Date Issued: November 22, 2023

File: SC-2023-000623

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Aslan Electrical, Plumbing, Gasfitting, Refrigeration & Sheetmetal Services Ltd. v. Kiefiuk, 2023 BCCRT 1007

Between:

ASLAN ELECTRICAL,PLUMBING,GASFITTING,REFRIGERATION& SHEETMETAL SERVICES LTD.

Applicant

And:

BRADEN KIEFIUK

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about an oil furnace repair.

2.      Braden Kiefiuk hired Aslan Electrical, Plumbing, Gasfitting, Refrigeration & Sheetmetal Services Ltd. (Aslan) to repair his oil furnace. Aslan attended Mr. Kiefiuk’s home 3 times in 9 days. Aslan claims $1,390.12 for 3 unpaid invoices.

3.      Mr. Kiefiuk disagrees with the claim. He says Aslan only made the furnace’s problems worse, and he had to hire another contractor to fix Aslan’s work.

4.      Aslan is represented by an authorized employee. Mr. Kiefiuk represents himself.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

ISSUE

8.      The issue in this dispute is to what extent Aslan is entitled to the claimed $1,390.12 for furnace repair work.

EVIDENCE AND ANALYSIS

9.      As the applicant in this civil proceeding, Aslan must prove its 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 October 2021, Mr. Kiefiuk called Aslan after noticing a thumping sound when his oil furnace “kicked in”. He asked Aslan to do a complete service as the furnace had not been serviced in several years.

11.   On November 1, 2021, Aslan’s technician, JT, attended Mr. Kiefiuk’s home. Mr. Kiefiuk signed Aslan’s work authorization form (WAF), which described the scope of work as “service oil furnace” and set out Aslan’s hourly rate. Mr. Kiefiuk also signed the work order showing that JT was there for 4.5 hours, had performed a full service, changed the fuel filter, and changed a nozzle.

12.   Mr. Kiefiuk says shortly after JT left, the furnace began to “trip off”. He says this was not an issue before Aslan attended. Mr. Kiefiuk called Aslan and explained what was happening.

13.   JT attended again on November 3. JT spent another 2.5 hours on the furnace. I note that rather than tripping off, the work order said the reported problem was that the furnace was making a loud “woofing” noise when it fired up, and I return to this below. JT changed a nozzle. It is not clear whether this was the same nozzle replaced during the previous service. I accept Mr. Kiefiuk’s submission that he never saw the work order for this second visit, which Aslan does not specifically dispute. Although there is a signature on the work order, I find it is not Mr. Kiefiuk’s signature because it is obviously different from his signatures on the WAF and other work orders.

14.   Mr. Kiefiuk says the furnace began to trip off again shortly after JT left. He called Aslan again. On November 9, JT returned a third time. According to the work order Mr. Kiefiuk signed, JT tested the transformer, adjusted the spark gap, and cleaned the combustion chamber. Mr. Kiefiuk says after JT left, the furnace began to trip off again.

15.   At that point, Mr. Kiefiuk decided to call a different contractor, Rays Burner Service (Rays). According to Rays’ November 22, 2021 invoice, the furnace was not adjusted properly and the “wrong nozzle was installed”. Mr. Kiefiuk paid Rays’ $273.50 invoice. Mr. Kiefiuk says the furnace has operated efficiently since then.

16.   Aslan did not send Mr. Kiefiuk an invoice until January 2023. There are 3 invoices in evidence, corresponding to the 3 work orders. Mr. Kiefiuk says he only received the first invoice. Aslan says it mailed all 3 separately, but I find nothing turns on this.

17.   So, what is Mr. Kiefiuk required to pay? He argues that Aslan’s total of 9.5 hours billed for the furnace is an unreasonable amount of time. He says Rays reversed the issues Aslan caused and addressed his initial concern about furnace noise in just over an hour.

18.   There is an implied term in contracts for professional or trade services that the contractor’s work will be done to a reasonably competent standard. As the party alleging substandard work, Mr. Kiefiuk bears the burden to prove the deficiencies (see Absolute Industries Ltd. v. Harris, 2014 BCSC 287 at paragraph 61). In general, expert evidence is required to prove whether a professional’s conduct fell below a reasonably competent 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 conduct is obviously substandard or about something non-technical (see Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paragraph 112).

19.   Mr. Kiefiuk relies on the Rays invoice, which includes the Rays technician’s brief notes. The technician’s qualifications are not in evidence, which is a requirement for expert opinion evidence under the CRT’s rules. However, the technician’s notes only said that the furnace was not properly adjusted and the wrong nozzle was installed. I find these are largely factual observations, and Aslan does not directly challenge them, so I accept them. They are also consistent with Mr. Kiefiuk’s evidence that since Rays’ service, the furnace has operated without issue. Based on the Rays invoice, I find Aslan did not install the correct nozzle and did not properly adjust the furnace. I note that Aslan’s second and third invoice both charged for nozzle replacement.

20.   This does not mean Aslan is entitled to nothing. What Mr. Kiefiuk fails to acknowledge is that Aslan’s first invoice was for a complete servicing, as shown in the oil furnace service checklist JT completed on November 1. While I find it is common knowledge that servicing a furnace should not cause new issues, I do not agree with Mr. Kiefiuk that causing the furnace to trip off means Aslan’s initial servicing work was entirely substandard. Nor do I agree that failing to identify and address the root of the thumping noise issue means Aslan’s initial servicing work was entirely substandard. There is no expert evidence to suggest Aslan’s initial work was substandard or that 4.5 hours was not a reasonable charge for servicing a furnace that had not been serviced in years. For these reasons, I find Mr. Kiefiuk must pay Aslan’s first invoice for $670.49, which includes a $74.10 mileage charge. While the WAF does not specify a mileage rate, Mr. Kiefiuk does not argue that the rate was unreasonable.

21.   As for Aslan’s second and third invoice, I find Aslan has not proved that it is entitled to these amounts. The WAF stated that there are no charges for “call backs” if the work is under warranty, but “new work” was chargeable. Neither party says that when Mr. Kiefiuk called Aslan back, they discussed whether the work was a warranty call-back or was new work. I find that Mr. Kiefiuk called Aslan back either because the furnace began to trip off as Mr. Kiefiuk states or began to make a woofing noise as stated in the second work order. Either way, I find this was a problem that arose immediately after Aslan’s repairs. I find it unlikely that either issue arose independently of Aslan’s work given Mr. Kiefiuk called Aslan back the same day. The same is true for the third invoice. On balance, I find Aslan’s second and third visits were not new work. This conclusion is supported by Aslan’s Dispute Notice, which said Mr. Kiefiuk should have called Aslan rather than Rays to fix his furnace because the work would have been “under warranty with no charge to Mr. Kiefiuk.” I find Rays’ work was essentially the same work Aslan performed under its second and third work orders, so this work was under warranty from the first work order.

22.   Although Mr. Kiefiuk signed the third work order where it says, “the scope and hours of work have been explained and I acknowledge indebtedness,” I put little weight on this boilerplate acknowledgement. There was no amount indicated on the work order and I find a reasonable person would have understood the work to be under warranty given the reasons set out above.

23.   If I am wrong and the work was not under warranty, I would still find Aslan is not entitled to the second and third invoiced amounts. Based on the Rays invoice and the absence of any contradictory statement from JT, I find Aslan did not install the correct nozzle or make the correct adjustments to resolve the furnace’s issues. I find these are obvious breaches of the standard of a reasonably competent furnace repair technician that do not require expert opinion evidence to establish.

24.   Finally, I consider whether some or all of the Rays invoice should be set off against the debt from Aslan’s first invoice. Mr. Kiefiuk argues that the Rays invoice sets out the work that Aslan should have performed from the outset. As set out above, I find Aslan’s initial work involved more than making adjustments and changing a nozzle, which is all the work indicated in the Rays invoice. That said, I agree that Aslan should have made the correct adjustments and installed the correct nozzle during the initial servicing or a follow-up visit. Aslan did not do those things. Mr. Kiefiuk should not have to pay for that work twice. So, I set off the $273.50 Rays invoice against the $670.49 Aslan invoice. This means Mr. Kiefiuk owes Aslan $396.99.

25.   The Court Order Interest Act applies to the CRT. Aslan is entitled to pre-judgment interest on the $396.99 from January 10, 2023, the date he received the invoice, to the date of this decision. This equals $16.13.

26.   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. Aslan was partially successful, so I find it is entitled to reimbursement of $62.50, which is half his paid CRT fees. Neither party claims dispute-related expenses.

ORDERS

27.   Within 21 days of the date of this order, I order Mr. Kiefiuk to pay Aslan a total of $475.62, broken down as follows:

a.    $396.99 in debt,

b.    $16.13 in pre-judgment interest under the Court Order Interest Act, and

c.    $62.50 in CRT fees.

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

29.   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.