri undisputedly did not pay Caniversal’s final invoice, and so Caniversal filed a builder’s lien against Mr. Bagheri’s property.

3.      Mr. Bagheri says when he attempted to pay Caniversal the lien amount, Caniversal coerced him into paying an additional $1,000 to remove the lien. Mr. Bagheri claims a total of $3,000, which includes $1,500 for the cost to fix Caniversal’s substandard drywall work, $1,000 for the extra amount he paid Caniversal to remove the lien, and $500 for lawyer’s fees.

4.      Caniversal denies its work was deficient. It says Mr. Bagheri improperly terminated the contract before Caniversal could complete the job, and so it is not responsible for Mr. Bagheri’s cost to complete the work. Caniversal also says that Mr. Bagheri offered to pay $1,000 more than the lien amount because he regretted his behavior. Caniversal says the Civil Resolution Tribunal (CRT) does not have jurisdiction to reimburse Mr. Bagheri’s legal fees. I infer that Caniversal says this dispute should be dismissed.

5.      Mr. Bagheri is self-represented. Caniversal is represented by its owner, Hossein Bahrami.

JURISDICTION AND PROCEDURE

6.      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). 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.

7.      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 to 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 in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, 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.

8.      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.

9.      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.

10.   Both parties submitted evidence after the CRT’s deadline. Both had the opportunity to respond to the other’s late evidence. Bearing in mind the CRT’s mandate for flexibility, I admit the late evidence and have considered it where relevant below.

ISSUES

11.   The issues in this dispute are:

a.    Was Caniversal’s work deficient, and if so, what is the appropriate remedy?

b.    Is Mr. Bagheri entitled to a refund for the extra $1,000 he paid Caniversal to remove the lien?

c.    Must Caniversal reimburse Mr. Bagheri’s legal fees?

EVIDENCE AND ANALYSIS

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

13.   It is undisputed that Caniversal provided Mr. Bagheri with a May 2, 2021 quote to remove Mr. Bagheri’s fireplace and frame and drywall the hole where the fireplace had been. However, the parties provided 2 different versions of the quote, and they disagree about which one applies. Mr. Bagheri’s version totaled $2,772, though he says Caniversal verbally agreed to waive a $440 management fee included in the quote. In contrast, Caniversal’s version totaled $2,194.50.

14.   I find it is unnecessary to determine which quote the parties agreed to. This is because Mr. Bagheri does not make any claim in the Dispute Notice or request any remedy for alleged differences between the agreed quote and what he ultimately paid Caniversal for the work done. Rather, I find Mr. Bagheri limited his claim to alleged deficient work and “economic compulsion” of an extra $1,000 payment over Caniversal’s final invoice amount, for the lien’s removal, as discussed further below.

15.   I turn to the relevant chronology.

16.   Mr. Bagheri paid Caniversal a $600 deposit on May 2, 2021. The following day, Caniversal removed a gas fireplace that was installed on Mr. Bagheri’s living room wall and capped the gas pipe. During the same visit, Caniversal also framed and installed drywall to fill the space where the fireplace had been. None of this is disputed.

17.   Caniversal says this work represented 90% of the job, and the drywall mud just needed time to set before it could sand the wall and apply a second coat of mud. Mr. Bagheri says he was “very concerned” when he saw Caniversal’s initial drywall work. He says the new wall Caniversal installed was about an inch “off” the existing adjacent walls, and the mud looked very messy.

18.   Mr. Bagheri provided a text message exchange between the parties on May 4, 2021. The texts were not in English, and each party provided their own slightly different English translations of the texts. I find the differences in the parties’ translations are not substantive, and so I accept that they each provided reasonably accurate translations.

19.   In summary, I find Mr. Bagheri texted Caniversal that he needed the wall fixed somewhat urgently and asked if Caniversal could return within the next day or two, as the wall had to be dry before painting. Caniversal responded that it could not return until the following Tuesday. Mr. Bagheri advised that if Caniversal could not come sooner, he would have to hire someone else, to which Caniversal responded to the effect that Mr. Bagheri should proceed as he sees fit. Mr. Bagheri thanked Caniversal and said he would pay the balance once the work was complete, which I find he anticipated would be by the end of that week.

20.   The evidence shows Mr. Bagheri then hired a drywall contractor, Saied Mirzazadeh. Mr. Mirzazadeh’s May 11, 2021 invoice says Mr. Bagheri paid $1,500 in cash for labour and materials to re-do and complete the drywall work.

21.   Caniversal then provided Mr. Bagheri with a May 11, 2021 invoice of its own, which totaled $1,883.25 after accounting for Mr. Bagheri’s $600 deposit. Caniversal’s invoice reflects the full amount of the May 2, 2021 quote it says applied to the parties’ agreement, plus materials, delivery, and parking charges.

22.   Mr. Bagheri says he told Caniversal that he was willing to pay $340, but nothing further because the drywalling had to be completely redone. Caniversal denies that Mr. Bagheri offered to pay anything. In any event, it is undisputed that Mr. Bagheri did not pay any of Caniversal’s May 11 invoice at that time.

23.   Caniversal then undisputedly placed a builder’s lien on Mr. Bagheri’s property for $1,883.25. Mr. Bagheri says he only discovered the lien’s existence in August 2021 when he was attempting to sell his property. Mr. Bagheri says he immediately tried to e-transfer Caniversal the full lien amount because he had an accepted offer. He says Caniversal refused to accept the payment and told Mr. Bagheri that he would have to pay an additional $5,000 if he wanted Caniversal to remove the lien, which Caniversal denies.

24.   In any event, the parties agree that Mr. Bagheri paid Caniversal a total of $2,883.25 on August 23, 2021, and that Caniversal then removed the builder’s lien. More on the extra $1,000 below.

Was Caniversal’s work deficient?

25.   As Mr. Bagheri paid Caniversal’s entire invoice through payment of the lien amount, I find the first issue is whether Caniversal’s work was deficient, such that Mr. Bagheri is entitled to any compensation.

26.   It is an implied term in a contract for professional or trade services that the contractor’s work will meet a reasonably competent standard. When a customer alleges that a contractor’s work was below this standard, the customer must prove the deficiencies. See Absolute Industries Ltd. v. Harris, 2014 BCSC 287, at paragraph 61.

27.   In general, expert evidence is required to prove a professional’s work fell below the required standard. The is because an ordinary person does not know the standards of a particular profession or industry, such as drywalling. 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. 

28.   Mr. Bagheri relies on Mr. Mirzazadeh’s May 11, 2021 invoice as expert evidence. The invoice includes a typed statement titled “Summary of the work (expert report)”, in which Mr. Mirzazadeh stated he has been doing drywall and mud for over 5 years. He stated that Caniversal’s work was of such poor quality that it had to be redone. Specifically, Mr. Mirzazadeh stated that because Caniversal positioned the new wall one inch behind the adjacent walls, it could not be repaired and had to be completely removed and reinstalled.

29.   Caniversal says that Mr. Mirzazadeh’s invoice should not be accepted as expert evidence in the absence of a resume or other document confirming Mr. Mirzazadeh is a contractor. CRT rule 8.3(2) says that an expert must state their qualifications in any written expert opinion evidence. There is no requirement for an expert to include a resume or other documentation proving their qualifications. I am satisfied based on Mr. Mirzazadeh’s statement on his invoice that he is sufficiently qualified to provide expert evidence about drywalling in this dispute.

30.   Caniversal also says Mr. Mirzazadeh’s invoice appears “fabricated”, but it provided no evidence to support this allegation other than saying the listed phone number’s area code appears to be from Vancouver Island, when Mr. Bagheri’s property was in the Lower Mainland. I find that is insufficient to establish the invoice is not genuine.

31.   Overall, I accept Mr. Mirzazadeh’s statement on his May 11 invoice as expert evidence, and I accept his opinion about the substandard quality of Caniversal’s drywall work.

32.   Even if I did not accept Mr. Mirzazadeh’s statement as expert evidence, I find that Caniversal’s work was obviously deficient. While I acknowledge that Caniversal’s drywall was not yet complete, the photos in evidence show a very prominent ridge where the wall Caniversal built in met the existing wall. I find the ridge appears consistent with Mr. Bagheri’s submission that the new wall was about one inch behind the surrounding walls. In other words, I find the photos show Caniversal framed and installed the drywall so that it was not level with the existing wall, but significantly indented or recessed. I find it very unlikely that an additional coat of mud would sufficiently smooth out the ridge to produce an even wall surface, as Caniversal submits. So, even though Caniversal’s drywall work was incomplete, I find what it had completed was substandard and likely had to be redone.

33.   That said, a contractor is not always liable for the cost of someone else fixing proven deficiencies. A contractor normally has a contractual right to a reasonable opportunity to correct any deficiencies. However, a customer may hire someone else to fix or redo work if the customer has reasonably lost confidence in their hired contractor. See the non-binding but persuasive decision in Perk v. Savard, 2022 BCCRT 775, citing Canadian Quality Stucco Ltd. v. Pangli, 2022 BCPC 126 at paragraph 124.

34.   Mr. Bagheri says the parties agreed Caniversal would complete the job within 3 to 4 days. I accept this is true as Caniversal does not specifically dispute it. I find it is also consistent with the other evidence, including Mr. Bagheri’s May 4 text confirming that he wanted the project completed by the weekend. I find that Mr. Bagheri gave Caniversal a reasonable opportunity to fix and complete the drywall, but Caniversal declined to do so within a reasonable time. Further, given the obvious poor quality of Caniversal’s drywall work and its unwillingness to return and complete the job within the agreed time, I find Mr. Bagheri reasonably lost confidence in Caniversal.

35.   For these reasons, I find Mr. Bagheri was entitled to hire Mr. Mirzazadeh to repair and complete the drywall work, and I find Caniversal is responsible for Mr. Bagheri’s cost to do so. I order Caniversal to pay Mr. Bagheri $1,500.

Is Mr. Bagheri entitled to a refund of the extra $1,000 payment to Caniversal?

36.   As noted, Mr. Bagheri says Caniversal refused to remove the builder’s lien from his property unless Mr. Bagheri paid an additional $1,000 over the lien’s value. He says he never would have agreed to pay that amount if he did not have an accepted offer on his property that he was trying to preserve. Essentially, Mr. Bagheri says he agreed to pay Caniversal the extra $1,000 under duress.

37.   Duress is a defence to the enforceability of a contract. To establish duress, Mr. Bagheri must prove that Caniversal exerted pressure to such a degree that he did not truly consent to the contract. There must be an unfair, excessive, or coercive element to the pressure. In considering whether duress exists, the court (and the CRT) may consider whether Mr. Bagheri objected, whether he had another legal course of action available, and whether he took steps to avoid the contract when he could. See Dairy Queen Canada, Inc. v. M.Y. Sundae, 2017 BCCA 442 at paragraphs 52 to 54.

38.   I find that Mr. Bagheri paid Caniversal the extra $1,000 under economic duress. Caniversal does not deny that Mr. Bagheri contacted it in August 2021 about removing the builder’s lien because he had an accepted offer to purchase his property, and so I accept that is true. The evidence shows that Mr. Bagheri’s lawyer provided Caniversal with 2 separate trust cheques on August 23, 2021: one for the $1,883.25 lien amount, and one for the extra $1,000 payment. The evidence also shows Caniversal signed a letter confirming it received those amounts in exchange for its signature on required forms to release the lien.

39.   I find Caniversal’s explanation that Mr. Bagheri offered to pay an extra $1,000 because he regretted making negative comments about Caniversal is simply not credible. In a September 24, 2021 email to Caniversal, Mr. Bagheri referred to the $1,000 as “illegal extra money” that Caniversal requested to remove the lien, and he asked for its return. Had Mr. Bagheri offered the extra money to Caniversal of his own free will, I find Caniversal likely would have responded to that effect, but there is no evidence it did so. I also find Caniversal’s signed acknowledgement that it received the $1,000 in exchange for releasing the lien is inconsistent with it being a goodwill payment from Mr. Bagheri, as Caniveral suggests.

40.   I accept Mr. Bagheri’s evidence that despite his objection, Caniversal coerced him into paying the extra $1,000 to remove the lien, as I find there is no other reasonable explanation for the payment. Given the time pressure he faced with an accepted offer to purchase his property, I find Mr. Bagheri had no legal course of action available to avoid or dispute the payment at the time. Overall, I find Mr. Bagheri did not truly consent to paying Caniversal an extra $1,000, and so his agreement to do so is not enforceable. Therefore, I order Caniversal to refund Mr. Bagheri the $1,000 payment.

Must Caniversal reimburse Mr. Bagheri’s legal fees?

41.   Mr. Bagheri says he paid a lawyer $500 to help remove the builder’s lien, which I find is generally supported by his lawyer’s invoice in evidence. However, absent an explicit agreement about paying legal fees, I find legal fees cannot be recovered as damages for wrongful behaviour. They can only be recovered as “costs” of the legal proceeding. See Voyer v. C.I.B.C., 1986 CanLII 1226 (BC SC).

42.   It is unclear whether Caniversal started a court process to enforce the lien. If it did, I find Mr. Bagheri’s legal fees related to the lien’s removal are best dealt with as costs in the court process that dealt with removing the lien.

43.   In the context of the CRT, “costs” are called dispute-related expenses. Under CRT rule 9.5(3), the CRT may order reimbursement of lawyer fees charged in the CRT’s small claims dispute process, only if there are extraordinary circumstances. Mr. Bagheri’s claimed legal fees were incurred before this CRT dispute process began, and so I find they are not properly considered dispute-related expenses. Even if they were, I find there are no extraordinary circumstances present in this dispute that would make reimbursement appropriate.

44.   For all these reasons, I dismiss Mr. Bagheri’s claim for reimbursement of legal fees related to removing the builder’s lien.

Interest, CRT fees, and expenses

45.   The Court Order Interest Act applies to the CRT. Mr. Bagheri is entitled to pre-judgment interest on the $2,500 from August 23, 2021, the date he paid Caniversal the disputed amounts, to the date of this decision. This equals $72.80.

46.   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 Mr. Bagheri was substantially successful, and so he is entitled to reimbursement of $150 in CRT fees.

47.   Mr. Bagheri also claims $638.38 in dispute-related expenses for court fees and expenses related to enforcing a default judgment he initially obtained in this dispute, in the BC Provincial Court (BCPC). I find recovery of expenses related to that court proceeding are best addressed by the BCPC. I dismiss Mr. Bagheri’s claim for dispute-related expenses.

48.   As Caniversal was unsuccessful, I dismiss its claim for $2,955.13 in lawyer fees. I would not have awarded the claimed expenses in any event because I find this dispute was not extraordinary, as discussed above.

ORDERS

49.   Within 21 days of the date of this order, I order Caniversal to pay Mr. Bagheri a total of $2,722.80, broken down as follows:

a.    $2,500 in damages for deficient work and economic duress,

b.    $72.80 in pre-judgment interest under the Court Order Interest Act, and

c.    $150 in CRT fees.

50.   Mr. Bagheri is entitled to post-judgment interest, as applicable.

51.   I dismiss Mr. Bagheri’s claim for reimbursement of legal fees and dispute-related expenses.

52.   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.