604 Painting Company Inc. et al. v. Braathen & Pym Date:, 2011 BCPC 188

Citation: 604 Painting Company Inc. et al. v. Braathen & Pym Date: 20110726 2011 BCPC 0188 File No: 1133931 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: 604 PAINTING COMPANY INCORPORATED, NAVEED SHAIKH & CORY MIZUYABU CLAIMANTS AND: GLEN BRAATHEN & DAMIEN PYM DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing for the Claimants: N. Shaikh & C. Mizuyabu Appearing for the Defendants: G. Braathen & D. Pym Place of Hearing: Vancouver , B.C.

Date of Hearing: July 20, 2011 Date of Judgment: July 26, 2011 Introduction [ 1 ] The claimants seek to recover the unpaid balance alleged to be owing under a contract to do exterior painting at the home of the defendant Braathen at 6216 Chester Street, Vancouver, B.C. The defendant Braathen denies that he owes anything further under the contract because the work has not been properly completed. He asserts a list of deficiencies remaining and advances a Counterclaim for $2200 to finish the job, along with claims for other losses. [ 2 ] The defendant Pym is named in the style of cause as Pymn.

His correct name Pym. During the hearing I ordered that the style of cause amended to name Mr. Pym correctly. [ 3 ] The defendants Braathen and Pym are alleged to be jointly liable to pay the outstanding balance on the contract. The initial contract dated July 20, 2009 (annexed to the claimants’ Trial Statement) was with Mr. Braathen alone. During the course of the work, Mr. Pym became involved. The claimants say that at one point they were told that the contract had been “assigned” to Mr. Pym and that

they were to deal with him. Mr. Braathen and Mr. Pym both gave evidence that Mr. Pym, a general contractor by trade, had met accidently and Braathen retained Pym both to assist in resolving the ongoing dispute with the claimants and to do some additional repairs. Mr. Braathen does not assert that responsibility for any further payment to the claimants rests with Mr. Pym; rather he accepts that any remaining obligation (which he denies exists) is his. While I do not doubt that the claimants at some stage were told to “deal with Mr. Pym,” I find that Mr.

Pym was asked to intervene to assist in resolving the dispute but there was never any mutual expectation and agreement that Mr. Pym would assume responsibility for any further liability under the painting contract. Accordingly I conclude that the claimants do not have a valid claim against Mr. Pym and the claim against Mr. Pym is dismissed with costs against the claimants of $26.00 for filing his separate Reply. Background Circumstances [ 4 ] The contract dated July 20, 2009 (“the contract”) was for $8,000.00 plus GST for a net total of $8,400.00.

It called for, inter alia, two full coats of paint “on everything”; puttying and caulking everywhere required; power washing the complete exterior; one primer coat on the “Exterior house”; a 3 year guarantee; and payments of 33% at the beginning of the job, 33% payable at the midway point of completion and 34% to be paid on completion. At the time the contract was awarded, it was anticipated work would start on September 2, after the Labour Day weekend. Work started September 13, 2009 and continued sporadically through to the end of October when all work stopped on account of weather conditions.

Completion of the job was put over until the summer 2010. Work resumed on August 9, 2010. An inspection at the house with Mr. Braathen took place on August 14, 2010. The claimants returned on August 21, 2010 to complete all deficiencies. August 21 was the last day of work on the job. During the course of the job it was agreed that the cost would be increased by $90 for additional labour to repaint the front porch and $45 for one gallon of porch paint plus GST. This increased the total contract price to $8,541.75 ($135 plus $6.75 = $141.75 + $8,400 = $8,541.75 . [ 5 ] The parties agree that Mr.

Braathen has made periodic payments on account of $6,857.50. The unpaid balance then is $1,684.25. North Side Missing Primer Coat [ 6 ] The contract called for a primer coat on the exterior of the house. Through miscommunication between the claimants and their painting crew, painting of the north side of the house was commenced without any primer being applied. The parties agreed to proceed without primer on the north side of the house, with an adjustment to be made in the contract price for that failure.

The claimants suggest that the allowance should be $300 based upon roughly the cost of labour and materials to apply the primer coat. Mr. Braathen suggests the allowance should be $650.00 based upon his calculation that priming the north wall comprised approximately 8% of the total contact. Mr. Pym gave evidence that the absence of the primer coat would likely reduce the effective “life expectancy” of the north side protection by as much as 50%. I determined during the hearing that a fair allowance off the contract price for this omission would be $500.00.

Accordingly, the amount owing on the contract is $1,184.25. Deficiencies of the Work [ 7 ] The remaining and major issue in dispute is whether the painting contract was 100% completed (as the claimants assert) or whether substantial deficiencies remain (as Mr. Braathen asserts). [ 8 ] To continue with a brief chronology of events, the parties agree that there was a “walk around” with Mr. Braathen to discuss deficiencies in August 2010. Mr. Braathen says that he had some full scap sheets on which he had prepared a list of deficiencies. He pointed them out orally during the walk around.

He did not give a copy of the written list to the claimants. He did subsequently however print off a copy of this list which is attached to the defendants’ Trial Statement. It consists of 33 items. Both Mr. Mizuyabu and Mr. Shaikh were presented at this walk around. Mr. Shaikh said he made notes on his phone. The claimants say that there were between 8 and 12 items. Not all of the 33 items on Mr. Braathen’s list are really deficiencies. One item is that the grass has been painted; another item is a note that he had not checked something. The claimants’ crew returned for one day to address these deficiencies.

By the end of August the claimants were pressing Mr. Braathen for final payment on the basis that the job was complete. Mr. Braathen asked Mr. Pym to become involved. Mr. Pym brought a professional painter (almost a master painter) to inspect the job. There is no direct evidence from the almost master painter. Mr. Pym however says that the painter pointed out deficiencies that Pym had not appreciated. Mr. Pym and Mr. Shaikh did a further walk around on either September 2 or September 3. Mr. Pym had Mr. Braathen’s type written list of deficiencies and gave a copy to Mr. Shaikh.

Pym says that he took a conciliatory rather than a combative approach and succeeded in eliciting Mr. Shaikh’s agreement that the painters needed to come back to finish. There is a conflict in the evidence regarding the extent of work that it was agreed remained to be done. Mr. Shaikh’s evidence is that Pym expressed the view that the job was pretty good but there remained some “touch ups.” Pym says that Mr. Shaikh agreed that painters would come back for one day (and there is a reference to approximately one day to complete in the Braathen Account

Summary prepared by Mr. Pym annexed to the defendant’s Trial Statement.) Mr. Pym on the other hand sent an email dated September 7, 2010 to the claimants (annexed to the claimants’ Trial Statement) in which he referred to the claimants coming back “to complete major deficiencies as noted on site and in document.” In the claimants’ Trial Statement Mr. Shaikh asserts that the deficiencies pointed out by Mr. Pym were “extremely minor and could be rectified within minutes.” In the result, the claimants did not return to do any further work.

In the negotiations that followed, they offered to return to do touch ups free of charge provided the balance of the account was first paid. Ultimately that offer was withdrawn. [ 9 ] By email dated October 1, 2010 the claimants requested the final payment noting that they were now only waiting to return to “complete the painting of additional repairs to the exterior of the house, to add an additive grip layer to the front porch/steps and minor various touch ups.

The remaining work is expected to be no more than one day’s work for one or maybe two painters.” (The additional repairs were not part of the painting contract and the claimants ultimately did not do that work at all).

Discussion and Analysis [ 10 ] I conclude that there are significant deficiencies remaining in the work and that the claimants are minimizing the extent of them by the characterization of “touch ups”. While Mr. Braathen is not a painter, he is not a complete novice having sold paint at one stage in his career. He asserts in his Trial Statement that one day in August 2010 when he returned home the painting crew were working on the garage. He pointed that it had not been primed and the painter responded that he had instructed to apply only one top coat. I accept that evidence as true.

It is clearly contrary to the contract which specifies “two full coats of paint on everything.” [ 11 ] Also as part of the defendants’ Trial Statement is a signed statement of a neighbour Mr. Fenski who provided several pages of observations of how the work was performed. Some of his observations (applying primer on gutters on which there was still moss) were accepted by the claimants and the work redone. He observed that the garage had only one coat of paint. He also observed that many areas which are stated to be two coats are actually one coat where it was sprayed and then rolled.

In a case where there is a dispute as to whether one or two coats have been applied, it is noteworthy that none of the painting crew who actually did the work gave evidence either in person or by statement. [ 12 ] Mr. Braathen took a large number of photographs in July 2011 purporting to show various deficiencies. They are attached as part of the defendants’ Trial Statement. A series of photographs entitled “single coat on garage” were identified by Mr. Pym showing incomplete painting in places. Mr.

Pym also identified other photographs entitled “filling on dormers” which show dark and light patches in the soffit, indicative of incomplete painting. Another series of photographs entitled “upper rear balcony railing show clear evidence of a failure to fill holes, sand, prime and paint twice. A further set of photographs entitled “upper rear porch (door and siding)” shows a place where a satellite dish has been removed and the surface left unpainted with multiple visible holes.

There are also photographs indicating railings not painted, windows not caulked and the lower deck railing posts primed to the ground only and not painted. This is not exhaustive of the deficiencies shown in the photographs. The claimants assert distrust of Mr. Braathen and suggest that he may have scraped paint off for the purpose of the photographs. I entirely reject that allegation. I find that Mr. Braathen has been honest throughout his dealings with the claimants. As noted previously, he brought Mr.

Pym, an individual with whom he had had no prior dealings into this situation, in part to try to resolve it. [ 13 ] The question then is what is a fair cost to complete the remaining deficiencies which include applying a skid resistant strip to the front steps, caulking around some windows, filling holes, priming, and applying two coats to the area where the satellite holder was removed, properly completing painting of the soffits, gutters, the garage and various railings. [ 14 ] Mr. Braathen has produced a quotation from Painter’s Paint dated 01/10/2010 in amount of $2,200.00.

The only description of work is “touch up all over” with reference to siding and garage. There is no other breakdown of the work or any indication of hours or hourly rate. While it is a measure of the extent of work that another painter would perform, in the absence of any further detail about the estimate I do not place great reliance upon it. As the claimants observe, at $30.00 per hour for labour, this estimate suggests a further 8 to 10 work days for one painter, depending upon the cost of materials. [ 15 ] On the other hand, I reject the evidence of the claimants that the few deficiencies pointed out by Mr.

Pym during his walk around were “extremely minor and could be rectified within minutes.” I conclude that the claimants consistently minimized the extent of the deficiencies in their work as part of their press to obtain final payment on the contract. The claimants initially took the position that their work was complete, but after the walk around with Mr. Braathen agreed to return and did return to address some deficiencies. The claimants took the position on a second occasion that their work was complete but agreed after the walk around with Mr.

Pym that they needed to return yet again to address further deficiencies. [ 16 ] I think that the most reliable guide to the assessment of the deficiencies is the evidence of Mr. Pym. I appreciate that he was not involved to be a mediator by mutual agreement of the parties and that he was also retained to carry out additional repairs for Mr. Braathen. Nevertheless I consider that he gave evidence in a balanced and not partisan manner.

He is a general contractor by trade, and so has some familiarity with painting issues and he himself sought further assistance from a professional painter. [ 17 ] In October 2010 Mr. Pym considered that a full day’s work was required to address the deficiencies. Given the extent of the deficiencies demonstrated by Mr. Braathen’s photographs, and having in mind Mr. Pym’s evidence that some work will have to be done on different days to allow for proper drying, I consider a fair value to complete the work properly is on the basis of one painter for two days plus an allowance for painting materials.

The claimants’ labour cost was $30.00 per hour for an eight hour day. I would reduce the amount owing on the contract by $480.00 labour plus $50.00 for paint and materials plus GST of $26.50 for a total reduction of $556.50. [ 18 ] The claimants are accordingly entitled to Judgement in the amount of $1,184.25 minus $556.50 = $627.75. The claimants are not entitled to Court Order Interest as the balance owing on the contract was not payable until the work was complete and the work has never been completed. [ 19 ] The Counterclaim of Mr. Braathen is dismissed. [ 20 ] I have considered the question of costs.

The claimants have obtained a Judgment and usually would be entitled to their costs of court filing and service. In this case, however, I consider that this litigation was prompted by the claimants’ insistence that their work had been 100% completed and their failure to recognize the extent of the remaining deficiencies. In the exercise of my discretion, there will be no costs to either party. _______________________ Justice of the Peace

Donald W. Yule, Q.C.