Date Issued: August 22, 2023

File: SC-2022-007786

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Jacobson v. Donaghey (dba Sonshine Girls Painting), 2023 BCCRT 714

Between:

CLAUDE PETER JACOBSON

Applicant

And:

TONE DONAGHEY (Doing Business As SONSHINE GIRLS PAINTING)

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      The applicant, Claude Peter Jacobson, hired the respondent, Tone Donaghey (doing business as Sonshine Girls Painting), to paint the siding, fascia and trim on one side of the applicant’s home. The applicant says around 8 months later, the new paint was peeling and blistering from the siding in several areas. The applicant seeks damages of $2,050, representing a refund of the portion of the respondent’s invoice that was for the siding work. The paint undisputedly adhered properly to the fascia and trim.

2.      The respondent says they did the job the way it was supposed to be done. They say the paint failed for reasons outside of their control and they are not responsible for it.

3.      Each party 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. 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.

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 the respondent’s painting work was substandard, and if so, what are the applicant’s damages.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicant must prove their claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

10.   In 2006, the applicant built an addition on their home and installed “James Hardie lap siding” (siding). The siding included a 30-year warranty on the fibre-cement substrate and a 15-year warranty on the factory-applied paint. Around 2020, the applicant noticed some paint degradation on the east wall, which is more exposed to the elements than the other walls. The applicant asked the respondent for a quote to repaint the east wall siding, fascia and trim. The respondent’s October 14, 2020 estimate was for $2,500 plus GST. It included scraping, pressure washing, using TSP (a cleaning product), and applying primer and 2 coats of paint. The respondent completed the work between May and July 2021 and the applicant paid in full. None of this is disputed.

11.   Around April 2022, the applicant noticed peeling and blistering in some places on the newly-painted siding. They asked the respondent to attend and advise. The respondent had a Sherwin Williams paint representative, Adrienne Perron, examine the paint job. I return to Adrienne Perron’s findings below. Ultimately, the respondent felt they were not responsible for the problems and refused the applicant’s request to repaint or provide a partial refund.

12.   I turn to the applicable law. It is an implied term in a contract for professional or trade services that the contractor’s work will meet a reasonably competent standard. As the party alleging substandard work, the applicant bears the burden to prove the deficiencies (see Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61). Generally, expert evidence is required to prove that a professional’s work fell below the required standard. This is because an ordinary person does not know the standards of a particular profession or industry. 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).

13.   The photos in evidence show that the new paint is failing to adhere in some areas. There is blistering and peeling. There is also one siding plank where the paint has peeled off completely, leaving a bare section about 1 foot long. I find it is common knowledge that while exterior paint does not last forever, it should, under normal circumstances, last more than a year without serious visible flaws. I find this is obvious and does not require expert evidence to prove.

14.   The parties appear to agree that the reason the paint did not adhere well is “chalking.” This comes from Adrienne Perron’s email written after inspecting the paint job. Adrienne Perron’s qualifications are not in evidence, which is a technical requirement for expert evidence under the CRT’s rules. However, CRT rule 1.2(2) allows me to waive the strict application of a rule to facilitate the fair resolution of a dispute. Here, Adrienne Perron’s emails identify them as store manager for a Sherwin-Williams retail location, so I find that they have some experience with paint. As well, the applicant did not challenge their qualifications. For those reasons, I accept their evidence as expert evidence under the CRT’s rules.

15.   Adrienne Perron said that when sections of siding peel down to bare siding it is usually a case of “chalking.” Adrienne Perron did not define or describe chalking. However, they said the challenge when trying to determine whether a substrate, including this type of siding, is nearing the end of its life is that there is no specific test or timeframe. From this context, I find that chalking means the upper layer of the siding, to which the paint or primer is expected to adhere, is falling away from the rest of the siding.

16.   The applicant appears to accept that chalking was the cause of the paint job deficiencies but says that “removal of chalking” is supposed to be done at the paint surface preparation stage. In other words, they say the respondent is to blame for the chalking issue because the respondent was required to properly prepare the surface for painting.

17.   The applicant supports their argument in 2 ways. First, they say it is unlikely that the siding itself is failing given the 30-year warranty and the good condition of the siding on the other sides of the addition that have not been repainted. I find that is not determinative because the applicant’s own evidence is that the east side of the house experiences more severe weather, which had already caused the paint to deteriorate.

18.   Second, the applicant says the respondents likely damaged the siding by pressure washing it or using TSP. The respondent does not dispute that they pressure washed and used TSP, as the written estimate said they would. The applicant points to excerpts from 3 websites describing how to clean siding. I put little weight on these website excerpts because the authors and their qualifications are unknown. The applicant also relies on a Hardie technical bulletin. The technical bulletin says to use a soft cloth or brush and a garden hose. It says if using a pressure washer, care must be taken to avoid damage. It recommends using wide fan tips, maximum 1500 psi, and keeping 6 feet from the siding. The applicant says there is no way the respondent could have kept a 6-foot distance from the siding given they undisputedly had to use ladders to access some of the siding. The respondent did not address this point.

19.   The technical bulletin also says to avoid using harsh cleaners but does not specifically say to avoid using TSP. In an email, Adrienne Perron said that TSP, if not properly rinsed off, leaves a slick surface and would cause paint to peel off. However, they do not say that this is what happened here. There is no evidence that the respondent did not properly rinse off the TSP.

20.   To the contrary, Adrienne Perron said that after reviewing the respondents step-by-step process, they considered it sufficient and done correctly. While Adrienne Perron did not identify the specific steps the respondent took, I accept the statement as evidence that the respondent followed industry-standard techniques.

21.   I put more weight on Adrienne Perron’s evidence than the technical bulletin the applicant provided. I say this in part because the technical bulletin is about cleaning siding in general but is not about surface preparation for painting specifically. In contrast, Adrienne Perron was asked specifically about the respondent’s surface preparation work and said it was done correctly.

22.   The difficulty for the applicant is in proving that the chalking issue was caused by pressure washing, using TSP, or something else the respondent did or failed to do. While I accept that paint should not peel and blister within a year under normal circumstances, the evidence does not establish that the respondent’s process caused the chalking. For example, there is no statement from a qualified painter who examined the painted siding and explained whether chalking was a result of inappropriate or sub-standard surface-preparation work or something else. Considering all the evidence, I find the applicant has not proven on a balance of probabilities that the respondent’s surface preparation and painting work fell below a professional standard. As a result, I dismiss the applicant’s claim.

23.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. The respondent was successful but did not pay CRT fees. I dismiss the applicant’s claim for CRT fees. Neither party claims dispute-related expenses.

ORDER

24.   I dismiss the applicant’s claims and this dispute.