100 Mile Glass Ltd v. Momro Date:, 2014 BCPC 403

Citation: 100 Mile Glass Ltd v. Momro Date: 20140430 2014 BCPC 0403 File No: 13-1253 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: 100 MILE GLASS LTD. CLAIMANT AND: KRYSZTOF AND MARIA MOMRO DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: R. Belcourt Appearing on their own behalf: K. and M. Momro Place of Hearing: 100 Mile House , B.C. Date of Hearing: April 25, 2014 Date of Judgment: April 30, 2014 [ 1 ] 100 Mile Glass Ltd. sues Krzysztof (Kris) and Maria Momro for the sum of $8,382.11 for doors, windows, and labour to install the same, at the Momro’s property near Lone Butte, B.C.

[ 2 ] The principal of 100 Mile Glass Ltd. is Ron Belcourt. He and his employee, Ernie Graham, are glaziers and installers and the company has been in business in 100 Mile House for more than 20 years. [ 3 ] Mr. and Mrs. Momro were from the Vancouver area where Mr. Momro worked as a contractor for about 20 years. In 2012 the Momro’s purchased a large rural property in the Lone Butte area with a house on it that had been badly vandalized and had sat vacant for some time. Apparently there had been a grow operation in the building at one time.

A number of the windows and glass doors in the house had been broken, and the house was boarded up. [ 4 ] Mr. Momro was hoping to move his family up before winter set in. His plan was to get the place sealed up so that he could heat it and get his family moved in and then he would work on renovating the place himself from then on. [ 5 ] In October 2012 he contacted 100 Mile Glass and requested a quote on getting the broken windows and doors replaced. Mr. Belcourt went out there twice. The first time he was on his own and the place was still boarded up so he was not able to fully assess all that was needed.

The second time Mr. Momro was there and it was possible to get a better look at the situation. Mr. Belcourt said he was reluctant to quote a price without checking with suppliers and thinking the matter through. Mr. Momro pressed him for an answer: “Yes, but just tell me what you think it might cost”. Mr. Belcourt says he responded “in the $6,000 to $8,000 range”. He says that Mr. Momro responded “can we try to keep it to around $6,000?” and that he said “I’ll do my best.” [ 6 ] Mr. Belcourt did not follow up with a written estimate. [ 7 ] Mr. Belcourt asked for a deposit and Mr. Momro paid $1,000. [ 8 ] Mr.

Belcourt proceeded to order the various windows and doors needed. Some were glass panes which he cut to size at his shop, others were sealed units. Over the next month to month and a half Mr. Belcourt and his installer Mr. Graham made several trips out to the Momro’s property to install the various items. On two occasions they went together, on other occasions it was just Mr. Graham, or Mr. Graham and another installer, who attended. [ 9 ] Along the way there were a few “add ons” to the job.

As I understand the evidence the main add ons were three doors - two of which were to be replaced and one of which had a series of smaller panes that needed to be replaced. I have not been told that Mr. Momro asked for an updated estimate as a result of these “add ons” or that Mr. Belcourt offered to give one. [ 10 ] Mr. Belcourt testified that the relationship with Mr. Momro seemed to be good up to the point they were installing windows on the upstairs, glassed in patio (or “mezzanine” as Mr. Graham termed it - and I will use that term also). Mr.

Belcourt had bought some windows at a good price at the Home Depot store in Kamloops. They were a little small for the openings in the mezzanine but since the entire structure was not well built to begin with and had been damaged by rain and snow blowing in, Mr. Belcourt felt that it would be acceptable to use the smaller and cheaper windows. Mr. Momro, on the other hand, did not like the small windows - they did not match with the other glassed in areas of the mezzanine and, as he said in court, “they looked stupid”. When Mr. Belcourt explained that he was just trying to save Mr. Momro money, Mr.

Momro responded vigorously that he was planning to spend the rest of his life in this house and he didn’t want to have to see this imperfection every day. Mr. Belcourt said that he told Mr. Momro that he would remove the windows and replace them with other windows but it was going to cost money. Mr. Belcourt says Mr. Momro indicated that it didn’t matter - he just wanted the problem fixed. Mr. Belcourt replaced the windows with others that he ordered in. [ 11 ] Mr.

Belcourt started to worry about the fact that he now had about $4,900 invested into the job in supplies and labour and yet he only had $1,000 as a deposit. He asked Mr. Momro for more money but Mr. Momro said “when you get the job done, then I pay you”. [ 12 ] Another source of tension was that Mr. Momro, understandably, was in quite a hurry to get the job done as his family was moving up, winter had set in and Christmas was approaching. He phoned Mr. Belcourt a few times, even at home, asking when various steps would be completed. This irritated Mr. Belcourt.

He explained that he had to wait for his suppliers. “You are not in Vancouver now. It’s not like you just go across town and get what you need.” [ 13 ] Mr. Momro remembers these conversations differently. He says it seemed like Mr. Belcourt’s feelings got hurt after the

situation with the mezzanine windows and after that Mr. Belcourt never came back, personally, to the property. He always sent Ernie Graham instead. From Mr. Momro’s perspective it seemed impossible to have any sort of discussion with Mr. Belcourt, or to reason with him. And, Mr. Momro said that when Mr. Belcourt spoke about the comparison between Lone Butte and Vancouver on the telephone, it was almost in a threatening way - “we [100 Mile Glass] are your only choice, so if you don’t like what we are doing, too bad”. [ 14 ] Things came to a head on December 14 th . By then, Mrs. Momro had moved up.

Ernie Graham and a helper were there replacing the double French doors that lead from the sun room out onto the deck on the main level of the house. When Mr. Momro saw that the door was a single glaze glass he was upset because that was not adequate in his view for an exterior door. There were other problems too. The door was ‘pressed board’ not solid wood which, in his view is quite inadequate for an exterior door that would be exposed to the elements. [ 15 ] For his part, Mr. Belcourt testified that he was told by Mr.

Momro to ‘replace what was there’ and what had been in that opening was a single glaze double French door. He says he could tell that it was only single glaze because of the width of the frame around the door (which was still intact). As for the problem that single glaze is simply not adequate to keep out the cold of a Cariboo winter, Mr. Belcourt said that this door leads to the outside from a sun room - essentially, a glassed in porch. He insists that it is not part of the true interior of the house. He says that the other glass in that room is also single glaze.

As well, there are exterior quality doors leading from the sun room/glassed in porch into the house - in other words, whoever originally built the house never intended that the sun room be part of the heated, interior of the house. As for the fact that the door is pressed wood, not solid wood and will not fare well in the face of beating rain and blowing snow, Mr. Belcourt says that with the right application of exterior paint such a door could be made perfectly weather proof. He says as well that this is what his supplier provided when he ordered an exterior, single glaze door. [ 16 ] Mr. Momro, urged on by Mrs.

Momro, speaking their native Polish, began questioning Ernie Graham on December 14 th about the problems, as they saw them, with the double French doors. Mr. Graham perceived it not so much as a discussion but as “a lot of shouting”. Mr. Graham telephoned Mr. Belcourt and asked him what to do. Mr. Belcourt told him to pack up his tools and leave. [ 17 ] Mr. Belcourt admits that a number of jobs were left undone at the Momro home. They are the following: 1. Weather stripping around double French doors leading from sun room to deck not installed (photo 19 of Exhibit 2); 2.

Window sill on window beside the double French doors not installed (photo 17); 3. Only one pane of glass instead of 2 installed in the window shown in photos 22 to 25; 4. Only one pane of glass instead of 2 installed in the frame in the solarium (photo 7 & 29); 5. Single glass door leading from living room to solarium - not installed by Ernie Graham before he left. And the replacement supplied by Mr. Belcourt cannot be used as it has the wrong hinge settings and opens the wrong way (photo 26); 6. The glass installed in the top of the kitchen door does not fit properly into the frame (photo 30 to 32); 7.

The window latch on one of the windows in the mezzanine will not close (photo 33); 8. The window installed in the laundry room in the basement was not properly finished off. [ 18 ] Mr. Belcourt admitted at trial that all of these things were left undone. His view was that, given Mr. and Mrs.

Momro’s hyper- critical attitude, their changing instructions (such as now wanting a double glaze door off the sunroom whereas the previous instructions were to ‘replace what was there’), and the fact that they had only put down $1,000 and he now had over $6,000 invested in the job, he was not going to do anything further until he got paid up to date. [ 19 ] From Mr. Momro’s perspective, the best that could be said is that Mr. Belcourt quit before he had finished the job. At worst, the Momro’s believe the work was very sub-standard and that Mr.

Belcourt never had any intention of finishing off the work to any greater extent than we see in the Momro’s photographs. [ 20 ] Mr. Momro acknowledges that he does need to pay Mr. Belcourt something for the windows which Mr. Belcourt and Mr. Graham installed to his satisfaction. He suggests that it should be no more than $4,000 which, together, with the $1,000 deposit paid at the time, would result in Mr. Belcourt’s company receiving a total of $5,000 for the job. Mr. Belcourt wants about $4,000 more than that in total.

He claims $6,958.23 for supplies and labour (this is after deducting the $1,000 deposit) plus GST ($954.99) for a total of

about $9,000. Analysis [ 21 ] Mr. Belcourt originally estimated the job at “about $6,000.00”. Of course, it would have been wiser for him to resist Mr. Momro’s urging and wait until he could get back to his office and talk to his suppliers and write something up. However, that is what he said to Mr. Momro and, in my view, since there is nothing in writing between them; he is now bound by that. [ 22 ] In addition, there were certain “add ons” which I find that Mr. Momro requested. I am satisfied that it was not Mr.

Belcourt’s intention that those “add ons” be done as part of the original quote for $6,000.00 although Mr. Momro may have hoped it would be that way. Because the “add ons” were requested after the agreement to do certain other work for “about $6,000”, they must be valued separately, over and above the $6,000 figure. [ 23 ] According to Mr. Belcourt’s “estimate” at Tab 7, the three “add on” items total about $878 for supplies alone. One of those items, the single French door, is not usable according to Mr. Momro. Mr.

Momro has offered to give the door back to 100 Mile Glass but, given the strained relationship I think it better that the Momro’s try to find some other use for the door - possibly they could resell it. Mr. Belcourt has valued this door at $225. Given that it is of no use to the Momro’s I will only allow $100 for that item.

The “add ons” (supplies alone) therefore total: $74.25 + $518.20 + $100.00 = $692.45. [ 24 ] I will estimate the labour needed to install the two “add on” items at 4 hours = $75.00/hr x 4 = $300.00. [ 25 ] The total I will allow for the “add ons” is therefore $692.45 supplies + $300.00 labour = $992.45. [ 26 ] This sum must be added to the original quote of $6,000.00 for a total of $6,992.45. This is the total amount that I will estimate the job at the Momro’s house, if completed, was worth.

In addition, HST must be calculated and added on to that (the HST was still in force at the time of this job). $6,992.45 x .12 = $839.09. Therefore I estimate that the total bill to the Momro’s should have been $6,992.45 + $839.09 = $7,831.54 - had the job been completed . [ 27 ] I will go on to deduct from this total the deposit paid by Mr. Momro of $1,000, plus a sum to account for the fact that the job was left incomplete. [ 28 ] Before moving on to these deductions I do wish to address two points that I am sure will be of concern to the parties. [ 29 ] First, from Mr.

Belcourt’s perspective, the total I have calculated may seem low. His list of costs, labelled somewhat inaccurately as “Estimate”, set out at Tab 7 totals $8,913.22 before the deduction of the $1,000 deposit. I have come up with a total that is about $1,100 lower than that ( before the deduction of the deposit). The reason is that, in the absence of any written estimate, I find that 100 Mile Glass is bound by the “$6,000.00” estimate that Mr. Belcourt gave to Mr. Momro at the beginning of their business relationship for all of the job, except the “add ons” which Mr.

Momro asked for later. (As noted above, I have allowed an additional sum of $992.45 for the “add ons”.) [ 30 ] Second, from the Momro’s perspective, the total I have calculated ($7,831.54) no doubt seems high. After the problems developed with 100 Mile Glass, Mr. Momro priced out the various items at other suppliers and came up with numbers that were considerably less than those quoted by 100 Mile Glass. See Exhibit 3.

The Momro’s point is that even if 100 Mile Glass had completed the job to a good standard of workmanship, the estimate of $6,000 plus the “add ons” is too high. [ 31 ] On this issue I find that both parties are bound by the $6,000 estimate that they agreed to originally. It may be that it would have been less expensive for the Momro’s to purchase the items (glass, sealed units, doors) elsewhere and then hire a glazier to install them. But, that is not how things happened. Mr.

Momro was in a hurry to get the building sealed up so he could start heating it and he made the decision to go with 100 Mile Glass’s quote of “about $6,000” and not research the matter further at that time. It is too late now to challenge that figure.

[ 32 ] As for the Momro’s concern about the double French doors on the exterior of the sun room - that they are not of adequate quality for an exterior door and are only single glaze - I am not prepared to deduct the cost of buying and installing those doors from the bill. The evidence satisfies me that Mr. Momro’s initial instructions concerning that opening were to ‘replace what was there before’. I accept Mr. Belcourt’s evidence that the width of the frame indicated to him that it was a narrower, single glaze door that had been in there before and this is why he ordered the doors he did for that location.

Nor can I find that the ‘press board’ doors that he supplied are completely unsuitable for external use. I cannot find that Mr. Momro ever made it clear to Mr.

Belcourt, at the time when supplies were being ordered, that, no matter what was there before, he wished to fill that opening with a solid wood door with double glaze sealed unit with grid of similar quality to the French doors on the other side of the house as shown in photo 21 of Exhibit 2. [ 33 ] Therefore, as I said earlier, I do find that the deemed total cost of the job should have been $7,831.54 (including tax but before deducting the $1,000 deposit). [ 34 ] I move now to the fact that 100 Mile Glass Ltd. left the job before it was complete. Mr. Belcourt admits this.

The “about $6,000” quote was given by Mr. Belcourt, and accepted by Mr. Momro, on the assumption that the job would be completed before 100 Mile Glass stopped work. The question thus becomes what amount should be deducted from the total cost of the job to reflect the fact that the job was not completed? [ 35 ] I have decided to answer this question by going through the list of eight deficiencies identified by the Momro’s and estimating a cost for the labour and incidental supplies (such as weather stripping, wood blocking and trim) needed to remedy or complete the various tasks. 1.

Weather stripping around double French doors leading from sun room to deck not installed (photo 19 of Exhibit 2): [ 36 ] Mr. Belcourt agrees this is unfinished. He said that Ernie Graham would have been finished it off had he (Mr. Belcourt) not called Mr. Graham off the job part way through the day on December 14 th , 2012. I will estimate this would have required ½ hour of labour to complete. I will estimate a supply cost for the weather stripping of $20.00; 2. Window sill on window beside the double French doors not installed (photo 17): [ 37 ] Mr.

Belcourt agrees this is unfinished and would need to be finished for the job to be considered complete. I will estimate that it would take 1 hour of labour to complete plus some supplies in the form of wooden blocking and trim. 3. Only one pane of glass instead of 2 installed in the window shown in photos 22 to 25 (“the bird window”): [ 38 ] The parties cannot agree on just which window this is. I accept the evidence of Mr. Momro on this point in preference to that of Mr. Belcourt because Mr. Momro is naturally more familiar with the house than Mr.

Belcourt. [ 39 ] I will estimate that between this window and the window in the solarium which also needed another pane of glass installed (see 4 below), 2 hours labour would be required. 4. Only one pane of glass instead of 2 installed in the frame in the solarium (photo 7 & 29): [ 40 ] See point 3 above. 5. Single glass door leading from living room to solarium - not installed by Ernie Graham before he left. And the replacement supplied by Mr. Belcourt cannot be used as it has the wrong hinge settings and opens the wrong way (photo 26):

[ 41 ] I have dealt with this particular issue under my discussion of “add ons” above. 6. The glass installed in the top of the kitchen door does not fit properly into the frame (photo 30 to 32): [ 42 ] The parties disagreed quite passionately in court about just which window is shown in photos 30 to 32. Mr. Belcourt denied that it was one of the windows he had worked on and suggested it must be some other window. The Momro’s were incredulous at his response. I have decided to estimate that 1 hour of labour would be needed to attempt to effect a repair of this defect. 7.

The window latch on one of the windows in the mezzanine will not close (photo 33): [ 43 ] Mr. Belcourt agrees this is unfinished. He said this is one of the details that Ernie Graham would have attended to before concluding the job had the relationship not broken down as it did on December 14 th , 2012. I will allow 1 hour of labour to effect this correction or repair. 8. The window installed in the laundry room in the basement was not properly finished off. [ 44 ] Mr. Belcourt did not agree that this window had been left in an unfinished state, without the proper framing.

I will accept the Momro’s word on this point and allow 1 hour of labour to complete this installation. [ 45 ] The total is an estimated 6 ½ hours of labour to bring the job to completion. The Momro’s will have to hire another glazier to complete the installations that were left incomplete by 100 Mile Glass and that person will, I estimate, have to spend about 6 ½ hours in order to complete the job.

This is the best estimate I can come to on the evidence since the Momro’s did not call a glazier to give an opinion in court about the cost of completing the job. [ 46 ] At $75/hour which is the rate 100 Mile Glass Ltd. charges, and, I will presume is within the range of what other glazier’s charge, this comes to $412.50. I will use the rounded figure of $500 bearing in mind that there will also be a small amount of cost for wood blocks, wood trim and for weather stripping. [ 47 ] The final step is to deduct this figure of $500 from my deemed total of $7,831.54. The result is $7,331.54.

I find that this is the total owed by the Momro’s to 100 Mile Glass Ltd. for the supplies and labour done at their home by 100 Mile Glass. [ 48 ] The Momro’s have already paid a $1,000.00 deposit. That leaves $6,331.54 still owing on the contract.

Conclusion [ 49 ] I grant judgment to the Claimant, 100 Mile Glass Ltd., in the amount of $6,331.54 plus filing fees of $156.00 and a service fee of $60.00 for a total judgment of $6,547.54. [ 50 ] The breakdown is as follows: Original “estimate” = $ 6,000.00 Plus “add ons” = $ 992.45 Sub-total (contract cost) = $ 6,992.45 + HST (12%) = $ 839.09 Total (contract cost) = $ 7,831.54 Less deduction for incomplete work = $ 500.00 Sub-total = $ 7,331.54

Less deposit already paid = $ 1,000.00 Sub-total = $ 6,331.54 Plus Filing fee = $ 156.00 Plus Service fee = $ 60.00 Total = $ 6,547.54 [ 51 ] This result is less than the $8,382.11 100 Mile Glass Ltd. claimed for. It is more than the $4,000.00 the Momro’s felt was fair. On the evidence before me it is the best I can do to be fair to both sides and address the valid concerns that both sides have raised. [ 52 ] I should add that I have not allowed 100 Mile Glass Ltd. its claim for a lawyer’s fee.

Lawyer’s fees are generally not an allowable “cost” under the Small Claims Act R.S.B.C. 1996, c. 430, s.19(4) . [ 53 ] I will give the Momro’s until May 15 th , 2014 to get this sum paid to 100 Mile Glass Ltd. in full. If they are unable to get it paid by that date, post judgment interest under the Court Order Interest Act, R.S.B.C. 1996, c. 79, s.7 will start to accrue on all amounts outstanding until the judgment has been paid in full. _________________________ E. L. Bayliff Provincial Court Judge