Chen v. Xiao, 2024 BCPC 11

Citation: Chen v. Xiao 2024 BCPC 11 Date: 20240129 File No: C19341 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GEN HONG CHEN CLAIMANT AND: YUN FEI XIAO and FAN ZHANG DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: Zongmo Yang Appearing on his own behalf: Yun Fei Xiao Appearing on her own behalf: Fan Zhang Place of Hearing: Port Coquitam , B.C. Date of Hearing: January 15, 16, 18, 19, 2024 Date of Judgment: January 29, 2024 Introduction [ 1 ] This is a claim by Mr.

Gen Hong Chen, also known as Jackie Chen, for payment owing under a renovation contract for rental property located at [omitted for publication], Coquitlam, B.C. (the “Property”)

[2] The Defendant, Mr. Yun Fei Xiao, also known as Christopher Yun Fei Xiao, is the registered owner of the Property. [3] The Defendant, Ms. Fan Zhang, also known as Polly Zhang, is Mr. Xiao’s mother. Her legal name is Lihong Zhang, and shedescribed “Fan Zhang” as her online name. [4] The Defendants have filed a counterclaim, asking for the return of a $20,000 deposit and seeking reimbursement of certainexpenses. [5] Mr. Chen and Ms. Zhang testified through a Mandarin interpreter. There were also email communications between them and Ihave the benefit of English translations for most of these.

Burden of proof [6] As each party has asserted a claim, they must prove their case on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53 atparagraph 49. [7] The decision Vista Leadership Inc. v. Pilon, 2021 BCPC 320 provides a further explanation: [13] What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard of proofapplies only in criminal trials.

In civil trials the party who has the burden of proof on an issue must convince the finder of fact (herebeing the court) that what she or he asserts is more probable than not or to put it another way, that the balance is tipped in his or herfavour. (see F.H. v. McDougall, supra). [8] If I conclude that a party has failed to prove its claim on the balance of probabilities, I will dismiss the claim. The rules of evidence [9] The rules of evidence in Small Claims Court proceedings are more relaxed when compared to, for instance, a Criminal Codeproceeding or a Supreme Court trial.

Section 16 of the Small Claims Act allows the court to consider evidence that is both credible ortrustworthy, and relevant, even though that evidence may not be allowed in other court proceedings. [10] Small Claims Rule 10 (3) to (7) sets out specific requirements for expert evidence. In simple terms, expert evidence is opinionevidence on a matter that is beyond the ordinary experience and knowledge of the trial judge.

The Small Claims Rules state that a partyseeking to rely on the expert evidence must provide the opposing party at least 30 days before trial the written report of the expert ornotice of an intention to call the expert as a witness, along with a statement of the expert’s qualifications. Credibility assessment [11] During this trial, the parties presented me with conflicting evidence and so I must assess the credibility of the witnesses. I refer tothe decision Yung v. Three Good Friends Property Holdings Inc., 2018 BCSC 1963, where the court set out the applicable principles asfollows: III.

CREDIBILITY [40] Credibility is a central issue in this case. The evidence of Mr. Yung and Mr. Wong, on the one hand, and of Mr. Lam, on the otherhand, cannot be reconciled. That evidence goes to the heart of the claims, counterclaims, and third party claims, all of which arise fromthe parties’ divergent accounts of what the joint venture was, who was to do what, and how they were to be compensated. [41] In Absolute Industries Ltd. v. Harris, 2014 BCSC 287, Justice Abrioux summarizes the principles governing credibility as followsat para. 65: 65 In Bradshaw v.

Stenner, 2010 BCSC 1398 (B.C.S.C.) at paras. 186-187, aff’d 2012 BCCA 296 (B.C.C.A.), Madam Justice Dillonprovided a useful

summary of the principles governing the court’s approach to assessing the evidence where there are significantlydifferent versions of events advanced by the parties: • credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness andthe accuracy of the evidence that the witness provides; • the art of assessment involves an examination of various factors such as the ability and opportunity to observe events, the firmness ofmemory, the ability to resist the influence of interest to modify recollection and whether the witness’ evidence harmonizes withindependent evidence that has been accepted; • whether the witness changes his testimony during direct and cross-examination; • whether the testimony seems unreasonable, impossible or unlikely; • whether a witness has a motive to lie; and • the demeanor of a witness generally. 66 Dillon J. also referred to the well-known statement of O’Halloran J.A. in Faryna v.

Chorny, (BC CA), [1952] 2D.L.R. 354 (B.C.C.A.), which is to the effect that ultimately, the validity of the evidence depends on whether it “is consistent with theprobabilities affecting the case as a whole and shown to be in existence at the time”. 67 She concluded at paragraph 187:

[187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followedby an analysis of whether the witness’ story is inherently believable. Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison.

Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB KB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [12] Before I set out my findings about what occurred between the parties, I must discuss my credibility assessment of the parties whowere the only witnesses at trial. [13] Mr. Chen and Ms. Zhang gave their evidence through interpreters and this made my credibility assessment more challenging. Atone stage, I had to excuse Ms. Zhang’s interpreter because she lacked the required skill level. Fortunately, the interpreter assisting Mr.Chen was available to translate Ms.

Zhang’s evidence. [14] Mr. Chen was the first witness. His direct examination was straightforward although details were sparse. Each defendant thencross-examined Mr. Chen. During that questioning, Mr. Chen did not respond to questions on several occasions. At other times, theanswer provided by him suggested that he did not understand the question. For instance, when Mr. Xiao asked Mr. Chen whether anagreement to “fully paint the interior”, included the interior walls, Mr. Chen seemed confused and had difficulty answering the question.The frequency of Mr.

Chen’s inability or refusal to answer questions leads me to question both his credibility and reliability. [15] Ms. Zhang was the second witness. Similar to Mr. Chen, Ms. Zhang frequently failed to respond to questions, preferring insteadto focus on some other event. At times, she was argumentative and insulting. Some of her evidence was exaggerated or defied commonsense. For instance, after Mr. Chen stopped renovations, Ms. Zhang described the condition of the home as ”not liveable” and yet, withonly some minor electrical repairs, the home was rented out to new tenants. Ms.

Zhang’s description of the home was also contradictedby photographs put into evidence by Mr. Xiao, which showed some deficiencies in work but nothing that would render the Propertyunliveable. I find that Ms. Zhang’s evidence was neither reliable nor credible. [16] Mr. Xiao was the third witness. He testified in a straightforward manner and was candid about what he knew and did not know.His evidence was not shaken on cross-examination. I accept Mr. Xiao’s evidence. [17] Given the issues with the evidence of Mr. Chen and Ms.

Zhang, I must rely upon any admissions, any documentary evidence orphotographs, evidence that was corroborated by more than one witness, and Mr. Xiao’s testimony What were the contract terms? [18] Mr. Xiao agreed that Ms. Zhang was permitted to retain someone on his behalf to renovate the Property. Pursuant to thatauthorization, Ms. Zhang contacted Mr. Chen to discuss the renovation of the Property. They toured the Property to allow Mr. Chen toestimate the cost of the renovation, and they agreed upon an all-inclusive price of $40,000. [19] In an email sent to Mr. Chen on March 28, 2022, Ms.

Zhang stated: Hi Hello Jacky Regarding the house renovation project for 1238, reply with the following details. The project includes: 1. Replace the exterior walls with wooden materials, maintain, repair, and paint all. Replace the frieze board at the front entrance. 2. Completely replace the interior baseboards with new ones. Fully paint the interior, plus repair and maintenance, fully replace thepower switches, sockets, and blinds, and fully replace the lighting. 3. Fully replace the upper and lower cabinets in the kitchen. 4.

Replace cabinets, wash basins, faucets, mirrors, lighting, and toilets in three washrooms. Install and repair two wooden doors inside. 5. Fully replace and install two pairs of aluminum alloy glass doors. 6. For the garden outside, cut the grass, level the ground and remove garbage. 7. Fully replace the roof. 8. Fully replace the flooring. Total project costs: cost of materials plus labor cost, CAD40,000 in total. The project must be finished in 6 weeks. If you agree, please confirm by return email. When replying, put down your company address or residential address.

Either is okay.20,000 will be paid before work starts and the remaining 20,000 will be paid after the project is accepted upon inspection. Best regards, Polly Zhang [20] Mr. Chen emailed an acceptance of the terms and provided his address information.

[ 21 ] At the time, there was no indication Mr. Chen was aware that Mr. Xiao owned the Property. [ 22 ] Notwithstanding what was set out in the March 28, 2022 email, Mr. Chen and Ms. Zhang agree that later discussions modified the contract, which was not set out in writing. [ 23 ] Ms. Zhang confirmed that the entire exterior wall did not require replacement, but only the parts with rotten wood. She estimated that 40-50% of the exterior wall required replacement although there is no indication she discussed this with Mr. Chen.

Neither party provided any independent evidence of the extent of wood rot in the exterior walls. [ 24 ] Some of the interior walls in the Property were covered with wood panelling. Ms. Zhang asked Mr. Chen to fill in the small holes found in these walls. She did not require these walls to be painted, although she expected them to be stained. Mr. Chen confirmed this requirement. [ 25 ] Although there was testimony about replacing a washbasin in the laundry room and a fireplace, these were never terms of the contract. [ 26 ] Ms. Zhang provided Mr. Chen with a $20,000 cheque as a deposit.

The cheque was written by Mr. Xiao. Mr. Chen does not read English and he did not realize the cheque was from Mr. Xiao. [ 27 ] On or about March 29, 2022, Mr. Chen returned to the Property to view the laundry room. According to Mr. Chen, the condition of the laundry was such that he asked to increase the contract price by a further $2,000 because of the need for additional work, bringing the total to $42,000. Ms. Zhang was reluctant to agree to this price increase but she confirmed that it was accepted. Despite this, Mr.

Chen did not seek the additional $2,000 when he filed his Notice of Claim , and there has been no request to amend the claim. Who were the contracting parties? [ 28 ] Ms. Zhang had direct communication with Mr. Chen and I am satisfied she is a proper party to the renovation contract. Ms. Zhang need not own the Property to hire Mr. Chen. [ 29 ] Mr. Xiao acknowledged that Ms. Zhang was acting on his behalf when Mr. Chen was hired. In the circumstances, Ms. Zhang acted as an agent on behalf of Mr.

Xiao, binding him to the contract. [ 30 ] The Reply filed by the Defendants also does not dispute that they entered into a contract with Mr. Chen. [ 31 ] Accordingly, Ms. Zhang and Mr. Xiao are parties to the contract with Mr. Chen and they are proper Defendants. Were the contract terms carried out? [ 32 ] Mr. Chen’s evidence was that he completed the contract work, and then on or about May 23, 2022, he and Ms. Zhang went to inspect the property. [ 33 ] Mr. Chen’s evidence about the inspection differed from Ms. Zhang’s version. [ 34 ] Mr.

Chen first said the inspection did not reveal any problems, other than the need to clean the Property. Mr. Chen then told Ms. Zhang “we need to settle the bill.” A discussion about replacing the fireplace followed. Mr. Chen drove Ms. Zhang home, where she presented him with a hat as a gift. Mr. Chen asked about payment, and Ms. Zhang said the money was in her son’s account and she had to wait for his return before she could pay Mr. Chen. A week later, Ms. Zhang contacted Mr. Chen and said the fireplace had to be replaced first or Mr. Chen would not be paid. Mr. Chen sent a text message to Mr.

Xiao to tell him he had to buy the fireplace. Shortly after, Ms. Zhang messaged Mr. Chen to stop harassing her son. Mr. Chen then told Ms. Zhang that he would hire a lawyer if she did not pay him. [ 35 ] Mr. Chen’s evidence changed on cross-examination. He confirmed that on May 24, 2022, he emailed Ms. Zhang to say she owed him $22,000. The email referred to the renovation work not meeting Ms. Zhang’s personal standards. This contradicted Mr. Chen’s evidence that the inspection did not reveal any problems. [ 36 ] Mr. Chen was asked about his filing a builder’s lien against the Property. Mr.

Chen did not know of the lien, although his legal counsel confirmed that his law firm filed a lien against the property on behalf of Mr. Chen. I was not told when the lien was filed. [ 37 ] Ms. Zhang’s evidence was that she became aware of numerous issues during the inspection. In cross-examination, Ms. Zhang said she had “dissatisfaction in my heart” and that upon seeing the job, her only options were to remain speechless or to argue with Mr. Chen. Ms. Zhang said she chose to wait for her son's return. [ 38 ] Ms. Zhang’s evidence was not clear about whether she told Mr.

Chen of any deficiencies during the inspection. However, Mr. Chen’s May 24, 2022 email suggested he was aware that Ms. Zhang was not happy with the work. Given this, I find that Mr. Chen was aware either at the time of the inspection or shortly afterwards that Ms. Zhang did not find the work to be satisfactory. [ 39 ] To force payment, Mr. Chen locked the Property and kept the one key. He left two messages written on wooden boards left at the Property. The gist of the messages was that if the Defendants wanted to sell the Property, they must pay the balance owing, failing which legal proceedings would follow. Mr.

Xiao said he hired a locksmith to unlock the door and regain access to the Property. [ 40 ] At the time of the inspection, Mr. Xiao was in Haida Gwaii. He returned home toward the end of May 2022. [ 41 ] The Defendants allege there were deficiencies in the work. The evidence of deficiencies is found in a set of photographs taken by a property inspector, and another set of photographs taken by Mr. Xiao and his girlfriend.

[ 42 ] The photographs taken by the property inspector were included in a report prepared for a potential homebuyer sometime in June 2023. The photographs included comments by the home inspector expressing an opinion. For instance, one photograph of the roof had the comment “Re using roofing materials is poor practice.” Another photograph of the roof had the comment “Poor workmanship.” [ 43 ] Mr. Xiao confirmed that these were the home inspector’s comments and not his comments. [ 44 ] An opinion about the quality of the construction work requires the evidence of an expert.

The Defendants did not present the photographs as expert evidence and they did not follow the requirements under the Small Claims Rules for submitting expert evidence. As such, I cannot rely on these expressions of opinion from the home inspector. [ 45 ] Despite this, because Mr. Xiao has seen the subject of some of the property inspector’s photographs, I can accept those photographs as evidence of the appearance of the subject of the photograph in approximately June 2023. [ 46 ] The photographs taken by Mr.

Xiao and his girlfriend were from about two weeks after the inspection. [ 47 ] The two sets of photographs show the following:

a) The original colour of the exterior of the Property was blue. Mr. Chen was required to paint it red. Some of the photographs of the exterior of the Property showed a blue tint to the wall. In other photographs, the colour blue is visible. This suggests that the new paint coverage was inadequate.

b) The existing siding of the exterior of the Property consists of vertical panels approximately 10-12 centimetres wide separated by grooves that are only a few centimetres wide. The panels extend from the ground to the roof and this pattern repeats itself throughout the exterior. The contract required Mr. Chen to replace any rotten exterior wood. Mr. Chen placed wood panels over certain sections of the exterior. The wood panels were approximately 20 to 25 centimetres wide and of varying lengths. The replacement panels did not match the existing pattern of the exterior wall. Note that my estimate of the width of the panels is only approximate based on my review of the photographs.

c) Various parts of the ceiling have watermarks from past leaks. These watermarks have not been covered or removed.

d) There are paint drops on the floor.

e) The laundry room has not been painted.

f) A picture of one interior wall showed visible paint strokes.

g) An exterior door was painted along with the doorknob and lockset.

h) An outside electrical box had some overspray of red paint.

i) An exterior wooden door that showed signs of damage was not replaced.

j) Some rotten wood on the exterior walls had not been replaced.

k) Blue paint chips had not been cleaned from the grounds.

l) Interior wood panels had holes repaired with a yellow-coloured filler that did not match the colour of the panels.

m) Garbage was left outside the home.

n) The ground was not flattened and the grass was not cut or weeded. [ 48 ] The photographic evidence is objective proof that there were deficiencies in the work. [ 49 ] Whether the roof was improperly replaced is a matter that requires the evidence of an expert in roof construction. However, the photographs do show the pooling of water on the roof. In my view, expert evidence is not required for me to find that water should not pool on a newly constructed roof. [ 50 ] One photograph confirms that Mr. Chen did not paint the laundry room as required by the contract.

Another photograph shows that the quality of the painting on one wall was poor because paint strokes were visible. [ 51 ] The yellow filler used for the holes in the interior wood panels was unsightly. I agree with Ms. Zhang’s view that at a minimum, Mr. Chen should have used a filler with a colour matching the wood. [ 52 ] Mr. Xiao suggested that Mr. Chen did not stain wooden panels in the Property. Mr. Chen disputed this. Given my assessment of Mr. Chen’s credibility, I accept Mr. Xiao’s suggestion. [ 53 ] Mr. Chen’s repair of certain portions of the exterior wall using mismatching panels is a deficiency.

I find it is reasonable to expect exterior repairs to maintain the existing appearance of the exterior walls. [ 54 ] Mr. Xiao submitted that certain portions of the exterior wall were rotten and required replacement. The photographs did show some split wooden panels but I am uncertain if they are rotten. [ 55 ] Mr. Zhen was required to cut the grass, level the ground and remove garbage. The photographs suggest that either this work did not occur or the work was done poorly.

[56] Mr. Xiao testified that he had seen some of the subjects of the photographs from the property inspector. This included a missinggutter downspout, damaged flashing, and loose wall fasteners. The wall fasteners fixed the downspouts to the wall. Mr. Chen needed toremove or loosen them to do the exterior painting. It appears he did not properly tighten them afterwards. Regarding the missingdownspout, there is no evidence that the downspout was present before the work was done. There is also no evidence of who may havedamaged the flashing although it likely occurred during the roofing. [57] Ms.

Zhang suggested that Mr. Chen’s renovations left the Property in a state that was not liveable. This was an exaggeration.There were deficiencies but there is no evidence the Property was unliveable. [58] The contract stated that the work was to be completed in six weeks. It was done in seven weeks. Mr. Chen said the delay was dueto the weather and the inability to paint exterior walls or replace a roof in the rain. Ms. Zhang confirmed that she knew the weather mightdelay the project. I find that the apparent completion of the work in seven weeks was not a breach of the contract. [59] In

summary, I am satisfied that Mr. Chen has breached the renovation contract due to deficiencies in some of the work or in notdoing other work. Right to make repairs [60] Mr. Chen submitted that the Defendants should have allowed him to make repairs. I summarized the caselaw regarding acontractor’s right to make repairs in the decision Canadian Quality Stucco Ltd. v. Pangli, 2022 BCPC 126, as follows: [124] From these cases, I draw the following principles that apply to any claim or counterclaim against a contractor or builder: 1.

There is a presumption in every construction contract that the contractor or builder is entitled to have a reasonable opportunity tocorrect any deficiencies. 2. This presumption may be rebutted based on the circumstances, including the following

a) The contract expressly or by necessary implication does not give the contractor or builder the right to correct deficiencies;

b) The contract has been validly terminated such that the parties are released from their obligations under the contract;

c) The contractor or builder, has through its words, actions or inaction, elected not to correct the deficiencies;

d) The contractor or builder has fundamentally breached the contract; or

e) The circumstances are such that it would be unreasonable to permit the contractor or builder an opportunity to correct the deficiencies.One such circumstance is if the contractor or builder is unable or unwilling to correct the deficiencies within a reasonable time. 3. If a party with a claim against the contractor or builder improperly prevents the contractor or builder from correcting anydeficiencies, then this may be a breach of that party’s duty to mitigate and adversely affect any claim by that party against the contractoror builder. [61] In a subsequent decision called Stump dba Mainland Fencing v.

Strata Plan NWS611, 2023 BCPC 145, I stated that if there was areasonable basis for a property owner to lose faith in the ability of a contractor to carry out repair work, a contractor would lose the rightto make repairs. [62] In this case, the Defendants have lost faith in the ability of Mr. Chen to carry out the repairs and I find this was reasonable in thecircumstances. At trial, Mr. Chen emphasized that if the Defendants asked him to do repairs, he would. However, there was no evidencehe was willing to do so in May 2022. I find that Mr. Chen did not have a right to make repairs.

A fixed-price contract or a cost-plus contract? [63] The decision Greenhill Properties

(1977) Ltd. v. Sandcastle Recreation Centre Ltd., (BC SC) described a"cost-plus contract" as follows: [102] The concept of a "cost-plus" contract carries with it the assumption that the "plus" portion will only be applied against that whichis an actual cost. [64] The "plus" portion would typically be a percentage mark-up over the actual costs. [65] The Defendants argued that the contract with Mr. Chen is a cost-plus contract whereby the amount payable to Mr. Chen shouldbe determined by the material and labour costs plus some unspecified mark up. They submit that because Mr.

Chen has not disclosed hismaterial and labour costs, I cannot award him any compensation. However, the March 28, 2022 email from Ms. Zhang was clear that thecontract price was $40,000. There is no evidence to suggest otherwise, and so I reject the submission that there was a cost-plus contract. Lost rental income [66] Ms. Zhang suggested that she could have rented the Property for $4,000 a month but she was only able to rent for $3,800 a monthto a tenant who was prepared to make repairs to the Property.

The Counterclaim does not include a claim for rental loss so I need notconsider this. [67] Furthermore, although I have no doubt the Defendants would have liked to receive a higher rent for the Property, they presentedno evidence to show that the Property had a rental value of $4,000. The Defendants did not call any witness to say they would haverented the property for $4,000 a month if there were no deficiencies in the Property. This claim is at best mere speculation.

Locksmith [68] Mr. Chen did not return to the Defendants the only key to the Property in an attempt to force payment. This was improper, andMr. Chen must reimburse the Defendants for the $300 paid to the locksmith to regain entry to the Property. Electrician [69] Mr. Xiao paid $1,120 to an electrician for the following work:

a) Doorbell repair

b) Circuit check

c) Light fixture repair

d) Power On/Off Diagnostics [70] There is no evidence that Mr. Chen caused these electrical problems. As such, I dismiss this claim. Assessment of damages [71] Had Mr. Chen completed all the work without deficiencies, he was entitled to payment of $40,000. I have found though that hedid not complete all the required work. I do not have any expert evidence to indicate the degree of completion of the work, and so I mustestimate it based on the evidence. Accordingly, I find that Mr. Chen completed 75% of the work. Had there been no deficiencies in thatwork, I find that Mr.

Chen would be entitled to 75% of the contract price or $30,000. [72] There were of course deficiencies. I turn then to the Counterclaim of the Defendants. [73] The Counterclaim seeks a refund of the $20,000 deposit paid to Mr. Chen, as well as reimbursement of the locksmith andelectrician invoices. [74] A claim for the refund of a deposit can only be made if the contract with Mr. Chen is rescinded. A rescission of a contract canonly be sought under certain conditions, one of which is an election by the Defendants to no longer be bound by the contract. That is notthe case here as Ms.

Zhang said she wanted the deficiencies corrected, which is an affirmation of the contract. In order words, thecontract was never treated as cancelled. [75] Furthermore, because of the amount of work done by Mr. Chen, the parties cannot be restored to the state that existed before thedeposit was paid. As such, there is no basis to rescind the contract and order the deposit refund. [76] The next question is whether the claim of a refund prevents the Defendants from seeking damages. The first page of theCounterclaim refers to a claim for the return of the deposit.

However, item 14 of the Counterclaim says the Defendants are seekingdamages of $20,000. This reference gives notice to the Claimant that the Defendants are seeking damages. This is also not an issueraised by the Claimant during submissions. Also, the Defendants were not represented by a lawyer and I cannot expect of them theaccuracy in drafting a court document that I would have from a lawyer. In my view, the Defendants are not prevented from seekingdamages for breach of contract. [77] I now turn to the assessment of damages for the deficiencies.

Unfortunately, the Defendants have not provided any evidence ofthe costs to correct the deficiencies. In such a circumstance, I must make a rough estimate. I draw support for this from the decisionQuick Pass Master Tutorial School Ltd. v Zhao, 2022 BCSC 1846, where the court stated: [96] The fact that damages are difficult to assess does not mean that the court should relieve the wrongdoer of the necessity to paythem: Penvidic Contracting Co. Ltd. v. International Nickel Co. of Canada, (SCC), [1976] 1 S.C.R. 267 at 289.

In somecases, the best that can be achieved is a rough estimate as to the amount of damages that have been suffered: Nickel v. Takhar, 2020BCSC 1462at para. 62. The court can and should draw inferences from the evidence as to the probable extent of the loss and determinethe quantum of the loss as best it can. [78] In the decision Lululemon Athletica Canada Inc. v. Campbell, 2022 FC 194 at para. 45, the court had to make a rough estimate ofthe damages caused in a claim for infringing a trademark. [79] I have already described the deficiencies.

Proper exterior repairs are likely the most expensive item, although I am uncertain ofthe extent of any wood rot. Repainting at least portions of the exterior will also be a significant cost. A repair of the roof to preventpooling is also required. [80] The required work in the interior will not be as significant. Some repainting and staining of walls will be needed. [81] My rough estimate of the repair costs is $8,000. [82] Based on this, my calculation of the amount payable is as follows: Payable to Mr. Chen for actual work done $30,000 Less payment received ($20,000) Less repair costs ($8,000)

Less locksmith costs ($300) Balance Payable $1,700 Court fees [ 83 ] There is divided success between the parties. As such, they will each bear responsibility for their court costs. Correction of name [ 84 ] The Notice of Claim names Ms. Zhang as “Fan Zhang.” The Reply provides the name Lihong Zhang. During the trial, Ms. Zhang said her legal name was Lihong Zhang. In the circumstances, for the court proceedings, I will amend her name to “Lihong Zhang, also known as Fan Zhang.” Order [ 85 ] I order as follows: Lihong Zhang, also known as Fan Zhang, and Yun Fei Xiao will pay Gen Hong Chen $1,700.

The remainder of the Counterclaim of Lihong Zhang, also known as Fan Zhang, and Yun Fei Xiao is dismissed. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia