Williams Roofing & Drainage Ltd. v. Victory Date:, 2014 BCPC 260

Citation: Williams Roofing & Drainage Ltd. v. Victory Date: 20140724 2014 BCPC 0260 File No: 1223110 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WILLIAMS ROOFING & DRAINAGE LTD. CLAIMANT AND: KAMRAN VICTORY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing for the Claimant: M. Williams, an officer of the company Place of Hearing: North Vancouver , B.C. Date of Hearing: July 24, 2014 Date of Judgment: July 24, 2014

[ 1 ] THE COURT: In March 2012, the claimant re-roofed the defendant's home in West Vancouver. It was the second roofing company to perform this work, as the defendant homeowner was dissatisfied with his earlier contractor's efforts, one Mr. Mendoza. The home in question is an older structure built, according to one witness, 40 to 50 years ago, and had carpenter ants in the roof and possibly elsewhere. When the claimant finished work and asked to be paid the contract price, said in the Notice of Claim to be $15,008, the defendant refused to pay the contract price, as he had done in part with Mr.

Mendoza, his first roofing contractor. The homeowner alleges that he did not authorize the work to be done by the claimant and made no contract with it, and that work was defective and deficient and has rendered his home unsafe.

He further asserts in his Reply that: 1) The work done by the claimant does not meet industry standards, including those of Roofing Contractors' Association of B.C. (RCABC), in that the claimant's work was not done in accordance with their roofing practices manual. 2) The claimant failed to do the necessary woodwork prior to laying a roofing membrane. 3) The claimant failed to slope the roof correctly to meet the requirement that no

section of the roof accumulate more than three-eighths of an inch of water. 4) The claimant's work was not completed, for example skylights were removed, discarded, and one was left open. 5) The claimant's dumpster or truck leaving same --damaged his driveway and broke the main water supply line to his home. 6) An area of his roof over an interior fish pond was improperly removed or altered. [ 2 ] In the result, he counterclaims as per his pleading for $11,500 comprised as follows:

a) cost of temporary and permanent repair of damaged main water supply line, $1,900;

b) costs of excavation, sand, and backfill to allow the above work, $800;

c) cost of repaving the affected area of the driveway, $4,800;

d) replacement and reinstallation of skylights removed, $3,600;

e) replacement of structural aluminum roof components, $400; Total, $11,500. [ 3 ] At trial, his counterclaim damages were somewhat different from his pleading.

I will deal with each head he dealt with in his evidence in some detail below. [ 4 ] The claimant denies it is liable for any of these damages or repairs and asserts the defendant homeowner told him and others that he was happy with their work. [ 5 ] The claimant called four witnesses at trial, namely Mike and Steve Williams, brothers and principals of the claimant, Ron Van Burkle, and Cathy De Jong, a bookkeeper and office assistant working with the claimant at the material time. [ 6 ] The defendant homeowner testified and called one expert witness, a Mr. Uwe Seehaus.

In addition, he commissioned and filed a report prepared by one Dean Carate. I will summarize the evidence of these witnesses. [ 7 ] Mike Williams has been a journeyman roofer since 1980. His brother Steve is, as well, and since 1979. The claimant company started in 1985 and had been continuously in the roofing business since 1985 to 2012. I will use first names to distinguish the two brothers. [ 8 ] Mike received a call and went to the defendant's home in the fall of 2011 and measured his roof. He met the owner and thinks the two of them climbed up on the home's flat roof.

He gave an oral quote of $12,600 plus tax to reroof it with a membrane product. The owner encouraged him to try to do the job, if they agreed he would, without taking any skylights out, but told Mike that they had been damaged by the previous roofer in February or March of the prior year. Mike recalled telling the owner he did not know what he could do with his skylights and that he needed to talk to his brother Steve to see if they could be saved; for example, popped off and put back on.

He felt one, measuring approximately two feet by 10 feet, would have to be totally dismantled, and told the owner that the roof over his interior fish pond would have to be taken off. He then left the home. No contract was then entered into. [ 9 ] In February 2012, a man from the Spuraway Gardens Apartment where the claimant had done work called Mike, indicating that the defendant owner wanted him to call and he did so. The defendant owner told Mike on the telephone he wanted him to do the job. Mike recalled this call was in early March, a few days before March 6.

In this call, the owner told Mike that initially he had had someone else do the roofing job and had a problem with the work and had to sue them to get his money. He requested that a written quote be prepared by the claimant and mailed to him. [ 10 ] Mike agreed to do the job for the earlier quoted price, and a quote dated March 2, 2012, Number 12-03-192, for $12,600 plus HST of $1,512, totalling $14,112 was sent out (Exhibit 1, page B1). This quote gave a 20-year warranty on materials and calls for a type of membrane roofing. Item 9 states, "Woodwork extra to quote."

[ 11 ] The owner told him to go ahead and do the job for $12,600 plus tax. Mike agreed to start the work on the first nice day thereafter. Mike testified that this quote, $12,600 plus tax, was given before Steve saw the state of the owner's skylights. Mike said Steve did attend at the jobsite before March 6 and saw the state of the skylights.

Mike believed he told Steve not to do any work on March 6 without first inspecting the skylights and speaking to the owner. [ 12 ] Mike tried to call the owner on the morning they were to start his job on March 6, and the owner said he had not received the quote, but that the claimant was nonetheless told to do the work.

The owner again made reference to the previous roofer having damaged his skylights apparently by not removing them. [ 13 ] I should state that Mike seems to be involved on the business side of the claimant's work, including providing quotations, whereas Steve runs the crew on the job and is wholly involved in the roofing work. [ 14 ] On March 6, Mike mailed out a new quote to the homeowner (Exhibit 1, page B2), which contains a reference in Item 9: Extra to Quote: Woodwork, existing skylights are damaged from previous roofer and might have to be replaced, also 15' X 15' feet plastic roof might have to be replaced also. [ 15 ] I understand this relates to the roof over the owner's interior fish pond.

The price remained the same. [ 16 ] The claimant said this was the contract he relied on which replaced Exhibit B1. Mike said the owner later told him he received this. [ 17 ] Mike was in his truck on March 6 and went to the owner's home for only the second time. Steve was there. He had earlier looked at the skylights and felt that all would have to be dismantled and the curbs, I believe, built up with two inch-by-two inch lumber. He so advised Mike by telephone and said, as well, that he had discussed this work with the owner, who had agreed to it.

The Job [ 18 ] Mike recalled it took them three days with a full crew to do the job and a few days with a partial crew. It was done by March the 11th. He recalled the owner was there daily, then he said not every day, he was in fact in and out a few times. I find he is mistaken on this recollection. Mike recalled that the owner's dad was there daily and that he ended up running the show.

The dad made the decision to cover several skylights and they did so by adding further wood, two inches by two inches, to the skylight base or box and then covering the same with five-eighth-inch or three-quarter-inch plywood, and then roofing over this structure. Mike said he had okayed all this work with the owner by telephone. [ 19 ] Steve agreed that he had first attended the owner's home on March 6 at about eight o'clock a.m. with his crew of four to five workers. He put a ladder up and was the first person on the roof. He then "scoped" the roof and noticed immediately that the skylights were an issue.

Right away he called Mike and said he could not roof them the way they were. The previous roofer had roofed over the top of the skylights. Only the big one with plastic panels, I believe, had to be redone. It was a mess and they ultimately did redo it. It had to be taken apart in pieces and rebuilt, as the membrane had earlier been incorrectly put on with an improper effort having been attempted to seal it with tar. [ 20 ] There seemed to be some confusion on Steve's part as to who authorized him and his crew to start work. He gave various accounts, including that his brother had given him the go-ahead.

He said in cross-examination he called the owner and the owner gave him the go-ahead, notwithstanding he already had his brother's go-ahead. They had the go-ahead to redo the big skylight or all of them. The owner agreed to this or he guessed the owner agreed to this, as they redid the big skylight. He agreed he had spoken to the owner's dad, but was unsure if he was in the home on the first or second day that the crew was there.

He described him as "an old guy" and said he talked to him while the job was ongoing. [ 21 ] At times it was unclear from Steve's evidence whether he recalled the father or owner or Mike authorized him to do things on the job. At one point, again in his cross-examination, he said that the dad had authorized the removal of certain skylights. Five others had to be taken apart in addition to the big one, so he could roof on top of the curbs they sat on. Steve recalled mostly dealing with the owner's dad.

He was unsure who he spoke to on March 6, but said in reply that the people in the house said, "Go ahead and do the job." [ 22 ] Part of the job involved deleting a few skylights in the kitchen area. They also replaced a rotten beam over his pond. While he could not recall just where they were, they retained all of the owner's old drains. [ 23 ] I return to Mike's evidence. On March 16, 2012, the claimant prepared an invoice (Exhibit 1, page B3) and mailed it out to the owner.

The former Item 9 on Exhibit 1, page B2, is removed and on this invoice there is a reference to "Extra to quote: Skylight $550 and HST, woodwork $800 and HST" at the bottom, and the initial price of $12,600 has been increased to $13,950 with HST of $1,674, for a total of $15,624.40. Mike said this price was higher by $1,350 due to some extras; for example, building up the bases of six skylights with one-and-a-half-inch dimension lumber.

The same warranty is set out. [ 24 ] Mike testified that in order to guarantee the work, the claimant had to follow the manufacturer's specifications, referring, I think, to the membrane used. [ 25 ] One week later, Mike went to the owner's home to pick up a cheque. At this time, the owner had taken his earlier March 6 quote and changed it at page 1 and 2 with his language or wording and asked Mike to sign it.

The document in question is marked as Exhibit 1, page B4, and is dated March 6, 2012, and shows a price of $13,300 plus HST. [ 26 ] Mike said he agreed to this price, but refused to sign this amended invoice prepared by the homeowner, advising him that he did not agree with the content. The owner then explained to Mike that he wanted to use this altered invoice for purposes of suing the other

roofer. [ 27 ] Steve testified concerning Exhibit 1, page B4. He said he got it from the claimant's shop. When he went to the defendant's home to discuss the owner's concerns, Mr. Victory wanted him to change their contract around, as he wanted to sue his prior roofer in court and wanted him to make changes, so as to make his case stronger in court against his former roofer. [ 28 ] In cross-examination, by Mr. Victory, Steve testified in essence that Mr. Victory had offered to pay the claimant if he would agree to the typewritten changes. He could not recall if he discussed Exhibit 1, page B4 with Mr. Victory.

In his reply evidence, he further testified as to Exhibit 1, page B4, and said he played no

part in its creation and did not fax it from the owner's home to the claimant's office ever, including on March 18, 2012. He first saw it, he felt, a couple of months after the job was done when Mike gave it to him and told him to go talk to the owner about it. [ 29 ] The claimant's account was never paid. The owner never called him to discuss any deficiencies.

Mike later caused a further invoice to be prepared (Exhibit 1, page B5) dated March 6, 2012, in an amount of $12,600 plus HST, with three or four different terms, numbers 9 to 12, including, for example, number 11, "Warranty: Williams Roofing and Drainage Ltd. will attend any leak call within three business days of call." [ 30 ] In his direct evidence, he said he told the owner he would agree to this invoice and terms if he then paid for the work.

He recalled signing it and emailing it to the owner; however, the owner did not sign it or thereafter call him. [ 31 ] On cross-examination, he said this was not prepared for purposes of getting paid, but with a view to trying to agree to the owner's proposed changes in invoice terms in Exhibit 1, page B4. [ 32 ] On March 14, 2013, one year later, Mike attended the owner's home with Ron Van Burkle, the product (IKO) representative, and he, Mike, and the owner inspected the roof. Earlier, Mike was aware that the owner had a man, one Dean Carate, inspect his roof.

Mike asked to have this inspector call him so they could meet on the roof and discuss problem areas, however this never occurred. [ 33 ] Mike explained the roofing system that his company had applied to the owner's West Vancouver home as a two-ply torch-on membrane made by IKO. It is a modified asphalt product and is referred to on Exhibit 1, page B3, Items 3 and 4. The owner's existing roof was constructed of two-by-six-inch cedar tongue and groove planks laid over structural beams with some form of rigid insulation on top, and thence the waterproof membrane was applied.

The roof deck was never level, but was not sloped. His work involved insulation of all new flashings, save for one oval one. The old Mendoza roof was removed as it was applied over insulation and had not, in his view, been stuck on properly. He did not remove the insulation on the roof, as it would have resulted in dirt falling into the home. [ 34 ] The torching work had been done by one Trang, a full-time experienced employee who had been working for the claimant since 1997. Mike felt there was no B.C.

Building Code requirement that he slope the owner's roof, and said in cross-examination that if the owner had wanted a slope, he could have asked for it. [ 35 ] Mr. Van Burkle testified. On March 14, 2013, he, Mike, and the owner met at the owner's home and all three went up on the roof in the morning. Certain photos (Exhibit 3, numbers 23 to 45) accurately depict what he then saw. He sent a report to Mike on April 3, 2013, as to what he had seen (Exhibit 5), and commenting to some extent on Mr. Carate's report.

Mike had asked him to verify that the material used and the method of installation met IKO standards, Van Burkle's then employer. [ 36 ] Mike was a good customer of their asphalt-based roofing materials they made in Ontario. There are manufacturer's specifications and installation instructions for their product, both on the Internet and a hard copy is shipped with it to each customer. He was familiar with Dean Carate, who was also a client of IKO's and familiar with their products and specifications. [ 37 ] RCI, to which he belonged, was a large North American organization which promoted good roofing practices.

It had Canada-wide standards. He was an associate member of RCABC, which also promoted the same thing. RCABC had public standards and specifications with respect to installation of roofing products in B.C. for its members. The RCABC standards could be different from IKO specifications, but generally they were very much the same. Mr. Carate used these standards when he did his inspection. [ 38 ] In order for a homeowner to get the IKO 20-year product warranty, their product had to be installed in accordance with their specifications. Exhibit 5 relates only to his observations of their IKO product as installed.

Therein he states the roof appeared to be solid underfoot. He could not verify loose spots of cap sheet. He did not observe any wet or rotten tongue-and-groove decking that was exposed to the underside of the deck from the inside. It was exposed and appeared to be sound. He saw no flying ants. He found that the application of the IKO membrane had been done by the claimant with good roofing practices and met IKO's minimum standards. [ 39 ] On cross-examination, he agreed he was not a certified roofing inspector like Dean Carate.

When shown a photo of the defendant's roof with a quantity of pooling water and on being asked if this was acceptable for IKO or RCABC, he said IKO encouraged a slope on a roof where possible, but suggested some pooling water on a flat roof was common. It would meet IKO standards if it dissipated in 48 hours. He saw some pooling water the day he visited. [ 40 ] I note there is no evidence in this case as to how long the water shown in any photo filed by the defendant homeowner or referred to by any witness stood on the defendant's roof until it dissipated or the depth of same. [ 41 ] Mr.

Van Burkle also testified that the Building Code calls for some slope on a roof with new construction, I assumed for flat roofs. Initially he testified that IKO recommended a two-degree slope or a quarter-inch in 12-inch slope on such roofs only with new construction.

Later he admitted on cross-examination, when shown an extract from the IKO.com website, that this evidence was mistaken, suggesting the IKO two-percent slope specification applied to all construction both new and replacement roofs. [ 42 ] The IKO product used on the defendant's roof, which did not have any slope, would not be hurt by or degraded if water pooled on it for less than 48 hours or unless algae were permitted to grow over time. Even this situation would not cause the roof to leak, in this witness's opinion.

Algae could be killed with the application of a light bleach, which would not harm the product installed, but it might

discolour any flashing. A drain could also be installed in a low area if needed. He identified a low spot on the defendant's roof when shown Photo C33 in Exhibit 3. [ 43 ] IKO was a member of RCABC. IKO adopted its standards, which were virtually the same as those of RCABC. He did not know if the B.C. Building Code upheld the RCABC standards. He agreed that if the membrane was damaged by ponding water, there would be no IKO warranty. He did not agree all glass skylights should have a two in 12 pitch. IKO did not manufacture skylights and he did not believe IKO had a standard on this, nor did he know if the B.C.

Building Code called for such a pitch. [ 44 ] Mr. Victory spent some considerable time cross-examining this witness as to what he observed on the day of his inspection on March 14, 2013, and as well what was shown in various photos, really attempting to use him as some sort of expert, which was not really why he was called.

He felt the job done by his customer, the claimant, on the defendant's roof was good. [ 45 ] In answer to a question put to him by Mike Williams in reply, he said there was no requirement to slope the roof deck on or prior to the installation of the IKO product, seeming to suggest IKO was aware its product used on the defendant's roof was applied from time to time by roofers like the claimant on flat roofs. [ 46 ] When asked by the court, in essence, what it would have cost to slope the defendant's roof, he suggested it would depend on what product was used; for example, insulation or a board, for example, plywood, the most expensive option, or building up the decking.

Papered insulation could be installed over existing insulation.

He felt for a roofer to meet IKO's two-percent slope requirement, the first thing he needed to do was to measure the slope of the customer's roof and, if it was less than two degrees, then engage the owner in a discussion as to whether he wanted to have his roof rebuilt prior to the IKO roofing membrane being installed. [ 47 ] This witness gave some evidence as to what he thought the costs might be to add a two-percent slope to the defendant's flat roof, but I really found that his answers were sheer guesswork on his part and of no real utility to the court. [ 48 ] The defendant's evidence consisted of a report dated August 14, 2012, prepared by one Dean Carate of B.C.

Roof Inspectors (Exhibit 8), an observation report of one Bob Richards of IRC Building Services Group B.C. Inc. dated February 3, 2012 (Exhibit 10), neither of whom were called to testify, and certain testimony from the homeowner, which included references to photographs he had taken, and various documents including estimates, and finally the service manager of a roofing company which effected certain repairs, Mr. Seehaus. [ 49 ] Mr. Victory, the homeowner, said Mr. Mike Williams gave him an oral quote of $12,600 to redo his roof in the late fall of 2011.

It had earlier been damaged by a raccoon who put a hole in it. Mike got up on his roof and measured it. The quote involved a torched-on membrane. Mike said he would have to lift his skylights eight inches off the roof and rebuild them, because if it snowed and the snow melted there could be a problem with them the way they were built. Mike also agreed to install extra sheets of plywood to prevent water pooling on his roof. Mr. Victory felt this was a significant point. [ 50 ] Very importantly, Mr.

Victory testified that he had a sheet of paper and made notes of their conversation, immediately after Mike left, of the important points he raised when the oral quote was given. He did not produce it prior to trial, but testified at trial that if he searched for these notes, he believed he could find them. This, of course, was a highly-relevant document, as it might corroborate what the defendant says was both discussed and possibly agreed to early on between the parties. [ 51 ] On this first meeting, the defendant had a significant carpenter ant problem in his roof and mentioned this to Mike.

Mike said if and when he redid the roof, they would spray for them. The defendant said he had consulted with many pest control companies about the carpenter ants in his roof or ceiling and received no advice that amounted to a solution: for example, that spraying for them would kill them all or make them go away or otherwise rectify the problem. [ 52 ] The most important thing Mike told him, according to Mr. Victory, was that he would slope his roof when he redid it to avoid pooling water. He did not say to what extent he would slope it.

He recalled Mike saying three-eighths of an inch of standing water was okay, but not more. [ 53 ] Later in his direct evidence, the defendant said Mike told him he would slope the roof, so that there would be no more than three-eighths inches of standing water, a somewhat different version of this suggested oral contractual term. [ 54 ] No roofing contract resulted from this first fall 2011 meeting. At the time of this meeting, Mr. Victory had a contractor doing certain work in the home's master bedroom. The defendant asked this contractor to fix the raccoon hole.

He declined, but recommended a Mexican guy, according to Mr. Victory, who could do it. This guy, one Mr. Mendoza, later attended at the defendant's residence, I believe after Mike had been there, and agreed to fix the hole and reroof his home for $7,000. The defendant then hired him and not the claimant, I find because his quote was substantially less than the claimant's, and he started work in November 2011. [ 55 ] He changed all metal fixtures, pipes, and vents, save one oval-shaped one, in the old roof and installed a membrane.

He removed an area of wood above the tongue-and-groove ceiling, heavily infested with carpenter ants, and replaced it. He did not touch any of the skylights. He paid Mr. Mendoza $4,300. [ 56 ] Mr. Victory said he had put Mike's suggestion that the roof be sloped, so that there could be no more than three-eighths of an inch of standing water, in Mr. Mendoza's contract. Mr. Victory said Mr. Mendoza had put down double and triple layers of insulation to prevent water from standing on his flat roof. A copy of Mr. Mendoza's November 23, 2011, written contract with the defendant was filed in evidence.

It provides in part that: The contractor shall build and provide sufficient scupper drains and downpipes and shall slope the roof correctly so that no

section of the roof shall accumulate more than three-eighths of an inch of water during rainy periods. The contractor shall perform the work in good and workmanlike manner. The scope of the work, without limiting the requirements of good roofing according to best industry practices, shall include installation of plywood with a slope to the drain.

[ 57 ] On February 3, 2012, Mr. Victory had the Mendoza roofing job inspected by IRC Building Sciences Group BC Inc. They did not note as a deficiency that the roof built was not sloped, but did state in

part in their report (Exhibit 10), and I quote: Due to the number of deficiencies observed and the lack of qualified installers, the roof system as currently installed cannot be relied upon to provide short term or long term protection from water ingress. [ 58 ] Based on all the evidence in this case, I find Mr. Mendoza, contrary to the above contractual term, did not slope the defendant's roof. [ 59 ] I also note that the $7,000 price said to be for a sloped roof is wildly inconsistent with all other evidence in this case, for example, Mr.

Seehaus's, that to properly slope the defendant's roof would cost at least five times this amount. [ 60 ] In January 2012, when winter arrived with lots of rain, Mr. Victory's roof leaked non-stop in areas previously done by Mr. Mendoza. The leakage was serious. He concluded Mr. Mendoza did not know what he was doing and refused to pay him the full amount on the contract price. He decided to contact Mike, but had misplaced his telephone number.

He recalled Mike said he had earlier done work at the Spuraway Gardens Apartments near him, so he went to their office in mid-February 2012 and they gave him Mike's telephone number, and he said he called Mike and explained he had, on his bedroom contractor's advice, hired Mr. Mendoza whose work was not satisfactory. [ 61 ] The defendant testified that by January 2012, he had Mr. Mendoza's work inspected by a man from RCABC, who said the whole roof needed to be stripped off and redone. This inspector provided a written report, which I ordered the defendant to produce at trial as a relevant document.

It is unclear whether the defendant told Williams about this inspection. He could not recall giving or showing Mike a copy of the relevant report. [ 62 ] In the February 2012 telephone call with Mike, Mr. Victory also advised Mike that he had had his roof redone, but felt some of the membrane seams were not well torched. He asked Mike to come out again and give a further quote to rectify the existing problems. He did not hear back from him. In February 2012, he obtained written quotes from at least three other roofers who inspected Mr. Mendoza's work.

None were placed before the court in evidence, for example, to show whether or not some or all of them required the contractors to slope his otherwise flat roof and, if so, the cost of doing so. [ 63 ] Hence, the state of affairs on the defendant's roof in late February 2012 was much the same as it was before Mr. Mendoza did his work. The defendant needed a new roof because what he had was not satisfactory. The only change, I suspect, is that Mr. Mendoza somehow damaged it in doing this work in the fall of 2011, after Mike gave Mr. Victory his oral quote. [ 64 ] On March 6, 2012, Mr.

Victory travelled to Las Vegas to be with his brother who was to undergo some surgery. He stayed for eight days, and then travelled to Bellingham for three to four days, and was back home in West Vancouver at his parents' residence on Burley Place on March 18, 2012. While in Las Vegas, he stayed in a hotel and submitted the hotel invoice and car rental agreement in his evidence to corroborate these travels. He said that he did not let Mike into his house while he was gone. [ 65 ] He recalled while he was in Las Vegas, Mike called him and said he was on his way to inspect his residence. Mr.

Victory okayed this and asked Mike to send him his written quote, to which Mike agreed without specifying a date. Mr. Victory testified, contrary to Mike's evidence, that he did not in this very short telephone call authorize Mike to do any work. He told Mike he was not in Vancouver, but not how long he would be away, and that Mike could call him after he inspected the home. [ 66 ] On March 18th, he went to his home and saw signs of roof work having been done. However, there were no workers on site and no bin.

Water was bubbling up through his asphalt driveway, approximately six feet from the corner of his front porch. He went up on his roof and found at least one skylight had been removed. He then went back to his parents' place and his elderly dad, now age 82, said a company had come and redone the roof. When his dad went to the house, the job was nearly finished.

On March 19th, his father being unable to tell him who did the work, he called Mike, who said he had done it on March 6th, the only good non-rain day that they had so they did it. [ 67 ] The sense of this evidence was that the reroofing job took only one day, this good day, March 6th. This is not correct. I prefer Mike and Steve's evidence that the job took the better part of five days, March 6th to the 11th, 2012. I reject the defendant's evidence that Mike told him that they had done the job on the only good day available, March 6th. [ 68 ] In this telephone call, Mr.

Victory complained to Mike that the job was incomplete and that Mike had proceeded to do it without proper authority from him. Mike agreed to send his brother Steve to look at the problem areas, one being a large hole covered with plywood where they had removed a 4.5-foot by 8.5-foot skylight. Mike told him that another company would have to do this reinstallation at an additional cost of $250. Later Mike called him and said the cost to fix the skylight would be $550. Mr. Victory called around to see if he could obtain quotes for the cost to repair the skylight.

One was from Angel Glass for $3,088. [ 69 ] On March 19th, Steve arrived and met with the defendant at his home. He offered to fix the problem areas, and Mr. Victory and he toured the home inside and on the roof. He was unhappy with a new smaller beam the claimant had installed over his central fish pond. He was critical of the claimant removing all of the membrane Mr. Mendoza installed and questioned why they had not simply repaired certain seams. He said he had wanted to avoid redoing the roof. [ 70 ] I make two observations: Firstly, in the result, Mr.

Victory was, according to his testimony of what he told Steve, okay with a non-sloped roof as first installed by Mr. Mendoza. He did not believe he told Steve about the IRC inspection report, Exhibit 10, because he only wanted the Mendoza job repaired.

[ 71 ] Secondly, the defendant's testimony makes little sense. He says the Mendoza roof was unsatisfactory and leaked badly. His own inspection report said it, in essence, could not be saved and had to be completely removed, but yet he says he was critical of Mike for replacing it, as recommended by his own inspector, and not trying to repair it. His own inspector did not state it could be repaired, and in any event Steve said he would talk to his brother and would get Mike to call him shortly. [ 72 ] On or about March 21, 2012, a man showed up at his home and met with Mr.

Victory for one to one and a half hours, discussing his roofing issues. Mr. Victory believed he was an employee of Mike's. He did not go up on the roof, but reviewed the Mendoza contract and the roof inspection report, which the defendant copied and gave to him before he left. At the end of the meeting, he gave Mr. Victory the March 6, 2012, written quotation, Number 12-03-196 (Exhibit 1, page B2), and advised that they had sent it to him previously.

He said Mike would call him, and left without leaving a business card. [ 73 ] The defendant could not, in his direct evidence, say who this man apparently driving a Cadillac was. This man called him back later in the day by telephone, and proposed they try to resolve the defendant's problems. Mr. Victory told this man that, as part of the resolution, he needed to know that the roof was of sound construction, what work had been done, what had been removed, and wanted the skylight and water ponding issues resolved, and the lack of a slope in the roof dealt with.

In addition, certain aluminum metal had been scrapped and he wanted it replaced. [ 74 ] One skylight had been damaged by Mr. Mendoza. Another had been damaged by Mike's crew and thrown away. The defendant wanted these two replaced. The large 4.5-foot by 8.5-foot skylight needed to be reinstalled. [ 75 ] Mike did not call him, so on March 22nd he called the claimant's office and lady there advised that Mike would come out. Later this day, Steve attended. [ 76 ] The defendant said that if the claimant was willing to adjust its price, that he was willing to pay for some of the work done by it.

It seemed that the defendant was, by this date, prepared to pay for the two replacement skylights and the installation of the larger one. He advised Steve he would have the roof inspected, and they could then discuss price adjustments. Steve asked him to set out on a piece of paper what he wanted, I understood at least partly by way of price adjustments. He said he did so on March 22nd. The wording he then prepared and typed out is to be found on Exhibit 1 at page B4, and below the word "Roofing" in block letters, located approximately four and a half inches from the top of the page.

I note this document is a photocopy of the March 6, 2012, quote; however, with the proposed contract terms altered. [ 77 ] Mr. Victory gave his piece of paper with proposed terms to Steve on March 22nd. Steve said he would fax this document to Mike. Mr.

Victory strangely did not save his proposed wording on his personal computer hard drive, nor did he keep a copy of it, although he clearly had an ability to copy documents at his residence office, having earlier done so with the Mendoza contract and inspection report, copies of which he gave, he said, to the man in the Cadillac. [ 78 ] Steve offered to stay and discuss the points on the document after Mike had received and reviewed the faxed copy. Strangely, Mr. Victory testified he then left his house, but apparently left Steve alone in his home. I did not understand why he would do this.

I do not believe this evidence. It does not make sense. [ 79 ] At this point, Mr. Victory and the claimant were essentially in an adversarial relationship which, according to Mr. Victory, involved the claimant demanding payment for roofing work he had never agreed to or authorized. Why would he do this? How would Steve at home alone know how to use Mr. Victory's fax machine? Steve is every bit a roofer and not an office worker. [ 80 ] The clear sense of Mr.

Victory's evidence was that his points or his document were to be conveyed to Mike, who would consider them, and they would then be discussed to see if they could lead to a resolution of his concerns. It was very clear to me that on and after March 18th, the defendant wanted to have a written contract or quote with the claimant, with terms including, for example, some form of warranty to his liking on the work that the claimant did.

He negotiated with the claimant to try and obtain one, but never did and was able to use as a negotiating hammer, if you will, to try to obtain one, his non-payment for the claimant's roofing work. [ 81 ] Importantly, however, this does not mean that there was no prior oral agreement between the parties pursuant to which the claimant did the work in the first instance, starting on March 6, 2012. [ 82 ] Steve later called Mr. Victory from his cellphone and said Mike would, in essence, not accept his proposed terms as the basis for a resolution of their dispute. Mr.

Victory then testified that he later learned on June 4, 2012, that Steve had cut out the typewritten terms on his piece of paper and pasted them onto the face of a copy of the claimant's March 6 invoice, and he believes Steve had done this on March 22nd before it was faxed to the claimant's office with a new price of $14,896. He questioned why Steve would do this when, on March 22nd, they were in the process of discussing a resolution of his concerns.

He felt perhaps the claimant was trying to show by this act that he was agreeable to the quote and price. [ 83 ] He testified that Exhibit 1, page B4, shows at the top it was faxed from his office to the claimant on March 22, 2012. It does, but does not, on its face, say it was faxed by Steve. [ 84 ] It is appropriate now to refer to the reply evidence of Cathy De Jong, Mike Williams' office assistant employed by the claimant since August 2010, and who in 2012 said it was her responsibility to prepare quotes for the claimant with information provided by Mike.

She did not prepare Exhibit 1, page 1, as she was away on March 2nd. Once prepared, their office system was that it would be faxed, emailed, or hand-delivered to the customer, sometimes by Mike. She said she believed that this had occurred. She also said Mike told her on March 6th that the customer, Mr. Victory, did not receive this document. He did not say why, so she voided it in the office computer, based on his instructions. He asked her to do another one on March 6th and she did so (Exhibit 1, page B2), Quote 12-03-196 with only Clause 9 changed. On Mike's instructions, she emailed Exhibit 1, page B2, to Mr.

Victory on March 6th. [ 85 ] She prepared the March 16th invoice, Number 3198 (Exhibit 1, page B3), on Mike's instructions on March 16th. The only changes compared to the March 6, 2012, quote are that Clause 9 therein was removed and there is a new reference "Extra to quote: skylight 550 plus HST, woodwork $800 plus HST" and this $1,350 has been added to the invoice amount of $12,600 to increase it to

$13,950. [ 86 ] By this date, most of the work was done, according to Mike. She put this document on his desk to take to the customer, and she understood he intended to take it to Mr. Victory. She later learned from Mike that he had met with Mr. Victory on or before March 22nd and had discussed changes to their invoice. [ 87 ] She first saw Exhibit 1, page B4, after it was received on the claimant's fax machine on March 22nd at 5:51 p.m., being sent from the defendant's fax machine. She felt she likely saw it the next morning.

On receipt, it was just as it appears in Exhibit 1, page B4, with handwritten notes scratched out, as well as the typed Clause 9. She testified that she believed Mr. Victory made the changes on Exhibit 1, page B4. [ 88 ] She also testified that she had spoken to Mr. Victory by telephone before March 22nd.

He said he had removed a portion that Mike was most opposed to, by which I understood she was referring to the typewritten terms on Exhibit 1, page B2, and that he would fax the same to her, hoping Mike would sign it so he would have a signed quote. [ 89 ] On receipt of Exhibit 1, page B4, she gave it to Mike and he refused to sign it. She said she had never seen Mike or Steve use a computer. She then prepared Exhibit 1, page B5, a quote dated March 6, 2012, No. 12-03-196R, at the end of May or the 1st of June, 2012, in response to an earlier request made of her by Mr. Victory that another quote be done.

She told him she did not think Mike would agree to any changes. She made notes of their telephone call. She recalled Mr. Victory wanted the warranty clarified and the reference to "this is a 25-year roof system" removed. He told her he wanted Mike's quote to resemble that of the previous roofer, so he could take him to court. [ 90 ] On review of her notes, she added Mr. Victory wanted Clause 6 and 8 out, and a phrase in Clause 9 changed so that the words "might have" read "needs". She said she made notes on a copy of Exhibit 1, page B2, as Mr.

Victory spoke to her on the telephone, and that was what she referred to at trial on the witness stand while testifying and which notes were marked as Exhibit 18 at trial. These notes corroborate her evidence on this point. [ 91 ] A further change he wanted was the addition of a new Clause 2 to read, "Install plywood with a slope to the drain as necessary." There were other changes proposed by him, including a clause stating, "Contractor shall respond expeditiously after leakage and will repair same within 72 hours of advice." [ 92 ] She did not recall Mr.

Victory stating that if Mike agreed to all these changes, he would pay the claimant's bill which was then still outstanding. Ms. De Jong agreed to discuss these requested changes with Mike and whether or not he could agree to them, make them, and sign a new quote with these changes in same. She encouraged Mike to agree to them and incorporated some in Exhibit 1, page B5. The R signifies it is a revised quote. She said Mike signed it and believed she sent it to Mr. Victory.

She did not recall discussing Exhibit 1, page B5, with the defendant, but said the claimant never received a signed copy of this document back from the defendant. [ 93 ] Clearly at this point the claimant's main focus was to finalize all dealings with what, from its perspective, was a difficult customer and get paid, and seems to have been attempting to try to agree to Mr. Victory's requests, I find, to achieve this end. [ 94 ] Ms. De Jong said she prepared Exhibit 1, page B6, "to take to court to support the claimant's filing of its Notice of Claim", but did not believe they had sent it to the defendant.

In the result, this document can hardly be seen as the basis for the claimant's claim against the defendant. [ 95 ] I return to Mr. Victory's evidence. By May 2012, they had reached a point in their discussions where they could not agree on anything. On June 4, 2012, the claimant emailed a copy of Exhibit 1, page B4, to him. The email was marked as Exhibit 11 and states, "Attached is the quote you sent to Williams Roofing." [ 96 ] Mr. Victory said that he had not sent this quote to the claimant. He believed on June 4th that the claimant was then somehow attempting to perpetrate a fraud on him.

In answer to a question from the court, Mr. Victory said he had added something to Clause 9, to the effect that the quality of the work the claimant did was to measure up to RCABC standards, but said Steve had crossed this out as Mike would never agree to it. Steve was not cross-examined on this point by Mr. Victory. [ 97 ] Mr. Victory said very definitely that he never received a written quote from the claimant until he filed his Reply in the action, and Exhibit 1, page B1 was submitted, he believed, as an effort by the claimant to show an earlier written quote had been given.

This evidence is inconsistent with his above evidence that the man in the Cadillac gave him a written quotation, Exhibit 1, page B2, on or about March 21, 2012, at his West Vancouver residence. As to Exhibit 1, page B2, Mr. Victory said a copy of the same was first brought to his office by Steve on March 22nd for discussion. The price on each document is the same. [ 98 ] After not being able to settle with the claimant, Mr. Victory retained Dean Carate to inspect his roof on August 14, 2012. He is an accepted roof inspector for RCABC. His report bearing this date was filed as Exhibit 8 at trial.

Once his roof had been inspected, Mr. Victory set about locating a replacement contractor to deal with the deficiencies he alleges exist in his roof done by the claimant; for example, to rectify water pooling in places said to be two inches deep, not three-eighths of an inch deep. [ 99 ] One day, November 30, 2012, Mr. Victory came home to find a Bob Vivier on his roof taking photos without his consent. He told Mr. Victory, when he was confronted, that he was inspecting his roof with respect to the pooling and leaks that the defendant had apparently complained of.

He advised the defendant that Mike Williams had told him to come and that he was a roofing estimator. Outraged, Mr. Victory wrote to the claimant on November 30, 2012, to insist this not again occur. There was no response to this letter from the claimant. [ 100 ] The repair quotes the claimant received included one from Coastal Roofing Ltd. at an hourly rate plus materials. The defendant sent the Carate report to Mr. Fortin at Coastal on August 30, 2012, together with the following email, and I quote: We had a new flat roof installed on our house at 815 Margaree Place, West Vancouver.

Unfortunately, the work was not done

professionally and it was not finished. I need to urgently complete the work and perfect it. Attached is the list of works to be done as stated by the roof inspector. Also, I need you to: (1) supply and install four skylights; (2) lift up the shingles on the sloped part of the roof, east side only, and repair rotten wood underside and replace the shingles; (3) supply and install a 30-inch length of gutter on the same portion of the sloped roof and a downpipe. Can you kindly quote your price and advise when you can do the work? Please call me to arrange a time to look at the job. Regards, K.

Victory [ 101 ] I note this email does not request a quote for a sloped roof. [ 102 ] A further quote was obtained from Affiliated Roofers dated August 30, 2012. This firm had received and reviewed the Carate report. The estimated cost is $5,520 plus HST and this quote states, "The big skylight should be done by a company that is specialist with this kind of work." [ 103 ] Mr.

Victory gave them the contract and by November 30, 2012, they had done the repair work called for in the Carate report at a total cost of $6,333.60 inclusive of HST at 12 percent, being slightly in excess of their earlier written quotation by some $151. Mr. Victory settled this invoice at $6,016.92, which he requested as they had exceeded their estimate.

This is said to be a five percent discount on the price, whereas by my calculation the firm exceeded their original quote by only a factor of 2.5 percent. [ 104 ] It is clear that neither the Affiliated quote or final invoice deals with the skylights or sloping of the defendant's roof. Mr. Victory said that Affiliated had put right the work that Mr. Williams had done inappropriately and improperly. Mr. Victory obtained various estimates with respect to three of his four-foot by eight-foot skylights, two being diamond shaped, which were thrown away, and said that one was not replaced.

One was from Capilano Glass, January 4, 2013, for four - 22-inch by 48-inch units, $1,839.85, and for one 48-inch by 96-inch acrylic dome skylight, $2,724.23, for a total of 4,564.08 including tax and installation. Page 2 of this document contains a quote for two new diamond skylights involving all new materials apparently required to replace those two skylights that had been discarded. [ 105 ] A second and third quote was got from Angel Glass, January 11, 2013, and January 14, 2013, apparently for one four-foot by 92-inch skylight with either double or single-glazed glass at $3,087.67 and $2,464 respectively.

The defendant said the lesser quote was for two smaller exterior skylights. This is not clear on the face of the January 14, 2013, quote. [ 106 ] Mr. Victory did not use either firm and instead contacted ABC Auto and Window Glass, the firm Mike Williams had recommended, and which firm had quoted him $550 plus HST, as per Exhibit 1, page B3. This firm finally agreed to a price of $2,700 to do all the work, and taxes. Their invoice dated July 16, 2013, marked as Exhibit 13, is in the total amount of $3,024.

The description of their work thereon is as follows: under the heading "Material Detail" and the subheading "Quantity", the number 1 and under the reference "Description" appears the following: 4- 2 * 4 - DOUBLE-GLAZED SKYLIGHTS//// 4-2 1/2 * 5-DOUBLE GLAZED SKYLIGHTS-SAFETY GLASS CLEAR WITH FRAME [ 107 ] It is far from clear to me what this means, nor do I understand that the defendant has had this work done. Other Claims [ 108 ] Mr. Victory asserts the claimant's bin truck broke the water main under his driveway. The cost to repair this, which he paid, was some $434.

This work involved digging down to the copper pipe and replacing a 20-inch

section said by Mr. Victory to be partly flattened and containing two holes. Mr. Victory paid a second man, Mr. Onsamer $120 to fill in the hole on July 27, 2012, dug by Accolade Plumbing on May 8, 2012, to effect the initial repair. [ 109 ] Mr. Victory obtained a quote from Enviro Paving Corporation on July 25, 2012, to pave the area dug up in his driveway of $4,389.19, excluding tax. He testified this would involve new asphalt over an area of his driveway measuring 20 feet by 51 feet. At trial, he drew a diagram of his driveway which shows the hole in question was approximately four feet in diameter. At trial, he had not paid to have this work done.

[ 110 ] Mr. Victory also paid a carpenter, Mr. Michael, $312 on July 15, 2012, to fix loose gutters to the wall and loose drainpipes. The additional materials required for this job from Rona were $62.83 for wood and nails and $22.36 for protective eyeglasses and a mask and ear wear. [ 111 ] Mr. Victory said, as I understood him, a different carpenter also fixed some rot Mike had covered with shingles, and repaired rotten wood in the area of his residence's front electrical mast.

This man was Marcel Lammers, and his invoice of August 23, 2012, Exhibit 14, for $1,196.68 is part of the defendant's counterclaim for damages. I note some $208 of this invoice, excluding tax, relates to "office cleaning and repairing", 16 hours on August 9 and 10, 2012. This would not seem to me to relate to a roofing job. The balance of this invoice covers approximately 73 hours of work, August 13 to 23, for some approximately nine eight-hour days at $13 an hour. [ 112 ] Mr.

Victory said that Mike Williams had agreed that if they saw carpenter ants when doing a roofing job, they usually sprayed them when they saw them. He acknowledged he had tons of carpenter ants in his roof and said he told Mike this when he first met him. Mr. Victory described this to be a continuing ant problem. He consulted with North Shore Pest Detective Ltd., and on May 7, 2013, this firm provided a written quote of between twelve and thirteen hundred dollars for "full carpenter ant treatment".

This firm noted that there was major carpenter ant activity seen in the east side of the defendant's roof, and that treatment should have been done while the roof was in repair. The quote involves treatment of the tongue-and-groove ceiling, and as well baseboards, not realistically part of any roofing job, in my view. [ 113 ] Mr. Victory agreed that the claimant had given him some value, which he estimated to be 50 percent of the $12,600 quoted price, without really saying why or how he came up with this figure. In answer to several questions from the court, Mr.

Victory testified that his father went over to his house daily to feed his fish while he was in Las Vegas. He did not call him daily while away, but did speak to him briefly, but said his dad never mentioned that there was a roofing job ongoing. This seems unlikely. He never authorized his dad, nor did he tell Mike that his dad was authorized to agree to any work being done on the roof of his home. [ 114 ] On cross-examination, the defendant admitted that one pane of glass in one skylight had been damaged by Mr. Mendoza, and that plastic in another skylight had been minimally burned during his torch work.

He agreed that the IRC roofing inspector who looked at Mr. Mendoza's job said that the membrane roof he did could not be retained. He never told Mike he wanted to use an amended invoice from the claimant in a lawsuit against Mr. Mendoza, including Exhibit 1, page B4. [ 115 ] Mr.

Seehaus, the service manager of Affiliated, testified for the defendant, really as an expert concerning his inspection of the defendant's roof in October 2012 and his review of the Carate report, and estimated cost to correct the problem areas identified therein, save for rectification of the big skylight seen in the Carate report, Item 14. This they did not touch, as the curb on which it sat was only about five inches high and ought to have been eight to 12 inches high as required by, I assumed, the B.C. Building Code . This was to avoid a risk of snow or driven rain leaking through the skylight opening.

He said the skylight was otherwise properly sloped. He testified that typically when a roofer comes on a roof and sees that a skylight curb is too low, he will build up the curb with two-by-four lumber before torching on the membrane. This is not the responsibility of the homeowner, in his opinion. [ 116 ] Before a membrane roof is installed, in his opinion, a competent roofer would check for soft spots in the plywood decking and replace as necessary. I note there was no plywood in the defendant's roof.

Affiliated found three soft areas that required two sheets of half-inch plywood to be replaced. [ 117 ] The defendant's roof was not sloped. Some roofing companies recommend this; however, he testified that most do not, especially on a flat roof. If there is a lot of standing water on the roof to be replaced, Mr. Seehaus said a roofing contractor should recommend sloping the roof, but again most companies did not slope flat roofs because it is very, very expensive to do so.

He estimated it would cost thousands of dollars just to slope the defendant's roof, and would require cutting and tapering pieces of insulation before the membrane was installed. Standing water at most might allow algae to grow, if it did not evaporate within 48 hours, but even so the roof would still be watertight. [ 118 ] He agreed IKO recommended a sloped roof for their product, but said they were almost never done, as homeowners do not want to pay the quite costly price for it.

He suggested the practice of most roofing companies, really the industry installation standard, was not to do a sloped roof, even if the product used, as in the defendant's case, called for a slope. Most companies did not do a sloped roof as they would never get any contracts, as their quotes to reroof with one would be too high or too costly for the homeowner. [ 119 ] On cross-examination, he admitted he did not know the defendant's roof substructure was tongue-and-groove planking and agreed, if so, there could be some spring to the roof over the beams on which it was built.

He agreed that to tear off the defendant's membrane roof down to the tongue-and-groove subsurface and install a two-degree slope and then torch on a new membrane would cost just under $50,000, possibly in the $35,000 range. [ 120 ] He had never seen Exhibit 10, the IRC February 3, 2012, inspection report of the Mendoza roof, recommending in part that the membrane and shingles should be removed to the existing substrate. He believed the skylights he had seen on the defendant's house had been in place for the life of the house, probably 40 to 50 years.

He agreed that sloping the curb of a skylight did not affect the life of the roof. When reroofing a building, if the insulation below the old membrane is dry, in good shape and mostly intact, the preferred course is to reuse it. I find this is what the claimant did. [ 121 ] When asked in reply by Mr. Victory if a roofing contractor is told by a homeowner that his home has a carpenter ant problem, what should he do, he responded, "Take a closer look at the areas where they show up." [ 122 ] I note Steve Williams was not cross-examined by Mr.

Victory as to whether or not he or any member of his crew ever saw carpenter ants in his roof during the course of their work. Position of the Parties [ 123 ] I will summarize the main points made by each party.

The Claimant [ 124 ] There are certain references in this submission that did not appear in Mike Williams' evidence in trial; for example, that Mr. Victory was out of town but his parents were home and that they could review the work to be done with them. A second example found in paragraph 3 is a reference to Mr. Victory discussing a slope with him, and a suggestion that he told Mr. Victory that it could be done with sloped insulation that could be very expensive, and Mr. Victory not wanting to spend the extra money. [ 125 ] I do not see that Mr. Williams gave this evidence at trial.

Argument is to be based on trial evidence. A written argument is not an opportunity to offer further facts that a litigant can expect the trial judge to rely on. I find I cannot rely on significant parts of Mr. Williams' argument as an accurate account of the evidence at trial in this case. [ 126 ] Mr. Williams argues his crew was on site for a number of days and was never asked to leave. He also, however, testified that Mr. Victory was in and out a few times while the crew was there, and I find he was in Las Vegas at the material time. I accept Mr.

Victory's corroborated evidence on point as true. [ 127 ] The damage done to the defendant's driveway and the waterline did not line up with where the truck and bin had been. There was no sign of leaking when the crew left the job. The slope and a skylight done by Affiliated was an extra and not included in the claimant's quote and, in essence, is not a valid head of damage. The Affiliated invoice for $6,333.60 is a fraud and, if paid, likely Affiliated rebated $5,000 to Mr.

Victory. [ 128 ] If the claimant had been serious about this highly speculative and fanciful allegation, he could and should have cross-examined both Mr. Victory and Mr. Seehaus on this point, but he did not. In the result, this submission is nonsense and I reject it. The Defendant [ 129 ] There is no written agreement, therefore how could the claimant start work when the scope of the work was unclear?

This argument overlooks the undisputed fact that Mike Williams attended the defendant's home in the fall of 2011 and, after reviewing the defendant's roof, gave him an oral quote of $12,600 plus tax to reroof it, and noted that one large skylight would likely have to be dismantled.

Further, he submits that he never agreed to go ahead with the job until the details were first provided in writing. [ 130 ] In essence, the defendant's position is that the claimant elected, without any authority whatsoever from him as the owner of the home, to do a new roof on the defendant's home on March 6th because the weather was good that day. I do not rely on any references to any

summary of a witness's statement referred to in the defendant's written submission as the same where not part of the evidence at trial.

This non-reliance includes facts not proven at trial found in the defendant's statement of facts at the beginning of Exhibit 4. [ 131 ] Had the defendant wished to prove these facts or any facts in a witness statement, he might have done so himself by testifying under oath or cross-examining a claimant witness on the fact or by calling a witness to prove the fact at trial, all to be done in the presence of the claimant to allow him an opportunity to cross-examine on the evidence given. [ 132 ] The past contract Mr. Victory had with Mr.

Mendoza proves he would not enter into a relationship with a roofer without a written contract. This does not establish, in my view, the point contended for. The contract was clearly Mr. Mendoza's form, not that of the claimant. It could, as well, show Mr.

Mendoza would not work for the defendant without a written contract. [ 133 ] The claimant's evidence was that they trusted customers and often worked without a written contract, and that at the defendant's request they sent him a quote, and later retransmitted it when they learned he had not received it. [ 134 ] The terms of the contract, quality and standard of the work, the slope, the warranty, and the price are all in dispute and undefined. Mr. Victory states in paragraph 14 and 15 of his written submission as follows: 14. No one except the plaintiff knows exactly what work was done.

Previous roofer had sloped the roof with plywood over the original membrane. Those plywoods were discarded by the plaintiff. The original layer of insulation on the roof was not replaced by plaintiff, not on the material list. Continuing carpenter ant infestation proves it. 15. The plaintiff did not create and did not even attempt to create a sloped roof. B.C. Building Code , District of West Vancouver By-laws, IKO guidelines, and Roofing Contractors' Association of B.C. all require a two-percent slope for flat roofs. Defendant wanted a sloped roof. Roof was mostly sloped and plaintiff demolished that slope work.

This voids the warranty, will lead to more leakages, and significantly shortens the life of the roof. [ 135 ] There is no evidence in the trial before me that Mr. Mendoza complied with his contract and sloped the roof that he agreed to build for $7,000, which I have already noted is a fifth of the cost the defendant's own expert, Mr. Seehaus, estimated it would require to slope the defendant's roof. Nothing in the IRC report suggests it was and this firm, in fact, recommended that the roof membrane and shingles be stripped off. I understand these to be the shingles that Mr.

Victory complained that the claimant had replaced unnecessarily. [ 136 ] The defendant said that the Mendoza roof had serious leaks. This is not evidence that it was sloped, in my view. [ 137 ] The materials attached to the defendant's written argument, as per paragraph 16, as to the cost to slope a roof are not evidence and I have not considered them. Again, had the defendant wished to put evidence before the court to contradict his own expert's estimate as to the cost of a sloped roof, he might have done so at trial and allowed Mr.

Williams an opportunity to cross-examine and test the evidence of this witness once done. This he did not do.

[ 138 ] I am of the view and find that the defendant elected not to slope his roof due to cost factors. [ 139 ] On all the evidence in this case, it is very clear to me that cost is a very significant factor and likely a deciding factor for him in making many decisions. It is likely any manufacturer's warranty on the IKO membrane the claimant installed may not apply, as the roof is not sloped two degrees.

However, I find that the initial quote given by Mike to the defendant did not, contrary to the defendant's evidence, encompass such a term. [ 140 ] I also find that to slope the defendant's roof would cost between 35 to $50,000, accepting as I do the defendant's own expert's evidence on point, corroborated by Mr. Van Burkle, at least in a general way. I find the defendant would never have agreed to pay this amount to anyone to redo his roof, and accordingly he would not have paid the requisite price to obtain the IKO warranty in the first place.

He cannot, therefore, recover any money damages in this action because he got no such IKO warranty, if in fact this occurred. [ 141 ] I also accept Mr. Seehaus's evidence that it is a standard in the roofing industry, even if the membrane product specification calls for a sloped roof, not to do it. I find the claimant's roof met this standard. [ 142 ] I return to Mr. Victory's submissions. He says the claimant's truck weighed 19,760 kilograms and this exceeded what is permitted on B.C. residential roads.

The claimant ought to have brought two trucks or bins to avoid damaging the defendant's driveway. [ 143 ] There is no evidence as to what weight can be carried on a West Vancouver residential road at the material time or that the claimant's bin truck exceeded it. [ 144 ] In paragraph 22, the defendant makes reference to an affidavit of Accolade Plumbing that was not admitted in evidence at trial. It was specifically excluded.

It is, in my view, improper to refer to a rejected item of evidence in closing argument in the face of such an earlier ruling by the court. [ 145 ] The defendant has taken some time to point to inconsistencies in the evidence offered by the claimant, and in particular the two brothers behind this company, Mike and Steve Williams.

To some extent, in doing so he refers to the claimant's arguments which, as I have pointed out for both parties in this case, include facts or assertions not found in the trial evidence. [ 146 ] The defendant's submission as to Exhibit 1, page B4, the document faxed from his fax number to the claimant on March 22, 2012, is as follows: 5. Document B4 in Exhibit 1 raised questions. It is a quote dated 6.3.2012. Defendant testified he typed up a quote on a blank sheet of paper on or around this date. Its terms were mostly taken from the contract of Mr. Mendoza.

The defendant testified that Steve Williams had visited the defendant and the defendant suspects Stephen may have cut a

section of the plain paper given to him by the defendant and pasted or taped it over the plaintiff's quote, which was hand-delivered to the defendant, and faxed it in hope that his brother would read and agree to sign it. Mike refused to sign that. The terms were not advantageous to the defendant at all and less attractive than what was being asked by the plaintiff. [ 147 ] This suspicion would have required Steve Williams to put together this unusual document in the defendant's home office after the defendant had left him there alone, and then fax it to his brother at the claimant's office.

As I have said, this makes no sense at all. I do not accept that is what occurred. Steve Williams impressed me as a man who had done heavy labouring work all his life, and not one who had the time, inclination, interest, incentive, or business ability, in my view, to do what the defendant alleges he did. [ 148 ] I have reviewed and considered the further submissions and argument of the defendant. I do not intend to take further time to deal with each submission in turn. Discussion [ 149 ] I will first deal with the credibility of the parties and their witnesses.

Credibility means not just honesty in testifying, but also encompasses the reliability of the evidence given and often deals with the issue, does it make sense? An honest witness can be mistaken and testify in an inaccurate way, and thus such evidence would not be reliable. [ 150 ] I found both Mike and Steve Williams to have a tendency to tell me at times what they thought happened and at times to rely on, and particularly Steve, what his general system was. For example, at the start of every job, he would climb up on the roof and "scope" the job out and call Mike if there were any problems.

He said he did this on the defendant's job. However, based on all of Steve's evidence, I doubt he recalled with precision the defendant's job, and I expect he had done many since March 2012 by the date of trial. Steve was the roofer and crew boss. Mike was the claimant's business representative.

I give Steve Williams' evidence as to most business matters involving the defendant, save his testimony on Exhibit 1, page B4, less weight than I do his brother's, because his focus was really on doing the physical work and little else. [ 151 ] I did find that Mike Williams' evidence was throughout coloured with, no doubt from his perspective, a sense of righteous indignation over the way the defendant had dealt with him.

For example, on one occasion he wanted to leave the courtroom, and I do not recall if he did or did not, because he was offended by certain of the defendant's evidence as to how the claimant had done the job. He was apparently used to doing work based on oral contracts and being paid at the conclusion of his work. [ 152 ] As to his expert witness, Mr. Van Burkle, I found his evidence to be frankly of little assistance in this case. The claimant is a customer of his company, IKO, and apparently regularly buys product from IKO. Mr. Van Burkle cannot be seen as an independent expert.

He is a product rep and I think prone to bias in favour of the claimant customer. He is not a qualified roofing inspector, as is Dean Carate, nor do I find his qualifications match those of Mr. Seehaus, the representative of Affiliated called by the defendant. Mr. Van Burkle's inspection of the defendant's roof was done March 14, 2013, in any event, after the defendant had retained Affiliated Roofers Ltd., and after they had done the work in question on or before November 30, 2012.

[ 153 ] Hence, his assertion that the roof had been done with good roofing practices and met IKO's minimum standards in his April 3, 2013, email report must be viewed in this context. It was done after the defendant dealt with many of the issues in the Carate report. [ 154 ] As well, Mr. Van Burkle was mistaken in his direct evidence, corrected on cross-examination by Mr.

Victory, that the IKO requirement for its warranty to apply, there must be at least a two-degree slope on the roof, applied only to new construction, when public information on the IKO product website provided for this warranty precondition on old or used construction as well; for example, a replacement roof on an existing structure. [ 155 ] I am not able to assess Mr. Carate's credibility in any conventional way. He was not called to testify. Had Mr. Williams wanted to cross-examine him on his report of August 14, 2012, he could have insisted on doing so.

His findings and opinions can, however, be considered in light of other evidence on point, including that of the Williams brothers. [ 156 ] I found Mr. Seehaus to be a helpful, experienced, reliable, and honest witness who impressed me with his knowledge of roofing practices in this province at the material time. He did not exaggerate anything, in my view, or create evidence to fill voids in some fashion. [ 157 ] I turn to the homeowner, Mr. Victory. I had and have concerns about Mr. Victory's credibility and the reliability of his evidence generally.

Both parties at a settlement conference before Auxier P.C.J. on February 27, 2013, were ordered to exchange copies of all relevant documents by April 30, 2013. The undisputed evidence in this case is that Mike Williams first met the defendant in the fall of 2011, and then climbed up on his roof, measured it, and gave him an oral quote of $12,600 plus tax. [ 158 ] According to Mr. Victory, he made various representations or statements to him as to what the claimant would do if it got the contract, one being very significant to Mr.

Victory: that the claimant would put extra sheets of plywood on the roof, clearly before the membrane was torched on, to prevent water pooling. [ 159 ] The defendant testified he made notes of the important points Mike raised, really I think potential contractual terms, on a sheet of paper right after Mike left. When the Mendoza contract proved to be a failure, it was he who went looking for the claimant, I find because he must have been impressed with his first presentation, qualifications, and reputation, yet he never produced these notes pursuant to the above order of Auxier P.C.J.

When he testified on November 29, 2013, he said if he searched, he could find them. [ 160 ] On later trial days, he never produced this very important document.

I conclude that it either does not exist, or if it does, its contents do not support the evidence given by this witness as to all matters or comments he says he either discussed with Mike Williams when he first met him, for example, "We have a major carpenter ant problem", or asserts Williams said to him, for example, "We will spray for ants and we will slope the roof so there is no standing water." [ 161 ] I draw an adverse inference, accordingly, against the defendant on this point by reason of his failure to produce what, in my view, is a central document in this case. [ 162 ] I have already commented on Mr.

Victory's evidence concerning Exhibit 1, page B4. I do not accept it. I prefer the evidence on point offered by the claimant. I find Mr. Victory created this document, and I do accept he likely did so, so as to have something to go after Mr. Mendoza with in a future action to recover the $4,300 he paid to him for a roofing job he felt was unsatisfactory, especially in light of the IRC report recommending that all of Mr. Mendoza's work be removed. [ 163 ] I found that Mr.

Victory generally in this matter was attempting to lay at the claimant's feet, so to speak, responsibility for failure to rectify many structural ills in his older West Vancouver home, estimated by his own witness, Mr. Seehaus, to be 40 to 50 years old, by way of asserting they were either discussed and agreed to be dealt with, for example, spraying for carpenter ants or sloping the roof.

This is really a form of exaggeration in his overall testimony. [ 164 ] I find, based on all the evidence, that Mike Williams did meet with the defendant in the fall of 2011, and after climbing up on and measuring his roof, gave him a quote to apply an IKO membrane roof, a product that he had been using for some time, of $12,600 plus tax. This oral quotation did not include costs associated with the defendant's skylights which came later, which according to Mr.

Seehaus were likely as old as the house itself, and in many cases damaged by the prior roofer, some of which damage occurred after the first visit and some may have been pre-existing. [ 165 ] I find there was no representation made by Mike in the fall of 2011 that the above quote included a sloped roof. [ 166 ] I reiterate I find that Mr. Victory elected to have Mr. Mendoza do his roof in the fall of 2011, because his quote was cheaper, $7,000 as compared to $12,600.

This was likely the sole reason for his decision. [ 167 ] I find that the defendant has not proven on the balance of probabilities that the roof built by Mr. Mendoza was sloped a minimum of two degrees. He has established that it was worthless and all of it had to be removed to the existing substrate. If the Mendoza roof had been sloped, this would have been done either with wood or likely insulation, either of which materials would have formed part of the substrate on his roof and there would have been no reason to remove them, as the defendant alleges occurred when the claimant commenced its work.

Why ever would it have done that? [ 168 ] I find the defendant went looking for Williams in or about late February 2012 and likely had a recommendation as to the quality of his company's work from a claimant customer at Spuraway Gardens in West Vancouver. He called Mike Williams. I find when he called Williams, he would have had his notes of Williams' earlier oral quote, $12,600 plus tax and whatever other points he set out, ready at hand, was having serious leaking issues in his home, was dealing with a sick brother, and wanted his roof fixed, and was likely in a hurry to do so.

All evidence points to this. [ 169 ] I find he told Williams of his problems with Mr. Mendoza's job. I find when he called Williams, he had in hand the IRC report of February 3, 2012, and knew the Mendoza roof had to go. I find he wanted Williams to do the job and told him to do it and to mail him a written quote, essentially as per his earlier oral quote given in the fall of 2011. Williams told him he would start work on the first nice

day. This is the kind of statement a roofing contractor would make to a disaffected homeowner with a leaky roof in February when it tends to rain a lot in West Vancouver.

It is what a customer would want to hear and want done. [ 170 ] I find that the March 2, 2012, quote was sent to the defendant in the usual course of the claimant's business on March 2nd, that the defendant for some reason did not receive it, and by March 6 had requested a further copy, and a second quote dated March 6 was prepared and sent out, which I find includes both standard terms, for example Clauses 1 to 4, and really relating to the membrane and other terms as per Mike Williams' oral discussions with the defendant in the fall of 2011, for example, Clause 9. [ 171 ] I do find the defendant was in Las Vegas on March 6th, the day the claimant attended to start the job, and that he and Mike Williams spoke by telephone, and he then reaffirmed his earlier instructions to do the work and asked for the quote to be emailed again.

I find this email, Exhibit 1, page B2, occurred after Steve had been at the job and on the roof and had seen the state of the skylights. [ 172 ] I note one photo in the IRC report shows one pane of, I assume, glass in one skylight to be broken. The issues seen by this inspector on February 3rd would have all been present and unrectified and readily observable by an experienced roofer such as Steve Williams.

I also find that when the defendant first spoke to the claimant in the fall of 2011, that he did tell Mike, likely with a view to keeping his costs down, that the claimant should try to do the work, on the assumption a contract was made, without taking the existing skylights out, and was advised by Mike that this would be hard to do. [ 173 ] I find that on March 6, the claimant's first day on the job, the skylights on his roof had been damaged; for example, glass broken or plastic exposed to Mendoza's torch work, and as per the IRC report, Exhibit 10, work had been improperly done.

For example, membrane applied around skylights torched directly to metal flashings, not under. There is no evidence that these flashings could be preserved following Mr. Mendoza's work. [ 174 ] I find that by March 6, 2012, the claimant and defendant did make a binding oral contract which the defendant did wish to have recorded in writing, but which never occurred.

The terms I find they agreed to are as follows: 1) the claimant would strip off all the Mendoza membrane to the substrate; 2) the claimant would replace it with the type of membrane he regularly used made by IKO; 3) the work would commence on the first clear day in March 2012, which turned out to be March 6th; 4) the cost would be $15,624 inclusive of tax; 5) the defendant by implication would allow the claimant crew onto his property in a reasonable way to do the work; 6) additional skylight work would be an extra, in the event they could not be preserved and required modification or replacement; 7) new shingles would be installed on the sloped roof; 8) by implication, the claimant's work would be

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