Date Issued: May 30, 2023

File: SC-2022-005845

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ocean Wave Drywall Ltd. v. Greenway Farms Ltd., 2023 BCCRT 451

Between:

OCEAN WAVE DRYWALL LTD.

Applicant

And:

GREENWAY FARMS LTD. and 1125248 B.C. LTD.

RespondentS

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This dispute is about unpaid drywall work. The applicant, Ocean Wave Drywall Ltd. (Ocean Wave), says it did drywall work for the respondents, Greenway Farms Ltd. (Greenway) and 1125248 B.C. Ltd. (112), but has only received partial payment for the work. Ocean Wave claims $1,605.75 as the remaining balance of its outstanding invoices.

2.      Greenway says it is not liable for the outstanding amount as it was not a party to the contract with Ocean Wave. 112 does not deny it hired Ocean Wave to do the drywall work but says that Ocean Wave’s work had various deficiencies and so was incomplete.

3.      Ocean Wave is represented by its manager. Greenway and 112 are both represented by Money Sandhu, who I infer is the owner or principal of both respondent companies.

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. 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.

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.

ISSUES

8.      The issues in this dispute are:

a.    Is Ocean Wave entitled to the claimed $1,605.75, or some other amount, for the unpaid drywall work?

b.    If so, from whom?

EVIDENCE AND ANALYSIS

9.      As the applicant in this civil proceeding, Ocean Wave 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.   As noted above, Greenway says it was not a party to Ocean Wave’s contract for the drywall work. The parties did not provide a written contract in evidence, so I infer the agreement for the drywall work was verbal. Ocean Wave provided no evidence to show that it had any contract with Greenway for the drywall work or that Greenway otherwise agreed to be responsible for the outstanding amount. The parties also did not explain the connection between Greenway and 112, other than Mr. Sandhu being an owner or principal of both companies. I note that the written arguments for both Greenway and 112 are identical. However, I do not find Greenway’s written argument about the merits of Ocean Wave’s claims against it and 112 establishes any liability on Greenway’s part for the claimed amount. On balance, given the lack of any evidence suggesting otherwise, I find Ocean Wave’s contract was likely only with 112. So, I find Ocean Wave has no basis for its claims against Greenway and I dismiss those claims accordingly.

11.   I turn now to Ocean Wave’s claims against 112. As mentioned, 112 does not deny that it hired Ocean Wave to complete drywall work for it at 2 residential “units” located in the same house. It is undisputed that Ocean Wave began the work in November 2021, and issued its first invoice on January 17, 2022 for $18,165. 112 undisputedly paid $15,000 towards this invoice, leaving $3,165 owing.

12.   Ocean Wave says that after receiving the $15,000 payment, Mr. Sandhu asked it to return multiple times to do random drywall jobs “here and there” around the 2 units. It says it also put drywall in the crawl space and did fire stopping for ducts and sprinklers. 112 does not dispute this work was done, so I accept that it was. Ocean Wave says that once it completed this additional work, it sent its March 13, 2022 invoice for $1,065.75. 112 then undisputedly paid Ocean Wave an additional $2,625, leaving the claimed $1,605.75 balance owing, which 112 has not paid to date.

13.   Ocean Wave says that it made various attempts to collect the remaining balance but its calls and text messages to Mr. Sandhu were ignored. So, it filed this CRT dispute. 112 says that it tried negotiating with Ocean Wave but was unsuccessful. It is unclear whether these alleged negotiation attempts were made before or during this CRT dispute. In any event, 112 goes on to say that there were deficiencies in Ocean Wave’s work that Ocean Wave did not fix. In particular, 112 says that Ocean Wave covered most pot-lights and electrical plugs and some large air vents, requiring 112’s other trades to relocate the covered conduits. 112 says this led it to incur extra expense and delayed the house’s finishing date. 112 says there were also areas where the drywall installed by Ocean Wave was wavy, uneven, not sanded, holes that were not filled in, and edges that were not finished correctly, including one edge that abuts a concrete wall.

14.   Ocean Wave disputes all of 112’s allegations. It says it did not leave any work unfinished and had to return to the units multiple times to redo the same work because 112 kept changing its plans and removing and destroying the drywall that Ocean Wave had already installed.

15.   Ocean Wave says the wavy and unfinished corners are due to the building’s old age and because there is a problem with the buildings’ frame and structure. Ocean Wave says it informed Mr. Sandhu about this before beginning its work, and he told Ocean Wave to complete the work however it could. Further, Ocean Wave says that it showed Mr. Sandhu the completed work and he did not take issue with it. With respect to the drywall edge that meets the concrete wall, Ocean Wave admits the finishing is uneven. It says that it is impossible to finish drywall properly against a concrete wall and that Mr. Sandhu was aware of this. Ocean Wave says it suggested to Mr. Sandhu to make a frame around the concrete wall so that the drywall could be finished properly, but he was not willing to do so.

16.   Ocean Wave says that at no point when it was pursuing 112 for payment did 112 complain about any alleged deficiencies in its work. Notably, there are no text messages or any other documentary evidence showing that 112 took any issue with Ocean Wave’s work, or that it otherwise complained about deficiencies and considered Ocean Wave’s work to be incomplete.

17.   I turn then to whether Ocean Wave is entitled to the claimed $1,605.75 from 112 for the unpaid drywall work. I note that Ocean Wave did not submit a copy of its invoices as evidence in this dispute. It did submit an invoice it received from one of its subcontractors for work it did at the 2 units, as well as invoices for supplies. However, without Ocean Wave’s invoices, I cannot assess the specific work done, the time it took to complete that work and the rate charged. The invoices are clearly relevant to Ocean Wave’s claimed amount and parties are told during the CRT process to submit all relevant evidence. Ordinarily, failure to provide the relevant invoices would be fatal to a claim. However, for the reasons that follow, I find it is not here.

18.   As a general principle, contractors like Ocean Wave are entitled to payment upon substantial completion of a project. If a customer, like 112, believes there are deficiencies with the contractor’s work (which is relatively common in construction work), the customer may bring a claim for damages. However, the customer must still pay the contractor’s invoice subject to any deduction for deficient work (see Belfor (Canada) Inc. v. Drescher, 2021 BCSC 2403 at paragraph 16).

19.   Here, 112 did not file a counterclaim, so I infer it is 112’s position that it is entitled to a set-off of the amount it owes Ocean Wave for its work based on the law of deficiencies. As the party alleging deficiencies, 112 bears the burden to prove them (see Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61).

20.   The first question is whether Ocean Wave substantially completed the contracted work. I find 112 does not seriously dispute that Ocean Wave generally completed the drywall installation. Rather, 112’s position is that the quality of Ocean Wave’s work was substandard. Further, from the photograph’s 112 submitted of Ocean Wave’s work, I find the work looks generally complete, subject to the alleged deficiencies that I address below. So, I accept that Ocean Wave substantially completed the contracted work. Further, 112 does not specifically dispute the amounts charged by Ocean Wave in its invoices, nor does it dispute that it made payments towards the invoices. Given that the invoices’ amounts are undisputed, I find Ocean Wave is entitled to payment of $1,605.75 for the unpaid portion of its invoices, subject to any deduction for proven deficiencies, addressed below.

21.   Generally, 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 drywall installation. Exceptions to this general rule are when the work is obviously substandard, or the deficiencies relate to something non-technical (see Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196 at paragraph 112).

22.   Here, there is no expert evidence before me. However, 112 did provide 10 photographs of Ocean Wave’s alleged substandard work. While some of these photographs are blurry or do not show any obvious deficiencies, I find others do show some minor aesthetic deficiencies. For example, there are photographs showing some minor uneven or messy spackling and a photograph showing what appears to be a minor crack at a corner joint.

23.   Some photographs show what appear to be small pinholes and indents in the finished drywall, which Ocean Wave says must have occurred after it finished its work. I am unable to tell from these photographs that these are deficiencies in Ocean Wave’s work as opposed to damage caused by others after the fact. I am also unable to tell from the photographs that Ocean Wave incorrectly covered pot-lights, electrical plugs and vents as 112 alleges.

24.   Further, while there is one photograph in evidence showing an area on a wall where the drywall appears to be somewhat wavy, I am unable to determine if this is due to Ocean Wave’s alleged substandard work or an issue with the building’s age or structure as Ocean Wave alleges. Similarly, I am unable to tell from the photographs of the drywall edge that meets the concrete wall if Ocean Wave’s finishing of this edge, which is not aesthetically pleasing, is substandard. Without expert evidence addressing these areas, I find these deficiencies unproven.

25.   Is 112 entitled to any deduction for the proven deficiencies? 112 provided no evidence about the cost of fixing any of the alleged deficiencies. So, there is no evidence before me about what deduction 112 should be entitled to for the proven deficiencies. Given I have found the proven deficiencies are minor, of an aesthetic nature, and few in number, on a judgment basis, I find $150 to be an appropriate deduction. So, after deducting $150 from the $1,605.75, I find 112 owes Ocean Wave $1,455.75 for the unpaid drywall work.

26.   The Court Order Interest Act (COIA) applies to the CRT. Ocean Wave is entitled to pre-judgment interest on the $1,455.75 from August 31, 2022, the date the Dispute Notice was issued, to the date of this decision. This equals $34.96.

27.   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. Since Ocean Wave was substantially successful, I find it is entitled to reimbursement of $125 for its paid CRT fees. None of the parties claim any dispute-related expenses, so I award none.

ORDERS

28.   Within 30 days of the date of this decision, I order 112 to pay Ocean Wave a total of $1,615.71, broken down as follows:

a.    $1,455.75 in debt,

b.    $34.96 in pre-judgment interest under the COIA, and

c.    $125 in CRT fees.

29.   Ocean Wave is entitled to post-judgment interest, as applicable.

30.   I dismiss Ocean Wave’s claims against Greenway.

31.   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.