Date Issued: September 25, 2023

File: SC-2022-006953

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Lynch v. Artisan Drywall Contracting Ltd., 2023 BCCRT 810

Between:

CHANDLER JOHN LYNCH

Applicant

And:

ARTISAN DRYWALL CONTRACTING LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      The applicant, Chandler John Lynch, hired the respondent, Artisan Drywall Contracting Ltd. (Artisan), to do drywalling at his home. Mr. Lynch says Artisan overcharged him for the work. He claims $3,579.40 as the amount he says he was overcharged.

2.      Artisan denies overcharging Mr. Lynch. In any event, Artisan says the total project price of $19,180.31, including discount, is less than the $20,000 estimate it gave him. So, Artisan says it owes Mr. Lynch nothing.

3.      Mr. Lynch is self-represented. Artisan is represented by its owner.

JURISDICTION AND PROCEDURE

4.      These are the Civil Resolution Tribunal’s (CRT) formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 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.

5.      CRTA section 39 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.      CRTA section 42 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 CRTA section 118, 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.

Preliminary issue

8.      In addition to his monetary claim, Mr. Lynch says “a break down of materials ordered and costs should be given”. I find Mr. Lynch’s claim is likely for production of documents in support of his monetary claim, rather than a separate claim for injunctive relief, which is generally outside the CRT’s small claims jurisdiction. Under CRTA section 34, the CRT may order a person to produce a record or thing in that person’s possession or control that is relevant to an issue in the dispute. Under CRT rule 8.1(1) a party must include in their tribunal decision plan all evidence in their possession that may prove or disprove an issue in this dispute, even if the evidence does not support the party’s position. Through staff, I asked Artisan if it has a breakdown of the materials and costs for Mr. Lynch’s drywall project. Artisan says it does not have such a breakdown, and that it does not generally keep job-specific data to avoid revealing “confidential, proprietary, and competitively sensitive pricing for materials”. Artisan also says it did not keep records for Mr. Lynch’s project because it was based on a single “do-not-exceed” price. Mr. Lynch disputes there was a “do-not-exceed” price, and says in his experience, contractors account for materials by providing clients with a product list and costs.

9.      While this may have been Mr. Lynch’s past experience, I find Artisan’s explanation for why it does not keep job-specific data reasonable. In any event, I cannot order Artisan to produce a breakdown of materials ordered and costs that it does not have. So, I decline to grant Mr. Lynch’s requested order.

ISSUES

10.   The issues in this dispute are:

a.    Did Artisan overcharge Mr. Lynch for drywalling?

b.    If so, is Mr. Lynch entitled to the claimed $3,579.40 or another amount?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant Mr. Lynch 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 the evidence and argument that I find necessary to explain my decision.

12.   As noted above, in July 2022, Mr. Lynch hired Artisan to do drywalling at his home. Email evidence shows that before finalizing the agreement, the parties discussed how long the project was expected to take and labour rates. Artisan provided Mr. Lynch with a sheet setting out hourly rates for different positions, and advised Mr. Lynch that some subcontractors charged a $500 - $700 daily rate rather than an hourly rate. Artisan estimated the project would cost no more than $20,000 including materials, and Mr. Lynch signed the rate sheet on July 13, 2022. None of this is disputed.

13.   Mr. Lynch says that while Artisan provided an estimate, the agreement was that Artisan would do the work on a time and materials basis. Artisan agrees with this, and says it “wasn’t comfortable giving a fixed price after seeing the quality of workmanship, and the variables that come with it being a 100 year old home.” However, Artisan also says Mr. Lynch is prohibited from disputing the “contract price” because 1) he agreed to it, 2) Artisan completed the work based on that agreement, and 3) Mr. Lynch paid Artisan’s invoice.

14.   It is unclear whether by “contract price”, Artisan means the final price Mr. Lynch paid or the estimate. In any event, I disagree with Artisan. I find there was no “contract price” agreed by the parties. I find that in the absence of a written contract, the emails the parties exchanged about labour rates and the time it would take to complete the project, together with the signed rate sheet formed the parties’ contract. Those emails did not include a “contract price”, only the $20,000 estimate Mr. Lynch agrees Artisan gave him, and 2 ways to calculate labour costs. I find that to calculate labour costs, the parties agreed both hourly rates and daily rates might be used.

15.   With that, I turn to Mr. Lynch’s specific allegations.

16.   First, Mr. Lynch says Artisan overcharged him for labour costs of drywall installation. He says he was on site while the subcontractors were installing the drywall, and that the subcontractors only worked a total of around 40 hours, which Artisan does not particularly dispute. At a rate of $80/hour, which is the middle rate of 5 on the rate sheet, Mr. Lynch says the total labour cost of drywall installation calculated on an hourly basis should have been $3,200.

17.   Artisan’s breakdown of costs shows $4,596.50 for drywall installation. Mr. Lynch disagrees, and says Artisan charged him $5,405. He claims $1,605, the difference between the $5,405 he says Artisan charged him and the $3,200 he says he should have been charged. However, I infer, based on the evidence, that $5,405 is what Artisan says it would have charged Mr. Lynch had it calculated labour costs of drywall installation using a daily rate (more on this below). So, I find Artisan actually charged Mr. Lynch $4,596.50 for drywall installation, and I find that is what Mr. Lynch paid.

18.   Artisan says its drywall installation subcontractors charged it on a “piece work” or per job basis, instead of using an hourly or a daily rate, and so that is how it charged Mr. Lynch. However, I find the parties’ contract did not provide for labour rates calculated on a piece work basis. I find the parties only agreed Artisan might charge for labour based on an hourly or a daily rate.

19.   So, what should Artisan have charged Mr. Lynch for labour costs for drywall installation under the parties’ contract?

20.   Mr. Lynch does not dispute that had Artisan charged him using a daily rate, the drywall installation would have cost $5,405. Equally, Artisan does not dispute that had it charged Mr. Lynch on an hourly basis, the work would have cost $3,200. I find there is no indication it is more likely Artisan would have used either an hourly rate or a daily rate had it not charged Mr. Lynch for drywall installation on a piece work basis. So, on a judgment basis, I find it is appropriate to use the average of $5,405 and $3,200, which is $4,302.50. Since Mr. Lynch paid Artisan $4,596.50 for drywall installation, I order Artisan to reimburse Mr. Lynch $294 for that work.

21.   Next, Mr. Lynch claims $1,200 for the cost of the drywall installers’ accommodation. The evidence shows Artisan says it had to bring in a crew to complete the drywall installation. However, I find the parties’ contract did not provide for accommodation costs, nor is there evidence Mr. Lynch benefited from having out-of-town subcontractors complete the drywall installation. So, I order Artisan to reimburse Mr. Lynch $1,200 for subcontractor accommodation costs.

22.   Next, Mr. Lynch says Artisan did not account for materials it charged him for but did not use on the project, and took with it when it left the job site. Specifically, Mr. Lynch says Artisan took materials worth $100-$200. Artisan acknowledges it took materials with it when it finished the project, but says it also brought materials worth $400-$500 to the job site and did not charge Mr. Lynch for them. Mr. Lynch does not dispute this, and I accept this is what happened. In these circumstances, I find it unproven that Artisan overcharged Mr. Lynch for materials it did not use on the project. I note Mr. Lynch did not claim monetary relief for the materials for which he was allegedly overcharged, but asked for a breakdown of materials and their costs, which I have addressed above.

23.   Finally, Mr. Lynch claims $774.40 for management and overhead fees he says Artisan never discussed with him and that he did not agree to. However, Mr. Lynch acknowledges “it is common for projects to allocate a percentage of to project management fees” (reproduced as written). I infer the missing word in the previous sentence is “costs”. Mr. Lynch also does not say Artisan’s management and overhead fees were unreasonable. I find Mr. Lynch likely benefited from Artisan’s knowledge and experience in project management, and that Artisan was entitled to be compensated for providing that knowledge and experience. I also find the amount is not unreasonable. So, I dismiss Mr. Lynch’s $774.40 claim for management and overhead fees.

24.   In summary, I find Mr. Lynch is entitled to a $1,494 refund from Artisan.

25.   The Court Order Interest Act (COIA) applies to the CRT. I find Mr. Lynch is entitled to pre-judgment interest on the $1,494 debt award from September 2, 2022, the date Mr. Lynch paid Artisan’s invoice, to the date of this decision. This equals $59.02.

26.   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 Mr. Lynch was partially successful, I find he is entitled to half his CRT fees, which is $87.50. Mr. Lynch did not claim any dispute-related expenses.

ORDERS

27.   Within 30 days of the date of this order, I order Artisan to pay Mr. Lynch a total of $1,640.52, broken down as follows:

a.    $1,494 in debt for overcharging on drywall installation,

b.    $59.02 in pre-judgment interest under the COIA, and

c.    $87.50 in CRT fees.

28.   Mr. Lynch is entitled to post-judgment interest, as applicable.

29.   I dismiss Mr. Lynch’s remaining claims.

30.   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.