Kim v. Revision Date:, 2012 BCPC 490

Citation: Kim v. Revision Date: 20120410 2012 BCPC 0490 File No: 09-27326 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DON KIM AND SHELLEY KIM CLAIMANTS AND: REVISION CUSTOM HOME RENOVATIONS INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Appearing on their own behalf: Don Kim and Shelley Kim Appearing for the Defendant: Todd Senft Place of Hearing: Vancouver , B.C. Dates of Hearing: November 1 & 2, 2010, March 30 & 31, 2011 Date of Judgment: April 10, 2012

INTRODUCTION [ 1 ] The claimants Don and Shelley Kim hired the defendant, Revision Custom Home Renovations Inc. to undertake a renovation to their home on the west side of Vancouver. This included renovations to the basement of the home as well as renovations to an upstairs bathroom. In particular, the renovations included replacing major systems such as electrical, plumbing, and heating. The Kims entered into a written contract with Revision. Mr. Senft, the owner of Revision, was the project manager.

The Kims allege that in December 2008, just a few months after the completion of the renovation, the hot water heating system failed in that it did not produce the level of heat necessary to make their home comfortable. They allege that Revision failed to install a heating system appropriate to their needs. Additionally, the Kims maintain that their water pipes froze due to inappropriate installation. [ 2 ] Revision asserts it completed the project, including the hot water heating system, in a good and workmanlike manner. In particular, it asserts it fulfilled the terms of the contract agreed to by the parties.

Revision maintains that the Kims overreacted and moved quickly to hire another contractor to deal with the heating problem. Revision further maintains it was not given the opportunity to complete troubleshooting of the heating system. Further, it was not given access to the original boiler, after the fact, which would have allowed it to properly assess the situation. Revision denies that the water pipes froze due to inappropriate installation.

ISSUES RAISED BY THE PARTIES [ 3 ] The Kims raise issues that relate, primarily, to the failure of the hot water heating system which, they allege, was not sufficient for their needs. The Kims also allege some water pipes froze. The Kims claim the best way to solve the problems they had with Revision’s work was to install a new hot water heating system and to install water pipes in the basement ceiling. The Kims further maintain the repairs they undertook themselves were absolutely necessary to ensure their house would be in good working mechanical order. They also maintain they made a verbal agreement with Mr.

Senft that: (

a) they would undertake the necessary heating and plumbing corrections themselves, (i.e. act as general contractor); (

b) they would hire their own trades people to do the work required; (

c) they would invoice Revision for the cost of the repairs. The Kims did much of the work themselves, including demolition, insulating and some carpentry. [ 4 ] Revision says it did not enter into an agreement with the Kims in relation to the work they undertook on the hot water heating system and the plumbing after completion of Revision’s installation. Revision further says it fulfilled its obligations under the renovation agreement. The hot water heating system it installed was appropriate in all the circumstances.

Moreover, when Revision learned the boiler unit recommended by the heating supplier was undersized, it took steps to remedy the situation. However, the Kims decided to use another subcontractor. Revision says the Kims have not provided any evidence that the water pipes froze. However, even if the pipes froze, they did not freeze as a result of the installation of the piping but due to extreme and unusually cold weather which was experienced in Vancouver in December 2008. Additionally, Revision raises the following points: (

a) the Kims denied Revision access to a component of the original heating system Revision had installed; (

b) all of the building inspections required were carried out and completed when the renovation was done; (

c) the original heating system installed by Revision was functioning properly and was sufficient to meet the standards set out in the National Building Code; and (

d) the Kims concealed a major piece of evidence and, accordingly, Revision relies on the doctrine of spoliation. OVERVIEW [ 5 ] The house to be renovated was a Tudor style house built in approximately 1926. In late 2007 the Kims entered into a written agreement with Revision for a complete basement renovation and a renovation to one upstairs bathroom.

In particular, the renovation included the replacement of the majority of the plumbing, drainage, hot and cold water pipes, as well as new fixtures in an upstairs bathroom and fixtures for a basement bathroom. [ 6 ] The Kims wanted to remove the old forced air heating system because Mrs. Kim has asthma. They decided to have a hot water heating system installed which in simple terms provided heat using a boiler-to-baseboard radiator design. This system was to provide heat for the basement and the main level of the house only. The upstairs of the house had electrical baseboard heaters that were to remain as is.

The renovation agreement

[ 7 ] The Kims and Revision entered into a written renovation agreement in December 2007. That agreement provided that Revision would supply all the materials and perform all the work described in a document called Description of Work.

The work described in the Description of Work included: Plumbing • to complete as per basement and upstairs bathroom plan • to supply the plumbing fixtures chosen by the homeowners • plumbing to be completed by a licensed tradesperson • to prepare design in order to prevent the use of a sump pump • concrete to be removed in order to adjust the plumbing Heating and gas fitting • to complete as per plan installation of a boiler and radiators for the basement and main floor • work to be completed by a licensed heating tradesperson • to run a gas line to the existing main floor fireplace for a future gas fireplace Insulation • to supply and install insulation as per plan • to supply and install safe and sound insulation in the ceiling of the basement • to supply and install 6 mil vapor barrier where required by building code. [ 8 ] The renovation agreement also contained the following terms: (

a) Revision was to supply all labour, materials and supervision to complete the work in keeping with the contract; (

b) Revision was to undertake the work diligently and in a good and workmanlike manner; (

c) Revision provided a warranty that it would correct any defects due to faulty materials and/or workmanship appearing within one year; (

d) Revision would correct or pay for any damage to other work resulting from any corrections required; (

e) Items installed and/or supplied by the homeowner were not covered by the warranty. [ 9 ] The terms of payment for the renovation were cost plus. The Kims agreed to pay the cost of labour and materials plus 8% for project management, 10% for overhead and 11% for gross margin. Mr. Kim testified that the total cost of the renovation was $148,367.09. The renovation work was done between February 2008 and June 2008. The areas of the house that were renovated were essentially gutted. The work specified in the Description of Work was carried out by Revision and/or subcontractors hired by Revision. [ 10 ] Mr.

Kim testified that during the course of the renovation he developed concerns about Mr. Senft’s general management skills. However, his most significant concerns were about the plumbing work. He had concerns even before the problems with the water heater (also referred to as “boiler” in these reasons) manifested themselves. The examples Mr. Kim gave at trial were: (

a) sinks in the bathroom rocked initially, (

b) two toilets rocked when anyone sat on them, (

c) the plumber failed to seal the water connection properly and there were a number of leaks, (

d) when the plumber installed the new gas line to the water heater he did not seal it properly and when he left the claimant discovered a gas leak immediately, (

e) the plumber forgot to get a gas permit at the beginning of the project. This was only discovered once the drywall had been completed and the walls painted.

Mr. Kim said that in August 2008 he discussed his dissatisfaction with Mr. Senft and Mr. Senft refunded $4,000 to him. [ 11 ] Mr. Senft did not agree with Mr. Kim’s assessment of his management skills. He noted that the project came in on time and on budget. He said he was only aware of one leak. Further, he acknowledged there was a return of $4,000 to the Kims but not for the reasons stated by the Kims. Mr. Senft explained there was a builder’s lien holdback account of $14,000 held jointly by him and the Kims.

He said the Kims used this as a “leveraging tactic” and asked for the return of $11,000 because of “poor management”. He refused to do that and eventually he and the Kims agreed $4,000 would be returned to the Kims. Installation of original boiler [ 12 ] The installation of the hot water heating system, including the boiler, was undertaken by Astro Plumbing, a subcontractor of Revision. Astro Plumbing was certified, licensed and registered. The person who worked on the plumbing, including installation of the boiler, was Maizal Suryadi. Mr. Senft said Mr.

Suryadi had to have a license in order to obtain the permit to do the work on the Kims residence. [ 13 ] The calculations needed to determine the components of the hot water heating system, including the size of boiler, were completed by Wolseley Mechanical on or about March 18, 2008. The heating related calculations are discussed in detail in a separate subsection in the reasons. There is no dispute that the original calculations and design were done by Wolseley and that the original boiler was installed in accordance with those calculations and design.

Whether the calculations were “correct”, however, is a matter in dispute. [ 14 ] In mid-December 2008, during a cold period, the Kims found that the original heating system installed by Astro Plumbing was not producing the amount of heat they required. During the period of December 12, 13, and 14, the outside temperature was quite low. Mr. Kim relied on Environment Canada’s daily data report (for airport) which showed that on December 12 the high was 4.2º C and the low 1.1º C. On December 13 the high was 4.4º C and the low was -2.8º C. On December 14 the high was -0.2º and the low was -4.5º C.

The Kims found they could only heat the house up to 65º to 67° F. However, in order to do so they had to turn the thermostat to 80° F. [ 15 ] On Sunday evening December 14, Mr. Kim sent Mr. Senft an e-mail telling him the heating system was not functioning properly. Mr. Kim wrote he suspected the baseboards were not getting hot enough. He said it had taken the cold weather over the weekend to show that the system wasn't working properly. He asked Mr. Senft to have someone look at the system the following day because they had used their portable heaters to get by. However, Mr.

Kim specifically asked that it not be Mr. Suryadi, the plumber who installed the system in the first place. [ 16 ] Mr. Senft replied by e-mail on December 15. He wrote that he would contact the original supplier of the heating system that day to see if it could recommend an installer to look at the system. He said he would call Mr. Kim once the installer was lined up. [ 17 ] Mr. Kim testified that, in addition to the December 14 e-mail, he also left a voice-mail message for Mr. Senft asking if he could use Michael Canzian from Cambie Plumbing to look into the problem. Mr.

Kim said he suggested using Cambie Plumbing because Mr. Senft did not have a readily available plumber to assist them. Mr. Kim said Mr. Senft agreed since he had used that company in the past. Mr. Kim said he received a text message (“Thanks for keeping me updated”) from Mr. Senft on Monday, December 15. Mr. Kim asserted that, as a result, he believed Mr. Senft was consenting to the use of another plumbing company, Cambie Plumbing. [ 18 ] Mr. Senft recalled the situation somewhat differently. He acknowledged receiving Mr. Kim’s December 14 e-mail and responding to it the following day. However, Mr.

Senft said he did not initiate the contact with Cambie Plumbing. Mr. Senft did not agree that Cambie Plumbing was brought in because he had no one else available. He testified he had other plumbers available. Mr. Senft said he wanted to bring Mr. Suryadi back so he could maintain the warranty on the work Astro had done. He explained that if another company did repair work, the original company would not cover the warranty. He said the Kims contacted Michael Canzian from Cambie Plumbing on their own. Mr.

Senft was not aware the Kims had done so until the day, presumably December 15, when Michael Canzian was at the Kims house. Mr. Senft acknowledged he may have sent a text message to the Kims on December 15 thanking them for the update. However, he does not recall why he sent that message. [ 19 ] On December 15, 2008, Mr. Kim had Michael Canzian, a plumbing supervisor from Cambie Plumbing, come to his house to assess the heating system to determine whether the boiler was working properly. According to Mr.

Kim, Michael Canzian did a calculation based on 1100 square feet for the basement and 1100 square feet for the main floor. Mr. Canzian apparently also contacted a heating supplier, Wolseley Mechanical. Mr. Canzian told Mr. Kim that he was told by “someone” at Wolseley that the boiler installed by Astro Plumbing was too small for the size of the house. The original boiler installed at the house was 38,000 BTU whereas the one apparently recommended by the heating supplier was 50,000 BTU. [ 20 ] Mr. Kim said he called Mr. Senft that same day and told him about his discussion with Mr. Canzian and the discussion Mr.

Canzian had with a Wolseley employee. Mr. Senft told Mr. Kim that Wolseley was the same heating supplier that had designed the original system Astro Plumbing had installed. Mr. Kim understood, that at some point, Mr. Senft went to Wolseley to discuss the original design of the heating system and why the Kims were not getting enough heat. [ 21 ] Mr. Senft testified that when he received the initial e-mail correspondence from Mr. Kim about problems with the heating system, he first attempted to contact Mr. Suryadi of Astro Plumbing about the issue. Mr. Suryadi was not in, so Mr. Senft left a voice- mail message.

Mr. Senft then contacted Wolseley because they had supplied the original boiler. He learned that a mistake had been made regarding the heat calculations for the original boiler. He was told by an employee that they made an error in sizing the boiler. [ 22 ] Mr. Senft sent an e-mail to Mr. Kim about the situation. That e-mail is undated but based on the evidence appears to have been sent either on December 16 or 17, 2008. In that e-mail Mr. Senft wrote he had resolved the “labour” and “material cost” issues regarding “your upgraded boiler system”. He wrote that those items would be at Revision’s expense and Mr.

Kim would get the benefit of a better

boiler for free. He understood that Mr. Canzian was going to do the installation work on December 18. He also wrote that, since Mr. Kim chose the sub-trade who was going to be completing the change of the boiler, (i.e. Cambie Plumbing), Revision was not going to be responsible for any work that sub-trade completed. [ 23 ] Mr. Kim responded to Mr. Senft by e-mail on December 17. He expressed his dissatisfaction with Mr. Senft's response time. Mr. Kim felt Mr. Senft was trying to duck responsibility. He wrote that Mr. Canzian had been chosen because Mr. Senft had not provided an alternative plumber. Mr.

Kim also said it was Mr. Senft’s responsibility, not his, to see that the new boiler was properly installed. He also said he would report him to the Better Business Bureau and the GVHBA (presumably the Greater Vancouver Home Builders Association). [ 24 ] At trial Mr. Senft elaborated on his interaction with Cambie Plumbing. Mr. Canzian called him from the Kims house and told him the Kims wanted the boiler changed out. It was not clear whether it was during that call or in a subsequent call, but Mr.

Senft asked Canzian what it would cost to remove the original boiler and install a new one that Wolseley would be supplying, (i.e. a second boiler that Wolseley said they would upgrade for $98). Mr. Canzian told him it would cost about $1,300 for parts and labour. Mr. Senft told Mr. Canzian to go ahead and send him an invoice. [ 25 ] Mr. Kim’s testimony on this point is somewhat different. On December 18, 2008, Mr. Canzian called Mr. Kim and told him he could not install the boiler because of unresolved issues with Mr. Senft regarding payment. Mr. Kim was anxious to have the work done.

It was close to Christmas and he felt he had no choice but to pay Cambie Plumbing himself so he could get the work done. Accordingly, he paid Cambie Plumbing $3,900. Cambie Plumbing installed a new boiler that same day. They also supplied the boiler. Mr. Kim said the plumbers from Cambie Plumbing who installed the second boiler told him there were three major factors that affected proper delivery of heat. Those factors were: boiler size (the number of BTUs), the pipe size, and the baseboard heaters. [ 26 ] In an e-mail to Mr. Senft sent at 5:52 p.m. on December 18, Mr.

Kim wrote he presumed that the boiler size was now adequate. He noted he had been told 3/4” pipes should have been installed instead of the 1/2” pipes put in by Astro. He also noted that the heating filament fins in the baseboard heaters had been installed incorrectly. The plumbers from Cambie Plumbing had told him they were not sure whether changing the boiler would solve this issue. It appeared that the baseboards were not operating efficiently. He noted that the boiler had been taken care of, the baseboards could be remedied and the piping would be a major undertaking. Mr.

Kim also noted that he had to write a cheque to Cambie Plumbing or they were not going to the do the job. Further, he wrote that Mr. Senft’s deal with Eric (presumably from Wolseley) “penalized” Cambie for any mark up on the boiler. [ 27 ] At trial Mr. Senft testified that sometime after his conversation with Mr. Canzian about paying the cost for labour and parts he learned that Mr. Canzian called the office at Cambie Plumbing. Apparently, Mr. Canzian was told that Cambie Plumbing wanted to supply the second boiler themselves (and make a mark-up on it), as well as do the installation work. Mr.

Senft said he only became aware of this after the second boiler had been installed. He then also learned from Mr. Kim that he had paid the entire amount billed by Cambie Plumbing. [ 28 ] Mr. Senft replied to Mr. Kim by e-mail on the evening of December 18. He wrote that he had arrived at an agreement with Cambie Plumbing to cover costs. Therefore, payment was not something Cambie Plumbing should have discussed with Mr. Kim. He confirmed that Eric (no last name given) told him the new boiler was adequate to service Mr. Kim’s home.

He also wrote that 3/4” pipes were not required but were an upgrade that may increase the operation of the heating system. He confirmed that Mr. Canzian told him about the baseboard issue. Mr. Senft said he was going to call other hot water heat contractors to confirm the information. He declined to meet with Mr. Kim because he was concerned Mr. Kim was angry, as evidenced by a phone message Mr. Kim had left earlier. Mr. Senft thought a meeting would simply cause unnecessary stress and tension and nothing would get resolved. Mr.

Senft acknowledged he would be responsible for $1,563.45 for the boiler upgrade, labour and parts. He pointed out that, if Mr. Kim had retained the original boiler, he could recoup part of the cost by selling it. If he had not retained it, and it had been taken away by Cambie Plumbing, he should have received a credit for it. Events after second boiler installation [ 29 ] Mr. Kim testified that after the second boiler was installed by Cambie Plumbing he found no appreciable difference in the heat generated by that boiler.

On December 20, 2008, the Kims woke up to find that the water supply to their house was not working. This included the toilets. Mr. Kim sent an e-mail to Mr. Senft. He explained he was not getting cold water from their faucets except for the kitchen and laundry room. Mr. Kim thought the new pipes in the basement wall were frozen. Mr. Senft responded on December 22 that the upstairs bathroom could be a challenge because of the way the water lines had to be installed as a result of the framing. The only area he thought might freeze in that bathroom was behind the toilet wall. He had provided insulation to Mr.

Kim to install in that area. Mr. Senft said that to his recollection the water lines to the basement and the main bathroom were not installed on the exterior walls of the house. [ 30 ] Mr. Kim testified that the water pipes remained frozen from December 20 to December 24. On December 29 he sent an e-mail to Mr. Senft setting out a number of outstanding items, among those items was a request to meet to discuss the heating and plumbing issues. Mr. Kim wrote they were still not getting sufficient heat from their heating system. He also wanted to discuss why the new pipes froze.

He was concerned it would happen again if the situation was not addressed. Mr. Senft responded on January 3, 2009, on a number of issues. In particular, he agreed he would meet with the Kims. However, he expressed concern there might be verbal abuse and said if there was he would leave. Mr. Senft wrote that he wanted to find a solution to Mr. Kim’s concerns. He wrote that after the meeting he would need to have follow-up meetings at the house which might require other professionals to look at the house and provide solutions. [ 31 ] Mr. Senft went to the Kims home on January 9, 2009.

The Kims showed him the problem areas and pictures they had taken of the basement insulation. Mr. Senft said he would review the matter. After this meeting, one of the things he did was obtain a new heat loss calculation from Andrew Sheret, a heating supplier. [ 32 ] E-mail correspondence in January and February 2009 shows the parties discussed a number of issues and their respective views

on those issues. It is evident from the correspondence that, by this point, the relationship between the Kims and Mr. Senft was quite strained. Mr. Senft made it clear that he had attempted to provide solutions which had been found unacceptable by the Kims. He also noted he had admitted some responsibility since he agreed the heating system was not functioning properly during extreme winter conditions. He had not refused to look after the situation; he attempted to provide solutions. He did not agree with the Kims that he had abandoned them.

He pointed out they were not his only clients and he had other business and family responsibilities that also required his attention. [ 33 ] The parties continued to attempt to resolve the issues raised by the Kims. On February 18, 2009, Mr. Senft met with the Kims at their home. The Kims dismissed solutions Mr. Senft suggested because they felt those solutions were superficial. The Kims felt the best solution was for the water pipes to be moved to the ceiling of the basement. According to Mr. Kim, Mr. Senft agreed to do that as long as they would use Mr. Suryadi, the plumber who originally installed the system.

Mr. Kim said Mr. Senft did not offer another solution. Mr. Kim felt Mr. Senft did not intend to fix the problem properly. At that meeting, Mr. Kim proposed he and his wife would deal with the repairs of the plumbing and heating system themselves and bill Mr. Senft later. The Kims would act as general contractors to keep the cost low. They proposed they would take pictures, keep receipts, and leave things to the end. [ 34 ] Mr. Senft denies that he agreed to any such arrangement. He says that the Kims decided to take on the work themselves. They did so without any input from Revision.

He said at that meeting the Kims chose not to discuss solutions. Instead, they decided to manage the repairs themselves. Mr. Senft said that by doing so they repudiated the original contract. Installation of third boiler [ 35 ] The Kims proceeded with the work they believed was necessary to resolve the plumbing and heating problems they had experienced. That work took place between March 2009 and July 2009. The Kims used Andrew Sheret to prepare the design which included the new heating system for new heat loss calculations. In fact the person who designed the system was Mr.

Mbui who had also prepared a heat loss calculation for Mr. Senft. They hired Point Grey Plumbing and Heating to complete the plumbing and heating aspects of the work. The work involved the following: moving the water pipes into the ceiling of the basement so they would not be exposed to cold, replacing the boiler that had been installed by Cambie Plumbing, installing larger diameter pipes, and adding more baseboard heaters. Mr. Kim himself did as much of the non-specialized work as possible. The amount claimed [ 36 ] The Kims prepared a breakdown of the amount they claim; see Appendix A.

The total cost was $29,616.44 which, for the purpose of this case, was reduced to the $25,000 limit under the Small Claims Act , plus filing and service fees. The most significant cost incurred relates to plumbing and heating work which ran to a total of $16,279.78. Mr. Kim included a claim of $3,300 for a variety of work he did from March to July 2009. He testified this amounted to about 165 hours of work which he charged at the rate of $20 per hour. Heat loss calculations [ 37 ] In this

section I will review the evidence relating to the various heat loss calculations and designs obtained by the parties. The calculations undertaken by Wolseley in March 2008, for the original system, were set out in a series of worksheets including a Project Reference Sheet and a System

Summary Sheet. The calculations undertaken by Wolseley included a recommendation for a boiler which was a Weil Mclain which had a per hour output of 38,000 BTUs. The System

Summary Sheet also showed the use of 1/2” pipes and specified the length of baseboards required in each room. The System

Summary Sheet contained other information about the proposed heating system, and the house in which it was being installed. In particular, it contained the size, in square feet, of each of the rooms to be serviced by the heating system. [ 38 ] The heat loss calculations and design were prepared by Ian Buchanan, who I understand was a heating designer at Wolseley. Typically heating designers “stamp” the worksheets containing their calculations. In this case, the project information sheet had a notation “not stamped due to drawings”.

It was further noted that certain assumptions were made because there were no window sizes, no door sizes, no profile drawings regarding height of ceilings and no above floor indications. The drawings referred to were not attached to the heating calculation. [ 39 ] As noted, Ian Buchanan had done the original calculations to determine the type of boiler to be installed. Mr. Buchanan was not in when Mr. Senft called in mid-December 2008 so Wolseley had someone else in the company look at the original calculations. Mr.

Senft could not recall the name of the man he spoke to at Wolseley but he was told there had been an error in the calculation. The original boiler unit installed at the Kims residence was one size too small. The man he spoke to did not mention anything about pipes or baseboards. Mr. Senft was also told that an upgrade to the original boiler would cost him an additional $98. He ordered a new boiler, the next size up, from Woseley. [ 40 ] In cross-examination Mr. Senft agreed the original calculation was for a boiler with an output of 38,000 BTU.

He also agreed that when he had the discussion with the employee at Wolseley he was told a larger boiler was needed. Mr. Senft could not remember the size recommended or the BTU output. However, he said it was the next size up. Mr. Senft agreed that the man at Wolseley had done a new heat loss calculation but he did not have a copy of the calculation. [ 41 ] In January 2009, after receiving complaints from the Kims about the second boiler, Mr. Senft had a new heat loss calculation done by Andrew Sheret. This was done on or about January 28, 2009.

That calculation was done by Stephen Mbui, a hydronic system designer. The Andrew Sheret calculations recommended a Burnham boiler with an output of 45,000 BTUs. According to Mr. Senft, the boiler recommended by Andrew Sheret was similar in size to the one Wolseley had agreed to supply for the upgrade. This calculation was never used because the Kims undertook the repairs following the February 18, 2009 meeting. [ 42 ] Mr. Kim testified about the heat loss calculations and design for the third system, including the boiler, which were installed by Point Grey Plumbing and Heating. Mr.

Kim said he did a lot of research to ascertain why the heating system was insufficient. He learned that the heat loss for each room serviced by a hot water heating system must be based on room size, type of insulation, and type

of windows. The actual calculation is performed using a software program. The size of the boiler is determined by adding up the heat loss calculations for all the rooms. [ 43 ] Mr. Kim testified he also learned that the room size allows one to calculate the size of the baseboard heater. He said if baseboard size is not adequate, a larger boiler would not make up for it. Mr. Kim said the important thing in heating design is that one needs good drawings. He said before the original installation they had prepared a proper plan for the basement which had been given to Mr. Senft. However, Mr. Kim believed that Mr.

Senft had simply taken the basement plan and superimposed on it the rooms from the main floor. In any event, when Mr. Kim took over the responsibility for the installation of the third system and boiler, he contacted Andrew Sheret. Mr. Kim said he was told he needed scale drawings including type of windows, insulation, etc. He prepared the floor plans himself and submitted them to Andrew Sheret for Mr.

Kim. [ 44 ] The calculation prepared by Andrew Sheret for the heat loss calculations on 03/05/09 showed that a boiler with an output of 54,538 BTUs was recommended as well as 1 1/4” pipes leaving the boiler and 3/4” pipes from the zone valves on the return boiler piping system. The boiler the Andrew Sheret designer recommended was one with an output of 70,000 BTUs. Mr. Kim said this boiler was recommended because it was the closest in size to the BTUs actually needed. Frozen pipes [ 45 ] Mr.

Kim’s evidence is that pipes in his house froze between December 20 and 24, 2008, because they were placed against an exterior wall and were not on the warm side of the insulation. Mr. Kim acknowledged that a plumbing inspector inspected the pipes. However, Mr. Kim said that at one point he had been involved in a discussion between Mr. Senft and a city plumbing inspector. He heard the plumbing inspector mention hose bids and heat to pipes to Mr. Senft. However, he acknowledged the inspector made no note of this in the inspection report. Mr. Kim maintained that Revision made three errors: (

a) It did not follow the manufacturer’s instructions on insulation - to place water lines on the warm side of the insulation. Mr. Kim submitted a photograph from one of the insulation bags which contained a note “water line should always be on the warm side of the insulation”. (

b) Revision did not follow the Vancouver City plumbing code. In this regard Mr. Kim relied on Vancouver Building Bylaw,

section 7.3.5.4 which states that where piping may be exposed to freezing conditions, it shall be protected from the effects of freezing. (

c) Mr. Kim also said that Revision did not follow the new home warranty referred to in its contract in respect of offering solutions. Mr. Kim said that during the extreme weather in December 2008 he checked the pipes and they were frozen. [ 46 ] In cross-examination Mr. Kim was asked about the pipes, in particular the basement pipes. He agreed that the winter of 2008 was not a normal winter but one of the coldest winters experienced in Vancouver. Mr. Kim was asked to explain what he meant by exterior wall. He said his definition of exterior wall was “the whole complex”.

By this he meant that an exterior wall was comprised of the exterior wall where siding was attached plus the studded wall on the inside of the house immediately adjacent to the exterior wall with siding. Mr. Kim said an interior wall is one inside the house. He was asked how there could be two exterior walls. He said it depended on the definition of wall. Mr. Kim was asked whether there was anything in the building code that supported his view that a second wall adjacent to an exterior wall of a house is also considered an outside wall. He said he did not know.

He was asked whether, to his knowledge, a plumbing inspector would pass construction where water lines were on an exterior wall. Mr. Kim replied that to the best of his knowledge, in Vancouver, inspectors allow water lines in the exterior wall. [ 47 ] Mr. Kim was also asked why the plumbing inspector would pass the plumbing, as he had, if the water lines had been placed inappropriately. He was also asked why an inspector had passed the insulation. Mr. Kim replied that the plumbing inspector passed the plumbing when the insulation was not up.

An inspector passed the insulation because it was in the right place but, according to Mr. Kim, he did not know where the plumbing lines were. It was not his role to inspect the plumbing. [ 48 ] Mr. Kim also testified about the pipes in the upstairs bathroom which abutted on the attic. The water pipes were placed exterior to the studded walls because they could not let them into the studs. Mr. Kim said he placed foam sleeves on those pipes but during the cold weather in December 2008, they froze. Expert evidence [ 49 ] The Kims filed a letter from Walter Regehr, the president of Point Grey Plumbing and Heating.

He is a certified plumber who also has a certificate of qualification for hydronic heating design. According to his report, the information he provided was based on an assessment of and corrections he made to the plumbing and heating system at the Kims home. His report states the following: (

a) The plumbing lines were placed on exterior walls on the “cold side” of the insulation. He said this caused freezing of the pipes. The plumbing lines were moved into the ceiling and within insulated walls. (

b) The water lines in the attic were not protected from freezing. Those water lines were moved to studded walls and joist cavities within insulation on the warm side of the attic. (

c) Frost free hose bibs were too short and were “tied” in a cold space. Long frost free hose bibs were installed and connected in a warm space. (

d) Incorrect heat loss calculations led to under-sizing of the heating system. The boiler was too small and not enough baseboard radiators were installed. As well, manifold pipes and 1/2” zone pipes were incorrectly sized. The heating lines to the baseboards were 1/2” when they should have been 3/4”. He noted “these pipes” were run on the outside of the wall and this caused a greater heat loss. He stated “upon a site visit the heating system was working properly but was installed negligently”. The correction he undertook was to have new heat calculations made, a larger boiler was installed in accordance with the new heat calculations, longer baseboard radiators

were installed, larger manifold pipes of 1 1/4” were installed, larger supply and return lines were installed and the heating lines were brought into the ceiling in a warm space to prevent heat loss. Mr. Senft initially asked that Mr.Regehr be produced for cross-examination but subsequently withdrew that application. [ 50 ] Paolo Nardi was called by Revision, to provide opinion evidence. Mr. Nardi is a licensed plumber. He has had his license for 14 to 15 years. He learned his trade from his uncle. He has worked installing hot water systems in Vancouver for 18 years.

On average he has installed 6 to 8 hot water systems per month. [ 51 ] Before testifying at trial, Mr. Nardi provided a letter dated December 10, 2010. In that letter Mr. Nardi wrote that he had been at the Kims home on September 8, 2008, to install an outside relief valve. While he was at the home he looked at the heating system in the mechanical room. The boiler, manifold, piping layout and expansion tank were installed correctly and the boiler was operating normally. [ 52 ] In his letter, Mr. Nardi stated Mr.

Senft contacted him again on December 15 and told him that the Kims had a concern about the heating system. Mr. Nardi wrote that the weather at that time was extremely cold. He had received numerous calls that day about heating systems not operating to normal working temperatures. Relying on information provided by Environment Canada for the dates of December 14, 15, 16 and 17, 2008, Mr. Nardi wrote that the temperatures were as low as -18.3ºC to - 9.5º C.

In reviewing the Environment Canada documents he attached to his letter, I noted that the hourly data reports for those dates were for West Vancouver and that the temperatures relied on by Mr. Nardi were the dew point temperatures and not the air temperature. [ 53 ] In his letter Mr. Nardi wrote that hot water heating systems in Vancouver are designed to perform normally to temperatures as low as -7º C. He obtained this information from the November 2009 Thermal Environmental Comfort Association Heating Systems manual. [ 54 ] Mr.

Nardi also wrote that he was not able to provide an estimate for repairs as requested by Mr. Senft. In July 2010, Mr. Senft had written to the Kims asking to view the removed boiler with the expert. Mr. Kim declined the request as they were in the middle of a civil lawsuit. [ 55 ] During his examination-in-chief, Mr. Nardi testified as follows: (

a) Frost free hose bibs as not required by the City of Vancouver plumbing inspector. Trades people do use them but they are not required. (

b) Water lines can be placed on an exterior wall that has two by four construction. If that is done appropriate insulation has to be installed. However, if another wall is built inside the house (on the other side of the outside wall) it is acceptable to run water lines between the two walls. (

c) It is standard practice for heating contractors to take house specifications to a heating supplier for sizing. The heating supplier designs the system. (

d) Wolseley is a reputable heating supplier. (

e) Hot water heating systems are normally designed to operate to - 7º C. Such systems are not generally designed for anything colder. (

f) Minus 7º C. is based on the average daily temperatures. (

g) He had not examined the original boiler installed in the Kims residence in detail. However, he had seen it at a glance and it appeared to be operating normally. (

h) He referred to photographs taken by Mr. Kim showing waterlines in the basement. He indicated those lines were placed between the exterior wall and the interior wall, in fact, the red waterline, was clipped to the back of the interior wall. He stated this met installation standards for a hot water heating system. (

i) There were extreme weather conditions on or about December 14, 2008. He recalled the temperature being -12º C. to - 14 º C. He received 10 to 20 calls in that period, half of them were in regard to hot water heating systems. The majority of the calls regarding the hot water heating systems related to problems with the temperature and with the heat being generated. He said the majority of them could not be fixed because for approximately three days most of the systems could not generate the heat required to maintain temperatures of 20º C. to 21º C. However, once the cold snap ended the temperature problems went away. (

j) After the cold snap he did not receive any calls regarding heat generating concerns. (

k) The temperature reported by the Kims was 60º to 65º F. That was approximately 1º to 3º less than what might be optimal. That did not warrant a complete removal of the boiler. He said that in extreme cold temperatures a lot of heating systems in houses don’t reach that standard. Resizing the boiler would not necessarily solve the problems. (

l) Temperatures taken at Vancouver Airport would not necessarily be the same as those taken at West 44 th Avenue. (

m) He agreed there were a number of standard tests the heating contractor hired by the Kims did not undertake (I understood this to mean Point Grey Plumbing).

(

n) In his opinion the heating system installed at the Kims’ residence did what it was designed to do and performed to the standards set for the system. [ 56 ] In cross-examination Mr. Nardi testified that although he had gone to the Kims house at Mr. Senft’s request he did not do any troubleshooting because he had not been asked to do so. He also confirmed again that a heating expert who designs a hot water heating system designs it to - 7º C and that system is not designed to work optimally under - 7º C. [ 57 ] Mr.

Nardi was asked a series of questions about why he had chosen to refer to the dew point temperatures as opposed to the air temperatures. He agreed the dew point temperature was different from the air temperature. Additionally, he agreed that when he was assessing temperatures for his expert’s report he chose the wrong city. Accordingly, he agreed he had used the wrong temperature parameters. Mr. Nardi agreed that for the December 15 temperature he did not use the dew point temperatures. He used temperatures of -12º C. to - 14 º C.

He said he looked up the temperatures on his phone and remembers the temperature as showing at -12º C. to - 14 º C. [ 58 ] Mr. Nardi was asked questions about what he would have done if he had gone to the house to troubleshoot. He answered there were a number of steps he would have taken including: checking the heat, pipe sizes, pressure gauge of the boiler, and so on. He agreed the best way to check for problems is with the heating system turned on.

He agreed that by looking at a boiler sitting in a garage, he would not be able to tell if it was functioning properly. [ 59 ] With respect to the design of a boiler Mr. Nardi agreed heat loss calculations are essential for the installation of the heating system. If the system design recommends a specific boiler, baseboards, pipe sizes and so forth, that is what he would install and would not deviate from that. Mr. Nardi was asked about calculations done by Andrew Sheret on 03/05/09. These were calculations prepared for Point Grey Plumbing and Heating. Mr.

Nardi acknowledged the drawings in these calculations indicated that the designer had larger pipes (1 1/4”) leaving the boiler and pipes of 3/4” going and coming from the baseboard heaters. He said the page that showed line drawings was the one where the piping sizes were found and not the

Summary Inspection Report. He also agreed that sizing contained on the

Summary Inspection Report which referred to 1/2” pipes and to 12” inches max centre was referring to a system based on radiant heating and not to a baseboard heating system. He agreed the references to 1/2” pipes and “12 inches max centre” was not relevant to the heat loss calculations for the baseboard heating system that had been requested. [ 60 ] Mr. Nardi was also asked to review similar calculations done by Andrew Sheret on 01/28/09 for Revision. He confirmed it was on the line drawings on the direct return diagram that pipe sizes were shown.

In that calculation the pipe sizes shown were 1” pipe leaving the boiler and 3/4” pipes going to and leaving the baseboards. He agreed a 1/2” size that had been highlighted on the Layout

Summary Inspection sheet was not the correct pipe size for the system that had been submitted which used baseboards. [ 61 ] Mr. Nardi was asked whether he would install the system that had been designed for Astro Plumbing which was clearly not based on “stamped” drawings. He said he knew the system very well and could tell, based on his experience, by looking at a house generally what is required. He always gets a heat loss calculation and agreed he would follow it to the letter. However, he would not look to see if it was stamped. When he was pressed on this, Mr.

Nardi explained he always gets his heat loss calculations done by the same person and he does not check for the stamp. Mr. Nardi agreed that when a designer stamps the calculations and drawings for a heating system it means he takes responsibility if the system as designed does not perform, as long as the design is followed to the letter. However, Mr. Nardi acknowledged that if the design documents are not stamped then the responsibility falls on the installer, not on the designer, if the system does not perform.

ANALYSIS Findings of Fact [ 62 ] Given the numerous points of disagreement between the parties, I begin my analysis by summarizing my findings of fact: (

a) The Kims and Revision entered into a written renovation agreement which specified that a boiler and radiators were to be installed “as per plan”. Further, insulation was to be supplied and installed “as per plan”. (

b) Revision agreed it was responsible for supplying all labour, materials and supervision to complete the work in keeping with the contract. (

c) Revision agreed to undertake the work diligently and in a good and workmanlike manner. (

d) Revision provided a warranty that it would correct any deficits due to faulty materials and/or workmanship. Further, Revision provided that it would correct or pay for any damage to other work resulting from any corrections required. (

e) Calculations to determine the type of boiler to install were completed by Wolseley Mechanical, a reputable heating supplier. The heating related calculations were prepared by Mr. Buchanan based on information provided to him presumably by the sub-contractor Astro Plumbing. The calculations and design prepared by Mr. Buchanan were not stamped by him because the drawings provided to him were not satisfactory. Nevertheless, Mr. Buchanan made assumptions about certain things such as the height of the basement, the size of the doors etc. and made a recommendation for a boiler with an output of 38,000 BTUs. (

f) I accept the evidence of Mr. Senft that later another employee of Wolseley, who answered his call because Mr. Buchanan was not in, told him there had been an error in the calculations done by Mr. Buchanan and that the original boiler unit installed at the Kims residence was one size too small. I find that Mr. Senft was offered and accepted a new boiler by Wolseley, one size larger than the original, for an additional cost of $98. (

g) I find that Mr. Kim was very anxious to have the original boiler replaced. He took it upon himself to contact another plumbing company, Cambie Plumbing, to undertake an assessment of the heating system installed by Astro Plumbing. I find Mr. Kim believed

that Mr. Senft was not responding quickly enough and he did not want to wait to see if Mr. Senft could line up a new installer to look at the system. (

h) I find that, at some point, after Michael Canzian had been called by the Kims, Mr. Senft had a discussion with him. In this regard, I am satisfied on the evidence that Mr. Senft spoke to Michael Canzian about the installation of a replacement boiler that was to be supplied by Wolseley not by Cambie Plumbing. Mr. Senft only spoke to Michael Canzian about the cost for labour and material to do the installation. He did not ask Mr. Canzian to supply the boiler. (

i) I find that Cambie Plumbing declined to install a boiler that was going to be supplied to Mr. Senft by Wolseley because they not only wanted to do the installation work but also wanted to supply the boiler in order to receive the benefit of a mark-up. (

j) I find that Michael Canzian told Mr. Kim that he would not install the boiler: however, I do not accept the hearsay evidence which suggests this was Mr. Senft’s fault. Mr. Kim was anxious to have the work done and therefore he paid Cambie Plumbing $3,900. I further find that Mr. Senft was not aware that this had transpired until after the installation by Cambie Plumbing was completed. (

k) I find that Mr. Senft attempted to provide solutions to the Kims to resolve the issues, albeit, not within the timeframe expected by the Kims. However, I also find that the relationship between the parties was so strained and the level of trust so eroded that attempts by the Kims and Mr. Senft to solve the issues were fruitless. (

l) I accept the evidence of Mr. Kim that he and his wife told Mr. Senft they wanted to undertake the repairs of the plumbing and heating system and would bill Mr. Senft later. However, on all of the evidence I am not satisfied that there was a clear and unequivocal acceptance of their offer by Mr. Senft. The suggestion that an experienced contractor would allow a client with no experience in the construction industry to take over remediation of a heating system which had already been replaced once does not accord with commonsense. In reaching this conclusion, I am not suggesting that Mr.

Kim is not telling the truth about what he perceived at the time. I simply conclude that he was mistaken. (

m) I find that some pipes in the house froze. It is clear that the water pipes for the upstairs bathroom froze. However, it is unclear which of the basement pipes froze. (

n) I find that the plumbing inspector passed the plumbing in the basement. Another inspector passed the insulation. (

o) On December 2008 at the time these incidents occurred, Vancouver experienced unusually cold, below freezing, temperatures. Expert evidence regarding hot water heating system [ 63 ] Both parties adduced opinion evidence from persons with experience in installing hot water heating systems. Mr. Kim filed a letter from the president of Point Grey Plumbing and Heating. Mr. Senft called Paolo Nardi, a licensed plumber. I allowed the parties to adduce the evidence without strict adherence to the criteria in R. v. Mohan , [1994] 1 S.C.R. 9 . Witnesses are not generally permitted to testify about to their opinion.

The admission of expert evidence is an exception to that rule. The purpose of expert testimony is to assist the court in reaching its conclusion in cases where the court could not do so on its own without assistance from experts with special knowledge. [ 64 ] I will first review the letter from Mr. Regehr regarding the heating system: (

a) Mr. Regehr wrote that the “heating system was working properly but was installed negligently”. This is a conclusory statement going to one of the very issues I must decide. However, Mr. Regehr does not explain how the system was negligently installed. He does not set out what was done that should not have been done or vice versa . (

b) He stated the heat loss calculations were incorrect and “led to under-sizing of the heating system”. Again this is a conclusory statement. He does not explain what heat loss calculations he is referring to and how they were incorrect. (

c) Mr. Regehr said the boiler was too small. This was the boiler that was installed by Cambie Plumbing. It is not clear from the evidence what due diligence, if any, Cambie Plumbing carried out before undertaking the installation of the second boiler. That aside, however, there is no explanation by Mr. Regehr about how he determined the boiler was too small. (

d) Mr. Regehr said that not enough baseboards were installed and that certain pipes were wrongly sized. This too was not explained properly in that Mr. Regehr did not explain why larger pipes were needed. It is noteworthy that Cambie Plumbing had made comments to Mr. Kim on the baseboards. However, their concern was about the filaments and not about the length of the baseboards. While Mr. Regehr’s letter was admitted into evidence I have not given it much weight because the opinions expressed and the foundation for those opinions have not been adequately set out or explained. [ 65 ] It should be noted that Mr.

Kim went into considerable detail about the research he did himself in order to ascertain why the heating system was insufficient. He testified about what he learned. Mr. Kim is a physician in emergency medicine. It was clear that the analytical skills he developed during his medical training were invaluable in preparing and presenting his case at trial. However, with due respect to his medical training and analytical skills, this court cannot accept his testimony about heat loss calculations as reliable opinion evidence on this issue.

It would be like accepting a personal injury lawyer’s opinion evidence on the diagnosis of a client’s medical problem or how certain medical procedures should be carried out. Expert evidence about why heat loss calculations were incorrect could have been led through Mr. Regehr. Better still it could have been led by the person who designed the heating system that Mr. Regehr installed.

[ 66 ] I now turn to the evidence of Mr. Nardi who was called by Revision. In relation to the hot water heating system, I place no weight on his evidence because he only looked at it “at a glance”. Therefore, his evidence that it appeared to be operating normally is not helpful. Was there a problem with the hot water heating system? [ 67 ] There is no dispute that there was a problem with the original boiler installed by Astro Plumbing. The issue was that the boiler was under-sized for the size of the house. This was determined by Mr. Senft himself when he contacted Wolseley in December 2008.

It also appears there may have been a problem with the number and/or length of the baseboard radiators involved. I use the word “appears” because, as noted, I have a number of concerns about the “expert” opinion evidence presented to this court. What steps did Revision take to address problems with the hot water heating system? [ 68 ] Revision as the general contractor hired sub-contractors and provided materials. In its contract with the Kims it agreed that it would correct any defects due to faulty materials and/or workmanship appearing within one year.

It further agreed that it would correct or pay for any damage to other work resulting from any corrections required. [ 69 ] The initial work on the heating system, including the plumbing related work, was done by Mr. Suryadi of Astro Plumbing. Mr. Senft was not able to contact him at the time the Kims raised the issues about the hot water heating system. More importantly, however, the Kims specifically told Mr. Senft they did not want him to use Mr. Suryadi. Mr. Senft responded to the Kims and also contacted Wolseley, a heating supplier, who had supplied the original boiler.

When he spoke to someone at Wolseley (the original designer was not available at the time) he was told an error had been made on the sizing of the original boiler. I am satisfied that Mr. Senft responded appropriately to the Kims concern, albeit it was not as quickly as the Kims would have liked. [ 70 ] The Kims were anxious to have the problem with their heater addressed immediately. To a certain degree, given the time of year, this was understandable.

However, I note that, although the problem was unexpected and bothersome, the Kims were able to get the house temperature to 65º - 67º F and they “made do” using portable heaters. [ 71 ] Mr. Senft told the Kims he would contact the original supplier of the boiler and see if the supplier could recommend an installer. The Kims were not satisfied with what Mr. Senft proposed. Instead, they contacted another heating supplier, Cambie Plumbing, on their own. Mr. Kim did so by contacting Michael Canzian who he asked to look at the system. [ 72 ] It was clear from the evidence that Mr.

Senft went along with what the Kims wanted. However, he was not going to take responsibility for any work done by Cambie Plumbing. In an undated e-mail which appears to have been sent on December 16 or 17, 2008, Mr. Senft told Mr. Kim he had resolved the “labour and material costs issues”. Those items were to be at Revision’s expense. Mr. Senft noted in that e-mail that he understood from Michael Canzian that the work on the boiler was going to be done on December 18. He specifically told Mr. Kim that since Mr.

Kim had chosen “the sub-trade who is completing the change out of this boiler that Revision is now not responsible for any of the work that this sub-trade completes. Please make sure you confirm that all is in order before I pay their invoice.” The Kims disagreed with Mr. Senft’s position. They maintained he was still responsible even though another company was going to do the work. Nonetheless, it was clear, at least one or two days before the second boiler was installed, that Revision refused to take responsibility for work done by someone chosen by the Kims.

More importantly, however, it is also clear on the evidence that the Kims were so anxious to have the boiler changed that they took matters into their own hands. They did not give Mr. Senft a reasonable opportunity to assess and to resolve the problem pursuant to the warranty in the renovation contract. This is significant because the contract also provided that items installed and/or supplied by the homeowner were not covered by the warranty. [ 73 ] Mr. Senft had made an arrangement with Michael Canzian for Cambie Plumbing to provide labour and materials only for a set price.

The boiler was to be provided by Wolseley as arranged by Mr. Senft. In this regard, it should be recalled that Wolseley had agreed to provide an upgrade of the boiler for $98. This agreement had been made with Mr. Senft. It is equally clear that Cambie Plumbing was not prepared to undertake the work if it could not provide the boiler. Mr. Canzian apparently told Mr. Kim that the reason he needed Mr. Kim to pay for the installation of the boiler in full was because there had been problems regarding finances between Cambie Plumbing and Mr. Senft. I am satisfied based on other evidence; namely, the testimony of Mr.

Senft and a comment made by Mr. Kim in one of his e-mails, that the real issue was that the arrangement made between Mr. Senft and Wolseley to supply a replacement boiler for $98 “penalized” Cambie Plumbing who would not receive a mark-up for the boiler. I accept Mr. Senft’s evidence that he was not aware of Cambie Plumbing’s change of heart and the fact that they asked Mr. Kim to pay the full amount, until after a second boiler supplied by Cambie Plumbing was already installed. The Kims vitiated the arrangement Mr. Senft had made with Cambie Plumbing by paying $3,900 and signing the invoice.

Conclusions regarding the hot water heating system [ 74 ] It is apparent from the evidence that there was a problem with the first boiler installed by Astro Plumbing and that the Kims should receive some compensation for making it right. It is not clear, however, whether the problem was a “miscalculation” or a faulty overall design. This is significant in determining whether the replacement of the whole system (the third installation) was necessary. The original plans for the system were drawn up by Mr. Buchanan of Wolseley but were not stamped.

The inference urged upon me by the Kims is that the lack of specific measurements resulted in a heating system that was not sufficient for their needs. Mr. Senft testified he was told a larger boiler (next size up) was needed but he did not have the BTU output for the larger boiler or the new heat loss calculation. Accordingly, the nature of the problem with the design of the first system and its installation is not particularly clear. What is clear is that the boiler should have been larger. [ 75 ] However, even when a second boiler was installed the problems perceived by the Kims persisted.

There is insufficient evidence before the court to allow me to conclude what the problems were with the second boiler that led to the third installation. Mr. Kim has led hearsay evidence that he heard from the plumbers who did the Cambie Plumbing installation that the 1/2” pipes should have been 3/4” and that the heating filament fins in the baseboard heating had been installed incorrectly. This evidence, if accepted, suggests that the sub-contractor or Wolseley had apparently made other mistakes apart from the size of the boiler.

Given the hearsay nature of the evidence, the circumstances under which the statements were made, and the lack of information about the qualifications of the plumbers

who made those observations, I am not prepared to accept that evidence. [76] I am satisfied that Mr. Senft attempted to provide solutions but the Kims had lost confidence in him and were not prepared toaccept his suggestions which they felt were superficial. The Kims say that Mr. Senft agreed on February 18, 2009, that they could takeover the remediation of the problems and bill him later. I have found, as a fact, that there was no clear and unequivocal acceptance oftheir offer by Mr. Senft. The Kims did act as their own general contractor on the installation of the third heating system.

Regrettably,there was no reliable, independent review and assessment of the heating system before the third installation was undertaken. Iacknowledge that Mr. Regehr, whose company installed the third heating system in 2009, wrote that his opinion was based on an“assessment” of the system. However, as previously noted, he did not provide an adequate foundation for his opinion. Moreimportantly, the Kims did not provide this court with any evidence as to what alternatives, if any, they considered other than replacementof the entire heating system.

Given the cost and extent of the third installation and the Kims previous negative experiences, it wouldhave been prudent to get an independent assessment and several quotations. [77] Furthermore, the Kims have not established on a balance of probabilities that the particular system they installed the third timewas reasonably necessary. Their expert report was not helpful in this regard.

In particular, even if the heat loss calculations and designdone by Andrew Sheret on 03/05/09 is correct, I note that the boiler they purchased has a considerably greater output (70,000 BTU) thanthe boiler output (54,538 BTU) recommended. Mr. Kim was asked whether other options, other than removing the whole system, wereconsidered. He said they did consider removing the old pipes but thought it would cost more than placing the pipes in the ceiling. Hewas asked whether he had any written evidence of other options. He said they chose that option because they thought it was the bestone.

On the evidence, I am left with the inference that the Kims installed a boiler and a system that may have been over-sized. It is clearthat the original boiler was the wrong size and the Kims should be compensated for that. However, I am not satisfied that a completeoverhaul of the hot water heating system was necessary or that it was the only solution. What responsibility does Revision have for the frozen pipes? [78] Based on the evidence I heard at trial I am satisfied that the pipes in the upstairs bathroom froze as a result of the way they wereinstalled by Astro Plumbing.

It appears that proper insulation was not provided. This may have occurred because of the design of thebathroom but, if that was the case, the Kims should have been warned about potential risks. [79] The more significant issue relates to the plumbing in the basement. On the evidence I am satisfied that the construction in thebasement was inspected by a plumbing inspector as well as another inspector who checked the insulation. There is no independentevidence that Mr. Senft’s installation of the plumbing and/or insulation was contrary to the building code.

However, even if the freezingof the pipes resulted from deficiencies with installation or insulation, I must consider whether the complete overhaul of the water pipes inthe basement and placement of the water pipes in the ceiling was necessary. [80] I noted in my analysis of the heating system issue that the Kims did not present evidence of other options or alternatives. Theplumbing was part of the overall heating system. It appears that no thought was given to other options for protecting the pipes fromfreezing.

The Kims had a duty to mitigate, this includes taking timely and reasonable steps such as considering various options forrepairing deficiencies and obtaining competitive quotations. They did not do so and have not established that the water pipes needed tobe moved to the ceiling. CONCLUSION (

a) I find that the Kims have established that the original boiler installed by one of Revision’s sub-contractors was not sized properly. Accordingly, they are entitled to some compensation. However, they have not established that a complete overhaul of the heatingsystem was necessary or reasonable. (

b) Further, I find that the Kims have not proven that the installation and/or insulation of the basement plumbing was contrary to thebuilding code. However, even if the pipes froze as a result of deficiencies in the installation or insulation, the Kims have not establishedthat it was either necessary or reasonable to move the pipes to the ceiling. (

c) I am satisfied that the pipes in the upstairs bathroom froze as a result of the way they were installed and insufficient insulation. [81] I now turn to the assessment of damages. Mr. Kim submitted a

summary of the costs associated with the remediation heundertook. However, the information he provided does not set out the specific costs attributable to the losses I found he sustained. Damages at common law are awarded to compensate a party for his actual loss. They are meant to put the injured party in the positionhe would have been in, but for the wrong he sustained. Damages are not meant to punish the wrong doer. [82] In cases where there is difficulty in assessing damages the court must do the best it can, based on the evidence presented.

TheSupreme Court of Canada has provided guidance where there is difficulty in determining damages: see Penvidic Contracting Co. Ltd. v.International Nickel Co. Of Canada Ltd., (SCC), [1976] 1 S.C.R. 267. In that case the court quoting from an earliercase noted that the difficulty in ascertaining the amount of damages does not relieve the wrongdoer of the necessity of paying damagesfor his breach of contract.

In circumstances where it is difficult to ascertain the amount of damages with mathematical accuracy thejudge must nevertheless “do the best it can” and its conclusion will not be set aside even if the amount of the verdict is a matter of guesswork see: Wood v. Grand Valley Railway Company (1914), (SCC), 22 D.L.R. 614. It has been also noted that, attimes, the court may be somewhat arbitrary in its assessment: see Marynowsky v. Stuartburn (District), [1994] M.J. No. 549.

The fact itmay be difficult to assess damages sustained by a party does not limit the obligation and right of the court to determine the issue, evenwhen it requires resorting to a crystal ball to some degree: see Schab v. Active Bailiff Service Ltd., [1993] B.C.J. No. 2936. (

a) Damages related to first installation of heating system. [83] As noted it is clear the boiler was not the right size. The total cost of the replacement undertaken by Cambie was $4, 442.50.

This included an inspection charge plus installation of and supplying a new boiler. There is no evidence about the actual cost of the third boiler installed so in assessing damages the best estimate I have is the cost of the second boiler replacement. From that amount I subtract the money Revision already paid to the Kims ($1, 417.50) and the credit the Kims received for the first boiler ($1, 203.30). The outstanding balance is $1, 421.70. (

b) Damages for the frozen pipes in the upstairs bathroom. [ 84 ] As noted Mr. Kim provided cost information but did not assign a specific cost to the various areas worked on (see Appendix A). Accordingly, there is no breakdown of costs attributed to remediating the pipes and insulation in the upstairs bathroom. The best I can do in the circumstances is to estimate the cost of that repair at $1,500. [ 85 ] Based on the evidence available to me I have concluded that a total of $2,921.70 plus court ordered interest, filing fees and service fees should be paid to the Kims. The Honourable Judge M. F. Giardini Provincial Court of British Columbia APPENDIX A