Design One Mechanical v. Huff, 2023 BCPC 231

Citation: Design One Mechanical v. Huff 2023 BCPC 231 Date: 20231030 File No: C86476 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DESIGN ONE MECHANICAL INC. CLAIMANT AND: SAVINA HUFF and GRANT HUFF DEFENDANTS CHUCK ROLLEMAN THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Claimant: R. Kusuhara Appearing on their own behalf: S. Huff and G. Huff Counsel for the Third Party: R. Kusuhara Place of Hearing: Surrey , B.C. Dates of Hearing: Nov. 15-17, 2021; July 4-7, 12, 2022; Dates of Hearing: Jan. 3-5; March 6, 13, 14, 17, 2023 Date of Judgment: October 30, 2023

TABLE OF CONTENTS INTRODUCTION .. 4 POSITIONS OF PARTIES .. 4 ISSUES .. 6 EVIDENCE AND CASES .. 6 BACKGROUND .. 7 TIMELINE .. 8 GENERAL LEGAL PRINCIPLE(S) 11 Standard of Proof 11 Witness Reliability and Credibility . 12 WHAT WERE THE TERMS OF THE CONTRACTS? . 13 GENERALLY .. 13 SPECIFICALLY .. 13 Initial Quotations and Additional Implied Terms . 13 Did the Essential Terms include Timeliness or Deadlines ? . 16 DID DOM COMPLETE THE WORK PROPERLY AND WITHOUT DEFICIENCIES? . 18 WORK COMPLETED .. 19 THE CENTRAL WITNESSES .. 21 Chuck Rolleman .. 22 The Huffs . 24 Mike Degenhardt 27

SUMMARY OF AREAS FOR EXAMINATION .. 35 LACK OF TECA CERTIFICATION IN FORCED AIR .. 36 Steve Jollimore’s Evidence . 36 Discovery and Aftermath of Lack of Certification .. 37 Third Party Certification .. 38 HEATING AND FURNACES .. 42 Oversized Furnaces . 42 F280 Heat Loss / Gain Report 44 Incorrect or Incomplete Work . 46 DUCTWORK, PIPING and VENTILATION .. 49 Ventilation Checklist 49 Additional Deficient Work . 51 REFRIGERATION AND COOLING SYSTEM .. 54 CONCLUSION – BREACH OF CONTRACT AND / OR NEGLIGENCE? . 56 SUBSTANTIAL COMPLETION – NATURE AND SCOPE OF WORK? . 56 SUBSTANTIAL COMPLETION – DEFICIENCIES? . 58

BREACHES OF CONTRACT AND INDUSTRY STANDARDS .. 61 Factors in Determining Breach of Contract 62 NEGLIGENCE .. 65 REMEDIATION EFFORTS NECESSARY? . 66 WAS DOM PROVIDED OPPORTUNITY TO REMEDIATE? . 66 COSTS OF REMEDIATION WORK? . 69 DAMAGES .. 69 WHO IS RESPONSIBLE FOR ANY DAMAGES? . 71 IS MR. ROLLEMAN PERSONALLY RESPONSIBLE FOR ANY DAMAGES? . 71 Piercing the Corporate Veil 72 Mr. Rolleman’s Representations . 73 CONCLUSIONS .. 75 ORDER .. 76 Damages . 76 Penalty . 76 Costs . 77 CLAIMANT AND MR.

ROLLEMAN: 79 Cases . 79 Legislation .. 79 DEFENDANTS: 79 Cases . 79 Other Materials: 80 BY THE COURT: 81 Cases . 81 Other Materials . 81 A Corrigendum was released by the Court on October 30, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] In 2019, Savina and Grant Huff were in the midst of building a house and barn in the Township of Langley jurisdiction in British Columbia.

They entered into contracts with Design One Mechanical (“DOM”) for the installation and associated work for heating, ventilation and air conditioning (“HVAC”) systems throughout both buildings. Chuck Rolleman is a part owner of DOM. He is DOM’s primary contractor. He dealt largely with the Huffs during the HVAC work. POSITIONS OF PARTIES [ 2 ] The Claimant (DOM) submits that it completed the contracted work but the Huffs breached the house contract by failing to pay DOM’s outstanding invoice for $20,727.25, including court fees ($186).

DOM seeks a total of $20, 913.25. [ 3 ] The Defendants (Savina Huff and Grant Huff) acknowledge that they have not paid the remaining invoice. They counterclaim that DOM substantially breached their contracts by providing incomplete and delayed work that failed to meet the required industry and

Township of Langley standards. They also counterclaim that DOM was negligent in its work. Although the Huffs are both defendants and counterclaimants, I will refer to them simply as “the Huffs” or “the Counterclaimants” in this decision. [ 4 ] Moreover, the Huffs contend that Mr. Rolleman is also directly and, therefore, personally responsible for DOM’s breach of contracts and negligence.

They have added him to this case as a Third Party Defendant and seek to hold jointly him and severally responsible for any damages awarded in their counterclaim. [ 5 ] The Huffs seek damages for their costs and losses suffered because of DOM’s allegedly deficient work and the remediation work required to correct those deficiencies.

The Huffs originally said that their actual damages amounted to $92,831.92, which included the following: 1. $9,416.40 – representing 80% of their consultant’s costs to investigate and produce a Consult Report, which revealed DOM’s defective work; 2. $65,144.76 – the cost of the contractor’s invoices for labour and materials to remove, replace, and repair DOM’s defective installations; 3. $12,006.76 – the cost of the three furnaces and associated materials ($14,006.74 total, less the $2,000 credit later provided by DOM); these furnaces were initially approved by Mr.

Rolleman, yet found to be incorrectly sized and allegedly unfit for the project, which the Counterclaimants could not return to the supplier; and 4. $6,264.00 – the cost of additional construction insurance for the six-month delay allegedly caused by DOM and Mr. Rolleman’s deficient work, and the need to remediate. [ 6 ] In their written submissions, the Huffs indicated that the total amount was $86,314.23, with a more detailed tally of invoices. Regardless, the Small Claims Court is empowered to award damages up to a maximum of $35,000 only.

Accordingly, the Huffs abandon any claim to damages exceeding $35,000. [ 7 ] DOM reaffirms that it fulfilled both contracts to industry standards. It reasons that the Huffs did not permit it to address remaining work issues, which were not substantial. Moreover, DOM and Mr. Rolleman contend that the Huffs demanded a level of perfection that was both unnecessary and unreasonable. [ 8 ] DOM and Mr. Rolleman reason that, after the Huffs asked Mr. Degenhardt to provide a second opinion of DOM’s work in November 2019 and onwards, the relationship between the parties broke down. Mr.

Degenhardt was the consultant and, later, the contractor who eventually replaced DOM for HVAC work. DOM and Mr. Rolleman argue that the Huffs then went out of their way to find fault with DOM’s performance and, seemingly, began to lay the foundation for a legal claim against DOM / Mr. Rolleman and to terminate the contract. [ 9 ] Both DOM and Mr. Rolleman maintain that Mr. Rolleman is not personally nor legally liable for any alleged breach of contract and / or negligence. ISSUES [ 10 ] Each party claims the other breached the agreement.

Quality of work issues overlap both central issues (breach of contract and negligence). Who must pay whom? In the end, the two overall questions are: a. Should the Huffs be required to pay DOM (fully or in part) for the outstanding invoice? OR b. Should DOM and / or Mr. Rolleman be required to pay the Huffs (fully or in part) for damages resulting from DOM’s alleged breach of contracts or negligent work? [ 11 ] To answer these central questions, I must decide the following issues, given the overlap between the breach of contracts issue and the negligence issue: 1.

What were the terms of the contracts between the parties for the HVAC work in the Huffs’ barn and house? 2. Did DOM complete the work required by the contracts in a proper manner in compliance with industry standards and without deficiencies? 3. If not, did the Huffs require remediation work to correct DOM’s installation and, if so, what costs were incurred? 4. If the Huffs are entitled to damages, is Mr. Rolleman personally liable, jointly or severally, with DOM? EVIDENCE AND CASES [ 12 ] I have received a substantial amount of evidence from documents, photographs, and testimony.

Aside from the co-owner of DOM (Mr. Rolleman) and the Huffs, I have heard from a number of witnesses who worked for DOM; officially inspected DOM’s work; unofficially inspected DOM’s work; made observations; remediated DOM’s work; and provided expert evidence in forced air, ventilation, heating and refrigeration. [ 13 ] Counsel throughout this trial represented DOM and Mr. Rolleman. The Huffs were unrepresented at trial but had counsel for

their final submissions only. I have reviewed the cases provided by counsel, as well as additional relevant cases and reference materials. I have listed all cases and materials as Appendix “A” to this decision. [ 14 ] This case has been protracted, spanning 15 days over close to 1.5 years: November 15, 16, and 17, 2021; July 4, 5, 6, 7, and 12, 2022; January 3, 4, 5, 2023; March 6, 13, 14, and 17, 2023.

I have considered the testimony, documents, submissions and case law in making findings of fact and the required determinations. [ 15 ] The parties canvased a significant amount of details and issues concerning DOM’s work. I do not intend to address each work performance issue raised. Some were more important than others. I intend to deal only with those issues most relevant to my decision. BACKGROUND [ 16 ] In 2019, the Huffs were in the midst of constructing a house and barn on their Langley property.

In the course of their construction, they retained DOM to install heating and cooling systems in both buildings. These systems are also referred to as “HVAC” (Heating, Ventilation, Air Conditioning) systems. Forced air is a term that describes the heating ventilation and air conditioning systems within a building. The installation of ductwork is an essential part of forced air work. [ 17 ] As part of the HVAC systems, DOM agreed to install three gas-fired forced air furnaces: one furnace in the barn and two furnaces in the house. DOM also agreed to install a unit heater in the barn.

The installation and construction of that equipment necessarily involved installing piping and ductwork, amongst other things. [ 18 ] Originally, there were two related agencies for heating, ventilation and air condition trades: The Ventilation and Cooling Industry of British Columbia (“HVCI”) and the Residential Hot Water Heating Association of British Columbia. The two regimes granted certification in the related trades. HVCI provided the Quality First Program training and certification in Ventilation Guidelines and Forced Air Guidelines.

The two regimes combined into one agency, TECA, in 2012. [ 19 ] Thus, the installation of HVAC systems is governed by a variety of industry standards established by: 1. the B.C. Building Code (2018) , B.C. Reg 264/2012 ,

Part 9 - Division B,

Section 9.33 (“ BC Building Code ”); 2. the Canadian Standards Association (the Gas Code ); 3. the Thermal Environmental Comfort Association – Quality First Programs and Guidelines (“TECA”); 4. the Township of Langley municipal bylaws and codes; and 5. the various manufacturer’s specifications, instructions and guidelines (to enable valid warranties). TIMELINE [ 20 ] I make the following findings of fact relating to the timeline of the general events: 1. 21 June 2019 – DOM drafted an estimate for the barn HVAC system ($8,140 plus GST) for the Huffs’ general contractor (Mr. Rob Ratzlaff) of Upstream Developments.

I find that the estimate was destined for the Huffs, through their general contractor, for the HVAC installation in the barn. 2. Between 21 Jun 2019 and 2 October 2019 – The Huffs reviewed the barn estimate. Mr. Rolleman made representations to the Huffs about his experience and qualifications, in supporting DOM’s HVAC estimate. Mr. Rolleman was qualified and certified in ventilation .

He believed he was certified in forced air. 3. 2 October 2019 – DOM issued an invoice for the $2,442 deposit on the barn installations (which was 30% of the total estimated cost) plus $122.10 GST for a total of $2,564.10. 4. 3 Oct 2019 – The Huffs paid the total deposit for the barn installations. 5. 18 October 2019 – DOM issued an invoice for the barn on the basis that the work was 90% complete ($5, 128.20). 6. 22 October 2019 – DOM provided the Huffs, again through their general contractor, with an estimate for the HVAC installation in the house ($35, 100 + $860.00). 7. 22 October 2019 – DOM issued an invoice for the $8,775 deposit on the house installation (which was 25% of the total estimated cost) plus $438.75 GST, which totalled $9, 213.75. 8. 29 Oct 2019 – The Huffs paid the total deposit for the house installations. 9. 29 October 2019 - The Huffs paid $5,128.20 on the remaining amount for the barn invoice.

I remain unclear whether this payment cleared or was reversed by the Huffs. The parties referenced a legal proceeding involved the VISA credit card company and reversed payments to DOM. Regardless, DOM stated that their Claim relates only to the house payment. 10. 4 November 2019 – The Huffs were offered furnaces by Ecco Supply, which they purchased after consulting with Mr. Rolleman. I accept that Mr. Rolleman approved the use of those appliances for their HVAC installations, for the reasons discussed later in this decision.

11. November / December 2019 – DOM installed the furnaces, coils, and ductwork. Their sub-contractor, Rick Taurond, conducted the work. 12. November / December 2019 – The Huffs became concerned about the installations and incomplete work. They consulted Mike Degenhardt, one of their other tradespersons . Mr. Degenhardt is qualified and certified in the various aspects of HVAC systems . Amongst other things, they learned that DOM had not completed a “Quality First Heat Loss and Gain Program Report (Room by Room Input Data)” and corresponding calculations.

Such calculations determine the heating requirements and appropriate size of furnaces required before a contractor installs any furnaces. I will now refer to this type of report as the “Heat Report” or “Heat Loss/Gain Report”. 13. 08 December 2019 – DOM commissioned Heat Report #1 and calculations for the house, room by room. It had to be corrected. I accept Ms. Huff’s evidence that this first report incorrectly grouped the basement and main floor together, and separated out the upper floor zones. 14. 09 December 2019 - DOM issued an invoice for the house, on the basis that the work was 85% complete.

I note that the Huffs appear to have received an invoice dated 9 December 2019 in which DOM asserted that the work was 90% complete. More confusing, Mr. Rolleman testified in direct examination that the work was 85% by that date whereas he lowered that percentage to 80% in cross- examination.

He also claimed to have never seen the invoice which claimed 90% was completed. 15. 12 and / or 17 December 2019 – DOM provided a more fully completed Heat Report #2 (house) to the Huffs, which corrected the errors in Heat Report #1 (house). 16. 18 December 2019 – DOM provided the completed Heat Report (barn) to the Huffs. 17. By January 2020 - The parties were now aware that the newly installed furnaces were oversized for the requirements of the house and barn, based on the Heat Reports. Mr. Rolleman assumed responsibility for the oversized furnaces issue.

The installed furnaces had to be uninstalled and replaced. Further problems arose and the relationship between the parties degraded further. DOM attempted to deal with some of the issues. Mr. Degenhardt also asked Mike Taylor (refrigeration expert) to assess the cooling line set and system installations, due to Mr. Degenhardt’s concerns about the work. 18. 17 January 2020 – Ms. Huff asked Mr. Rolleman to provide his duct design and a copy of his TECA certification. 19. 30 January 2020 – Mr. Rolleman provided his duct design to the Huffs. 20. 6 February 2020 – Mr. Rolleman completed the ventilation checklist. 21.

March 2020 - three official municipal inspections failed a variety of the trades work, including the HVAC work. The Township of Langley Inspector, Jason Stevens , discovered that Mr. Rolleman was not certified by TECA in forced air. Attempts to certify DOM’s work through a third party failed. Efforts were made to have DOM correct deficiencies and complete the work: • Mr.

Rolleman informed the Huffs, after the first failed inspection, that DOM’s work was complete and satisfied the necessary industry standards. • David Hills (an official with TECA and ventilation expert) inspected the site’s ventilation, and subsequently sent Mr. Rolleman a warning letter about incorrect details in his required ventilation documents. • David Schoenfeld (employee of Corona Gas and certified in forced air) inspected DOM’s duct design on site for approximately 2.5 hours. Mr. Schoenfeld instructed a co-worker (who had not attended the site) to certify Mr. Rolleman’s duct design / forced air work.

This co-worker, Mr. Charanjit Bhamra certified the work. • Steve Jollimore (an instructor with TECA and forced air expert) inspected the site over two days for approximately six to seven hours (total) with Mr. Degenhardt to assess the quality of DOM’s work. • Mr. Jollimore contacted Mr. Bhamra to discuss issues with the forced air work. Mr. Bhamra withdrew his forced air certification of DOM’s work. • Mr. Degenhardt provided the Huffs with a consultation report on DOM’s HVAC, furnace installations, and other issues. • Mr.

Rolleman identified approximately 14 other tasks requiring completion. 22. 13 April 2020 – DOM re-issued the 9 December 2019 invoice for $20,727.25. This was the last invoice issued. The amount outstanding, in the end, included the cost for obtaining gas permits ($585.00) and subtracting the cost of one of the original furnaces and coil paid for by the Huffs ($2,000), which DOM retained. 23. 15 April 2020 – the Huffs terminated their agreement and contract with DOM. GENERAL LEGAL PRINCIPLE(S) [ 21 ] An underlying principle of any contract law is good faith performance of the contract.

Parties to a contact have a duty to act honestly when performing their contractual obligations. As a result, the parties are obliged to act reasonably in their dealings with each

other: Bhasin v. Hrynew , 2014 SCC 71 at para. 63 . Standard of Proof [ 22 ] DOM (as the Claimant) and the Huffs (as the Counterclaimants) must prove their case on a balance of probabilities. I must be satisfied that the existence of the proposed fact is “more likely than not”. The fact’s existence may arise directly, impliedly, or by inference from the evidence. There must be “sufficiently clear, convincing and cogent” evidence and “there is no objective standard to measure sufficiency ”: F.H. v. McDougall , 2008 SCC 53 at para. 46 .

Witness Reliability and Credibility [ 23 ] I am required to assess the reliability and credibility of any evidence. When assessing reliability, I must consider whether the witness or other evidence is able to offer accurate information.

When evaluating credibility, I must determine whether and to what extent the witness or other evidence is providing truthful information. [ 24 ] In matters of credibility, reliability or conflicting evidence, I am required to assess the evidence in order to determine what weight, if any, can be attributed to that particular evidence. [ 25 ] I am permitted to accept or reject some or all of any witness’s evidence. [ 26 ] Factors for this assessment may include, but is not limited to, 1. the quality of the witness’s memory, 2. his or her ability to perceive and recall, 3. the ability of the witness to communicate his or her observation(s), 4. motivation (or absence thereof) to fabricate, 5. the tendency to embellish or exaggerate, 6. demeanour, or 7. any internal or external inconsistencies in the witness’s evidence. [ 27 ] I must keep in mind that even an honest witness may make errors in their evidence or recollection, or may appear nervous or uncertain due to reasons unrelated to their honesty while testifying .

WHAT WERE THE TERMS OF THE CONTRACTS? GENERALLY [ 28 ] I find that the parties entered into two general agreements:

a) the barn contract; and,

b) the house contract. I also find that the agreements between the parties reflected the terms of the two Quotations provided by DOM to the Huffs, after discussions between the parties about the HVAC work. Moreover, there are also implied terms that apply to each contract arising from discussions between the parties, evolving circumstances, and industry standards.

SPECIFICALLY Initial Quotations and Additional Implied Terms [ 29 ] I find that estimates or “Quotation” documents provided by DOM to the Huffs represent, in a very basic form, the initial terms of the agreement between the parties. [ 30 ] The Quotations contained similar template representations regarding DOM’s expertise, the quality of materials DOM uses for installations, and their work quality. Both the barn and the house Quotations describe DOM as “Your mechanical, HVAC, and geothermal specialist”.

In each estimate, DOM stipulates that the quote is for the Huffs’ address “using the best equipment and workmanship on the market today”. [ 31 ] The first estimate specifically references the “quality first standards”. That term, “quality first standards” is associated with the Quality First Program, which established the standards and course programs required for HVAC contractors.

The Quality First Program slate for HVAC was previously taught by the HVCI (pre-cursor to TECA) and is currently provided by TECA. [ 32 ] Undoubtedly, most customers view such sweeping generalizations with some latitude, as a form of advertising and what the law calls “puffery”. Although these representations were template, they are not entirely meaningless. [ 33 ] TECA sets the industry standards for the HVAC profession.

TECA Forced Air Guidelines clearly require “best practices”, meaning that the installation will result in the highest system efficiencies for the equipment installed in order to lead to the greatest long- term retention of system efficiency. Both Mr. Jollimore and Mr. Degenhardt testified about this standard. I accept that DOM and Mr. Rolleman were required to engage in “best practices”.

[ 34 ] In other words, Mr. Rolleman’s representations (regarding his experience and expertise) to the Huffs prior to the parties entering into the agreements, as well as DOM’s representations on their Quotations, raises the inference that DOM would produce HVAC installation systems that were more than simply “good enough”, and beyond merely satisfying the bare minimum. Impliedly, the representations of DOM and Mr.

Rolleman suggested that the work and workers would conform to industry and regulatory (TECA) Quality First standards. [ 35 ] I find that these representations reasonably imply, on their face and as understood by the Huffs, that: a. DOM employs persons with expertise in mechanical, HVAC and geothermal work; b. DOM will use equipment that reasonably meets the needs of the structure and maximizes system efficiency in the long-term; and c.

DOM’s tradespersons will demonstrate a reasonable and above average quality in their work. [ 36 ] The Claimant argues that the representation about using the “best equipment” applies only to those materials supplied by DOM; it cannot apply to materials purchased by others. To some extent, this is correct. Nonetheless, DOM held itself out as the expert or specialist in HVAC systems. The Huffs were not. [ 37 ] Impliedly, I find that the agreement only refers to the Huffs providing the furnaces (and no other equipment).

I also find that the agreement, logically required DOM to ensure that the equipment contemplated for purchase was reasonably suitable for the Huffs’ HVAC system and heating needs for the barn and house. [ 38 ] Still, the Quotations also refer to a high quality of workmanship. I agree with the Counterclaimants that, if a company holds itself out as an expert in the area of that trade, it is reasonable to conclude that they will demonstrate sufficient knowledge to know industry standards and comply with statutory, regulatory and industry (i.e. TECA) guidelines, as well as the manufacturers’ guidelines.

I also agree that completing work under a contract in a “good and workmanlike manner” rationally includes following industry standards, building codes, and manufacturers’ guidelines. The Barn [ 39 ] The barn had two levels: an upper level and a lower level.

The barn estimate ($8,140 plus GST) listed the following for a “Standard heating and cooling system”: 1. to supply and install ducting for a 60,000 btu furnace supplied by others; 2. hang and vent unit heater in lower barn; 3. all ducting and piping to the quality first standards; 4. supply of bath exhaust fans; 5. programmable T-stat; and 6. line set for future (i.e. a coolant line set for a future air conditioner). [ 40 ] Essentially, the Barn Contract required DOM to install a 60,000 btu furnace purchased by the Huffs and a unit heater in the barn.

It also required DOM to supply and install the associated equipment for the heating, venting, and future air conditioning of the barn: all ducting and piping, bathroom exhaust fans, a programmable thermostat, and a line set for a future cooling system (air conditioning).

The House [ 41 ] The house estimate ($35,100 plus GST) listed the following for a “Standard heating and cooling system”: 1. to supply and install all ductwork; 2. for ductwork and piping from a separate [word omitted ] in the attic [Note: given the trial evidence, it is clear that this term refers to a furnace in the attic]; 3. for ductwork and piping for a “2 zone” system from a furnace on the lower floor; 4. two zone system; 5. supply of all quiet bath exhaust fans; 6. line sets for both cooling system [ sic ]; 7. commissioning of both systems; and 8. programmable T-stats. [ 42 ] The house quote included an additional item: To supply and install an “Integrated HRV system” for $860 plus GST.

The house quote stipulated a 25% deposit and “% draws upon partial completion”. [ 43 ] In other words, the House Contract required DOM to install two furnaces purchased by the Huffs (one on the lower floor and one

in the attic); the necessary piping and components for a future air conditioning unit; and an Integrated Heat- Recovery Ventilator system(which provides and circulates fresh air throughout the house). [44] DOM was responsible for supplying and installing the associated equipment: all ducting and piping, bathroom exhaust fans, linesets for two cooling systems, and programmable thermostats.

Moreover, DOM was required to establish a two-zone heating system fromthe lower floor furnace and commission both systems. [45] For both the barn and house, the ducting, the contractor had to insulate the ventilation and piping at some point. Did the Essential Terms include Timeliness or Deadlines? [46] Whether deadlines formed a part of the contract terms may emerge, expressly or by implication, from the contracts themselves. Ifthe contract between the parties has no particular deadline, I may infer (from the contract and the facts) that the work was to beperformed within a “reasonable time”: Boxer v.

Norvan Properties Ltd., (1988), 25 B.C.L.R. (3d) 231 (BCCA), citing Barrick et. al. v.Clark, (SCC), [1950] 4 D.L.R. 529 (S.C.C.). What constitutes a “reasonable time” will depend on the nature andcharacter of the obligations, as well as the normal or usual course of business related to those obligations. [47] Failure to meet deadlines or causing delays may have consequences. Nonetheless, it is self-evident that the ability of a contractorto complete work on time may be impacted by factors outside the contractor’s control (such as the work of other contractors, forexample).

Notwithstanding any delay, the courts have recognized that some types of contracting work attaches structures or devices tothe other party’s property, to the latter’s benefit. The courts have exercised caution in assessing whether a “time is of the essence”

interpretation arises from the contract or agreement for these reasons: Hudson’s Building and Engineering Contracts, 11th ed. (London:Sweet & Maxwell, 1995) vol. II at p. 1107. [48] Accordingly, I must balance a number of factors: 1. Whether timeliness or a deadline formed (directly or by implication) an essential part of the contract obligation or purportedagreement; 2.

If no particular deadline or timeframe arises from the contract or agreement, the contract and facts may permit me to conclude thatthe work was to be completed within a “reasonable time”. [49] In this case, the written estimates are silent on whether a deadline was established. From DOM’s perspective, the Barn workappears to have occurred between 3 October (when the Huffs paid the deposit) and 18 October 2019 (when DOM issued its invoice for90% completion). By DOM’s estimates, most of the 2019 barn work appears to have taken approximately two to 2.5 weeks.

The initial2019 HVAC work on the house appears to have occurred between 29 October 2019 (when the Huffs paid the deposit) and 9 December2019 (when DOM issued its invoice for 85% completion). Again by DOM’s work history, most of the work on the house appears to havetaken approximately 6 weeks. [50] After the Huffs and others pointed out deficiencies, beginning in November / December 2019, DOM says it sought to correct theissues between January 2020 and April 2020, but was not permitted on site by late March or early April 2020.

It also argues that theHuffs called for Township of Langley inspections before DOM had completed its work. The relevant inspections occurred on 3 March2020, 18 March 2020, and 23 March 2020. For reasons explained later in this decision, I find that the first inspection was not called tooearly. DOM had two months to replace the furnaces from January 2020 until the first inspection. [51] I conclude that the only real deadlines that actually existed were the Township of Langley inspections, which were called toinspect a number of trades on the project, not just the HVAC work.

Although the HVAC work was assessed at various earlier stages forvarious reasons, the municipal framing inspection was required before the project could move forward to the next substantialconstruction stage. [52] I find that the agreement between the parties implicitly required DOM to complete the HVAC installation within a reasonabletime and certainly before the framing inspection deadline, as DOM knew that the objective was to pass the municipal inspection.

DID DOM COMPLETE THE WORK PROPERLY ANDWITHOUT DEFICIENCIES? [53] The first main issue in this case is whether DOM completed the work required by the contracts in a proper manner that compliedwith industry standards and without deficiencies. If not, then I may find that DOM breached the barn and house contracts and / or wasnegligent. [54] The Claimant concedes that there were some deficiencies and incomplete work, which it intended to address when the Huffsprevented its return to the site. DOM maintains that, when they found out that certain procedures and licensing were required, it tooksteps to remedy them.

DOM maintains that it completed most of the required work, addressed some issues, and only limited issuesremained (which they offered to address) at the time their contract was terminated. [55] The Huffs dispute that DOM performed all the required work stipulated in the contract, particularly when DOM’s errors requiredre-installation of appliances and related equipment. The Huffs maintain that work cannot be considered completed if it was broadlydeficient and required fixing, most of which remained incomplete or unaddressed by early April 2020. Moreover, the Huffs emphasizethat the discovery of Mr.

Rolleman’s lack of forced air certification rendered DOM unable to perform the work required by the contracts. [56] I have tried to discern what work DOM completed without any issues. I then considered what work DOM did not complete or

what work it completed but which was deficient and required fixing. The latter two are difficult to separate. I have also assessed Mr. Degenhardt’s evidence concerning deficiencies he identified while remediating DOM’s work, after DOM was terminated. The homeowner is generally entitled to justify contract termination based on deficiencies in the contractor’s work, even if the contractor was unaware of those deficiencies at the time of termination: Out West Windows v. Tilley , 2014 BCPC 296 at para. 23 .

WORK COMPLETED [ 57 ] I have reminded myself that the work was in the “rough in” stage by December 2019 and by the time the first Township of Langley inspection occurred. Based on the testimony of Mr. Taylor (ventilation expert), I accept that the term “rough in” means that the contractor is installing equipment and components that cannot be installed at later stages of construction after other work is done (e.g. after the walls are closed with drywall). In this case, Mr. Taurond (DOM sub-contractor) described his “rough in” tasks as installing the duct work, and the supply and return air.

He was supposed to install the furnaces, as well. Based on all the evidence, including all of the necessary work before any installations, I accept that HVAC “rough in” requires: • the completion of system designs, • the completion of various calculations, • the purchase or supply of the relevant equipment and associated components, and then • the installation of that equipment and associated components.

The “rough in” stage occurs before the drywall and other work can be done. [ 58 ] Although some witnesses testified that “rough in” does not include the insulation of the ductwork, I find that the municipal framing inspection still required insulation to be completed before the framing inspection could succeed. The issue of whether DOM’s ductwork could have been insulated in the first place and whether it should have been insulated before the municipal framing inspection arose more than once in these proceedings. I will discuss the timing of insulation later in this decision. [ 59 ] DOM and Mr.

Rolleman argue that DOM had substantially completed the two contracts before early December 2019, based on the testimony of Mr. Rolleman and one of DOM’s sub-contractor (Rick Taurond). They submit that substantial completion included the “rough in” process of installing all ductwork and return air equipment , before the oversized furnaces issue arose: 1. Design of the ductwork (house and barn); 2. All initial furnaces and associated coils installed (house and barn); 3. Heating unit installed (barn); 4. Piping and ductwork installed (house and barn); 5.

Two-zone system 90% complete with DOM needing to install bathroom fans (house); and 6. Refrigeration (i.e. cooling system) line sets in the attic installed (house). [ 60 ] I found Mr. Taurond’s evidence to be of limited assistance regarding what work was complete and incomplete by November or December 2019, when he left the project. In his testimony, he was confused about when or whether he installed two furnaces somewhere, before he left the project. He also testified that there were no defects in his work.

Subsequent inspections and experts, particularly regarding how the ductwork was installed his evidence, contradict Mr. Taurond’s evidence on this point. [ 61 ] From Mr. Taurond’s and DOM’s perspective, the following was incomplete before DOM’s 09 December 2019 invoice was issued: 1. Installation of the bathroom fans (house basement); 2. Mr. Taurond could not recall installing the line sets (house basement); 3. Completion of two-zone system; 4. Installing PVC for furnaces’ exhaust (house and barn); and 5.

No installation of wiring associated to ductwork (house and barn). [ 62 ] The Huffs maintain that the work under the Barn and House contracts was not “substantially complete” by December 2019 nor April 2020, contrary to the house and barn invoices issued by DOM in October 2019, December 2019 and April 2020. They provide many examples. The most significant examples involve the installation of incorrectly sized furnaces and proper re-installation of the new furnaces, plus ductwork that had to be removed and replaced.

Ultimately, the Huffs argue that DOM breached the contract by failing to complete the work properly and also completed the work in a professionally negligent manner, in general and specific ways. THE CENTRAL WITNESSES [ 63 ] The conflict in this case reveals the different visions of what constitutes competent HVAC work. The primary conflict is between Mr. Rolleman’s view and Mr. Degenhardt’s view.

[ 64 ] Mr. Rolleman’s view is based on his extensive experience, knowledge and instincts honed over 30 years. He was comfortable with his professional qualifications and certifications. He relied on past acceptable practices, including his modifications to required manufacturers’ specifications to accommodate the situation of his current project. [ 65 ] The Huffs’ view is based on the more stringent view of Mr. Degenhardt and the experts: Mr. Jollimore (forced air); Mr. Hill (ventilation), Mr. Taylor (refrigeration) and Mr. Stevens (Langley Township framing inspector).

These experts extensively relied upon industry standards and manufacturers’ specifications. They emphasized that the HVAC industry was largely unregulated until the past decade or so. They focused on the need to standardize and elevate the standard of work to ensure efficiency, comfort and safety. [ 66 ] I have reviewed the witness evidence in conjunction with the large number of exhibits in this case. Given the central tension between the competing quality and reasonable standards of work, I will briefly address my general assessment of the central witnesses: Mr. Rolleman, the Huffs, and Mr. Degenhardt.

Chuck Rolleman [ 67 ] I accept that Mr. Rolleman has been working in the HVAC industry for over 30 years. By 2019, he was a 20 % co-owner of DOM. He has worked on a number of different HVAC appliance brands including those used during the Huffs’ project. He testified that his main role was to supervise his employees and / or sub-contractors. He also stated that he would address any issues that arose from their work. I was not asked to qualify Mr. Rolleman as an expert in these proceedings. [ 68 ] Mr.

Rolleman was initially certified in ventilation and in forced air under the auspices of the Quality First Program in 1992 or 1995. As explained earlier, TECA did not exist at that time. [ 69 ] He testified that DOM incurred several costs on the Huffs’ project. Invoices were provided to the court for his sub-contractor (Mr. Taurond); specialized venting for the barn unit heater; (custom) sheet metal; piping; elbows; screws; ductwork; refrigeration items such as the proper line sets; heat loss and heat gain calculations report; and other items required to complete the work. [ 70 ] Mr.

Rolleman approached the Huffs’ HVAC system based on his previous practices and experience on what he believed worked and delivered the required HVAC systems. His view, from experience, is that work can be competent but does not need to be perfect. Some of the manufacturers’ specifications, in his view, were unnecessary or did not work. He made adjustments for the particular needs of the relevant project. [ 71 ] Mr. Rolleman generally appeared amicable and reasonable during his direct testimony. His memory was vague on many events.

I am less concerned about his inability to recall dates or the chronology of various events, given the passage of time and numerous events that occurred during the events before the court. His work did not involve the same type of record-keeping used by the Huffs and Mr. Degenhardt. However, when presented with documented communications, he sometimes could not recall why he wrote or signed various assurances or statements, which were later contradicted in other communications and his testimony. [ 72 ] He conceded some problems but minimized many others during his entire evidence.

His explanations for certain errors downplayed their significance (e.g. oversized furnace issue, the need to prepare the F280 Heat Loss / Gain Report, whether manufacturers’ specifications should always be complied with, etc.). He often portrayed himself and DOM as offering to do things when, in fact, it was the Huffs that insisted on certain things. For example, he testified that he “offered” the Huffs a Heat Loss / Gain Report. In fact, it was the Huffs who began insisting that he prepare one. [ 73 ] He also minimized the friction between him and Mr.

Degenhardt, when he clearly resented the younger and less experienced contractor challenging his professionalism and expertise. His respect for Mr. Jollimore was evident. However, he did not seem to grasp that the issues identified by Mr. Jollimore and others were significant and should not have occurred in the first place. [ 74 ] I find that Mr. Rolleman downplayed the Huffs’ concerns about the quality of his work and DOM’s work. I note the argument of DOM and Mr. Rolleman that the Huffs terminated them and had Mr. Degenhardt re-do the work so the work would be completed in the manner sought by the Huffs.

After a certain point, the quality of the work was questionable (at best) and lacking competence (at worst), even on the assessment of the inspectors and Mr. Jollimore. Mr. Rolleman acknowledged the issues raised by Mr. Jollimore but only some of the issues raised by the other parties, including the Huffs. [ 75 ] I will deal with other aspects of Mr. Rolleman’s evidence later in this decision. The Huffs [ 76 ] Grant Huff had much less involvement with DOM and the subsequent fall out over its work. He is a partner in a company that distributes supplies and commissions electronic speed controls for equipment.

That equipment is used in commercial construction and mining applications, including in the heating and ventilation industry. [ 77 ] Neither the Claimant nor the Third Party Defendant challenged Mr. Huff’s evidence much. They intimated that he may have had some expertise in HVAC systems, which was qualified by Mr. Huff as being limited to supplying controls for commercial (not residential) HVAC systems. They also suggested that Mr. Huff was hesitant to bring Mr. Degenhardt into their residential project but would not disclose the reason.

After considering the whole of his evidence, I do not find any substantive challenge to it by DOM / Mr. Rolleman. While Mr. Huff was largely not involved in the HVAC installation, he did provide some useful evidence. [ 78 ] Savina Huff dealt primarily with the contractors during the barn and house construction. DOM and Mr. Rolleman strongly challenged Ms. Huff’s extensive evidence during the trial, including how her perspective may have been shaped by Mr. Degenhardt’s influence. They characterize her evidence as self-serving and argue that little to no weight should be placed on it. [ 79 ] I accept that Ms.

Huff was very emphatic and determined to demonstrate the alleged problems caused by the Claimant and Mr.

Rolleman. I approached her evidence with some caution, as her vigour and antipathy towards DOM / Mr. Rolleman sometimes overtook her attention to details and accuracy in an unfamiliar area (HVAC systems), which she may not have fully understood. Non-Disclosure Issue [ 80 ] I have considered the Huffs’ failure to disclose communications between Ms. Huff and Mr. Degenhardt, until their existence was revealed after cross-examination was concluded. It is concerning. It caused a further delay in trial proceedings and required Mr. Degenhardt’s return several months later for further, re-opened cross-examination. Ms.

Huff’s cross-examination had to be re-opened months later, as well. [ 81 ] I am cognizant that the Huffs were unrepresented by legal counsel in court during the evidentiary portion of the trial. While I am aware that they were receiving legal advice (to some unknown extent) in the background, it was apparent that they did not understand the mechanics of presenting evidence nor disclosure. While I am displeased that the Huffs did not disclose Mr. Degenhardt’s

summary of hours and their communications to the opposing parties prior to trial, such lack of timely disclosure is fairly common in Small Claims matters with unrepresented parties. [ 82 ] I attribute fault to the Huffs for this lack of disclosure at the pre-trial phase. I cannot say that they deliberately attempted to conceal evidence. It was Ms. Huff’s own suggestion and reference to those communications that brought them to DOM’s and Mr. Rolleman’s attention, albeit after the cross-examination of Mr. Degenhardt demonstrated the gaps in his memory.

After the cross- examination ended, she suggested that I permit Mr. Degenhardt to review those communications. Nonetheless, it was only fair to the Claimant and Mr. Rolleman that they receive copies of the disclosure and further cross-examine both Mr. Degenhardt and Ms. Huff. [ 83 ] After careful consideration, I have decided to give the benefit of the doubt to the Counterclaimants. They demonstrated care and intention when trying to comply with court procedures throughout the trial with which they were unfamiliar. I infer that Ms.

Huff would not have raised the subject of these communications herself, if their intention was to conceal the communications. [ 84 ] Nonetheless, it was their decision to proceed without counsel at trial. Given that they had a lawyer in the background, it was incumbent on them to ensure they had complied with any court orders concerning disclosure of relevant materials. The effect of this late, mid-trial disclosure will be reflected as a penalty in any damages I award. Timing of Decision to Terminate DOM’s Contracts [ 85 ] More specifically, DOM and Mr.

Rolleman argue that this new disclosure demonstrated a significant contradiction by Ms. Huff and exemplified a running theme between all parties by early 2020: Ms. Huff’s determination to fire DOM and Mr. Rolleman at a much earlier stage than she was prepared to admit while purposively finding fault in minor or non-existent discrepancies. [ 86 ] Ms. Huff initially testified that she had decided to terminate DOM and Mr. Rolleman at approximately 18 or 19 March 2020, when she learned that Mr. Rolleman did not have the proper certifications.

She believed he could not work on her project further. [ 87 ] In contrast, her January 24, 2020 communication with Mr. Degenhardt referred to Mr. Rolleman as being “next on my hit list…”. The context of the communication involved discussion about one contractor (Nick) threatening to charge her more money and another (Grant) being mad because he was fired. Under cross-examination, Ms. Huff denied she was committed to firing DOM before 10 March 2020. She maintained that evidence under further cross-examination. DOM and Mr. Rolleman emphasize that Ms.

Huff was adamant on preserving the 18 or 19 March 2020 date as the point when she decided to fire them, despite the 24 January 2020 communication with Mr. Degenhardt. [ 88 ] On all the evidence, I find that Ms. Huff’s faith in DOM was significantly shaken by January 2020. She made no efforts to hide her frustration with DOM and Mr. Rolleman. Her exasperation was understandable. Accordingly, I am not prepared to accept her explanation about her 24 January 2020 communication with Mr. Degenhardt in which she stated that Mr.

Rolleman was “next on my hit list”. [ 89 ] From the overwhelming weight of the concerns and frustration she expressed during her testimony about DOM’s and Mr. Rolleman’s work up to that time period, she clearly was thinking about terminating DOM’s contracts when she sent that email. However, it is important to emphasize that the Huffs did not terminate the contracts at that point. In fact, they provided DOM with an additional two months to correct deficiencies. The problem is that the Huffs / Mr.

Degenhardt and DOM disagreed on the nature and extent of the problems. [ 90 ] Given the earlier problems with DOM’s work, I am not troubled by Ms. Huff’s close examination of DOM’s ongoing work nor consulting with Mr. Degenhardt from January 2020 onwards. I am unable to find that she was simply looking for a reason to terminate DOM or gather evidence for a lawsuit. I find that the Huffs simply wanted their project completed properly. Given the concerns raised by the various experts, it would have been imprudent not to closely monitor the work.

Yet, she still did not terminate DOM after the first inspection failed. Mike Degenhardt [ 91 ] Briefly, the essence of the Claimant’s and Mr. Rolleman’s position on Mr. Degenhardt can be summarized as follows. They strenuously argue that the Huffs’ main complaints occurred after they consulted with Mr. Degenhardt in November 2019. They argue that Mr. Degenhardt was inexperienced and not qualified to criticize DOM’s work.

In addition, they allege his involvement in this project and the Huffs was based on self-interest: he acquired more work from the Huffs as he graduated from gas fitter work, onto the plumbing contract work, and ending with the HVAC remediation. From this progression, they argue that I can infer that he cannot be impartial. They contend that, based on his testimony and his own records, his hours worked for the consultation(

s) and report preparation, are inflated.

Sufficient Experience [ 92 ] Mr. Degenhardt was qualified as an expert in forced air heating, ventilation, heating and natural gas. He was certified by TECA in the Quality First Ventilation Guidelines in March 2016; Quality First Forced Air Guidelines in March 2018; and Quality First Heat Loss Heat Gain F280-12 in July 2019. Importantly, the latter course was the first one in which TECA reflected recent changes from the Canadian Standards Association. He obtained is Red Seal in plumbing and his Bonded B-Ticket Gas Fitter & Contractor licence in 2005. [ 93 ] I accept that he is less experienced than Mr.

Rolleman and Mr. Jollimore in HVAC systems. He received HVAC training from Mr. Jollimore, who also continued to mentor him. However, he is not a novice. Mr. Degenhardt had worked in the plumbing, heating, gas and residential HVAC trades for approximately 20 years. He worked on mainly residential plumbing and HVAC projects from 2005 until 2012, completing 30-40 houses per year. He returned from primarily commercial plumbing / HVAC work, back into residential work in 2014 onwards. [ 94 ] DOM and Mr. Rolleman point out that Mr.

Degenhardt completed TECA’s Quality First Ventilation Guidelines program in 2016, after he had already worked on HVAC residential systems for two years. Thus, he had worked in the ventilation trade before being certified by TECA, while criticizing DOM and Mr. Rolleman for doing the same thing. Involvement in Project [ 95 ] I am not troubled about how Mr. Degenhardt became involved in the Huff’s project. [ 96 ] He first met them socially through Mr. Huff’s employee. This is a common way for any and all professionals to network and obtain further work. Ms. Huff then contacted Mr.

Degenhardt on 7 November 2019 because she was concerned about the work quality of the contractors generally. [ 97 ] He attended the site on 7 November, 8 November and 9 November 2019. He detected issues with all the work being performed by the contractors but, notably, an issue relating to the gas work. The Huffs then asked him to consult on the project and address issues on site. He submitted a quote for the gas system work on 24 November 2019.

There is an aspect of the HVAC work that involves gas fitting. [ 98 ] Notably, he advised the Huffs on DOM’s lack of a F280 Heat Loss / Gain Report, oversized furnaces and other issues at that point. He maintains that he was impartially awarded the gas fitting contract in the middle of December 2019. [ 99 ] He testified that, in the course of the gas work, he became concerned when he noticed that DOM had not installed the new furnaces in compliance with the manufacturer’s installation manuals.

His concern increased further when he learned that DOM had not obtained the permit before working on the new furnaces, as required by industry standards. He also became concerned about other issues relating to the HVAC installation. [ 100 ] By 24 January 2020, Ms. Huff fired the plumbing contractor and, at some point afterwards, Mr. Degenhardt assumed the plumbing contract. [ 101 ] Mr. Degenhardt denied that the Huffs hired him for the HVAC work by 24 January 2020, which I fully accept as a fact. The Huffs asked Mr. Degenhardt to consult with them on the project. I accept Mr.

Degenhardt’s description that he was “still consulting, educating the customer on whole steps, and how things should be done, as well as their equipment and options, so they could make educated decisions”. I also agree that his advice on which brand of (new) furnace should be purchased and any duct design he prepared by 25 Feb 2020 fell into his consultant role. Given that Mr. Jollimore and Mr. Stevens (inspector) noticed problems with the duct design, I am unsurprised that Mr.

Degenhardt prepared his own by the end of February 2020 in order to assess potential problems. [ 102 ] I do not entirely accept his denial or minimization of clashes with DOM personnel, if not others, which are referenced in the Degenhardt-Savina Huff communications during January and February 2020. Both the emails and his consultation reports show his concern about DOM’s work and his vehement disagreements with Mr. Rolleman (e.g. his communication with Ms. Huff in which he described Mr. Rolleman as being “…so full of bull shit” dated 23 January 2020.) [ 103 ] I permitted Mr.

Degenhardt to be qualified as an expert. I did so, notwithstanding that he was involved in various aspects of the Huffs’ project before they asked him to take over the HVAC work in April 2023. I agree that his involvement in the Huffs’ project impacts the weight I can attribute to his evidence, not whether he is properly qualified to testify as an expert in the relevant trades. [ 104 ] DOM and Mr. Rolleman opposed his being qualified as a heating and forced air expert due to the recency of his qualifications (2016-2019) when he participated in the Huffs’ project. This is the first time Mr.

Degenhardt has been qualified as an expert witness by a court. When I declared him qualified as an expert, I acknowledged I would exercise caution when assessing Mr. Degenhardt’s evidence due to his transition from a consultant to a contractor (in three trades) on this project. I also indicated that I was attentive to whether issues outside of the HVAC work could be attributed to DOM. [ 105 ] I do not ignore that he financially benefited from his consultations with the Huffs on the HVAC work, notwithstanding his testimony that he was inundated with work and did not need the Huffs’ project.

However, such involvement alone does not prevent his expert testimony. When a proposed expert witness is called to testify, they are not precluded from providing expert evidence only because of earlier work done (for the party adducing the expert evidence) that launched the foundation for the legal action: White Burgess Langille Inman v. Abbott and Haliburton Co ., 2015 SCC 23 at para. 59 .

Moreover, the fact that one professional discovers what they think is or may be a problem with another professionals work does not, on its own, disqualify the professional from offering that opinion as an expert witness: White Burgess at para. 60. Impartiality vs. Objectivity

[ 106 ] DOM and Mr. Rolleman submit that Mr. Degenhardt was not objective about them and their work. [ 107 ] DOM and Mr. Rolleman emphasize Mr. Degenhardt’s testimony that his reports were “impartial but not objective”. He appeared to distinguish between the two concepts but was not actually able to explain why they were different to him. Clearly, I acknowledge that the terms are synonymous. [ 108 ] I have reviewed that evidence carefully. Mr. Degenhardt confirmed his duties to the court, as required by the Supreme Court of Canada decision in White Burgess . This occurred during cross-examination by counsel.

He was asked about his duties to the court as an expert witness. He testified that he understood that he was expected to tell the truth and that he was providing evidence to assist the court, not any of the parties (i.e. not be an advocate for any party). He confirmed that he provided his earlier and ongoing testimony with those understandings. He also testified that he understood that he was required to be impartial. [ 109 ] After he confirmed his duty to be impartial, Mr. Kusuhara asked Mr. Degenhardt whether he drafted his 29 March 2020 report to assist the court. Mr.

Degenhardt testified that, when he wrote that report, he “had no idea that this would be going to court, “ but that he just wrote the facts, his opinion, described what work did not meet the necessary code requirements, and what work was completed improperly. He added that, if he had known that his report would be for court, “it would be written probably exactly the same”. [ 110 ] Mr. Kusuhara then asked Mr. Degenhardt, “So this document was written impartially?”, to which Mr. Degenhardt replied, “It was”. Mr. Kusuhara continued on by asking, “And so this document was also written objectively, is that true?”. Mr.

Degenhardt responded, “no”. When asked to explain, the following exchange occurred: Mr. Degenhardt: Because I was hired to consult to see what was happening on site and what wasn’t happening on site, educate the owners so that they could go to the current contractors and subcontractors and – and let them know what wasn’t right and give them the opportunities to correct their work and bring their work up to code. Mr. Kusuhara: All right. So it was impartial, but it wasn’t objective. Mr. Degenhardt : Correct.

It was impartial, but it wasn’t objective. [ 111 ] The phrase and term, “impartial but not objective” was suggested by counsel for DOM and Mr. Rolleman. Mr. Degenhardt’s explanation above shows his understanding that he was impartial in identifying issues but that he believed he was precluded from being considered objective because the Huffs hired him. I find that he misunderstood the meaning of the term “objective” as it related to his being retained to consult.

Given the totality of his evidence, I infer that he believed his assessment of the physical characteristics of the work done was impartial, meaning his actual observations of the systems and how they were installed. Derogatory Reports [ 112 ] They also take issue with the manner in which his two “consultation reports” dated 29 March 2020 and 10 June 2020 were written. Admittedly, Mr. Degenhardt often used “coarse” language in the reports. [ 113 ] They argue that Mr. Degenhardt variously impugned the characters of DOM and Mr. Rolleman, accusing them of intentionally sabotaging the Huffs’ project.

For example, his June 2020 report stated that: “Chuck Rolleman of Design One Mechanical and his employees had installed everything with the hopes of nobody catching their poor installation which would have left the homeowner cold in the winter and hot in the summer…”. They add that Mr. Degenhardt was evasive when asked if Mr. Rolleman had fixed any of the issues Mr. Degenhardt raised. Mr. Degenhardt ultimately answered, “nothing that I would actually consider a true attempt to try and make things work”. [ 114 ] Clearly, he had harsh words about DOM’s and Mr. Rolleman’s approach and quality of work.

I view his testimony concerning Mr. Rolleman and his employees doing their work “with the hopes of nobody catching their poor installation”, etc. as Mr. Degenhardt finding that their manner of working was careless and without consideration of the consequences for the homeowners. [ 115 ] Mr. Degenhardt was extensively cross-examined during his trial testimony about his derogatory characterizations of DOM’s and Mr. Rolleman’s work. I agree that Mr. Degenhardt’s harsh comments in his reports and testimony were not helpful and lacked professionalism. At times, his comments were unnecessarily derogatory.

In one of many examples, he used the term “horrendous” in his report to describe the work done. I am concerned that these comments may also flow from the unpleasant dynamic that developed after Mr. Degenhardt started pointing out DOM’s errors. Clearly, DOM and Mr. Rolleman did not respect his opinions nor believe him qualified to make them. [ 116 ] I do not find that he made such comments in order to subvert DOM nor Mr. Rolleman and take over the HVAC project. I find that the Huffs were trying to find a way to have their project move forward. They were entitled to obtain a second opinion on DOM’s work.

Despite his derogatory comments, I also find, on all the evidence, that Mr. Degenhardt’s primary concern was that the work was done properly. [ 117 ] I have disregarded any derogatory characterizations by Mr. Degenhardt about DOM, Mr. Rolleman and those who worked for DOM. Rather, I have focused on Mr. Degenhardt’s observations about DOM’s actual installation work. I have considered his explanations about whether the work done (or not done, as the case may be) complied with industry and other standards, as well as impacted the project overall and the homeowners’ safety.

Some, if not many, of his observations were echoed by other professional witnesses in this case, who also observed other issues. Hours of Work [ 118 ] In addition to his lesser experience, the Claimant and Mr. Rolleman contend that Mr. Degenhardt misrepresented or was not forthcoming about the actual amount of work he performed in consultation and later remediation.

[ 119 ] He initially testified that he spent “countless hours” photographing the ductwork, making notes, typing up the report(s), scanning documents and photographs. However, he later revealed that he kept a

summary of his hours for work done before he assumed the HVAC work for the Huffs. DOM and Mr. Rolleman maintain that Mr. Degenhardt’s quote for remediation work was excessive ($50,575). (I will deal with this latter objection later in this decision) [ 120 ] His testimony revealed someone who was very particular about his work. He was thoughtful in his answers, generally, and demonstrated a preference for precision. His concern that the work be done properly so that the HVAC system was safe was reasonable and borne out by his seeking out Mr. Taylor’s and Mr. Jollimore’s counsel due to his concerns.

Memory [ 121 ] I agree that Mr. Degenhardt often did not recall events. I do not find that his lack of memory to be suspect; it is natural after the significant passage of time (three to four years by the time he testified) and his work on other projects during that interim. Overall, I find that he tried to be precise often. [ 122 ] I also agree that he did not answer some questions directly under cross-examination. His irritation about being asked questions about which he had no memory nor interest was clear. However, he also testified over an extended period of time, with several month- long gaps in between.

His weariness was apparent. I do not find that he was being evasive or deliberately non-responsive.

Summary [ 123 ] Based on all the evidence, I find that Mr. Degenhardt’s more recent training and experience permitted him to have a more current and precise knowledge of TECA’s guidelines, as well as other industry standards than Mr. Rolleman. Mr. Degenhardt’s willingness to remain under the mentorship of Mr. Jollimore (and Mr. Jollimore’s acceptance of his mentor role) showed a strong interest in doing his work well and responsibly. He appeared to pursue a robust level of professionalism and knowledge in his work. [ 124 ] I am not prepared to dismiss Mr.

Degenhardt’s evidence as biased nor his involvement with the Huffs as intentionally obstructive of DOM’s ability to conclude the work on the contracts. DOM and Mr. Rolleman have essentially accused him of subverting and undermining their work and expertise by demanding a level of perfection that is not required. Thus, they argue, the Huffs demanded a similar level of perfectionism that was not required. While I find that Mr. Degenhardt’s standards were more exacting than DOM’s and Mr. Rolleman’s, I find Mr.

Degenhardt’s approach to be reasonable and more in line with TECA requirements than the approach taken by Mr. Rolleman. Mr. Degenhardt’s approach and standards showed a greater concern for the best interests of the homeowners. [ 125 ] If Mr. Degenhardt’s evidence was the only evidence of deficiencies, his evolving role and views on DOM / Mr. Rolleman might raise some concerns. However, Mr. Degenhardt was not alone. Other professionals found a number of deficiencies. The Huffs were understandably alarmed by the increasing number of identified deficiencies. I find that Mr.

Degenhardt was entitled to draw the Huffs’ attention to his concerns in November 2019 through April 2020. [ 126 ] I conclude that his consultation work was done impartially, arising from his concerns. I am not prepared to ignore his extensive involvement in this project after DOM’s dismissal. Rather, the weight I can attribute to his evidence is guided by the extent to which I can accept his observations at the specific times he made them, during the project.

SUMMARY OF AREAS FOR EXAMINATION [ 127 ] For the reasons that follow, I find that DOM did not complete the work as required by the Barn Contract nor the House Contract. Further, I find that the work was completed in a manner that fundamentally breached the two contracts and was subject to other deficiencies that, when combined, breached the two contracts and demonstrated negligence. There relevant areas for examination are: 1. Mr. Rolleman’s lack of TECA certification in Forced Air; 2. Heating and furnaces; 3. Ductwork, piping and ventilation; and 4. Refrigeration and Cooling System.

LACK OF TECA CERTIFICATION IN FORCED AIR [ 128 ] Mr. Rolleman acknowledged that he was not certified in forced air by TECA for the entire period DOM performed work on the Huffs’ barn and house. Certification is required for the TOL Heating System Design and its implementation. I agree with the Counterclaimants that Mr. Rolleman’s lack of TECA certification in forced air is a fundamental breach of the contract and also amounts to negligence. [ 129 ] A contractor’s lack of certification necessary to complete the work required by the contract is a fundamental breach that goes to the root of the contract: Nikolic v.

Kivinen , [1993] OJ No. 2679 (ONCJ-GD) at para. 118 . Steve Jollimore’s Evidence [ 130 ] Steve Jollimore was qualified as an expert in forced air, which deals with the movement of heated and cooled air within a premises, in conjunction with the heating and cooling properties of the movement of air. He has the Forced Air Guidelines Certificate and Principles of Moving Air Certificate, amongst others. He testified that if a person has certification under HVCI, it is not valid now,

under TECA. [ 131 ] He is familiar with the process of obtaining various permits relating to forced air and duct systems, as well as the documents required by municipalities for successful inspections. He is also familiar with the contractor HVAC certifications required to obtain permits and have HVAC inspections succeed in the Township of Langley. He testified about the issues of HVAC work, certifications, permits, and Township of Langley inspections. [ 132 ] He has extensive experience (approximately 38 years) in the HVAC industry. He is trained in both residential and commercial work.

He has a Class B gas licence for gas fitting. He instructs related courses required for certification provided by TECA: Forced Air Guidelines, Heat Loss, Heating, Ventilation, Heat Recovery Ventilators, Hydronics, and Principles of Moving Air. He is the co-Chair of the Forced Air Technical Committee. He was also qualified as an expert in Forced Air Systems. Mr. Jollimore has known Mr. Rolleman for many years. Mr. Jollimore also taught Mr. Degenhardt at TECA; he has continued to mentor Mr. Degenhardt. [ 133 ] Mr.

Jollimore stated that the whole industry was “pretty much unregulated for many years and it’s only been in the “last ten, 15 years that municipalities are really wanting certifications”. According to Mr. Jollimore, “The standards have all changed in 2014, as far as the requirement for the heating and cooling in a room and it has been enforced more and more [indiscernible] equipment actually operate properly.” Discovery and Aftermath of Lack of Certification [ 134 ] Mr. Rolleman testified that he had never been required, in 30 years, to produce his forced air certification number.

He stated that whenever the BC Building Code changes, which is every five years, contractors have to upgrade their ventilation certification stamps. He maintained that he was unaware that he had to upgrade his forced air certification. [ 135 ] I am unable to accept his evidence that his prior Forced Air Certification (HVCI) had simply expired. Mr. Jollimore contradicted Mr. Rolleman’s evidence, stating that TECA required certification in Forced Air Ventilation under its auspices. Mr. Jollimore also indicated that certification through TECA has been required since approx. 2012. [ 136 ] Mr.

Rolleman did not have TECA Forced Air Ventilation Certification until he took the Forced Air Guidelines course in September 2020, well after DOM’s involvement with the Huffs’ project. Mr. Jollimore was Mr. Rolleman’s instructor for that course. [ 137 ] During this entire installation in both buildings, neither Mr. Rolleman nor any tradespersons employed by DOM had forced air certification. Mr. Rolleman was unable to personally sign and submit the necessary designs and municipal documents. [ 138 ] The lack of certification was detected by Jason Stevens, a building inspector for the Township of Langley.

His role was to ensure general compliance with the B.C. Building Code and other industry codes, regulations and guidelines. [ 139 ] Mr. Rolleman incorrectly submitted the forced air documentation to the Township of Langley using his ventilation stamp (usually used to certify ventilation documents). The Township inspector detected the incorrect stamp, made inquiries and determined that Mr. Rolleman was not certified in Forced Air Ventilation (Township of Langley Inspection, 18 March 2020). [ 140 ] The Township of Langley failed the HVAC work twice after its initial inspection because, in part, Mr.

Rolleman was not certified by TECA in forced air. [ 141 ] Mr. Stevens testified in this trial. The Township of Langley Heating and Design System Certification requires that “All work is to be carried out by qualified personnel holding a current HRAI, TECA or Q-1 st Certification”. Mr. Rolleman insisted that he had a Quality 1 st Certification at the time of the Huffs’ project. However, the Township inspector required a current TECA certification. [ 142 ] I accept Mr. Jollimore’s testimony that it is unlikely that an uncertified tradesperson was able to design a system that complied with the necessary standards.

I find that Mr. Rolleman relied upon his extensive experience. However, even the most experienced professional must seek and accept evolving and current professional standards and guidelines. Third Party Certification [ 143 ] The issue of a third party certifying the work was described by DOM and Mr. Rolleman. Mr. Jollimore testified that a person who is not certified in forced air could design and complete HVAC work if a third party was prepared to certify the design and implementation of that design if the work “met standards” (i.e. place their certification on the paperwork for the municipality, etc.).

The industry seems to allow a third party who did not create the relevant design nor supervise the work to certify the required documents for the municipality. Mr. Rolleman testified that the gas work was performed in this way, as well, throughout the industry. [ 144 ] The inference arising from Mr. Jollimore’s evidence is that Mr. Rolleman could have continued to complete the HVAC project. Given Mr.

Rolleman’s lack of certification, a person qualified and certified in forced air could review, inspect and certify the designs and work, if that person determined that industry standards were satisfied. [ 145 ] This possibility may contradict the Huffs’ contention that, standing alone, Mr. Rolleman’s lack of certification meant DOM could not complete the work or remediate deficiencies. [ 146 ] The problem is that Mr. Rolleman represented both himself, as the principal tradesperson with DOM, and the company itself as experts capable of conducting this work. It was reasonable for the Huffs to presume that Mr.

Rolleman or someone else in DOM was certified to perform and oversee that work. In fact, Mr. Rolleman purported to make the designs himself, although he did not provide those designs to the Huffs until they requested them after problems arose. [ 147 ] In this case, DOM retained Dave Schoenfeld to inspect and perform a third party certification. Mr. Schoenfeld (an employee of

Corona Gas) testified that he inspected DOM’s HVAC system work for approximately 2.5 hours in the presence of Ms. Huff and Mr. Rolleman. [ 148 ] Mr. Schoenfeld detected some deficiencies (which I will review later in this decision) but determined that they would not take long to address. After Mr. Schoenfeld conducted his inspection, he contacted his co-worker in Corona Gas (Charanjit Bhambra) and advised his co-worker that DOM’s forced air work could be certified. Mr. Bhambra prepared the documents and provided the certification. [ 149 ] Subsequently, the Huffs asked Mr.

Jollimore to inspect the HVAC system work. He testified that a proper inspection of the HVAC would take “a long time” given what must be done. He spent considerably longer (six to seven hours in total) and conducted a far more thorough inspection of the HVAC system. As a result of deficiencies he observed (which I will also discuss more thoroughly later in this decision), he contacted Mr. Bhambra to advise him of his observations and recommended that Mr. Bhambra withdraw his documents. Mr.

Bhambra withdrew his certification documents for DOM’s forced air work. [ 150 ] The possibility of a third-party inspection and subsequent certification relies upon a sufficient and reasonable inspection. I cannot find that Mr. Schoenfeld’s 2.5 hour inspection was sufficient for two buildings and extensive work done. Moreover, the practice of Mr. Schoenfeld conducting the actual inspection but then having his company colleague (Mr.

Bhamra), who never attended nor inspected the property, certify the work is extremely troubling. [ 151 ] Regardless of whether this practice has been adopted or tolerated within the industry, this practice is exceedingly problematic if later problems arise, including safety problems. The third party who certified the work is liable. I agree with Mr. Jollimore that it would be dangerous for a third party to do so, particularly in the circumstances of this case. Mr.

Jollimore identified many more significant issues after a more thorough and lengthy inspection. [ 152 ] The chain of accountability is displaced and counterproductive to the objectives of TECA: to ensure safe and efficient systems. As Mr. Jollimore testified: “…if you wanted to do your own heating and you called me to do a design, I could do a design for you and let you use the design. But before I submit the paperwork, I should make sure that what I’m signing off meets standards, because if it doesn’t, I’m going to be responsible for it not meeting the standards”.

He later added: “…if an unqualified person did a design, could someone sign off on it? Yes, you could. But if that design did not meet standards, the person who’s signing off on it would be accepting all of the liability for that.” [ 153 ] This third-party inspection and / or certification risks becoming cursory and inadequate to meet the objectives of certification. Third party after-the-fact visual inspections, in order to certify another company’s work, inevitably faces gaps in the areas that can or cannot be inspected. Here, only certain areas of the duct design were visible for inspection. Mr.

Schoenfeld also acknowledged under cross-examination that he did not visually inspect the top of the work on the attic, which he could not access and where a gas exhaust pipe was placed too close to a fresh air intake pipe. [ 154 ] It is reasonable to expect the tradesperson or someone in their company responsible for designing, conducting the work, or closely supervising the work at each stage to be certified. I acknowledge that it may not always be possible, for a variety of circumstances. In this case, for example, Mr.

Rolleman would or should have been present during the work in the attic and should have been able to access and view the top of the attic throughout the work. His supervision would have enabled him to properly inspect that area and certify the sufficiency of the work – if he had possessed the necessary TECA certification. [ 155 ] Even Mr. Jollimore’s much longer inspection detected many outstanding issues not addressed by Mr. Schoenfeld. However, Mr. Jollimore’s six to seven hours inspection did not entirely address all the outstanding issues, either, as I describe later in this decision.

Consequently, the use of a third party in this case was a last ditch effort to compensate for DOM’s failure to employ a certified tradesperson. The spectre of a third party certifying this work also does not address the totality of the issues that arose before and after invoices were issued and multiple inspections failed. [ 156 ] Regardless, in his testimony, Mr. Rolleman accepted that the Township requirement for “the work to be carried out by” a certified tradesperson meant that the work done on site must be completed by that person.

DOM did not have any other personnel who were certified by TECA in forced air. [ 157 ] In this case, I find that DOM’s failure to employ tradespersons, either Mr. Rolleman or someone else, with the necessary certification did not comply with its purported expertise and its contractual obligations to the Huffs. HEATING AND FURNACES [ 158 ] Three furnaces in total were required, one each for the upper floor (house), basement (house) and barn. The contract stipulates that the Huffs would purchase and / or provide the furnaces. They purchased three furnaces.

Oversized Furnaces [ 159 ] DOM designed the HVAC system for the barn and house. In doing so, Mr. Rolleman conducted a “block load” calculation to determine the heating needs of both premises. [ 160 ] The Huffs dealt with Ecco Heating Products (who sold furnaces) and were recommended a particular type and brand of furnace. I accept that the Mr. Huff consulted Mr. Rolleman on 1 November 2019 about Ecco’s recommendation. Their email exchange

demonstrates that Mr. Huff, in essence, asked Mr. Rolleman to confirm whether the recommended furnace was appropriate for their HVAC system. Mr. Huff sent the specifications of the furnace to Mr. Rolleman. Mr. Rolleman responded on 4 November 2019: “That looks good just make sure that the T-stat for the lower floor can be on a zone system”. [ 161 ] In his testimony and in final submissions, DOM and Mr. Rolleman deny that the furnaces initially ordered by the Huffs were improper. They argue, essentially, that it was

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