Absolute Landscaping Ltd. v. Dhaliwal Date:, 2012 BCPC 128

Citation: Absolute Landscaping Ltd. v. Dhaliwal Date: 20120430 2012 BCPC 0128 File No: 1032377 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ABSOLUTE LANDSCAPING LIMITED CLAIMANT AND: SARJINDER DHALIWAL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N.N. PHILLIPS Counsel for the Claimant: K. McKenzie Appearing on their own behalf: S. Dhaliwal Place of Hearing: Vancouver , B.C.

Dates of Hearing: February 28 & April 13, 2012 Date of Judgment: April 30, 2012 Overview [ 1 ] In March and April 2008, Absolute Landscaping worked on Sarjinder Dhaliwal’s property in West Vancouver and rendered an account for $16,751.53 for the work performed. Ms. Dhaliwal paid $5000 toward the bill but has since declined to pay the $11,751.53 balance because she believes she was over-charged for the work.

The Claimant company commenced a law suit in the Small Claims Court in June 2009 for the outstanding amount and the Defendant filed a counterclaim in the amount of $6,169.88 for substandard work and over-charging. This is the decision of the Court following a trial held in this case. The Evidence of the Claimant [ 2 ] Dean Ogden, the principal of Absolute Landscaping, gave evidence on behalf of the company at trial.

Ogden told the Court he has been in the landscaping business for about twenty years, including twelve years as the owner/operator of Absolute Landscaping. [ 3 ] Ogden testified Sarjinder Dhaliwal contacted him in the fall of 2007 to do the landscaping work on a home she was building at 342 Stevens Drive in West Vancouver. Ms. Dhaliwal was acting as the general contractor on the home construction project for her family.

After some negotiation, the parties entered into a verbal contract based on an hourly rate of $45 per hour plus materials. [ 4 ] The Claimant company provided the Court with a copy of the single invoice rendered in relation to the work carried out under the 2007 contract for the Defendant. The invoice, dated December 19, 2007, was in the amount of $16,398.60 and covered 262 hours of work.

The bill states the following work was performed: - install and grade soil, install new sod, and all trees and plants - install and complete Allan Block wall - 54 yards of turf mix soil, and delivery - cut off saw rental - 460 sq. yards sod and delivery - 280 sq. yards sod and delivery [ 5 ] Ogden told the Court he presented the bill for payment to Dhaliwal and she had no issue with the work and seemed pleased with what had been done by the company. The invoice was paid in full in a timely way. [ 6 ] The Claimant testified that Dhaliwal called Absolute again in the Spring of 2008 to come back and do more work.

A second verbal contract for labour and materials was agreed to by the parties. Ogden testified that in March and April of 2008 he did the work requested by Dhaliwal with the aid of his employee Dustin Parr. Ogden said he kept track of the hours the two men worked by making a record of the time in a notebook. Ogden said his practice was to enter the hours from his notebook into a computer at the end of the day. Ogden filed with the Court five pages of handwritten notes or invoices for Mr. Parr’s labour although the entries are stated in the broadest of terms.

For example, in reference to March 18, 2008, the document states only the date, Parr’s name, the reference to “labour work”, and the sum of $327. [ 7 ] Odgen testified he always recorded the time he and his employee worked on the Defendant’s property and that Dhaliwal had not been charged for any hours they had not worked. Ogden told the court he had not charged any mark-up whatsoever on materials supplied for the project. The Court was also told that Ogden picked-up and transported materials to the project site, an arrangement put in place by Dhaliwal in order to save supplier delivery charges.

Although not explicitly stated in evidence, it was clear Ogden included in his bill to Dhaliwal the time he spent picking up and transporting materials for the job. On occasion, it appears that Dhaliwal was also charged for Parr’s time assisting or accompanying Ogden in picking-up materials. [ 8 ] Ogden told the Court about the work he carried out at the Dhaliwal residence in the spring of 2008 including planting additional plants Dhaliwal purchased.

The Claimant company also worked on Allan Block (retaining) walls; installed a paver wall way; and started to build a pond in the yard. [ 9 ] Ogden testified that Dhaliwal asked him about building a lattice fence on top of or beside an Allan Block wall another company had built on the property. Ogden said he told her he did not do fence work and offered to refer her to a fence builder he knew.

After learning the fence could not be constructed on the top of the Allan Block wall, Ogden said he understood Dhaliwal told the fence builder to install the fence behind the Allan Block retaining wall on the neighbor’s side of the property. According to Ogden, the

neighbor in question later complained the fence had been installed without approval on their property and Dhaliwal had to get the fence builder to tear down and re-build the fence on her property. [ 10 ] Ogden told the Court the fence company, Looking 4 Trades Inc., gave him two invoices for the work performed: one in the amount of $3,862.36 for the construction of the fence, and a second invoice in the amount of $1,474.84 for the cost associated with moving and re-installing the fence.

Ogden told the Court he paid the builder the full amount of the two invoices and added the amounts to Absolute’s invoice for Dhaliwal. [ 11 ] Ogden testified that Dhaliwal approached him and told him about the vision she had for a cascading waterfall feature for her yard and he agreed to build it for her. He told the Court he purchased materials for the job, namely basalt rock, sand and a pond liner. He told the Court his company had done thirty-eight hours of work excavating and developing the site for the pond when he realized he was unable to create what the Defendant wanted and he told Dhaliwal that.

Ogden said he offered to contact an expert in pond construction and spoke with Robert (LNU) at Cambie Water Gardens who advised that it was not possible to build the pond the Defendant had envisioned. Odgen testified Dhaliwal then retained Cambie directly to build a small pond and that over the course of a single day Cambie did so in the area Absolute had excavated and prepared. Ogden told the Court he understood Cambie had used some of the materials Absolute had purchased for the pond. [ 12 ] Absolute finished work for the Defendant and rendered a final invoice on May 23, 2008 in the amount of $16,750.48.

Ogden testified he gave Dhaliwal the invoice at her home and she had no comment about the bill other than to ask if the Claimant took credit card payments and to say she would need some time to pay.

Ogden said there were no complaints made about the invoice and, in particular, no mention was made about any deficiencies. [ 13 ] The May 23, 2008 invoice set out the following details: - Complete new landscape installation 173 hours X $45/hour ($7,785.00) - Install lattice fence - Allan Blocks, saw/compactor rentals - Gravel, soil, drain rock + sand - Basalt rocks - Pond Liner - Move lattice fence to other side of Allan Block wall ($1,473.84) [ 14 ] Odgen told the Court when the invoice remained unpaid he spoke with Dhaliwal and offered to reduce the amount she had been charged.

Dhaliwal told him she was concerned about the cost of the fence and the charge for having it moved. Dhaliwal also expressed concern about being charged for the work Absolute did on the pond when she had to get the work done by another company. As a result of this conversation, Ogden prepared a second invoice (dated June 30, 2008) reducing his labour from 173 to 146 hours and giving a $1000 reduction on the fencing costs.

The second invoice was for a total of $14,424.73 and is identical to the May 23 rd invoice except for the reduction in labor costs/hours to $6,570 and the fence re-positioning costs (from $1500 to $473.84). [ 15 ] The Claimant company also provided the Court with a third invoice for the work performed in the spring of 2008. The invoice, also dated June 30, 2008, is for the original sum of $16,751.53 and the itemized entries are identical to those set out in the May 23, 2008 invoice.

Although not stated in evidence, the third invoice presumably was tendered by the Claimant to preserve its claim for the full amount of work and materials on this project. [ 16 ] On July 2, 2008 Dhaliwal made a payment in the amount of $5000 toward the account. Dhaliwal wrote “1 st installment” on this cheque.

There have been no further payments made to this date on account. [ 17 ] Pursuant to a court order for disclosure made on January 26, 2010, the Claimant was required to provide the Defendant details relating to the work performed at the Dhaliwal residence, “…namely the names of the employees and/or subtrades on the job site each day, and a brief description of the work performed”.

The Claimant gave the Court a copy of the response provided to the Defendant pursuant to the order, which is set out below in its entirety. ____________________________________________________________________ Work completed at 342 Stevens Drive West Vancouver

Dates Hours Hours Total Work Description _____ 19-Mar` 9-12 x2 6 Install gravel and soil prep walkway 20-Mar 11-2 x2 6 Install gravel and soil prep walkway 24-Mar 12-3:30 x2 7 Move in basalt rocks gravel/sand dig hole for pond 25-Mar 2:30-5:30 x2 6 Pick up and delivery basalt rocks and prep pond area 26-Mar 10-4 x2 12 Install sand and basalt rocks for pond 27-Mar 8:30-3 x2 13 Install drain rock and Allen block wall prep pond area 28-Mar 8:30-3 x2 13 Install drain rock build Allan block wall, paver path 1-Apr 8:30-4 x2 15 Allan block wall and pathway 3-Apr 9-3 x2 12 Allan block wall paver walkway.

Planting 4-Apr 10-4 x2 12 Install drain and paver walkway. Planting 10-Apr 8:30-3 x2 13 Allan block wall paver walkway. Planting 11-Apr 10-2 x2 8 Install Garden soil and planting 15-Apr 1:30-5 x2 7 Install Garden soil and planting 16-Apr 9-12:30 x2 7 Install Garden soil and planting Allan block caps 17-Apr 10:30-4 x2 11 Install Allan block caps + pavers, planting 18-Apr 10-1:30 x2 7 Install pavers, gravel, planting

28-Apr 9-6 x2 18 Planting, bark mulch, lawn cut 173 Hours Labour work completed by: ~Dean Ogden ~Justin Parr ____________________________________________________________________ [ 18 ] In cross-examination, Dhaliwal questioned Ogden extensively about the list of dates worked and tasks completed, highlighting dates on receipts for materials purchased and equipment rented to suggest Ogden’s work records could not be true.

In response to the suggestion he had fabricated the hours worked and the tasks performed, Ogden offered he may have listed the tasks performed in the wrong order given the passage of time from when he did the work to when he was directed by the Court to put the list together. However, Ogden maintained that all of the work listed had been performed by himself or Parr and the detailed hours worked were accurate, having been recorded by him at the end of each work day. [ 19 ] Dhaliwal took issue with some of the time Absolute charged her to obtain and deliver materials to the site.

When asked why he had made more than one trip to pick up drain rock for the project, Ogden told the Court his truck could not carry the entire amount in a single load. When presented with a receipt showing he had carried a single load equivalent to the same total volume on another occasion, Ogden said he knew the other load was over-weight but carried it as he had been anxious to get the job done. [ 20 ] Dhaliwal also questioned Ogden about being charged for two pallets when receipts provided to the Court revealed they had been returned by the Claimant and deposits recovered in the amounts of $50 and $80.

Ogden agreed he had returned the pallets and received the deposits back. [ 21 ] In cross-examination, Ogden denied the suggestion the Allan Block work his company did was limited to building a wall around a power pole and maintained he had done finishing work on incomplete retaining walls on the property. In reference to obtaining basalt rock for the pond project, Ogden testified Parr had accompanied him to the supply yard to assist with loading the loose rock.

However, when Dhaliwal suggested she had previously picked out the rock herself and knew the material had then been palleted by the supplier, Ogden agreed the stones would normally be secured for transportation in some fashion at the yard before being picked up. Ogden denied that Dhaliwal had been charged to have Parr sit in Ogden’s vehicle when picking up materials. [ 22 ] When asked why the Claimant had not produced Parr as a witness for the trial, Ogden testified Parr had left the employ of the company sometime ago.

He said he had gone to England to assist a relative on a house-building project and he had not heard from him since. I note that the Claimant’s trial statement, filed March 18, 2011, gave notice that Ogden would be the only witness at trial for Absolute. [ 23 ] Dhaliwal questioned Ogden as to whether he had charged her for time spent driving to pick up or drop off Parr from the work site, which Ogden denied.

Dhaliwal drew Odgen’s attention to times noted on receipts for materials purchased suggesting Ogden returned to her home late in the day after picking up supplies without doing any further work at the site on his return. Dhaliwal suggested a half hour at the beginning and end of each day should be subtracted from Ogden’s claim to address this problem. [ 24 ] Dhaliwal also questioned how Ogden could have failed to plant her cedar hedge in compliance with municipal boulevard guidelines given that he was licensed to work in West Vancouver.

Ogden told the Court he was aware of the guidelines but planted the shrubs where Dhaliwal directed him to. He added the shrubs had been planted in a line consistent with the hedges of neighboring homes. The Evidence of the Defendant [ 25 ] Dhaliwal told the Court that in the spring of 2008 she re-hired Absolute to build a waterfall and a walk-way on her property. She said the parties agreed the company would bill her for time and material and Absolute would transport the material so that she would not have to pay suppliers’ delivery costs.

She acknowledged she might have made an error in thinking Ogden’s delivery costs would be cheaper than having suppliers deliver the materials. [ 26 ] The Defendant is a chartered accountant and works as a Chief Financial Officer for a family software business. Dhaliwal’s father was in the construction field and she testified she had learned a bit about home building from him. [ 27 ] Dhaliwal told the Court that during the project with Absolute she would typically leave her West Vancouver home to drive to her downtown office around 8:30 am and she would be back home around 3:30 pm.

Occasionally she would work from home. She testified that despite her schedule, she only saw Ogden on two occasions at her home in the spring of 2008. On one of those occasions

she was critical of the work she saw, noting Parr to be filling tall potting containers with too much soil. On the last day Ogden was on her property, she saw him using his own lawn mower to cut her grass. This was not something she had asked Ogden to do and she was troubled by the fact he transported his own equipment to mow the lawn when she had her own mower. [ 28 ] Dhaliwal disagreed with Ogden’s evidence about when he gave her the May 23 rd and June 30 th invoices.

She said when she got the bill in the summer of 2008, she made it clear to Ogden she was not going to pay anything for the work Absolute did on the aborted attempt to build the waterfall. Dhaliwal told the Court that Cambie Water Gardens installed a pond in the course of a single day, invoicing her $1032.34 for the work.

Dhaliwal denied that any materials Absolute had purchased for the pond had been used by Cambie and said Cambie in fact had to remove some of the materials Absolute had installed for the pond foundation because it had been done improperly. [ 29 ] Dhaliwal denied Cambie told her they could not built the pond she had envisioned and maintained only that they could not deliver the pond she wanted in the time frame available.

Dhaliwal agreed in cross-examination the pond Cambie built for her was smaller than what she had asked Ogden’s company to build and said she down-sized the project in order to finish the work and list the home for sale as the real estate market started to decline. [ 30 ] Dhaliwal told the Court she was not responsible for telling the fence company where to install the fence and that she had relied on them to ensure it was correctly placed on her property.

Dhaliwal denied being the one to direct the fence be installed at a point on the neighbor’s side of the property line resulting in the fencing having to be moved. She said she had asked that the fence be moved because her neighbors did not like the look of where it had been placed. [ 31 ] Dhaliwal agreed in cross-examination that she had no discussion with Ogden about where the lattice fence should be placed and she only spoke with the fence contractor about the placement. She said the contractor suggested the location for the fence and she told the contractor to talk to her neighbor.

She said she did not have a problem paying for the fence to be re-located but did not think it right to have to pay $1500 for a half day of work to move it. She said she did not want to go to the expense of getting the property surveyed in order to conclusively address the issue of the placement of the fence. [ 32 ] Dhaliwal also took issue with the workmanship of the fence and said a poor job had been done when the fence was moved. She complained the wood used had not been treated and was now rotting.

Dhaliwal told the Court she did not see how the fence subcontractor could have charged her about $4000 to build a 24 to 30 foot lattice fence and thought the project should have cost only about $1500. [ 33 ] Dhaliwal was very critical of the fact Absolute had planted the cedar hedge in a way that contravened municipal guidelines and said she was told by the city in 2010 the cedars would have to be moved. She agreed she had been the one who told Ogden where to plant the cedars but said Ogden was the expert and he should have told her she could not put them where she wanted because of guidelines.

She told the Court Absolute had installed the cedar hedge when they were on the job in the fall of 2007 and the work was not part of the 2008 contract. Dhaliwal said she had extrapolated an overpayment of $3400 for 2007 and sought a credit against the 2008 charges.

She told the Court she understood the cost to move the hedge would be around $1700 although the work had yet to be done as of the date of trial. [ 34 ] Dhaliwal also testified that she did not think Ogden’s 2008 bill for work relating to the Allan Block walls was correct and thought the work on the walls had already been completed by that time by another company except for a small job putting a wall around an electrical pole.

If the retaining walls were already finished, Dhaliwal believed Absolute had improperly charged her for materials, equipment rentals, and labour. [ 35 ] Dhaliwal agreed she had written the words “first installment” on the $5000 cheque she gave Ogden in August 2008 and acknowledged she had then been expecting to pay more but not the amount being claimed. In cross-examination, Dhaliwal agreed she had learned much about the work she had been critical of by searching on the internet.

She also agreed she had used Google to estimate how many hours Ogden and Parr should have needed to do certain tasks in order to refute the hours billed and to support her counterclaim. Position of the Parties The Claimant [ 36 ] Absolute’s position was simply that the work was done, Dhaliwal billed accordingly, and a partial payment made before issue was taken with the work. Ogden told the Court he had done his best to re-construct the hours worked two years after the fact but he might not have correctly recalled the order in which the tasks were completed.

Through counsel on behalf of the Claimant company, the Court was urged to give no weight to Dhaliwal’s calculations as to how much time various activities would have taken on the basis that such evidence would have to come from an expert witness. The Defendant [ 37 ] Dhaliwal provided the Court with carefully written submissions at the conclusion of this case and I adjourned to consider

those submissions. In her submission, Dhaliwal made many references to items not put before the Court in the course of the trial (either through the testimony of the two witnesses or via documents exhibited in this case). The Court cautioned Dhaliwal that the decision could only be based on the evidence put before the Court in the trial and not on new materials raised in her argument due to the fact that Ogden did not have the opportunity to testify about or respond to those things. [ 38 ] Dhaliwal submitted the hours Absolute charged her for should be discounted on a number of grounds.

Firstly, the she asked the Court to cross-reference the bills and orders from the suppliers with Ogden’s time sheet and find either he misled the Court about where and when he did work, or that his records were inaccurate and thus unreliable. She asked the Court to note Ogden’s original bill for services was rendered on May 23 rd , 2008 and it included the fencing costs. However, the invoices from the fencing company were dated June 9, 2008. [ 39 ] Dhaliwal also asked to Court to conclude Absolute had billed her for staff time it should not have charged.

For example, Dhaliwal drew the Court’s attention to a number of invoices for the purchase of supplies which she said showed Ogden had inappropriately charged her for Parr’s time riding in the company vehicle. Dhaliwal submitted that her own information about how materials are bundled for transport and the driving times involved proved that Ogden’s claim for hours worked to pick up and deliver materials was exaggerated. [ 40 ] Dhaliwal said Absolute’s hours should be discounted based on her own estimates of the amount of time needed to do the tasks performed.

For example, she told the Court she thought Absolute had taken too long to build the paver walk-way and to move goods in a wheel barrow based on commonly accepted times for such tasks posted on the internet. She also submitted that 15 hours should be deducted for “start and end time discrepancies”, based on the assumption Ogden and Parr were not working on site but in transit for the first and last half hour the Defendant was billed for each day. [ 41 ] Dhaliwal submitted Absolute was not owed any further money on account and that she should succeed in her counterclaim for $6,169.88.

She argued Absolute’s costs should be limited to $4,117.50 for labour (91.5 hours), $1,330.91 for supplies, and $1500 for the fencing.

From this amount, Dhaliwal said she should be credited with an overpayment of $3,447 for the “excess hours” billed in 2007 for the cedar hedge work, along with the $130 she had been charged for the pallet deposit Absolute was refunded, leaving a net owing by Dhaliwal to Absolute of $1871.41 plus GST. [ 42 ] Additionally, from this outstanding amount, Dhaliwal submitted the Court should further subtract the $5000 payment she had made in July 2008 which would result in her being credited with an overpayment of $3,137.34.

Finally Dhaliwal asked the Court to award her $2000 for the estimated cost of moving the cedar hedge so that it would comply with the municipal guidelines and the $1,032.54 she had to pay to Cambie Water Gardens to build the pond. In the result, Dhaliwal asked the Court to award her counterclaim in the total amount of $6,169.88. Analysis [ 43 ] At this trial I heard very different versions of what happened from the two parties. In rendering a decision in this case, the court must sort through the evidence and decide what is believable and what facts have been proven.

In analyzing the evidence, I must assess the veracity and reliability of the parties. [ 44 ] Ogden was in a difficult situation trying to patch together the hours worked and the type of work done as ordered by the Court years after the work was completed. However, had Ogden kept detailed time sheets for himself and his staff, he could have easily complied with the order.

Conversely, had Dhaliwal alerted him early on to any concerns she had with his billing practices, Ogden could have improved his record-keeping. [ 45 ] Dhaliwal asked the Court to limit the hours worked by Absolute based on her own calculations as to how much time each task performed would have taken. She provided a worksheet showing her estimate of how many hours were “padded” by Absolute each day. However, in her written submission, Dhaliwal stated: ...it is very likely that they only worked for a maximum of 64 hours that would be considered billable.

I arrived at this amount by going through each day and analyzing what they must have done and what amount of time it would take me to do something or by what I saw. ...[for this day] I left the hours as reported by Dean because I wasn’t certain. ...one yard of sand is approximately 6 wheelbarrows, that doesn’t take two full grown men 3.5 hours each to move. I don’t believe they were even at my house on this day. Therefore, none of the hours are billable. My best guess is that this [sic] the day they did the landing outside the garage door in the back.

There are 128 pavers laid down, if they started working at 10:30 after picking up the equipment; that would mean they spent 4.5 hours each laying down 128 pavers, my 13 year old can lay down that many pavers in an hour. The area is so small it would be difficult for two people to work on it. At best they worked at my house for 4-6 hours in total.

[ 46 ] Ogden was questioned at length about whether he might have included in his bill the time spent travelling to and from the work site. Although I appreciate it would be very difficult for him to reconstruct matters years later, when his time sheets are cross- referenced with work invoices from suppliers, there are days where it appears Dhaliwal may have been billed for travelling time one would not expect to have been charged. In the circumstances, I think it appropriate to discount Ogden’s bill to reflect this fact, albeit to a lesser extent than Dhaliwal advocated.

While it is impossible to know with certainty how much time Ogden may have inappropriately billed for his travel time, I think it just to discount the company’s bill by ten hours to address this fact. [ 47 ] Although Dhaliwal fully questioned Ogden on his time sheets, cross-referencing them to the suppliers’ invoices, I do not find the evidence she elicited demonstrated that any of the work billed for was not in fact carried out, albeit the order in which the work was performed was unclear.

As a result, I do not find that Dhaliwal has otherwise proven on balance that Ogden’s time records do not generally reflect the work done on her property. [ 48 ] Similarly, although Dhaliwal led evidence about the placement of the fence near or on her neighbour’s property, she did not put before the Court survey evidence to establish conclusively where the fence was originally placed. Even had she done so, the evidence before me tended to show it was Dhaliwal herself, and not the Claimant company, who directed where the fence be erected.

Whether the neighbour complained about the fence or Dhaliwal decided she did not like how it looked, given that she was the one who decided where it would be installed, she cannot avoid liability for the costs involved in re-locating the fence. However, I am satisfied that the amount charged to move the fence was inflated given that Ogden himself offered to discount the fee very early on in the dispute. Accordingly, the Claimant’s bill will be reduced by $1000 to reflect this finding. [ 49 ] Dhaliwal also raised a concern regarding the timing of Absolute’s bill and the June 9 th date for the fencing invoices.

Unfortunately, this issue was raised for the first time in the Defendant’s closing submissions and Ogden was afforded no opportunity to comment on this discrepancy. Ogden testified there was an arm’s length relationship with the fencing company and that he had paid both invoice amounts. In the circumstances, I do not think the Court can conclude there was some sort of impropriety arising from the discrepancy in the dates. [ 50 ] Dhaliwal tendered photographs of the fence and told the Court it is now rotting and submitted the entire amount of the fence should be deducted from Absolute’s bill.

However, she provided no proof that the fence was deteriorating beyond what might be expected due to the passage of time or that there was a guarantee (explicit or implicit) of the lifespan of the fence. Accordingly, she cannot succeed on this argument. [ 51 ] Turning to the pond, Dhaliwal told the Court she had enjoyed the water feature now for four years and was no longer pursuing her counterclaim for the $1000 she spent to have the second company do the work.

In terms of the amount charged by Absolute for their work on this project, I find the Claimant should not have undertaken to build a difficult water feature given the lack of skill and experience and Absolute should not be compensated for the thirty-eight hours ($1710) spent on the project. I also find the Claimant is not entitled to compensation for the supplies purchased for the pond. However, I do find it appropriate to credit Absolute a modest sum for the excavation work it did on the pond site, given that it likely reduced the cost to Dhaliwal for the second company’s pond work.

I assign $400 to the excavation work. [ 52 ] Regarding the cedar hedge, although one would hope a landscape company would be somewhat knowledgeable about municipal boulevard requirements, I do not think it fair that burden fall exclusively on Absolute. Ms. Dhaliwal is a sophisticated litigant and business person with some construction experience and she too had an obligation to learn about bylaws governing landscaping on her property.

Even if the Claimant was solely responsible for compliance with any guidelines, the Defendant did not provide a sufficient evidentiary foundation to prove the municipality had since determined the planting was in contravention of the bylaws and ordered the hedge be removed.

Nor did Dhaliwal provide sufficient evidence to establish what remedial costs might be associated with replanting a hedge of similar design, choosing instead to provide her own estimate on what the cost might be. [ 53 ] Finally, Dhaliwal asked the Court to discount the Claimant’s bill on the basis that the hours charged to complete various tasks were inflated. She made this submission based on research she conducted on the internet. In my opinion, the analysis she did was of questionable value and no weight can be assigned to it.

Had the Defendant wanted to prove the Claimant over-billed for services provided, she should have lead evidence from another landscape company to establish what might be a reasonable amount of time to spend on certain tasks. Without such direct evidence, the Defendant’s position in this regard cannot succeed. Result [ 54 ] In conclusion, I find Dhaliwal did not prove she was grossly overcharged by Absolute for the hours they worked on her property. Dhaliwal was the general contractor on her own housing project and capable of monitoring and scrutinizing the trades working on her home.

When Absolute presented its final bill for services, Dhaliwal raised complaints only about the fence and the pond and then made a “1 st installment” payment on the adjusted amount.

Other than to apply a minor discount of the hours to address concerns relating to time travelling to and from the site accompanied by Parr, Dhaliwal did not prove she was billed for work that was not performed or that hours were ‘padded’ as if tasks took longer than they did or should have. [ 55 ] However, I find Dhaliwal was able to establish she was over-charged or incorrectly charged for the following specific items and should be credited $3922.62 for the following: - $2,297.62 for thirty-eight hours labour ($1710) and supplies purchased ($987.62) for the ineffective waterfall project, less a $400 credit to Absolute for their excavation work; - $450 for the ten hours improperly billed for the time Ogden and Parr spent travelling to and from the Dhaliwal work site;

- $130 for the pallet refunds received by Absolute; - $1000 discount for inflated costs to re-locate the fence; and - $45 for mowing the lawn on April 28. [ 56 ] The above-noted credits (totalling $3922.62) will be applied in favour of Dhaliwal against the outstanding balance of $11,751.53 on the original bill tendered by Absolute. Accordingly, Dhaliwal is ordered to pay Absolute the remaining amount of $7828.91. Except where any of the credits set out in the previous paragraph are involved, the counterclaim is dismissed.

Interest pursuant to the Court Ordered Interest Act will apply to the outstanding balance as of August 1, 2008. [ 57 ] Given the divided success of the parties at trial, there will be no order for costs. Dhaliwal will be required to pay the full amount owing of $7828.91 plus any applicable interest to Absolute by no later than June 30, 2012 unless prior to that date Dhaliwal has taken such steps as are necessary to set this matter down for a Payment Hearing. _______________________ N. N. Phillips Provincial Court Judge