Date Issued: October 30, 2023

Files: SC-2022-007478

and SC-2023-003999

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Dal Monte (dba LDM Tile) v. Canofari, 2023 BCCRT 927

Between:

LEE DAL MONTE (Doing Business As LDM Tile)

Applicant

And:

MARK CANOFARI and MARY CANOFARI also known as CARMEN BARBERO

RespondentS

A N D :

LEE DAL MONTE (Doing Business As LDM Tile)

RESPONDENT BY COUNTERCLAIM

REASONS FOR DECISION
Tribunal Member:	Christopher C. Rivers

 

INTRODUCTION

1.      This dispute is about home renovations. This decision relates to 2 linked disputes with the same parties that I find collectively consist of a claim and a counterclaim. So, I have issued a single decision for both disputes.

2.      The applicant, Lee Dal Monte, doing business as LDM Tile, says the respondents, Mark Canofari and Mary Canofari, also known as Carmen Barbero, have not paid his final invoice. Mr. Dal Monte claims $4,449.36.

3.      Mr. and Ms. Canofari say Mr. Dal Monte overcharged them, that his work was deficient, and that he has not proved he remitted GST. In addition to asking me to dismiss Mr. Dal Monte’s claim, Mr. and Ms. Canofari say Mr. Dal Monte owes them a refund of $8,355. In their arguments, they also seek $3,000 in damages for Mr. Dal Monte’s allegedly abusive behaviour and a “storage fee” for his tools of $1,397.76. However, Mr. and Ms. Canofari limit their claim to $5,000, which is the Civil Resolution Tribunal’s (CRT’s) small claims monetary limit.

4.      Mr. and Ms. Canofari also seek an order that Mr. Dal Monte repair deficiencies and complete all the work they say they have paid for.

5.      Mr. Dal Monte represents himself. Mr. Canofari, who is a lawyer, represents himself and Ms. Canofari.

6.      For the reasons that follow, I allow Mr. Dal Monte’s claim, and mostly dismiss Mr. and Ms. Canofari’s claim.

JURISDICTION AND PROCEDURE

7.      These are CRT’s the formal written reasons. 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.

8.      Mr. Dal Monte filed his claim naming both Mr. and Ms. Canofari as respondents. Both Mr. and Ms. Canofari communicated with Mr. Dal Monte regarding renovations, and both responded to his claim. So, I find the evidence shows Mr. Dal Monte contracted with both respondents.

9.      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.

10.   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.

11.   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.

12.   As noted above, this decision is about 2 linked disputes. I have relied on the evidence and arguments submitted in both disputes SC-2022-007478 and SC-2023-003999 in coming to my decision.

13.   In submissions, Mr. and Ms. Canofari request I make a “no contact” order against Mr. Dal Monte. They did not specifically claim this relief in their counterclaim. However, a “no contact” order amounts to a request for injunctive relief, which is outside the CRT’s jurisdiction under section 118 of the CRTA. For that reason, I refuse to resolve this issue.

14.   Similarly, Mr. and Ms. Canofari’s claim for an order that Mr. Dal Monte repair and/or complete renovation work amounts to a request for injunctive relief. Again, this is outside the CRT’s jurisdiction under section 118 of the CRTA, and I refuse to resolve this aspect of their claim.

ISSUES

15.   The issues in this dispute are:

a.    Is Mr. Dal Monte entitled to payment of his final invoice for a holdback amount of $4,449.36?

b.    Are Mr. and Ms. Canofari entitled to a refund for overcharging, deficient work, or failure to remit GST? Are they entitled to damages for abusive behaviour? Are they entitled to a storage fee for holding Mr. Dal Monte’s tools?

EVIDENCE AND ANALYSIS

16.   In a civil proceeding like this one, each party must prove their respective claims on a balance of probabilities. This means “more likely than not.” I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

17.   The parties agree that Mr. and Ms. Canofari hired Mr. Dal Monte to perform a number of renovations to their home. While Mr. and Ms. Canofari first hired Mr. Dal Monte to renovate two bathrooms, the parties later added other projects, including relocating and refinishing what are variously referred to as laundry rooms and/or mudrooms.

18.   There is no dispute that Mr. Dal Monte sent Mr. and Ms. Canofari invoices on an ongoing basis as he performed work. Likewise, there is no dispute that Mr. and Ms. Canofari paid the invoices as they received them and did not raise any concerns about the quality of Mr. Dal Monte’s work or the invoice’s amounts. Neither party provided the ongoing invoices.

19.   Mr. Dal Monte provided the CRT with an undated and unsigned contract that shows an estimate of $29,000 for bathroom renovations. It does not address any additional projects. Mr. and Ms. Canofari provided October 28, 2021 texts showing an initial estimate of $35,000, exclusive of plumbing and electrical subcontractors. They also provided December 16, 2021 text messages showing a revised estimate of $29,000, again, excepting some subcontractors, who Mr. Dal Monte describes as ‘[having] their own terms’.

20.   Mr. Dal Monte says each invoice he issued contained a 10% holdback. Mr. and Ms. Canofari do not dispute this in their submissions.

21.   Renovations began in January 2022 and finished in August or September 2022. On August 11, 2022, Mr. Dal Monte sent an email to Mr. and Ms. Canofari saying, in part, “Here is the last invoice before the holdback” and “Of course the final final invoice with [sic] have a few deductions for unused materials…” The email enclosed an attachment labelled invoice #15. One of Mr. or Ms. Canofari responded, noting a small issue in workmanship they wished addressed, but not addressing the pending holdback invoice.

22.   Given Mr. Dal Monte’s undisputed statement about the ongoing holdback amounts, and the lack of response from Mr. or Ms. Canofari to his August 11 email addressing the pending holdback invoice, I find Mr. Dal Monte’s invoices each contained a 10% holdback, which Mr. and Ms. Canofari were to pay at the renovation’s end.

23.   Mr. Dal Monte sent the final invoice, dated September 6, 2022, for $45,414.36, inclusive of $1,109.38 in GST. In the invoice, Mr. Dal Monte provided the holdback total - $4,541.44 - on a separate line. He does not show how he calculated this total, but as noted above, Mr. and Ms. Canofari do not dispute the holdback amount.

24.   The invoice credits Mr. and Ms. Canofari with payments totaling $42,872.92. Mr. Dal Monte also provided a credit of $92.08 for unused materials. In sum, the invoice shows a balance owing of $4,449.36.

25.   The final invoice seeks payment exclusively for the holdback, with credit for the unused materials. There is no dispute that Mr. and Ms. Canofari paid every other invoice for Mr. Dal Monte’s work on an ongoing basis. I find this shows they accepted that Mr. Dal Monte was completing work as agreed. I have already found each invoice contained a 10% holdback amount for work Mr. Dal Monte had performed, so I accept the September 6 invoice establishes Mr. Dal Monte’s claim for a holdback of $4,449.36. I find Mr. Dal Monte is entitled to be paid the holdback amount for the work he performed.

Overcharging

26.   Mr. and Ms. Canofari say the total invoice exceeds both the estimated total Mr. Dal Monte provided and the value of the work he performed.

27.   There is no dispute that Mr. Dal Monte estimated $29,000 for the initial scope of the bathroom renovations. While this included estimates for the electrical subcontractor, it did not include plumbing, fixtures, or tile costs. Likewise, this estimate did not include any amount for additional projects in the laundry/mudrooms.

28.   However, I find the parties only intended $29,000 to be an estimate, and not to be a fixed price. I do not accept that Mr. Dal Monte was bound to perform the bathroom renovations for $29,000. It is undisputed that Mr. Dal Monte provided ongoing invoices to Mr. and Ms. Canofari, but neither addressed any concerns about the cost during the months of the project.

29.   I also find estimating the total value of the work performed by Mr. Dal Monte is a matter outside of ordinary knowledge and requires expert evidence. See: Bergen v. Guliker, 2015 BCCA 283. As Mr. and Ms. Canofari did not provide any expert evidence, I am unable to find that the invoice exceeds the value of Mr. Dal Monte’s work.

30.   Mr. and Ms. Canofari also alleged that Mr. Dal Monte charged them “over $100” to pick up minor items from suppliers. Mr. Dal Monte denies this claim. Mr. and Ms. Canofari provided no evidence to support their allegation, or how they determined the amount, so I find this aspect of their claim unproven.

Deficient Work

31.   Where a party alleges deficient work, they bear the burden of proving it. That means Mr. and Ms. Canofari must prove on a balance of probabilities that Mr. Dal Monte’s work was deficient. See: Absolute Industries Ltd. v. Harris, 2014 BCSC 287, at paragraph 61.

32.   As above, where an allegation of deficient work is based on a claim that the work fell below the required professional standard, and the subject matter is outside ordinary knowledge, expert evidence is required to prove the deficiency. Other times, a breach of the standard may be so obvious that it does not require expert evidence. See: Bergen.

33.   I find that the professional standard required in home renovations is outside ordinary knowledge. Again, Mr. and Ms. Canofari did not provide any expert evidence. This means their claim can only succeed where any deficiencies they allege are obvious.

34.   Mr. and Ms. Canofari provided photographs showing what they say are deficiencies in Mr. Dal Monte’s work. Mr. Dal Monte responded to each allegation.

Mudroom

35.   Mr. and Ms. Canofari say Mr. Dal Monte ‘boxed’ an inside moulding joint instead of mitering it. They also say the moulding used two different trims. Mr. Dal Monte says box-style joints are not unusual or lesser, and they are not obviously so. Mr. Dal Monte further says that Ms. Canofari authorized the use of two different trims for the moulding. I have no evidence from Ms. Canofari, who was in position to comment on this evidence. So, I find Mr. and Ms. Canofari have not proven this aspect of their claim.

36.   Mr. and Ms. Canofari say Mr. Dal Monte installed a ‘cover piece’ over a transition but left a gap. Mr. Dal Monte says the gap is in an area where he did not do any work. In any event, I do not find the photograph of the gap to show an issue so obvious as to be deficient. So, I find Mr. and Ms. Canofari have not proven this aspect of their claim.

37.   Mr. and Ms. Canofari say Mr. Dal Monte drilled a hole in the wall to allow an ethernet cable to come through, but never connected the port. Photographs show a jagged hole with a protruding cable, and an ethernet port plate that is not firmly attached to the wall. Mr. Dal Monte says the hole had to be large enough to allow the cable’s head but does not explain why the area is unfinished or why the plate is not firmly affixed. Mr. and Ms. Canofari did not provide any expert evidence to establish the value of the ethernet repairs, so on a judgment basis, I allow $100.

Master Bathroom

38.   Mr. and Ms. Canofari say Mr. Dal Monte used caulking instead of grout at the top of their shower. Mr. Dal Monte says caulking is the correct material. The photographs show uneven and patchy caulking along the shower’s top edge and the ceiling. While Mr. and Ms. Canofari have not proven caulking is a deficient material, I find the photographs show it is poorly installed. As Mr. and Ms. Canofari did not provide any expert evidence to establish the cost of the caulking, I allow $200 on a judgment basis.

39.   Mr. and Ms. Canofari provided photographs of a flooring transition piece that does not match the flooring’s colour on either side. Mr. Dal Monte says Ms. Canofari approved the chosen flooring transition material, since it was intended to be temporary. (Mr. and Ms. Canofari apparently intended to install new flooring with matching transitions.) Mr. Dal Monte provided text messages that confirmed his conversation with Ms. Canofari. So, I dismiss this aspect of Mr. and Ms. Canofari’s claim.

40.   Mr. and Ms. Canofari claim Mr. Dal Monte did not measure a shower seat properly, requiring the seat to be cut and ‘notched’ to allow shower glass to fit. Mr. Dal Monte says he was not present when the glass was measured, and that the glass company made the decision to notch the seat. Mr. and Ms. Canofari were undisputedly responsible for the glass installation and payment. In any event, I find that ‘notching’ the seat is not an obvious deficiency and dismiss this aspect of Mr. and Ms. Canofari’s claim.

41.   Finally, Mr. and Ms. Canofari claim Mr. Dal Monte used ‘cheap’ brackets for the shelves in the bathroom closet and cracked the paint when he installed them. Mr. Dal Monte says he showed Ms. Canofari a picture of the brackets by phone before he installed them. Again, he provided text messages confirming his conversation with Ms. Canofari, in which he showed her a photo of the shelving bracket labeled ‘Reliable Fasteners Corner Brace … White.’ Mr. Dal Monte specifically texts that he was unsure if they “look too industrial,” to which Ms. Canofari replies, “Yes to the white fasteners.” The photograph shows a single, small, thin crack that I find is minimal. I find this aspect of the claim unproven.

42.   I find Mr. and Ms. Canofari have proven damages totaling $300 for deficient work. For convenience, I order this amount deducted from the $4,449.36 Mr. and Ms. Canofari owe to Mr. Dal Monte, resulting in a balance of $4,149.36.

GST

43.   In their final reply submissions, Mr. and Ms. Canofari raise an argument that Mr. Dal Monte must prove that he has remitted GST. As this allegation was only raised at the conclusion of submissions, Mr. Dal Monte did not have an opportunity to respond. Accordingly, I have not considered it.

Abusive Behaviour

44.   Mr. and Ms. Canofari seek $3,000 in sanctions for Mr. Dal Monte’s allegedly abusive behaviour. While Mr. and Ms. Canofari do not cite the basis of their claim, I find it is effectively a claim for harassment. However, there is no recognized tort of harassment in British Columbia. See: Anderson v. Double M Construction Ltd., 2021 BCSC 1473, at paragraph 61. This means a person cannot sue another for harassment in this province. So, I dismiss this aspect of Mr. and Ms. Canofari’s counterclaim.

Storage Fee

45.   Mr. and Ms. Canofari claim $1,397.76 as a storage fee for Mr. Dal Monte’s tools. The parties agree that while Mr. Dal Monte worked on the home, he left his tools and materials at the home. There is no evidence that either Mr. or Ms. Canofari objected to this arrangement, or raised the issue of payment with Mr. Dal Monte, and there is no evidence Mr. Dal Monte ever agreed to pay a storage fee.

46.   I find that Mr. and Ms. Canofari cannot unilaterally impose a storage fee on Mr. Dal Monte, and I dismiss this aspect of their counterclaim.

Conclusion

47.   The Court Order Interest Act applies to the CRT. Mr. Dal Monte is entitled to pre-judgment interest on the $4,149.36 from September 6, 2022, the date of the final invoice to the date of this decision. This equals $184.81.

48.   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 see no reason in this case not to follow that general rule. I find Mr. Dal Monte is entitled to reimbursement of $175 in CRT fees. As Mr. and Ms. Canofari were mostly unsuccessful, I dismiss their claim for CRT fees. Neither party sought disputed-related expenses.

ORDERS

49.   Within 14 days of the date of this order, I order Mr. and Ms. Canofari, jointly and severally, to pay Mr. Dal Monte a total of $4,509.17, broken down as follows:

a.    $4,149.36 in debt,

b.    $184.81 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in CRT fees.

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

51.   I refuse to resolve Mr. and Ms. Canofari’s claims for injunctive relief under CRTA section 118.

52.   I dismiss the parties’ remaining claims.

53.   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.