Duncan v. Kent Date:, 2011 BCPC 192

Citation: Duncan v. Kent Date: 20110721 2011 BCPC 0192 File No: 09-20514 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RICHARD SCOTT DUNCAN dba DESIGNS BY RICH CLAIMANT AND: JEFFREY KENT DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Appearing in person: Richard Scott Duncan Appearing in person: Jeffrey Kent Place of Hearing: North Vancouver , B.C.

Date of Hearing: March 10, 2011 Date of Judgment: July 21, 2011 Written submissions completed: April 21, 2011 [ 1 ] The claimant, Richard Scott Duncan, doing business as Designs by Rich, sues the defendant Jeffrey Kent for payment of the outstanding balance on an invoice for a tiling project at Mr. Kent’s residence in Brackendale, B.C. Mr. Kent resists payment on the basis that he has paid all to which Mr. Duncan is entitled, and more. He counterclaims for breach of contract by failing to complete the project, and for the balance owed to him for overpayment. Facts [ 2 ] Mr.

Duncan has been a tile contractor for 27 years. For the last 20 years he has worked in Whistler. He works with developers doing design work, and described himself as having a “vast array” of knowledge. By all accounts he is a superior tile design contractor who works primarily on high end projects in the Whistler area. Mr. Duncan lived in Whistler himself until he moved to Squamish six years ago. [ 3 ] Mr. Duncan and Mr. Kent met in October 2007, at the residence of Lisa Johnson-Stott, formerly Lisa Huber. Mr. Kent lives in New York, but owned a residence in Brackendale which he was renovating. Mr.

Duncan had just finished a tiling project at Ms. Johnson- Stott’s condominium. Mr. Kent admired his work and hired him to work on his property in Brackendale. [ 4 ] It was Mr. Duncan’s evidence that he told Mr. Kent when they met that it would be cheaper for him to hire a tile setter in Brackendale, because he was based in Whistler and would need to pay his employees travel expenses. Mr. Kent denies that there was any discussion about travel costs, and takes the position that Mr. Duncan agreed to do the work for the same price he had charged Ms. Johnson-Stott. He also says he asked Mr.

Duncan for a written quote or estimate on several occasions, but did not receive one. These requests are supported by the emails filed in evidence at the trial.

[ 5 ] After their initial meeting in early 2008, the two spent a few months talking and emailing about the work that Mr. Kent wanted done. They made a trip together to Vancouver to have Mr. Kent select tiles from Mr. Duncan’s supplier. [ 6 ] From Mr. Duncan’s perspective, the project became more detailed than some much larger projects. From the tenor of the email correspondence between the two it is apparent that Mr. Duncan viewed Mr. Kent as a high maintenance client. [ 7 ] It was initially expected that the tiling portion of the project would occur in March, but it was delayed until September. When Mr.

Duncan went to order one of the selected tiles in August, it was no longer available, so Mr. Kent went by himself to another of Mr. Duncan’s suppliers and chose something else, described as Jadish slate. Mr. Duncan said that he did not receive a sample of it, but Mr. Kent said he took it to him personally in Whistler on August 11. During that meeting, Mr. Duncan asked Mr. Kent for a deposit of $12,000, which he provided. Mr. Kent’s recollection of that meeting was clearer, and I accept that he took a sample of the slate to Mr. Duncan then. Mr.

Kent says he asked again at this point for a written estimate and that Mr. Duncan confirmed that he would be charged the same rate as Ms. Johnson-Stott. [ 8 ] Mr. Duncan had planned a five day vacation for mid-September. He intended to oversee the start of the project and leave his employees to do what they could without supervision. Before Mr. Duncan left on vacation, the slate arrived on the site, but it was the wrong product. The employees did not recognize that and started working with it. Mr. Kent arrived the next day and pointed out the problem. [ 9 ] Mr.

Duncan believed he was already away at this time, but the testimony of Mr. Kent and the other witnesses support a conclusion that he was present and in fact resisted the suggestion that the tile was the wrong product, until the supplier confirmed it. Mr. Kent asked Mr. Duncan to ensure that the tile was replaced, and asked him again for a written estimate. [ 10 ] Mr. Duncan said he barely had time to do a rough quote for Mr. Kent before he left on vacation. He prepared three pages of hand written notes, which he showed briefly to Mr. Kent but did not leave with him. Mr.

Duncan explained that he did not usually provide the breakdown of his costs and expenses to clients. While he had shown his calculations to Mr. Kent so that he might see an estimate of the project cost, he could not permit him to keep it. [ 11 ] Mr. Kent protests that Mr. Duncan did not permit him to review the estimate, or even hold it, and he was able to absorb only a few items. On the first page of the quote was a $3,000 amount for travel expenses, which immediately caught Mr. Kent’s eye, because he did not believe he had agreed to that. He said so to Mr.

Duncan, who told him he had agreed to it, and that it might increase, based on the number of trips required. [ 12 ] The total quote for the project was $27,000 before the cost of the tile. Mr. Kent says that seemed extremely high compared to Ms. Johnson-Stott’s project, which he understood was around $15,000. It was clearly not what he expected. He pointed out in evidence that while he expected at that time that he would be receiving a discount on the tiles, with the retail price Mr. Duncan ultimately invoiced him for the tiles, the total project would have cost close to $50,000. It was Mr.

Kent’s position that he never agreed to the price quoted by Mr. Duncan. [ 13 ] Mr. Kent left the meeting concerned about the absence of agreement regarding the price of the project. He was also becoming concerned because of the mistake regarding the slate, Mr. Duncan’s inability to supervise his employees while he was away, and some issues with the quality of their work, including some uneven tiles. [ 14 ] Mr. Duncan left this meeting with the understanding that Mr. Kent was not happy with the price or about the travel expenses. He says he explained to Mr.

Kent that the travel expenses could not come out of his profit and he was not working to lose money. He says the standard industry per diem is $125.00 a day, but he was only charging Mr. Kent $40.00 a day per employee. He also took the position that Mr. Kent had “reluctantly” agreed on the price before they parted. [ 15 ] Mr. Duncan left on his vacation and his employees continued the work for the rest of that week. Mr. Kent was scheduled to return to New York on the Friday. He says that in preparation for leaving, he asked Mr. Duncan’s employee, Daniel Montambault, how he could reach him. Mr.

Montambault said was staying at a campsite and didn’t have a phone. Mr. Kent was trying to decide whether to change his plans. He felt he needed to talk to Mr. Duncan or have the issues ironed out somehow before he left for New York. Mr. Montambault said he would be back on the site on Monday, so Mr. Kent decided to stay the weekend. [ 16 ] None of the tilers showed up on the Monday. Some tiles were delivered that afternoon, and there was no one there to accept them. Mr. Kent had to call the supplier, who suggested he needed more tiles. He increased the order.

He noted that the supplier already had his credit card number. [ 17 ] After the tile arrived and there were no tilers on site, Mr. Kent says he did not know what to do. He could not reach Mr. Duncan or any of his employees, and had to leave. He took some advice from a friend who was a lawyer and decided to put the work on hold until Mr. Duncan came back, so they could resolve the terms of the contract and some of the issues Mr. Kent was having. He left for New York and told his contractor that if the tilers arrived, to tell them some issues needed to be resolved with Mr.

Duncan, before they could continue. [ 18 ] Mr. Duncan says he returned from vacation to find the project had stopped. In addition, he was affronted to find that Mr. Kent had contacted all his suppliers requesting his personal pricing, and had an order shipped to the site on his account. [ 19 ] Mr. Kent and Duncan emailed back and forth in a fairly heated way after that. Mr. Duncan said that Mr. Kent had stopped the work for no apparent reason. Mr. Kent said he just wanted a written quote. [ 20 ] In an email from Mr. Duncan to Mr. Kent on September 18, 2008 Mr.

Duncan said: Yes, I didn’t have the time to send you an email before I went away. You are not the only project I have going on. In fact since you like details I have 6 on the go, yours being the smallest but yet the most complicated project I have had. Ever. And Jeffrey I don’t want to

sound mean but it’s you who’s making it complicated. You seem to be a very nice guy with a heart of gold, and I’d like to help you out here but I have multi-million dollar projects going on that are less complicated than yours. I have a great reputation for my work and I have been building the largest houses in Whistler for the past 15 years, for the largest builders in Whistler. So when you tell me that the figures I flashed to you don’t resemble Lisa’s project, I wonder why. … [ 21 ] Mr. Duncan provided a number of reasons that Mr. Kent’s project was more complicated than Ms. Johnson-Stott’s.

He said in the same email that he would not send workers back to the site until they resolved some issues and that if Mr. Kent was not happy with the work, he could find someone else to finish it. [ 22 ] Mr. Kent responded that he did not agree to the travel charges or the total amount of the quote, particularly without a detailed breakdown, and that he found it necessary to have someone else complete the job. [ 23 ] Mr. Montambault came and removed his tools. Mr. Kent says he also took some setting material that Mr. Kent had paid for with his deposit. [ 24 ] Mr.

Duncan gathered the invoices from the shippers and wholesalers and invoiced Mr. Kent. He noted in evidence that he understood Mr. Kent was already over budget on his project by about $100,000. [ 25 ] Mr. Duncan’s invoice reflected a balance owing of $3,452.81 above the $12,000 deposit already paid. It included a figure for travel of $40 a day for 11 days, as well as retail pricing for the tiles that Mr. Duncan had obtained at his trade discount. [ 26 ] Mr. Kent responded with an email in which he took the position that Mr. Duncan had agreed to give him a discount on the tiles.

He also took issue with the square footage used, the travel time, and the hourly rate of $50.00, which was $5.00 more than Mr. Duncan had charged Ms. Johnson-Stott. Mr. Kent calculated that the work to date was worth $11,636 even at the $50.00 rate, and offered to let it go at that. He requested copies of actual receipts if Mr. Duncan wished to press the matter. [ 27 ] Mr. Duncan said that the prices he paid for the tiles are only given to designers and contractors, not the general public. Not only would Mr. Kent not be entitled to receive the tiles at Mr. Duncan’s discount, but Mr.

Duncan viewed it as deceitful that Mr. Kent had “gone behind his back” and contacted his suppliers to ascertain his prices and order additional tiles under his name. In his emails, Mr. Duncan explained to Mr. Kent that if his workers had not shown up on the Monday, it was because they had something more important to do. [ 28 ] Mr. Duncan filed his invoice to Ms. Huber [as she then was] in evidence, to show that he had not given her a discount. Unfortunately the invoice does not include the cost for the tiles, so it is not possible to tell what the mark-up was. [ 29 ] Mr. Duncan called his two tilers as witnesses.

The first, Samantha Sprague, said she had agreed to work on the defendant’s house, but since the work was out of town she expected to be paid travel expenses. She said she had discussed $40.00 a day with Mr. Duncan before undertaking the work and that she always received reimbursement for her food, mileage and travel time. [ 30 ] Ms. Sprague confirmed that the project started much later than expected, and Mr. Duncan was going on vacation, but she felt able to carry on without his supervision. She had worked for Mr. Duncan for two years, on very high end construction projects in Whistler.

She did not recall a problem with the type of slate that arrived. She said parts of the tile work were very detailed because of the design or fixtures. She did not recall whether they had gone to Mr. Kent’s site on the Monday before they ceased work. She understood that they stopped work until Mr. Duncan got back from vacation because Mr. Kent wanted to sort some things out with him. [ 31 ] Ms. Sprague says that while she was working, Mr. Kent would come by and check on their progress. Both she and Mr. Montambault said that Mr.

Kent had their contact information and had actually called them on occasion to ask where they were. She did not know how he got her phone number and agreed it was Mr. Duncan’s policy not to have his employees provide their numbers to clients. [ 32 ] Daniel Montambault testified that he did the preparation and cleaning for the tile work. He had worked for Mr. Duncan for 10 months before this project and was a waiter before that. [ 33 ] Mr. Montambault said he expected travel expenses for the project including mileage to Brackendale. He believed they had agreed on $40.00 per day.

He had sometimes camped at Alice Lake while working on the project, paying $25.00 a day. He owned his own car, but did not keep track of his mileage because he expected a flat travel rate. [ 34 ] Mr. Montambault said he had not traveled for a project with Mr. Duncan in the past. It was his habit to invoice Mr. Duncan every two weeks. He spent three weeks on this project but he said he did not invoice Mr. Duncan for travel expenses, because he learned shortly after they left the project that Mr. Duncan was not able to pay them because he did not receive them from Mr. Kent. [ 35 ] Mr.

Montambault confirmed that he and Ms. Sprague may have started to clean and prep some tiles that turned out to be the wrong product or colour. He agreed that they were on their own for a couple of days, and that Mr. Kent asked him where he could reach Mr. Duncan on the Friday before they left, because he wanted to talk to him about some issues. [ 36 ] Mr. Montambault said that tiles are not always symmetric or predictable, which may explain any complaints Mr. Kent had with misalignment. He said they had set some slate in the hallway but stopped work because Mr. Kent wanted to talk to Mr. Duncan. Mr.

Montambault agreed that he and Ms. Sprague were to have come back on the Monday, and Mr. Kent may have told him he was going to extend his trip over the weekend so he could talk to Mr. Duncan. He did not remember whether they had gone to the site on Monday. He confirmed that Mr. Kent had been able to call him on his cell phone on one or more occasions. [ 37 ] Mr. Kent called Ms. Johnson-Stott to testify. She had hired Mr. Duncan for two projects which she designed. The agreement between them was that she chose the tiles but let him make the purchases because he received a discount. She was aware that Mr.

Kent hired Mr. Duncan for his project and that Mr. Kent was concerned about getting a written estimate. She had called Mr. Duncan on Mr.

Kent’s behalf to inquire about when he would be sending it. She was surprised at the amount of the quote he ultimately received. It was more than she paid for her project, which she believed was considerably bigger. [ 38 ] Ms. Johnson-Stott said she had done six projects in Whistler and had never been charged for travel. She agreed that Mr. Duncan’s invoice to her was not broken down, so it could have included travel time which she did not know about. The invoice that Mr. Duncan filed in evidence was for work at her residence in Whistler, so the travel fee would not have been applicable. [ 39 ] Ms.

Johnson-Stott confirmed that the travel distance from Whistler to Brackendale was about half an hour to 40 minutes depending on traffic, but added that Mr. Duncan himself lived five minutes from Brackendale. She was unaware of any practice of billing travel expenses for projects within the Sea to Sky corridor. [ 40 ] Marcel Lanter was Mr. Kent’s project manager. He lives in Squamish near Mr. Duncan and has worked in the construction trade since 1990. In Mr. Lanter’s experience, contractors did not charge travel from Squamish to Whistler. [ 41 ] Mr. Lanter confirmed that there was no written quote for the project.

He recalled that some slate had arrived that was the wrong kind and there was some dispute with Mr. Duncan about whether it was right or not until the supplier confirmed it was not what they had ordered. He was present while Ms. Sprague and Mr. Montambault were doing their work. They left on Friday and did not return on the Monday. Mr. Kent postponed his trip to stay the weekend to sort the issues out, but had to leave for New York without the quote being resolved. They came on Tuesday but by then Mr. Kent had asked Mr. Lanter to suspend the work until things were sorted out. The next time he saw Mr.

Duncan he had come to collect his materials and said they would not be finishing the job. [ 42 ] Eric Frappier, a carpenter who worked on the project, was present at the beginning when Ms. Sprague and Mr. Montambault were installing board for the tile. He observed that Ms. Sprague did not appear to have done that kind of work before and Mr. Montambault was helping her. [ 43 ] After the court proceedings commenced Mr. Frappier had a conversation with Mr. Montambault about the travel charges. Mr.

Montambault expressed surprise to learn that travel expenses were part of the claim, because he did not get any money for traveling and had stayed at the campsite. [ 44 ] Dale Fleck is an electrical contractor who lives in Brackendale. He had a discussion with Mr. Duncan about floor heating in which Mr. Duncan told him he had the best trade discount, but it turned out Mr. Fleck’s was better. Analysis [ 45 ] One of the reasons this project went off the rails was that there was no written contract between the parties.

A large proportion of the cases that make their way to a trial in Small Claims Court derive from home renovations where a professional contractor with many years’ experience, such as Mr. Duncan, has failed to set down the terms of his contract in writing. [ 46 ] The onus is on the claimant to establish on a balance of probabilities either that there was consensus ad idem between the parties regarding the terms of the contract that he seeks to enforce, or that he is entitled to payment of a reasonable figure for work he performed, on a quantum meruit basis.

If he relies on quantum meruit , it is for him to establish the value of his work, based on industry standards. [ 47 ] While it is clear that there was a contract for Mr. Duncan to install tile at Mr. Kent’s residence, it is far from clear what were the agreed upon terms of that contract. Although repeatedly asked to do so, Mr. Duncan did not produce a written quote, and when he finally did so, he would not let Mr. Kent have it long enough to consider it. To hastily thrust forward a handwritten sheet of numbers and then snatch it back is not particularly businesslike conduct. [ 48 ] The reason Mr.

Duncan gave for not leaving the handwritten quote with Mr. Kent was that it was his practice not to break down estimates for his clients, but this does not explain his continued failure to provide Mr. Kent with anything in writing. It is clear from his email that he viewed Mr. Kent’s request for a quote as an inconvenience. Unfortunately, his failure to ever secure an agreement in writing operates against him when it comes time to establish the terms of the contract he seeks to enforce.

Travel Expenses [ 49 ] I find it unlikely that there was any advance agreement or discussion about travel expenses for three reasons. Firstly, Mr. Montambault’s general practice of invoicing every two weeks is inconsistent with his assertion that he decided not to bill Mr. Duncan for travel expenses because he later learned that Mr. Duncan was not paid them. If there was an agreement in advance, I would have expected to see at least one invoice within the relevant period which included the alleged per diem. [ 50 ] Secondly, Mr. Frappier’s conversation with Mr.

Montambault tends to support a conclusion that there was had been no discussion between Mr. Duncan and Mr. Montambault of any travel reimbursements up to that point, which was after the claim was initiated. [ 51 ] Thirdly, although the amount invoiced for travel, a total of $440, is insignificant in relation to the total amount claimed by Mr. Duncan, and indeed, in relation to the $12,000 amount actually paid by Mr. Kent, Mr. Duncan did not pay his workers for travel, apparently electing to have them bear the cost of Mr. Kent’s refusal to pay. I note as well that Ms. Sprague still works for Mr.

Duncan, and has not apparently pursued her claim for travel expenses.

[ 52 ] The circumstances are all more consistent with the claim for travel expenses being an afterthought than being the subject of any discussion or agreement between the parties. [ 53 ] In relation to industry standards, apart from Mr. Duncan’s own evidence about a $125 per diem, the evidence of the trade people who testified, as well as that of Ms. Johnson-Stott, supports a conclusion that travel is generally not charged in the Sea to Sky corridor. It may be, as asserted by Mr. Duncan, that it is sometimes included without mention in a general estimate.

However, to succeed in a claim for travel expenses as a specific item requires either that it be agreed upon in advance, or that it be established that it is the custom in the trade to include it. The evidence falls far short of that. [ 54 ] In relation to his claim for travel expenses, I find that Mr. Duncan has not established either that there was an agreement, or that the industry standard supports his claim. I conclude that no amount is payable for travel expenses. Tile Mark-up [ 55 ] Turning to the issue of the tile mark-up, I note the following.

There is clearly no written agreement specifying either the quoted price for materials, or the mark-up that Mr. Duncan would charge. He and Mr. Kent went together to order them, so Mr. Kent had access to the suppliers and could easily have ascertained the price that Mr. Duncan would charge without “going behind Mr. Duncan’s back”. The fact that Mr. Kent may have ordered additional tiles at Mr. Duncan’s price while calling to arrange for a delivery because Mr. Duncan’s workers were absent, at the suggestion of the supplier, does not make him “deceitful”. [ 56 ] There was no evidence led to support Mr.

Duncan’s assertion that he charged all his customers retail prices. Ms. Johnson-Stott believed she had received the benefit of Mr. Duncan’s discount. That may or may not be the case, given that the invoices appear not to have been broken down. Her evidence however at very least supports Mr. Kent’s assertion that there was never any mention by Mr. Duncan of a mark-up. Mr. Kent asserts that he was told he would receive the same discount as Ms. Johnson-Stott. I accept that Mr. Duncan at very least acquiesced in a belief in both their parts that they were receiving a discounted price for their tiles.

If in fact he was not applying a discount, as he stated in evidence, his acquiescence itself was arguably deceptive. [ 57 ] Mr. Kent points out additionally that he did some of the ordering himself, including the Jadish slate with Mr. Duncan’s blessing, and that he obtained discounts for other materials he ordered directly from suppliers. He also notes that he has some excess tile, and he cannot return it for the price Mr. Duncan is seeking to charge him. [ 58 ] Again, it seems the mark-up charged by Mr. Duncan in his invoice was an afterthought, imposed when the relationship between the parties broke down.

There is clearly no evidence that the parties reached a consensus regarding the amount Mr. Kent was to pay for the tile. [ 59 ] The evidence also does not establish that it is customary in the industry to apply any particular mark-up or charge retail prices for tile that is acquired at a trade discount. It may be again that this is built in to a general estimate, but as I have stated, the onus is on the claimant to establish he is entitled to charge a mark-up. Had Mr. Duncan obtained Mr. Kent’s agreement to such a general estimate, the matter would not have landed in court.

He has not established any contractual or quantum meruit claim to a mark-up. [ 60 ] I find that Mr. Duncan is entitled to receive only his costs for the materials he supplied to Mr. Kent. Conclusion re Claim [ 61 ] The result of the above analysis and conclusions is that I agree generally with Mr. Kent’s assessment of the amount he should pay on the contract.

He has performed several different calculations based on what he deems to be fair, but allows as how there is some uncertainty in relation to applicable tax, the valuation of materials taken from the site, and an appropriate figure for labour for the two inexperienced tilers. The latest of those figures, in his submissions, was $11,993 before those uncertain deductions. [ 62 ] Mr. Kent quite fairly offered to Mr. Duncan shortly after he received the invoice that he would forgo the difference, and to permit Mr.

Duncan to retain the entire $12,000 deposit despite the fact that it exceeded what he believed he fairly owed. Because there was no written contract, it is impossible to ascertain what further deductions, if any, should be made from the deposit amount. The best measure of a fair price for the work performed, in my view, is that offered by Mr. Kent in his initial response to Mr. Duncan, of $12,000. It is unfortunate that Mr. Duncan did not see that as a fair compromise at the time it was offered. [ 63 ] I find that Mr. Kent does not owe Mr.

Duncan any further amount on the invoice rendered, and that $12,000 is a fair quantum meruit price for the work performed to the point where relations between the parties broke down. Breach of Contract and Counterclaim [ 64 ] Both parties believe the other breached the contract by stopping the work. The evidence and email exchanges however support a conclusion that Mr. Kent would still have been open to discussing the price and coming to an agreement if Mr. Duncan had provided him with something in writing before they agreed to

part company in the September 18 email.

[ 65 ] Mr. Duncan’s emails to Mr. Kent were not particularly accommodating or conciliatory. He declined to negotiate. He could have elected to try to come to an agreement with Mr. Kent and commit it to writing. Instead, he insisted that Mr. Kent agree to his terms and invited him to get another tiler if he did not accept those terms. [ 66 ] Mr. Duncan’s refusal to continue the work unless Mr. Kent agreed to terms that had not been agreed to in advance constituted a breach of the contract between the parties, in my view. It was Mr.

Duncan’s continued failure to provide a quote in writing that created the situation, and as a result he had no basis for demanding compliance with terms he had not confirmed in advance. Damages for Breach of Contract [ 67 ] Beyond the excess owing from the deposit, Mr. Kent claims for travel costs related to postponing his trip in September 2008 and two additional trips he says were made necessary by Mr. Duncan’s refusal to continue the project. He estimated that he spent about $3,600 on the two additional trips and provided a figure of $300 for the postponement. In relation to the postponement, I accept that Mr.

Kent was unable to reach either Mr. Duncan or his employees before he had to make that decision. It was not the timing of Mr. Duncan’s vacation as much as his refusal to leave the written quote with Mr. Kent before he left that caused Mr. Kent to make this decision. His inaccessibility and the absence of the workers on the Monday just compounded the problem. It was reasonable in the circumstances for Mr. Kent to postpone his trip to try to sort out the issues between them. [ 68 ] Mr. Duncan asserted that Mr. Kent had retained a new tiler before he arrived back from his trip, but it appears that was not the case.

I believe the name he mentioned was someone Mr. Kent had asked for a quote before he retained Mr. Duncan. It may have been the same person he hired later, but in any event, it is clear from the emails between the parties that Mr. Kent did not choose to hire someone else until after September 18, and only because Mr. Duncan refused to complete unless Mr. Kent accepted his unilateral terms. [ 69 ] In his submissions, Mr. Kent provided specifics and receipts in terms of air fare, taxi fare, an air fare penalty, and a fee for his car rental extension. These amount to about $2500.

To this he suggests be added approximately $1100 for gas, food and lodging, which items are not supported by receipts. Mr. Duncan was given an opportunity to respond to Mr. Kent’s submissions but declined to do so. He takes the position in his initial submissions simply that the counterclaim is unjust and unsupported by evidence. [ 70 ] Mr. Kent is entitled to be reimbursed for his reasonable costs arising from Mr. Duncan’s breach of the contract.

I find that the specific amounts he has claimed and supported by receipts are directly related to having to obtain the new tiler and return to Vancouver on two occasions to do so. As for the estimated living expenses for the additional trips, the $1100 amounts to about $30 per day [less than the travel per diem charged by Mr. Duncan], and I consider it to be a reasonable measure of additional damages, in all the circumstances. [ 71 ] I suspect Mr. Kent would not have pursued his counterclaim if Mr.

Duncan had not brought the matter to court, but the costs claimed are in my view recoverable, if he chooses to pursue them. There will be a payment order in favour of Mr. Kent for the total of Items b and c in the counterclaim, or $3900. Costs [ 72 ] In accordance with Rule 20(2), Mr. Kent is entitled to his out-of-pocket expenses for defending against the claim and pursuing the counterclaim. As I have mentioned, it seems likely the matter would not have come to court if Mr. Duncan had accepted Mr. Kent’s initial offer. [ 73 ] Mr.

Kent is entitled to be reimbursed for his filing fees, documented service fees, and travel costs to attend the trial, supported by receipts. There is no compensation for lost time. [ 74 ] I have considered but decline to assess the 10% penalty under Rule 20(5) against Mr. Duncan for proceeding to trial with no reasonable prospect of success. Order [ 75 ] Mr. Duncan will pay to Mr. Kent the amount of $3900 with Court Order Interest from August 21, 2009, plus costs as assessed by the registrar in accordance with the above directions. [ 76 ] In light of Mr.

Duncan’s evidence about the calibre of his work and the projects he normally works on, it is unlikely he will need to apply for a payment schedule. [ 77 ] Payment will therefore be immediately due and owing unless either party files an application by August 21, 2011 to set the matter down for a payment hearing.

__________________________________ The Honourable Judge C. Baird Ellan The Provincial Court of British Columbia