Arbutus v. Petz Date:, 2014 BCPC 120

Citation: Arbutus v. Petz Date: 20140508 2014 BCPC 0120 File No: 13-46589 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ARBUTUS TREE SERVICE LTD. CLAIMANT AND: JOHN PETZ DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP BRIAN J. WALLACE Appearing for the Claimant: Norm Oberson, Director Appearing for the Defendant: S.D. Grey Place of Hearing: Vancouver , B.C. Date of Hearing: March 19, 2014 Date of Judgment: May 8, 2014

[ 1 ] The Claimant seeks payment of $2,744 for one day’s work for a crew of three for pruning and shaping a rhododendron, a pine and two cypresses at the front of the Defendant’s house at 3142 W. 2 nd , pruning a grapevine and several fruit trees in the back, and spraying fruit trees. The Claimant also seeks contract interest and costs related to the Claim. [ 2 ] The Claimant says the Defendant asked for an estimate for the work, which, Mr. Oberson, the Claimant’s estimator, provided on March 12, 2012. Mr. Oberson says that the Defendant accepted the estimate and “decided to book the job.” Mr.

Oberson described his exchange with the Defendant as being “a good discussion” and “good communication”. [ 3 ] The estimate was for $4,442 including HST. There is no evidence that the Defendant rejected the estimate as too high when he received it. Mr. Oderson thought there was an agreement at that price. [ 4 ] The Claimant began the work on March 15, 2012. The invoice was for less than the original estimate, because, on the day after the Claimant commenced the work, someone called on behalf of the Defendant and cancelled the job.

As a result, the Claimant did not complete planting, lawn rejuvenation and rose pruning. [ 5 ] The Defendant says he asked the Claimant for a quote but did not accept it and did not authorize or agree to pay for the work. The Defendant does not live at the house and says he was not aware that the Claimant had gone to the house to do the work. [ 6 ] The Defendant also says that the Claimant’s charges were too high, and he is critical of the work.

There was no independent evidence to support the allegation that the work was not done to a professional standard. [ 7 ] Later in March, the Defendant hired another crew to complete the job, which it did, charging $476. The description of the work remaining was general and there was no evidence of the number of workers or the number of hours required. [ 8 ] Either there was no contract between the Claimant and the Defendant, or the contract was terminated after the work had been only partially completed.

If there was no contract, the Claimant provided services to the Defendant on the belief that there was and that he would be paid for those services, and the Defendant benefited from that work. If there was a contract that was terminated before completion, than I must determine the price for the partial completion. [ 9 ] In either case, the principle of quantum meruit applies. The Defendant is not entitled to be unjustly enriched, and the Claimant is entitled to be paid for the value of the services it provided.

The question is what is the value of the work. [ 10 ] There is little evidence of the value of the work. What there is, is the original estimate, the amount the Claimant billed for the work it did, and the amount the Defendant paid to another party to have the work completed. [ 11 ] The Claimant’s invoice is for $2,450 plus HST for three men for what Mr. Oberson said was an 8-hour day, including two hours for travel and set-up. That amounts to a charge-out rate of more than $100 per hour, which appears to me to be excessive.

Unfortunately, there is no evidence of the charge-out rate included in the Claimant’s original estimate. The Defendant’s agreement with the firm that completed the job is of limited value but implies a charge-out rate substantially lower than $100 per hour. [ 12 ] In the circumstances, I have concluded that the Claimant is entitled to be paid 50% of its invoice, that is $1,372 including tax, for the value of the work.

Given that the award is based on quantum meruit and not on the contract, the claim for contract interest is denied. [ 13 ] Because I have found that the Claim was inflated, so that each party had partial success, there will be no order of interest or costs. ____________________ Brian J. Wallace, Q.C. Adjudicator