Andrade v. Kalfin Date:, 2010 BCPC 333

Citation: Andrade v. Kalfin Date: 20101220 2010 BCPC 0333 File No: 1031374 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JACQUELINE ALLISON ANDRADE CLAIMANT AND: DIMITAR KALFIN DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Appearing on their own behalf: Jacqueline Allison Andrade Appearing on their own behalf: Dimitar Kalfin Place of Hearing: Vancouver , B.C.

Date of Hearing: December 15, 2010 Date of Judgment: December 20, 2010 [ 1 ] The Claimant brings this action for damages resulting from a breach of contract by the Defendant. [ 2 ] The Defendant counterclaims for balance of payment under a contract and payment for extra work performed, additional to that required by the contract. [ 3 ] The Claimant engaged the Defendant to perform certain tile work (floor and shower surround) for two bathrooms in her home.

This work included the application of certain waterproofing, the installation of anti-fracture membrane, the installation of backer board, the installation of floor and shower stall tiles, grouting and application of silicone. The Claimant had selected and purchased a high quality white tile for the shower surround and was expecting the Defendant to perform quality work. The quality of the work and not the cost of the work was the Claimant’s primary concern. The Defendant stated that his contract was not necessarily for two bathrooms but rather was for the installation of a certain square footage of tile.

This issue might be relevant to the counterclaim, were the Defendant successful. In light of my findings on the Claimant’s claim, nothing turns on this issue. There is also an issue of whether the work included the proper installation of the shower stall. In light of my findings this issue is also irrelevant. [ 4 ] The Claimant states that the work performed by the Defendant was sub-standard, so much so that at the end of day, all of the Defendant’s work was removed and redone by another contractor, Cando Construction.

The Claimant is not seeking the costs to re- perform the work; rather the Claimant seeks costs thrown away: the incidental costs incurred as a result of having to redo the work, repurchase of tiles, removal and disposal costs of material removed and return of money paid to the Defendant, on the basis that the Claimant received no value from anything done by the Defendant.

[ 5 ] The Claimant provided many pictures of the areas of complaint. These showed uneven or inconsistent grout lines, both vertically and horizontally, tiles installed that were proud of the wall at the intersections, leaving a bumpy effect if one were to touch the tiled walls, grey grout instead of white around the white tiles, lack of centering of the tiles around the faucet and fixtures, tiles installed unevenly, floor tiling that was not installed flat, lack of sealing and silicone. Claimant called a representative from Cando Construction to testify, Ms. Jennifer Cameron. Ms.

Cameron is the Owner of Cando Construction and the person who performed the work for the Claimant. This witness appeared knowledgeable. Although this was the person engaged to perform the replacement work, I concluded after listening to the witness that her evidence was credible and balanced. This witness testified to other problems with the work performed by the Defendant and testified that the work performed by the Defendant was so deficient that it was not capable of being repaired.

In her opinion the only option available to the Claimant was to entirely remove the work done by the Defendant and essentially start again. This witness strongly disagreed with the suggestion made by the Defendant that the work met industry standards and that the items complained of were within industry tolerances. The witness testified that the work was poor quality. I accept the evidence of this witness. [ 6 ] Additionally, I note that the Claimant made several efforts to have the Defendant fix his work. The decision by the Claimant to have another contractor start from scratch was a last resort.

The tiles that she had purchased were no longer available. I find that had a solution been available to correct the work and achieve a good quality job, the Claimant would have accepted that solution. [ 7 ] The Defendant raised a point that the pictures taken by the Claimant were magnified close ups, exaggerating the deficiencies complained of; essentially by virtue of the magnification the, a kitten is transformed into a tiger. The Defendant submitted a limited number of pictures taken standing back from the shower.

The Defendant suggests, when looking at his pictures, that the problems complained of are not that bad. I agree that the magnification does exaggerate the problems. However only the close ups can show the problems such as the lack of flatness and the uneven grouting. Even on the Defendant’s photographs, the dark colour of the grout is evident in spots and the failure to centre the tiles is evident.

In fact in these pictures a grout line is visible along the bottom of the shower faucet, a practice the witness from Cando Construction stated is bad construction practice as cracking will occur at that location. [ 8 ] The Defendant states that things like the uneven grouting and lack of flatness in the tiles were within an established and published industry standard.

The Defendant did not include this standard in his Trial Statement; nor did he have measurements to confirm; nor did he have any independent witness look at his work when the complaints were made, to comment on whether his position in this regard were correct. I am required to make findings based on the evidence before me. There was no evidence that the work met industry standards and the evidence of the witness from Cando Construction was that it most definitely did not.

I do not find that the problems complained of were within some industry established tolerance. [ 9 ] An additional complaint by the Claimant was that the Defendant improperly installed the shower pan using screws that were too small with the result that the shower was loose when one stood in it. The Defendant states that it was not his job to install the shower pan. He did however note that it was loose at the time he was doing his work and he brought it to the Claimant’s attention.

The Claimant states that the Defendant brought it to her attention and told her he would look after it and ensure that it was properly affixed. I accept the Claimant’s evidence on this point. However in any event, having noticed the issue, it was inappropriate for the Defendant to proceed with his work without ensuring that the underlying work, over which the tiles would be installed, was properly secured.

The failure to verify the stability of the shower stall in the face of actual observations is further evidence of the lack of quality performance by the Defendant. [ 10 ] In the circumstances, the Claimant is entitled to judgment in the amounts claimed of $2378.17 plus costs of $120.00. Specifically, the Claimant is entitled to judgment for return of money paid to the Defendant ($892.93), payment for the tiles ($840.24), costs of removal and disposal ($560.00) and costs of colour photos ($85.00) [ 11 ] The Defendant’s counterclaim is dismissed with costs to the Claimant. ________________ M. Pratchett Adjudicator