Date Issued: December 1, 2023

File: SC-2022-008568

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ang v. Pacifica Service Group Ltd., 2023 BCCRT 1051

Between:

GENALYNE MAE CO ANG

Applicant

And:

PACIFICA SERVICE GROUP LTD., PIERO CASTILLO (Doing Business As WESTRADE PROJECTS), and PIERO CASTILLO (Doing Business As CLEAN BREAK SERVICES)

Respondents

REASONS FOR DECISION
Tribunal Member:	Christopher C. Rivers

 

INTRODUCTION

1.      This dispute is about kitchen renovations. Genalyne Mae Co Ang says she hired Piero Castillo to design and perform kitchen renovations. Mr. Castillo provides services through Pacifica Service Group Ltd. He also provides services in his personal capacity, doing business as both Westrade Projects and Clean Break Home Services.

2.      Ms. Ang says she paid Mr. Castillo a deposit of $7,429.46. However, she says he did not provide useable design work and did not apply for permits in time. Ms. Ang says she lost confidence in Mr. Castillo and cancelled the project, receiving a partial refund of her deposit. She claims $4,181.63 for her unrefunded deposit and $428.82 for packing expenses.

3.      Mr. Castillo says he is entitled to be paid for the work he performed and expenses he incurred. He asks that I dismiss Ms. Ang’s claims.

4.      Ms. Ang is self-represented. Mr. Castillo represents each of the respondents.

5.      Ms. Ang’s Dispute Notice names Pacifica as “Pacifica Service Group Ltd” but the British Columbia Company Summary refers to Pacifica Service Group Ltd. (with a period). I find Ms. Ang’s Dispute Notice contained a typo and Pacifica Service Group Ltd. is the correct legal name. Under section 61 of the Civil Resolution Tribunal Act (CRTA), I order that the style of cause is amended accordingly.

6.      For the reasons that follow, I allow the applicant’s claim in part.

JURISDICTION AND PROCEDURE

7.      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 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.      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.

9.      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.

10.   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.

Preliminary Issue – Respondents

11.   In her Dispute Notice, Ms. Ang names three respondents. Two respondents are the same individual person, Mr. Castillo, doing business as sole proprietorships under different names. The owner of a sole proprietorship does not have separate legal status from the business and assumes all risks. So, for the purposes of this decision and order, there is no need to distinguish between those two respondents. Mr. Castillo is personally liable for each, so I refer to both sole proprietorships interchangeably as Mr. Castillo.

12.   I turn to Pacifica. There is no evidence that Pacifica entered a contract with Ms. Ang. All invoices, estimates, and correspondence between the parties name only Westrade and Clean Break. So, I find there is no basis for Ms. Ang’s claim against Pacifica and dismiss it. I continue below to address her claims against Mr. Castillo.

ISSUES

13.   The issues in this dispute are:

a.    Is Ms. Ang entitled to a return of all or part of the balance of her deposit?

b.    Is Ms. Ang entitled to damages for packing expenses?

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, Ms. Ang, as applicant, must prove her 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.

15.   In June 2021, Ms. Ang hired Mr. Castillo to perform kitchen renovations. The parties first agreed Mr. Castillo would apply for a permit from the City of Richmond to remove a wall in her kitchen. Mr. Castillo sent an estimate to Ms. Ang for the cost of getting the permit. He asked for a deposit of $1,312.50, which she paid. The invoice says the permit process may take up to 8-12 weeks. The estimate specifically says the deposit is non-refundable. I note Ms. Ang does not claim a refund of this deposit.

16.   In July, Ms. Ang consulted with a third-party designer introduced to her by Mr. Castillo. When that designer decided not to continue with the project in September, Ms. Ang says she accepted Mr. Castillo’s offer of his in-house designer “at no cost.” Mr. Castillo does not respond to Ms. Ang’s statement, so I accept the parties agreed Mr. Castillo would not charge for his designer’s work.

17.   In September 2021, Mr. Castillo sent a detailed estimate for the whole project. Ms. Ang paid a deposit of $7,429.46. Unlike the previous estimate, there is nothing that says the deposit is non-refundable. The estimate does not include any charges for design work, though one line-item says Ms. Ang must pay $450 for “Additional Permit Drawings.” I address this further below.

18.   Ms. Ang continued to work with Mr. Castillo’s designer until November 16, 2021. After that time, Mr. Castillo took over design work. Mr. Castillo allegedly told Ms. Ang it was because the designer cost too much money and Ms. Ang would have to pay to keep working with the designer. Again, Mr. Castillo does not address this allegation, so I accept it as true.

19.   Ms. Ang says, and Mr. Castillo does not dispute, that the parties agreed Mr. Castillo would begin the renovation on July 12, 2022, and Mr. Castillo began the permit process in late January.

20.   However, a date stamp shows Mr. Castillo did not file the completed application until July 13, 2022. This is the day after the project was scheduled to begin. Mr. Castillo says the delay was due to out-of-date building plans. He says he hoped the city inspector would allow the original plans to stand, but when they did not, it delayed the permit process. He also says he communicated with Ms. Ang “every step of the way.” Mr. Castillo provided no evidence of communication with the city inspector or Ms. Ang and does not say when he learned that the building plans were out of date.

21.   In the meantime, Ms. Ang undisputedly made plans to vacate the home for two weeks during the renovation period, beginning July 11. She timed her vacation from work to allow the renovation to occur when she was not there and hired movers to pack up and clear her kitchen and surrounding areas.

22.   Before leaving for vacation, Ms. Ang asked Mr. Castillo about the permit, and learned it had not been issued. On July 15 and 19, while on vacation, Ms. Ang sent text messages to Mr. Castillo to get an update. On July 25, 2021, Mr. Castillo sent her a screenshot from a city employee confirming the permit was not ready. Mr. Castillo wrote it was “not the best answer” and “We are just going to have to hold tight unfortunately.”

23.   On July 26, Ms. Ang wrote the city, saying she had learned from a city employee it would likely be more than 4 weeks for the permit to be issued and asking them to expedite the process. Ms. Ang then chose to terminate her agreement with Mr. Castillo and request a refund of her deposit. The permit was ultimately issued on August 11 and Ms. Ang hired another company to complete renovations.

Refund of Deposit

24.   So, is Ms. Ang entitled to a refund of her deposit?

25.   In law, a true deposit is designed to motivate contracting parties to carry out their bargains. A buyer who repudiates the contract (refuses to pay for what they previously agreed to purchase) generally forfeits a true deposit. In contrast, a partial payment is made with the intention of completing a transaction, such as with a down payment to cover work to be done or materials to be purchased under the contract. For a seller to keep a partial payment, the seller must prove actual loss to justify keeping the money received. See Tang v. Zhang, 2013 BCCA 52 at paragraph 30 and Drozd v. Evans et al, 2006 BCSC 1650 at paragraph 34.

26.   In his submissions, Mr. Castillo argues that he is entitled to be paid for the work he did. He cites labour time, administration costs, permit fees, engineering costs, and design costs. He says he only kept his expenses and returned the rest.

27.   So, I find this deposit was a partial payment. As noted above, unlike the estimate for the permit, the second estimate contains no terms that refer to the deposit as non-refundable and Mr. Castillo only argues that he is entitled to his expenses.

28.   So, what is Mr. Castillo’s actual loss? Mr. Castillo’s August 8, 2022 invoice shows he charged Ms. Ang in three areas: Additional Permit Drawings, Administrative Work, and Design Work.

29.   For Additional Permit Drawings, Mr. Castillo charged $475 plus tax. He does not explain why this is $25 more than the agreed-upon, original quote. I find the parties agreed Mr. Castillo could charge $450 plus tax for this work. As he completed the permit application on July 13, and the permit was issued in August, I find Mr. Castillo prepared and submitted what was necessary for the permit. So, Mr. Castillo is entitled to keep $450 in fees, plus 5% GST of $22.50, for a total of $472.50.

30.   For Administrative Work, Mr. Castillo invoiced Ms. Ang for 20 hours at $125 per hour. He undisputedly met with Ms. Ang on a number of occasions. However, he did not provide any detail in respect of what work he did on those occasions or any time-keeping records to support his invoices. Ms. Ang specifically raised Mr. Castillo’s timekeeping and sought an explanation in both her application and argument. He did not respond.

31.   Ms. Ang acknowledges some in-person and telephone meetings with Mr. Castillo. She says those meetings took place on January 18 (1 hour), January 30 (15 minutes), May 26 (1 hour), June 2 (40 minutes), and July 11 (45 minutes). As Mr. Castillo does not dispute these times or provide any other explanation of his own records, I accept Ms. Ang’s times as correct.

32.   Ms. Ang also acknowledges Mr. Castillo sent emails and text messages about the renovations. On a judgment basis, I find he is entitled to 1 hour for his texts, emails, and other correspondence.

33.   So, I find Mr. Castillo is entitled to be paid for 4 hours and 40 minutes (4.67 hours) for administrative work. Ms. Ang does not dispute Mr. Castillo’s rate of $125. So, Mr. Castillo is entitled to keep $583.33 for administrative work plus 5% GST of $29.17, for a total of $612.50.

34.   Finally, Mr. Castillo charged $1,450 for the design package. He says this includes site analysis, meetings with the client, budgeting, and preparing the preliminary materials. He also says it includes “full scope drawings, material selections, and mock-up areas.” Mr. Castillo argues that he only charged $1,450 instead of the usual $2,750.

35.   The only document Mr. Castillo or his designer prepared is a single technical drawing from October 2021. This was when his designer was working for Ms. Ang “at no cost.” However, I find it was an implied term of the parties’ agreement that Mr. Castillo offered his designer at no cost given the project’s scope project and his expectation to make back that money performing the renovations.

36.   I have already accounted for Mr. Castillo’s attendance on site and meetings with Ms. Ang under administrative work, so I find he is not entitled to be paid for that work again. However, there is undisputedly the technical drawing which I infer Mr. Castillo says is the product of the design package.

37.   Ms. Ang says it is inadequate. She raises a number of concerns, including that it does not list all the specifications, and provides no construction plan, electrical reflected ceiling plan, or design elevations. She also says the plan should include information about cabinets, appliances, tiles, lighting, handles and pulls. By way of comparison, Ms. Ang provided a design package she received from a third party after she terminated the contract with Mr. Castillo along with an invoice for $750. The new design package undisputedly contains the things Ms. Ang lists.

38.   Generally speaking, where a matter is outside of ordinary knowledge and experience, a party must provide expert evidence. See: Bergen v. Guliker, 2015 BCCA 283. Here, I find the contents of a design package for renovations are a matter requiring expert evidence.

39.   Ms. Ang provided an opinion from Preston Yan, a project manager with Yan’s Construction Ltd. and Excel Woodworking Ltd. Under CRT rule 8.3(3), the CRT may accept expert opinion evidence from a person the CRT decides is qualified by education, training, or experience to give that opinion. Based on his position as a project manager, and with no evidence showing the contrary, I accept Preston Yan is qualified to provide evidence about the design package.

40.   Preston Yan says the design drawings were inadequate for building purposes. They say the drawings do not include an electrical plan or proper elevations for cabinetry and also say they do not align with the city’s code. Preston Yan says Ms. Ang had to hire a different designer to design the space. I find Preston Yan’s comments are consistent with the new design package and Ms. Ang’s decision to pay for it.

41.   Mr. Castillo does not address any of this evidence. So, I accept Preston Yan’s opinion and find the drawing had only nominal value. I find Mr. Castillo has not proven he should be paid for the design package.

42.   In total, I find Mr. Castillo has proven he is entitled to keep $1,085 of Ms. Ang’s deposit. I order him to return the balance of $3,096.63.

Moving Expenses

43.   Ms. Ang undisputedly spent $428.82 preparing her kitchen for renovations by hiring movers to pack her items. However, I find she would have needed to pack her items for the renovation in any event, and there is no evidence she had to unpack and repack before the renovation started with a new company. I find she has not proven any loss. I dismiss this aspect of her claim.

Interest and Fees

44.   The Court Order Interest Act applies to the CRT. Ms. Ang is entitled to pre-judgment interest on the balance of her deposit from August 8, 2022, the date of Mr. Castillo’s invoice to the date of this decision. This equals $155.32.

45.   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. Ms. Ang was substantially successful, so I find she is entitled to reimbursement of her paid CRT fees, a total of $175. Neither party made any claim for dispute-related expenses.

ORDERS

46.   Within 14 days of the date of this order, I order Mr. Castillo to pay Ms. Ang a total of $3,426.95, broken down as follows:

a.    $3,096.63 as a refund of the balance of Ms. Ang’s deposit,

b.    $155.32 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in in CRT fees.

47.   Ms. Ang is entitled to post-judgment interest, as applicable.

48.   I dismiss the balance of Ms. Ang’s claims.

49.   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.