Bracken v. Timberview Developments Ltd. Date:, 2017 BCPC 63

Citation: Bracken v. Timberview Developments Ltd. Date: 20170303 2017 BCPC 63 File No: 1323699 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: AERHYN BRACKEN CLAIMANT AND: TIMBERVIEW DEVELOPMENTS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Appearing on his own behalf: A. Bracken Appearing for Timberview Developments Ltd.: M. Morgan, Principal

Place of Hearing: North Vancouver , B.C.

Dates of Hearing: April 10; September 29, 2015; January 15; June 3, 6; November 24, 28, 30; 2016 December 12, 2016 Date of Judgment: March 3, 2017 [ 1 ] In this action, the claimant seeks to recover from the defendant a total of about $17,800.00 for extra work and materials as well as some wages foregone by him relating to two construction projects in Whistler – one being some renovation work done to a building located in Function Junction at Alpha Lake Road (“the Alpine project”), and the other relating to certain work done at a private residence located at 6152 Eagle Drive (“the Eagle Drive project” or “the residence”). [ 2 ] The defendant denies it owes any money to the claimant and seeks in a counterclaim to recover $25,000.00 damages against the claimant said to have been incurred by it in correcting certain deficiencies in the claimant’s work on both projects.

The claimant disputes the counterclaim. [ 3 ] In 2012 the claimant was a drywall contractor and used the business style of cause Bracken Tree Contracting which is not a limited company. He had a grade 8 education and his business was truly a one man show or sole proprietorship. [ 4 ] The defendant limited company’s principal, sole officer, director and shareholder at all material times was Matt Morgan (“Morgan”). This company was incorporated according to Mr.

Morgan on March 30, 2006 and has carried on business since then doing general contracting, project management, and has done projects described as high-end residential, commercial work, and leasehold improvements mostly but not exclusively in Whistler. Mr. Morgan is a certified red seal carpenter and obtained a certificate in project management from Langara College in 2005 or 2006. [ 5 ] During this trial, the parties testified and Mr.

Morgan called two additional witnesses Andrew Tacilauskas, one of the two principals of Alpine West Systems Electrical (“AWSE”), and Shane Caruana, at all material times an employee of the defendant and a site supervisor on its various projects. Mr. Tacilaukas (hereinafter “Andrew”) has been and is a licensed electrical contractor working as such both in Whistler and Vancouver. In the Fall of 2015, his company changed its name to West Systems dba West Electronics.

I understand that in 2012 Andrew likely owned shares in a numbered company 0895828 BC Ltd., which company owned all of a commercial building located at 1345 Alpha Lake Road in Whistler. Andrew’s partner, Jamie Yetman, may have also owned shares in this company. Andrew was involved in the Alpine project but not the Eagle Drive project, whereas Mr.

Caruana was involved in both, however only in a most minimal and informal way on the Alpine job. [ 6 ] The onus of proof in this case on both the claimant and defendant is that, to be successful, each must establish his claim or its counterclaim as the case may be on the balance of probabilities.

Failure to meet this burden results in the claims being dismissed. [ 7 ] I intend, in these reasons, to attempt to deal with the evidence of all witnesses with respect to each of the claimant’s claims first and then the evidence relating to the various counterclaims advanced by the defendant commencing with the Eagle Drive project which, according to Mr. Morgan, at least was commenced first in time in 2012.

I will also deal with the issue of credibility of the four witnesses who testified at trial and then in a concluding discussion render my decision. 6152 Eagle Drive Whistler Project (“the residence”) [ 8 ] Morgan testified that he first met Mr. Bracken (“Bracken”) in March or April 2012 when his company, the defendant Timberview Developments Ltd. (“Timberview”), was at the framing stage of the residence. Later on he said they first met on or about April 3. Bracken came on the site. There was a prominent sign erected thereon clearly setting out Timberview’s corporate name. It was the general contractor.

The new custom home was owned by one David. Bracken asked Morgan if he could quote on the drywall, mudding and taping work that had yet to be done. [ 9 ] Morgan testified that Bracken then told him he specialized in drywall installation and project management. There is no other evidence in this case that Bracken ever did any of the latter work. He did drywall work via a sole proprietorship Bracken Tree Contracting at all material times. [ 10 ] Mr. Caruana (“Caruana”) was then on site as well.

He recalled Bracken advising Morgan and him that he could do, among other things, class or level 5 drywall finishes and all other aspects of drywall installation and repair. Class 5 means that a nice smooth finish results with no deficiencies. This, according to Caruana, is the finish wanted in a high-end home and exceeds in detail what he called the “general standard” used in most residential construction in the Lower Mainland. [ 11 ] Morgan took Bracken through the residence. The residence required a shadow line or fairly complex detail along the baseboard area of the walls in all rooms.

Morgan said he discussed this requirement with Bracken in the first meeting and Bracken said he was familiar with it and had the skill to do it. After this walk through and discussion, Morgan concluded and said it was clear to him that Bracken was not familiar with the shadow line detail required on the residence or qualified to do it.

This detail must, according to Morgan, be dead straight and level and is expensive to do in the first instance and to repair if not done properly. [ 12 ] At some point Morgan said to Bracken if he was interested in doing the drywall work at the residence, he should provide a written quotation. He gave Bracken a business card again with Timberview’s corporate name on it. This simple act would signal to Bracken, in my view, that any quote should go to Timberview.

[ 13 ] It is unclear to me why Morgan would suggest that Bracken quote for drywall work on the residence Morgan felt he lacked the skill to complete. This makes little sense. Bracken nonetheless later provided a drywall quote but Morgan did not accept it as the price was too high and because of Bracken’s lack of experience.

No copy of the quote was placed in evidence at the trial. [ 14 ] Bracken was not cross-examined on any of this evidence as to the shadow line design and his level of experience with it. [ 15 ] The drywall work on the residence was later awarded to a subcontractor using the business style or name Certified Drywall (“Certified”) on a fixed price contract of $23,500.00 plus HST (Ex. 2, p. 54). [ 16 ] According to Morgan and Caruana, there was a delay on this project caused in part by some changes made to certain windows that had to be pulled out and reinstalled requiring their drywall jambs to be redone.

Some of these windows were quite large measuring 7 x 12 feet. [ 17 ] Timberview could not get Certified back to complete the drywall work as it was at the time working on other jobs. Morgan testified that there was only a few days work required to complete the drywall so he called Bracken on June 19, 2012 and asked him if he would be interested in doing some hourly drywall and taping work at a rate of $45.00 an hour at the residence, work he and Caruana described as mostly touch-up work. Bracken agreed.

I find, on all the evidence in this case, that the contract for drywall and related work on the residence was an oral contract made in or about June 2012 between the claimant and Timberview whereby Bracken was to be paid an hourly rate of $45.00 for the work he did or for work done by his helpers. [ 18 ] I note that before this call, Morgan and Bracken had discussed and agreed on Bracken doing fixed price work on the Alpine project in May 2012 which I shall come to below. No budget was given to Bracken for this touch-up work or quote requested from Bracken.

There is no evidence he again did a walk-through of the residence before commencing work. [ 19 ] Utilizing his cell phone text messages and telephone call dates, Morgan testified that Bracken had told him that he would be at the residence at noon, June 20, 2012, to start work. He was. Morgan testified as I understood him that in one of these preliminary calls with Bracken, he told him that Timberview was trying to achieve a level 5 finish on the drywall.

I assume he would not have told Bracken this if it had not had some material bearing on the nature of the touch-up work to be done. [ 20 ] He agreed that Bracken had been on the job from noon Wednesday, June 20, to Friday, June 22, 2012 – some 2.5 days in total. [ 21 ] It was not made clear to me just exactly why Morgan would hire Bracken at all to do this touch-up work apparently requiring a level 5 finish having earlier concluded that he could not do the required shadow line detail. [ 22 ] Bracken testified that from early on, he associated Morgan with Timberview and understood in his dealings with Morgan he was dealing with him in essence as a representative of the company.

Morgan clearly did nothing to discourage or alter this understanding on this project where Timberview was the general contractor. [ 23 ] Bracken said the touch-up work he did was done pursuant to an oral contract with Timberview and authorized by it. This is not in dispute. Bracken did not challenge Morgan’s evidence as to how they had met and commenced work on this project albeit he chose not to be present in court for several days when Morgan testified and never cross-examined him.

He believed he started work in June 2012 and agreed his rate was to be $45.00 an hour. [ 24 ] Morgan testified that Bracken did touch-up work primarily in the master bedroom, but also in the main floor hallway, a staircase, and with respect to certain top floor windows. The basement area was not then drywalled. This work was done later as an addition to Certified’s contract. [ 25 ] Bracken agreed the work he did was done all over the house.

He described the shadow line detail by testifying that Morgan had MDF or medium density fibreboard – a type of engineered wood butting up to the drywall in the house for a base and found that it had cracked everywhere – all over the house. In his view, there were a lot of deficiencies in the drywall work originally done by Certified. His contract was to repair them. This evidence was not challenged by Morgan in cross-examination.

Bracken felt Certified had done a good job initially, but that Morgan had made a lot of changes and he was brought in to finish the work that Certified had started. [ 26 ] Bracken said he discussed with Morgan his being able to hire his brother Tyler and one Bernard Tyerman to help with this touch-up work and at $45.00 an hour and said Morgan agreed to this. Morgan was present in the residence and saw he and his two helpers working and never complained about his work, both while the project was ongoing and or when he later sent an invoice for the work or indeed in the summer of 2012 or to the end of the year.

He denied that Morgan had made numerous telephone calls to him to complain about the quality of his work. He did agree that by December 2012, Morgan was asking for a breakdown of his hours on this job and said he gave them to him in 2012 in a document of some sort with a weekly breakdown of hours, his copy being at trial long gone. Morgan denied receiving such a document. Thus Bracken at least agreed there was no document in evidence at the trial explaining the hours he later billed Timberview.

Bracken testified that he once had a log book wherein every couple of days he recorded the hours his people worked and that he used these entries for billings, but that he had lost the same in one of his moves. Bracken agreed that as a result of the loss of this log book, he had not produced in this action any original documents supporting the hours he claimed. [ 27 ] Morgan testified that he only saw Bracken working alone in the residence.

He saw no men but agreed Caruana, his site supervisor and project manager, had told him that Bracken did have a male helper working with him on this job on a sporadic basis. [ 28 ] Caruana’s evidence was that Bracken, commencing in the Spring of 2012, had done drywall, mudding and taping work and some repairs to move the project forward, but said he did not know if Bracken had done a first or second coat or the baseboard details. He was unaware of the number of days Bracken worked or how he was to be paid. He recalled seeing Bracken doing his work briefly on one of his walk throughs.

Caruana said twice in his evidence that Bracken’s work seemed to be up to standard. [ 29 ] This evidence is inconsistent with that given by his employer Morgan which I shall come to.

[ 30 ] Morgan was asked by the court the following question concerning Caruana’s role during his direct evidence: Was it part of his duty as such to review the work done by trades to ensure that it was done properly? He answered: Mr. Caruana’s job description, yes, he is responsible to oversee subcontractors and ensure that the work is done properly.

That being said, when -- you know, as a contractor, if we hire a subcontractor, we expect that they’re capable of completing their work to meet, you know, the highest quality, as well as the industry standard, especially when dealing with the high-end market that we were dealing with. So what to -- you know, to elaborate a little more, for example, if it comes to electrical, I don’t expect Mr. Caruana to have full knowledge of the electrical code when an electrician is installing doing an electrical rough-in.

I expect the electrician to install his work to meet the code requirements. [ 31 ] I observe that based on his own evidence as to Bracken’s inability to do the shadow line detail, he being unqualified, it cannot reasonably be said in the case at bar that Morgan could have had any reasonable expectation that Bracken was in June 2012 capable of meeting the above standard or quality especially relating to shadow line work. [ 32 ] Morgan testified that the main issue he had with Bracken’s work were the high traffic areas, such as the stairway, hallway, master bedroom, and upper window area.

He described the problem as follows: THE COURT: What was the problem that in your view existed with respect to the quality of this work that you’ve described, the touch- up work re the shadow-line? A: Well, the biggest problem was is that we were shooting for a Level 5 finish in this home. THE COURT: Yes? A: And Mr. Bracken’s mud work was going on -- he was putting it on much too thick and not sanding it down properly. THE COURT: Everywhere?

A: The touch-up areas were quite noticeable. [ 33 ] Morgan then testified that because the drywall edge meeting the baseboard was not a factory edge, that the shadow line detail required mudding to extend higher than usual anywhere from 24 to 30 plus inches up the wall if done properly. [ 34 ] He was asked by the court: THE COURT: Okay. And did you, when you got Mr. Bracken in to do this touch-up work, did you tell him that it was your expectation that he would float the mudding up from these joints 24 to 30 inches?

A: It was my -- my expectation that I discussed with him was that we were trying to achieve a Level 5 finish. THE COURT: Okay. Okay. So you didn’t say 24 to 30 inches, only we’re trying to achieve a Level 5 finish. A: And, if he was familiar with this detailing, he -- as he stated that he was to me, he would have known that that was what is required -- THE COURT: Okay. A: -- to meet that standard. [ 35 ] Mr. Caruana was asked if any of Bracken’s work had to be redone?

He said there were some small aspects of it that had to be redone in part by employees of Certified and he recalled one Shane Bennett being hired to do drywall and painting work as well at the residence. Bracken did no painting. He said Bennett was primarily there to do touch-ups of Bracken’s work. In answer to a question from the court, Caruana said a lot of deficiencies Shane Bennett had to fix really didn’t come to light until after the paint was done – they were hard to see with only raw drywall installed.

This was commonplace in his view especially when the contractor was wanting to achieve a higher level finish. He was of the view that if a lower level finish was being done, to some extent the contractor might let these deficiencies go that only come to light when painted. [ 36 ] In re-examination, Caruana was asked by Morgan to clarify what deficiencies he was referring to as follows: Q: The only thing that would arise was when Mr. Caruana previously stated a lot of the deficiencies that Shane Bennett had to fix didn’t come to light till after the paint. Just to be clear, whose deficiencies are we talking about?

Is that Mr. Bracken’s deficiencies or Certified Drywall’s? A: Well, you get a lot of -- well, you get -- you get deficiencies from trades working in the projects, people bumping walls and bringing the furniture in, you mark the wall. THE COURT: So are you able to say whether these deficiencies that Shane Bennett was working on were caused by Mr. Bracken or others? Do you know? A: Well, that -- no, I don’t know.

[ 37 ] I make two observations. Firstly, this evidence seems inconsistent with Mr. Caruana’s earlier direct evidence that Bennett came to the residence primarily to do touch-ups of Bracken’s work. Secondly, there seems to be some dispute that when Bracken did his three days of touch-up work very importantly at an hourly rate, the drywall was unpainted. Bracken said it was painted.

If it is commonplace with a level 5 finish not to detect a lot of drywall deficiencies until after painting, then it seems that any repair work to same would also be commonplace after painting and almost part of the expensive process of achieving a level 5 finish.

To label Bracken’s work as a deficiency when it was really a part of the process in achieving a higher level 5 finish seems unfair in the circumstances. [ 38 ] Caruana stated that he was a ticketed carpenter with twenty plus years working in construction, the last three being self- employed and that he had been with Timberview as an employee for 8-10 years. He was the site supervisor and at the residence daily or every couple of days.

My clear impression on all the evidence was that he was present at the residence when Bracken was working more so than Morgan. [ 39 ] Each party prepared a document brief for use at trial. Bracken openly admitted that most of his documents came from the defendant but said that he augmented them with certain emails he had himself.

Four invoices were filed in evidence from Bracken Tree Contracting to Timberview for 6152 Eagle Drive work as follows: Number Date Amount Exhibit Reference 1. #6 30/6/2012 $2,481.00 Ex. 1, tab 11, p.43 2. #6 30/6/2012 $2,481.00 Ex. 2, tab 20, p.43 3. #3 31/7/2012 $3,855.60 Ex. 2, tab 21, p. 44 (or Ex. 1, tab 12, p.44) 4. #1 31/7/2012 $4,485.00 Ex. 2, tab 22, p.45 The last invoice is said to be a quote for bulkheads and drywalling a room and is not relevant. The first two documents are the same.

They refer to the work done being 47.5 units (or hours) at $45.00 an hour or $2,137.50 and 2 units of regular mud and concrete fill for a total of $77.68. These 2 invoices include sales tax (at 12%) of $265.82 making up the total invoice amount of $2,481.00. [ 40 ] Bracken testified that he worked roughly 20 hours, that his brother worked probably 10 hours and that Bernard Tyerman worked 17.5 hours on this project. He said these were not the total hours he had worked on this job. He did not have the total hours as he was only suing for 47.5 hours.

He had no other evidence to support the total hours that he had worked. He was however only claiming for these hours or $2,481.00 and monthly compounding interest over 11 months at 2% per month on same (which is referred to as a “service charge” on his Invoice #6) making up the claim (

a) referred to his Notice of Claim in the amount of $3,243.94. He said he relied on Invoice #6 (Ex. 1, tab 11, p.43) in support of his claim. [ 41 ] Bracken when asked when was Invoice #6 first issued to Timberview, said it was re-issued twice. He did not have the first invoice that was sent out, only that copy of it found at Ex. 2, tab 20, p. 43. It is a re-issue after Morgan said in an email to him that he did not receive the first one sent earlier in the same amount.

He could not recall when he first delivered the original invoice to Timberview but felt it was almost three weeks to a month before June 30, 2012 – in the first week in June. The re-issued Invoice #6 he believed was sent to Timberview on June 30.

This was so even though he had earlier testified he had started work on the residence in June, which on cross-examination he changed to “around June”, but again he agreed he had no document to confirm his memory on point at trial, but repeated he had in 2012 provided a breakdown of the 47.5 hours worked in a paper format to Morgan. [ 42 ] Bracken’s evidence was that the 47.5 units or hours referred to in Invoice #6 were for taping and mudding only on drywall work that had already been painted.

He did no painting and again estimated the 47.5 hours from his “recollection” or memory and had no documents to support these hours done in the early part of June. [ 43 ] This Invoice #6 was not paid. He discussed it with Morgan who said it would be; however, Bracken felt in various phone calls on point, Morgan kept stalling. [ 44 ] Bracken was asked by the court if there was anything else he wanted to tell the court about relating to claim (

a) concerning the residence on his Notice of Claim and said “yes, there’s an additional contract that was started”, but then said he had no more evidence he wished to give in support of this claim. The context of his above answer seems to relate to the Alpine contract. [ 45 ] In cross-examination, Morgan referred Bracken to the third invoice referenced above – that being #3 found at Ex. 2, tab 21, p. 44 in the amount of $3,855.60 dated July 31, 2012 claiming 76.5 hours for “work finished hourly contract” at the residence. Again there is no breakdown of these hours set out by date, worker or task.

Bracken testified that even though the earlier invoice oddly bearing #3 was not paid, he nonetheless kept working on the residence for another 76.5 hours. He denied that the 47.5 hours billed on June 30 were included in the 76.5 hours on Invoice #3. [ 46 ] Morgan cross-examined Bracken again on June 6, 2016 covering Invoice #3. Bracken agreed this had been paid in full – $3,855.60 – but said he was not sure. Morgan referred him to a Timberview cheque No. 1623 issued August 10, 2012 in the amount of $2,355.60 payable to Bracken Tree Contracting (Ex. 2, tab 24, p. 49).

Bracken agreed that he had received this cheque and altered the name of the payee to his own name, however when asked if it was meant for work on the residence, said he could not say – it could be for another house he did for Timberview at 8143 Alpine Way. It might have been for this house or both houses. I note that Bracken had earlier in his direct evidence testified that he had done other residential touch-up or deficiency repair work after another firm had done drywall or painting for Timberview other than at the residence or the Alpine project.

He described this as hourly paid work for which no quote was provided and which related to mudding and taping only (as was done at the residence) and stated that usually deficiencies appear after painting. He was not cross-examined or challenged on this evidence. Nor did Morgan suggest there were deficiencies in any of this work Bracken did.

[ 47 ] Morgan showed Bracken a second cheque No. 235 dated August 3, 2012 for $1,500.00 payable to him personally and Bracken agreed he had received and cashed it, but could not say it was for work at the residence even though unlike cheque No. 1623, it states on its face “Eagle Dr. drywall”. He agreed this part payment was received three days after Invoice #3’s date: July 31, 2012 and agreed that the total of the two cheques amounted to $3,855.60 – the amount on Invoice #3.

Reluctantly, he then agreed the two cheques were meant to cover Invoice #3 which was paid in full. [ 48 ] I found Bracken’s evidence as to what work the above two cheques covered extremely evasive – his being unable to say they related to work done at the residence particularly in light of the above express reference line entry on cheque No. 235. [ 49 ] He did not agree that his two Invoices #6 and #3 were erroneous, or that he had double claimed hours in each or grossly exaggerated the hours he had worked at the residence or that his work was in any way deficient. [ 50 ] Morgan testified about the touch-up work Bracken was retained to do at the residence and completed in 2½ days; Wednesday, June 20 (1/2 day) and 2 full days, Thursday and Friday, June 22 and 22, 2012.

On inspection, he found it to be substandard specifically when it came to touch-up work at the shadow line’s detail. [ 51 ] Bracken’s mudding in Morgan’s view was too thick and he was not sanding it properly and thus the touch-up areas were quite noticeable especially where the tape line was for the shadow line. In this project, two methodologies were equally used to create the shadow line in all rooms described in Exhibit 4 as option “A” and “B”.

Option “A”, according to Morgan, involved installation of a ½” thick baseboard, I believe made of MDF board, being installed at the base of the wall and then ½” drywall being hung above it but with a ½” gap covered with an “aluminium profile”. The drywall has a cut and not a factory tapered edge facing down to the baseboard.

The profile runs up the back of the baseboard against the wall, out towards the room at a 90° angle along the ½” cut edge of the drywall and thence up to 90° on the exterior or front of the ½” drywall, thus covering the cut edge and closing in the wall area lying behind the ½” reveal or shadow line.

The wall is a flat surface floor to ceiling unlike a more standard application where the baseboard is applied on top of the drywall and stands proud of its surface by the width of the baseboard. [ 52 ] As noted above, according to Morgan the finishing of the bottom cut edge of the drywall with profile on top requires that the mud be floated up the wall 24” to 30” from the shadow line.

Morgan did not tell Bracken at the start of the job that this type of mudding to 24”-30” up the wall was required but discussed with him that Timberview was trying to achieve a level 5 finish and expected or I think really assumed that Bracken would know to do this if he was familiar with shadow line detailing.

When asked by the court if there was any standard set out for the floating of mud from a shadow line as he described it, he answered” I’m sure that the -- there is a drywall association somewhere that has some form of standard but there’s nothing that I’m really familiar with. [ 53 ] Thus there is no independent yardstick established in the evidence that would suggest that mudding not floated 24”-30” above a shadow line is deficient. [ 54 ] Morgan said, after inspecting Bracken’s work on the weekend of June 23, he determined it was substandard and not going to meet the standard of the calibre of the home and did not meet his requirements, so he called Bracken and told him his services were no longer required at that time.

He said this was before they had primed or painted the project, contrary to Bracken’s evidence that his touch-up work in issue had been done after the drywall work done by Certified had been completed. He did not tell Bracken he felt his work was deficient.

He had spoken to Certified and they were ready to return to the job. [ 55 ] Morgan testified as to the expense (I understood) involved in repairing deficient mudding at or near a shadow line as follows: A: And the -- the issue with this type of detail is when it comes to repairing something like this nature, once you have primed it or painted it, it’s not as simple as just taking some sandpaper and sanding it down. You either have to tear it out or you have to completely float the wall again. So it’s -- it’s a time-consuming and expensive repair. THE COURT: Well, did -- Mr.

Bennett was the guy, was he not, who repaired this aspect of the work? A: Yes. [ 56 ] I will deal with the defendant’s counterclaim or charge back relating to this project below. [ 57 ] Morgan asked Bracken for an invoice for his work on the 2½ days in question. I note he did not cross-examine Bracken and seek his agreement as to his working only on these 2½ days in June. He received Invoice No. 6 (Ex. 2, tab 20, p.43) by email and testified it was for work on the above days. He did not recall receiving an earlier invoice. It does not so state on its face.

He believed Bracken had only worked 20 hours and was concerned about the 47.5 hours charged and disputed this charge. [ 58 ] He first contacted Mr. Caruana to discuss the hours admitting that he was not on site all day every day and that potentially Bracken might have worked 16-hour days. This is hearsay evidence unless offered solely as part of the narrative. So Morgan called Bracken and asked for a daily breakdown of the hours, times worked, and tasks completed. He told Bracken he was requesting this breakdown as he disagreed with his hours. [ 59 ] Contrary to the evidence given by Mr.

Bracken, Morgan said he had never received this breakdown. Morgan struck me as far more of a businessman than Bracken. He preserved and produced a substantial number of documents in this case relating to the claims advanced by Bracken. I am of the view that had Bracken sent Morgan a breakdown of hours, he would have preserved it and produced it at trial. He has not. I prefer Morgan’s evidence on this breakdown not being received to Bracken’s that it was delivered to Morgan by hand.

The only excuse Morgan could think of for why Bracken had not produced a breakdown for his hours on Invoice #6, despite his numerous requests of Bracken to provide one, was that Bracken had said he had lost his journal. Bracken gave no evidence that this had occurred shortly after June 30, 2012. Thus if he had a journal recording work done each day by himself and helpers, I do not understand that it had been lost at the time Morgan requested the breakdown of hours which was never given. This calls into doubt Bracken’s

evidence that he kept a book or journal at all. [ 60 ] Morgan agreed that while he felt Invoice #3 was excessive in hours claimed, he felt some amount was due to Bracken for the hours he had invoiced. [ 61 ] Mr. Caruana said he had seen Bracken’s Invoice #6 (Ex. 2, tab 20, p. 43) and said it did not make sense to him. When shown a copy in court, he said it was a revision of the invoice he had seen – he did not say how it was – and testified that it made more sense.

Before testifying that he did feel Bracken’s hours were for example excessive, Morgan asked him a very leading question not based on any evidence he had given – why did he feel Bracken’s hours were not justified? Caruana had only said this was one of two issues Morgan wished to discuss with him. When asked by the court why he felt Bracken’s hours were not justified, he answered that he was not sure – it was not more that the hours were unjustifiable but the way it was worded. He never asked Bracken for a breakdown of hours on the above invoice.

He could not tell the court whether or not Bracken did (or did not do) 47.5 hours of drywall work at the residence, as in 2012 he only then spent 1 to 2 hours per day on each site as he was supervising 4 sites in total. Later in his evidence, he testified the reasons he could not recall things – and on some points he could not – was because he was not on the jobsite 100% of the time and the project was some four years ago.

When asked by Morgan to give his version of how Bracken had completed his work at the residence, he said he could not recall and could not recall, for example, whether he had completed his work in the master bedroom. He did not recall if Bracken purchased any materials for the residence. Thus Mr. Caruana could not corroborate Morgan’s trial evidence that Caruana had told him on review of Invoice #6, Bracken had not done 47.5 hours of touch-up work at the residence. [ 62 ] Mr.

Bracken recalled Caruana called him in June 2012 not to discuss his hours but about the residence floors possibly being scratched by his helper, Bernard, using a ladder with no protection under it but said no scratching occurred. [ 63 ] Morgan was asked by the court if he had any evidence to provide the court (putting aside the quality of the work) as to what he believed Bracken’s hours should have been.

Morgan agreed Bracken had someone helping him over the three days, June 20-22, 2012, and felt his invoiced amount should have been 36 hours at $45.00 an hour and had Invoice #6 been in this amount, he would have paid it or had he been provided with the breakdown he had sought. [ 64 ] Morgan said he received Invoice #3 (Ex. 2, tab 21, p. 44) dated July 31, 2012 for 76.5 hours ($3,855.60). He understood this was to replace Invoice #6 but did not say why nor did he suggest Bracken had so testified.

He received this in response to his request that Bracken clarify his hours on the earlier Invoice #6 and was confused by it. He called Bracken seeking to clarify why another 29 hours had been added and Bracken said that Invoice #6 was a mistake and he had not included all his hours therein. Bracken told him Invoice #3 included the hours in Invoice #6. I note this is diametrically the opposite of Bracken’s evidence. Morgan again asked for a breakdown which Bracken never provided. Morgan also testified that from June 30 to July 31, 2012, Bracken had not performed any further work at the residence.

Bracken elected not to attend court on November 30, 2012 to challenge any of this evidence in cross- examination. Morgan did not immediately pay Invoice #3 or #6. [ 65 ] Bracken then, according to Morgan, contacted him by email in a relentless fashion demanding payment in full. After dozens of phone calls and conversations with Bracken and three days after Invoice #3, paid him $1,500.00 as above as Bracken was then claiming he had financial issues and needed some sort of compensation.

I confess I find Morgan's evidence as to the number of calls and emails (none of which were produced at trial) over the three days from July 31 to August 3, 2012 to be grossly exaggerated. He did not cross- examine Bracken on this point. [ 66 ] Morgan continued to insist there would be no more money paid to Bracken without the hours’ breakdown. On August 9 his bookkeeper called him and said Bracken was in his home office demanding payment and was threatening her and said she was clearly upset. Being worried about his assistant’s safety, he paid the balance of Invoice #3 on august 10 as above.

On the basis that the hours in Invoice #6 were included in Invoice #3, Morgan said Bracken was therefore paid in full for all his work on the residence project. [ 67 ] The court asked why Morgan would pay Bracken in full when he had felt his work was deficient. He responded as follows: Well, because the -- my position was based on the hours that he had put in on the project, I felt that I was potentially owed him anywhere from a thousand to $1,500.

We are dealing with a budget on the 6152 project of roughly $2 million and I have had -- you know, getting into a potential builder’s lien dispute or another lien dispute, I just -- a construction dispute over a few thousand dollars when you’re dealing with hundreds of thousand dollars in monthly revenue is just really not worth my time. [ 68 ] I turn now to the evidence relating to Timberview’s counterclaim against Bracken relating to the residence.

Counterclaim re 6152 Eagle Drive Project [ 69 ] Morgan seeks to recover $22,289.29 against Bracken as per his charge back invoice #850-002 dated February 10, 2013 (Ex. 2, tab 25, p. 51). In order to be successful, he too must prove this counterclaim on the balance of probabilities.

The charge back is said to be for labour to correct deficiencies and because it is directed to Bracken Tree Contracting, the fundamental assumption behind it is that in the 2½ days Bracken and according to Morgan likely another worked on the residence, that their work was so deficient that Timberview’s cost to rectify it was the above amount. [ 70 ] The work was said to have been performed by four Timberview employees, Shane Bennett (Whistler Web) and Certified Drywall between June 22 - September 6, 2012. [ 71 ] Morgan testified he met with a representative of Certified in the week after he dismissed Bracken.

He did not say who he met with. They both agreed a large part of Bracken’s work needed to be redone. No witness was called to testify from Certified. Where Morgan purported to convey Certified’s opinion of the state of Bracken’s work at the residence, it is hearsay evidence. Even if Certified’s opinion was admissible (as given by Morgan), it is inconsistent with another defendant witness’ evidence – Caruana. [ 72 ] Morgan said he instructed Certified in this discussion to repair Bracken’s work. This firm’s Dale was first in at the jobsite to repair Bracken’s deficiencies.

Morgan said Certified corrected only Bracken deficiencies and that Certified would not have charged him

for correcting deficiencies in its own work. To the best of his knowledge, there were no deficiencies in Certified’s work. [ 73 ] I note this evidence is somewhat difficult to accept inasmuch as Bracken was hired in June 2012 to do touch-up work after Certified had left the job. Why would he be required to do touch-up work if all of Certified’s work in the first instance had been blemish free? [ 74 ] Dale came to the job in late June and early July 2012. Morgan referred to three invoices received from Certified as follows: No. Date Amount related to Bracken work in whole or in

part 1. 6081 6/27/2012 $1,824.00 2. 41217 8/01/2012 $1,500.00 3. 8180 10/17/2012 $3,100.00 Total: $6,424.00 [ 75 ] This was the total amount for Certified in the above charge back. As to the first invoice, Morgan testified that all the work pertained to the master bedroom and involved inter alia removal of drywall. He also testified his four carpenters had done this type of work. Invoice 2 has a hand-written note “charge back” opposite the $1,500.00 entry and much of the description of the work relates to work Bracken did not do in an allegedly defective way.

Invoice 3 again with a hand-written note “charge back” opposite the $3,100.00 entry seems on its face to include work on a number of things Bracken did not do in June, e.g., bulkhead work. Morgan agreed this was so but said Bracken had asserted he had done some bulkhead work but had not and wanted to be paid for it. He seemed to rely on a quote and not an invoice dated 31/7/12 (Ex. 2, tab 22, p. 45) from Bracken Tree Contracting to support this position, but agreed he had never received an invoice for it and never paid it.

Thus it is very unclear to me why any amount would be included in the Timberview counterclaim against Bracken for work he never did at all, let alone did in a deficient manner. The fact that it is included exaggerates the amount of the charge back and makes me question its accuracy, particularly where no witness was called to explain (

a) what deficient work allegedly done by Bracken he worked on, (

b) what he did to repair it, and (

c) the time taken.

I also note Morgan in the case at bar is guilty of the very thing he has accused Bracken of not doing, namely, not producing time sheets to confirm the hours his people worked and at what rate as per his two charge backs. [ 76 ] This would have been important evidence on the counterclaim at least particularly in light of Caruana’s evidence that Bracken’s work seemed to be up to standard. [ 77 ] Likewise it would have been helpful to have photographs of the alleged Bracken deficiencies which Morgan said he recognized to exist on the weekend of June 23, 2012 when he was still general contractor on the job with free access to the residence then under construction. [ 78 ] Morgan said he used four Timberview employees at the residence to repair Bracken deficiencies, namely, Evan Taylor, Reece Tabor, Matt Chamberlain, and Adam Greg.

The total labour cost at $65.00 an hour for all four was some $2,405.00 included as a line item in the charge back. There is no description on the charge back document as to what work each individual did for the total of 37 hours. Morgan testified that the majority (not all) the work these men did related to Bracken deficiencies. He said the majority of their work resulted in the full removal of Bracken’s work as Certified was not prepared to do this work. I note that in the first Certified invoice ($6,081.00), there are two references to removal of drywall in the master bedroom.

The four men were said to have worked in the main floor hallway, front entry way, master bedroom, kitchen, and upper living room area including working on six window surrounds. I was not told what they did or how Bracken’s work thereon was said to be deficient. I do not understand work on a window surround has anything to do with baseboard shadow detailing. He paid them typically $30.00-$40.00 an hour for the hours in question and said an additional 30% (or $12.00 an hour) should be added to these wages to take into account benefits that were paid for them, e.g., UIC and WCB contributions.

Thus there was a small profit built into this charge back and it does not relate strictly to what the defendant is out of pocket. [ 79 ] Caruana although called by the defendant gave no helpful evidence as to what work his fellow employees did at the residence to rectify Bracken deficiencies. [ 80 ] The charge back contains a $1,500.00 management fee for an estimated 12 hours of Morgan’s time at $125.00 an hour being hours he says he took dealing with Mr. Bracken, meeting with trades, and coming up with a solution on how to deal with Bracken’s deficiencies.

As I have said, as with Bracken, Morgan submitted no time sheets in support of this charge back nor with respect to the 37 hours his four carpenters had done, e.g., where in the residence and with respect to what task or deficiency? This is not an out of pocket amount for the defendant. [ 81 ] Morgan included a $5,000.00 “drywall charge back due to job delay” asserting that Bracken had caused a delay due to his defective work of conservatively 3 - 4 weeks which delay led to a significant dispute with his client David.

He admitted that at trial he was also engaged in a Supreme Court of BC action with David as he was out of pocket over $200,000.00 on this job, but said Bracken’s delay was not then an issue in the sense that the owner was not seeking to pay Timberview less due to the delay allegedly caused by Bracken. [ 82 ] If this be so, I am not of the view that the $5,000.00 charge back is a valid claim at law and cannot surely be a loss of Timberview’s caused by Bracken’s deficient work. [ 83 ] The charge back contains a line item of $2,739.46 for labour done by one Shane Bennett of Whistler Web.

He was not called to testify at the trial notwithstanding Morgan’s evidence at trial being that the majority of the work he did later in the summer, after Certified had been on the job, related to Bracken’s defective work. Bennett was said to be a drywaller and painter carrying on business in Whistler who was retained by Timberview to do touch-up work. Morgan agreed that a large percentage of his work was painting work.

He received no invoice from Bennett and relied on a

summary, I understood his bookkeeper prepared, relating to payment by the defendant to Bennett to support the $2,739.46 charge back (Ex. 2, p. 56). This document does not state what work Bennett did or where. Morgan agreed that Bennett did other work, other than repairing Bracken’s allegedly defective shadow line work (which was the main focus of his criticism of Bracken’s work), but seemed to suggest that the $2,739.46 charge back amount only related to repairing shadow line deficiencies and not the other work. It is unclear how he could give such evidence based on the content of his bookkeeper’s

summary. [ 84 ] I have also noted this

summary includes I assume bills from Bennett commencing November 23, 2012 through to June 15, 2013 – over one year after Bracken did his allegedly defective work in June 2012 according to Morgan and well after Morgan’s four men finished their work (September 2012) and close to five weeks after Certified’s last invoice.

I had understood from Morgan’s evidence that Bennett came in after Certified in the latter part of 2012 and early 2013. [ 85 ] There is one point not explained by Morgan in any of his evidence and that is why would he hire Bracken at all in late June 2012 to do touch-up work on Certified’s drywall work assumedly involving a shadow line in most rooms of the residence (either option A or B on Ex. 4) when he earlier on that Spring in first meeting Bracken at the residence formed the view that he was not familiar with the shadow line detail or qualified to do it – a fairly complex detail – and would not therefore give him the contract?

Why would he think Bracken could do proper touch-up work involving this detail requiring a dead straight shadow line when finished?

If his work as Caruana said was up to standard, I would not have this concern that this apparent inconsistency in Morgan’s position is unexplained. [ 86 ] There is a second concern I have not had explained to me by Morgan or otherwise in the evidence and that is why would he recommend Bracken to Andrew at AWSE and continue with the recommendation and tell Andrew that Bracken was a suitable choice for his drywall work when by June 22, 2012 he testified that he had formed the view that (

a) Bracken could not, due to lack of skills, do the high-end drywall work at the residence, (

b) had a chance to see what Bracken could do at least in touch-up work which he says took Bracken 2½ days to complete and conclude it was substandard, and (

c) by June 27 had come to the belief that a large portion of the touch-up work done by him at the residence had to be redone. If all of Morgan’s evidence on point is true, one might reasonably conclude that he would tell his then friend Andrew that Bracken was a risky choice for his job.

On the other hand, if Bracken’s work at the residence seemed to be up to standard as described by Caruana and clearly the standard at the residence was higher than expected at the Alpine project, Morgan would have no reason to warn his friend Andrew and potentially aid him in locating another drywall contractor to build the demising wall. [ 87 ] I will deal with the claim and counterclaim at the conclusion of these reasons. [ 88 ] It is convenient now to deal with the claimant’s claims in paragraphs (

c) and (

d) of his Notice of Claim before discussing finally his largest claim pertaining to the Alpine project. Fairmont Contract [ 89 ] Bracken has claimed against Timberview in item (

c) of his Notice of Claim for loss of wages on what he described as the Fairmont contract in the amount of $2,025.00. He testified this was essentially one 40-hour week’s income foregone at this job involving a renovation to the hallways on four floors at the Fairmont Hotel in Whistler (often called the “Chateau Whistler”) lost as he was working at the Alpine project to be discussed below. The above claim equates to an hourly rate of $50.65, which he said he was charging Chateau Whistler.

Bracken testified that his “loss” occurred when AWSE took out the 5/8” drywall and went to put the stairs back in or built the stairs – AWSE asked for what he described as “my alteration for their contract” where he had to pull himself off the above job to satisfy their contract and their needs. Thus he lost wages on this other contract he could have been on. In answer to questions from the court, he agreed he was seeking to be paid for these hours by Timberview and that he could not have worked both jobs in the same week. He seemed to agree that he could not recover this amount twice against Timberview in (

c) and (

b) of his Notice of Claim. Other points not addressed in his evidence included he basis on which he left the Chateau Whistler renovation – could he and did he return later to do the 40 hours of work and was he paid for it? [ 90 ] If he did so, did he do the work in a down week when he did not have other work he could have done?

Why did he not tell AWSE that he was busy during the week in question particularly where there was no completion date set out in his quote or contract with Timberview concerning the work? [ 91 ] I am of the view that Bracken really made a form of election concerning his labours in the week in question and that was to devote the 40 hours to AWSE’s project and Timberview and look to the defendant for payment of same. If he can now prove this loss and that it is a legal obligation of the defendant, he will recover this loss. If not, he will recover nothing for this week of work.

This claim is therefore dismissed and will be dealt with on the basis that these hours are part of his claim for alleged extra hours against the defendant for the Alpine project. Alpine Electric material charge [ 92 ] In paragraph (

d) of his Notice of Claim, Bracken has claimed the sum of $1,440.00 as a “material charge” plus man-hours. This is said by Bracken to represent a bunch of materials that he bought for the project and time running around to get materials. When asked what materials, he said it was some of the materials he purchased at Rona in the original email contract or materials list and gave as an example “shot pins” used to fasten steel studs to, for example, a concrete floor and 10 pieces of eight foot lengths of steel studs.

He said Rona gave him no invoices at the time and he could not recall what the shot pins or steel studs cost – he had no idea and could not estimate the cost. When asked what the man-hours were, he said he probably spent 20 hours running around trying to get materials – including going down to Squamish on one occasion after the defendant’s account at Rona was closed. He testified that Morgan had given him a cheque to cover the cost of this COD purchase which he gave to the supplier. This was only an estimate and he had no time sheets or any documentation supporting this claim.

He agreed on all work on the Alpine project, Timberview was to supply the materials and when asked why then would he be out buying materials and answered: Matt Morgan wasn’t managing the job very well. Also a few times when I called him to get materials, he got mad at me and said, “This is why I hire f ‘ g subcontractors so they can get the materials there and supply everything and -- and run a job.”

[ 93 ] Initially he said the understanding he had with Morgan was that he (Bracken) would go to the Rona store across the street from the Alpine project site and use Timberview’s account, but that at some point Rona refused to allow him to do so when they closed the account. He testified that he had made four or five trips to Rona across the street to pick up materials. He was unable to say or estimate the time this took. [ 94 ] When asked if he was ever out of pocket and had not been reimbursed for materials that he purchased, he said only for pins, shot, and mud.

When he raised this outstanding obligation with Morgan, he would only get mad at him. And then he said, “I’m trying to make a living so I just take it and bite the bullet and keep working.” He believed a fair estimate of his claim in paragraph (

d) would be to take 20 hours x $55.00 an hour or $1,100.00 for labour, and subtracting this from the total claim amount of $1,440.00 left $340.00 for supplies as a fair estimate of the materials he acquired and for which he was not reimbursed.

He agreed he had never invoiced Morgan or the defendant on this claim and that the first time they would have seen it would have been on receipt of his Notice of Claim. [ 95 ] Morgan testified that Bracken did not have to buy any materials which were all ordered by the defendant through Rona on Timberview’s account and delivered to the jobsite or Andrew ordered drywall and insulation at Pacwest for Bracken that Andrew picked up. His above contract was labour only. He never agreed on item (

d) as an extra or told Bracken to go and buy materials. Because Rona was so close, if Bracken had to go there at all, which he doubted, he felt it would only take 15 minutes. Essentially he suggested that this claim at a bare minimum was both exaggerated and inflated. [ 96 ] I find that the contract Bracken had with the defendant for the Alpine project was indeed one for labour only. It is referred to above (Ex. 2, tab 6, p. 16) and says so on its face.

It is telling I think that Bracken never invoiced the defendant for these charges and only set them out in his Notice of Claim filed June 10, 2013, almost one year after he had done the work on the Alpine project. He was in dispute with Morgan in the Summer of 2012 over both the Eagle Drive job and later Alpine job and later with Andrew in mid-October 2012. He then ought to have known if he had no invoices for the goods he alleges he purchased, that he ought to have taken reasonable steps to obtain same from Rona in support of this claim. He did not do so.

This entire claim is unsupported with any documentation including current prices for the items in question still sold no doubt by Rona in Whistler and listed on its website. I am hard pressed to find the supplies he estimates he purchased would cost $340.00 altogether. Nor am I satisfied in light of his terribly vague evidence on point and his reliance on estimates only, that his hours are close to being accurate in light of Rona’s store being so close. Thus I find that the claimant has not proven this claim on the balance of probabilities and it is dismissed.

The Alpine project: (1345 Alpha Lake Road, Whistler) [ 97 ] Bracken testified that in May 2012, Morgan asked him if he could build a demising wall for him and do other work in Whistler. He gave Morgan an email quote on May 11, 2012 – a quick scope of the work quote for labour only. When he started this contract for the defendant, he knew the work was for a friend of Morgan’s – Alpine Electric. He understood that the defendant had some form of contract with Alpine or an arrangement – whatever it was – to oversee and help build the demising wall and the two bathrooms.

He believed Alpine Electric owned the building in question located in Function Junction. He agreed that he understood at the outset that the defendant was the general contractor on the job. On cross-examination, he disagreed with the proposition that Timberview was not the general contractor on the job and that it had merely given him a referral to do drywall work for Alpine West. Later he said he did not know what Morgan or Timberview’s role or involvement in the project was.

He believed Timberview was the general contractor as it hired him, paid for the materials he used, and said it would pay him for the work he was to do. In answer to a question from the court, Bracken said that Morgan never told him that Alpine would be paying his wages. In cross-examination in answer to certain questions from Morgan, Bracken said this on point: Q: And you deny any discussion between the two of us that I, that Timberview Developments acknowledged that Alpine West System was, in fact, the client, and you would be working for them? THE COURT: You haven’t really asked him about that yet, you know.

Did Mr. Morgan ever tell you at any time and especially at the start of your work that on the Alpine job that it was the client, that you would be doing work for it and it would be paying your wages? A: No, he would not be paying my wages. THE COURT: What about the other things, that it was the client and you would be working for it? A: He stated in a way of words that, yes, he’s a client, but so was the house and everybody else that we worked for. I’, working for him, he works for the client and it’s still the client’s priorities that come first.

THE COURT: So he said the client was Alpine but not that Alpine would be paying you? A: That’s right. MATTHEW MORGAN: Q: You deny that I ever contacted you stating that Alpine West Systems Electric would pay you directly? A: No, I did state that earlier Alpine -- you did say that. After the fact that you said that you weren’t going to pay me for my cheques. [ 98 ] Bracken agreed that the building plumbing permit for this project issued on July 12, 2012 does not show the defendant as the general contractor nor does the building permit #2316 issued on April 5, 2011 (Ex. 2, tab 47, p. 298).

There is no evidence Bracken ever saw either of these documents. [ 99 ] Bracken sent the requested quote to Morgan on May 11, 2012 and it states as follows:

From: Aerhyn Bracken [aerhynbracken@gmail.com] Date: May 11-12 12:18 AM To: Matt Morgan Subject: steel stud Job quote for demising wall. 1/3 payment due when 1/3 of job is complete. frame and plywood. 1/3 of payment due when 2/3 of job is complete drywall on both sides. Final 1/3 of payment due when job is fully complete. Job quote for labour only. Steel stud - 651.00$ Frame box around beam and red iron - 319.00$ Insulation - 264.97$ Plywood, drywall and tape both sides, double layer 3209.66$ Total cost 4344.63$ + hst 4865.90$ If this a go ahead I will send you my material list.

Thank you. [ 100 ] The email he used was Matt@timber.view.com which is one of the email addresses on the defendant’s business card, one of which Morgan gave to Bracken when he first met him at the Eagle Drive project in the Spring of 2012. [ 101 ] There is no dispute that Bracken requested a deposit on this job before starting work and that on or about July 5, 2012, Timberview paid him $1,770.90 by its cheque No. 1589 [Ex. 2, tab 10, p. 23(b)]. [ 102 ] Morgan testified that he had been asked by a friend (Andrew) if he knew of a drywall contractor who could do the work needed on the Alpine project.

This request was made in a telephone call Andrew made in March or April 2012. He was then looking for some assistance on his project but not full-time project management or general contracting work. Morgan was then familiar with his building and the units he owned in it. [ 103 ] Morgan was not then prepared to provide general contracting services as Andrew’s project was too small and he told Andrew this was so, but said as a friend he would help and give him some friendly advice.

On or about May 3, 2012 in an informal discussion, he gave Andrew names of three drywall firms – Blueline Drywall, Certified, and Bracken. He understood Andrew called all of them. Morgan told Andrew that Bracken was a new guy, trying to build a business and that he might be worth a try. He said he did not then know Bracken that well but gave Andrew positive and negative comments on all three firms.

He told Andrew that any drywall contractor should be able to do his job and suggested that if he chose Certified, they would do a good job but would charge a premium. [ 104 ] He told Andrew he would need a building permit, a set of plans, and municipal approval. Andrew wanted to avoid this procedure as originally, the demising wall in his building had been taken down without a permit, however, Morgan said he could not avoid these steps. [ 105 ] Morgan identified the plans for the Alpine project prepared by Architect Derek Venter dated February 9, 2011 (Ex. 2, tab 7).

He said he had not seen these when Andrew first called him. This is the only set of plans relating to the Alpine project placed in evidence in this case. [ 106 ] I have no evidence as to why the Alpine project was delayed from the Spring of 2011 when the building permit was got until approximately July 2012 – over one year later. [ 107 ] Morgan said in his view, he had acted as Andrew’s agent only on this project but was involved in it nonetheless from start to finish. The court asked Morgan why he would agree to help out Andrew at all?

He said Andrew was at the time a friend of his and more so of his business partner. Andrew was always looking for a deal. The job was not very large and Andrew did not see the point of paying him. He and Andrew were both then building houses and both men had helped the other out on each with Andrew assisting Morgan on some required electrical work. They also referred work to one another. Morgan said it was hence in his best interests to be on side and help Andrew out including when he was in Hawaii.

Andrew had called him in April or May 2012 when he was out of town in Vancouver or Hawaii requesting that Morgan call Bracken to see if he would provide a fixed price quote. [ 108 ] Morgan did so on or about May 4, 2012 and met Bracken at the site on Alpha Lake Road on May 9, 2012 at 12:30 p.m. Morgan said he did not tell Bracken who he would be working for in the May 4 call. Morgan agreed that Bracken then knew he had a company due to their earlier meeting at the Eagle Drive project. [ 109 ] He had a set of the above drawings with him and told Bracken he wanted a quote.

Morgan seemed to suggest there was a change in the scope of the work in that the proposed demising wall was to run the length of the building but would not be built below the

mezzanine level as an existing wall was there in place. [ 110 ] Morgan indicated he would on receipt of the quote forward it to Andrew, which he did, telling Andrew he felt it was a fair price and advising him that Bracken was in essence an acceptable choice for a drywall contractor. Bracken’s quote says if it is a go ahead, he would send his material list. Morgan requested this about nine hours after receiving Bracken’s May 11 quote telling Bracken that “the price looks fine” and Bracken supplied the list to him on the evening of May 11, 2012.

The next day Bracken sent Morgan an additional email requesting further supplies as follows: Hi Matt I forgot to add screws and concrete pins, plus steel pin and shot for material. I will need 2” box of self tapping, one box wafers for 18 gauge steel. One box ¾ inch self tapping. Two Box of shots red. One box of steel shot pins, one box of concrete shot pins, two tubes Acoustic seal caulking, three fire caulking tubes. 5 box of regular mud. Two box of taping mud yellow. 3 rolls of tape.

Box of 15 paper corner bead for beam. [ 111 ] The May 11, 2012 quote does not expressly refer to fire caulking being within the scope of work. In his direct evidence, Bracken testified that they, meaning Alpine or Timberview, asked him to fire rate the “separating parties” who were going to be in the warehouse – meaning the tenants on each side of demising wall to be “double layer drywall fire rated”.

Bracken did not explain what this meant. [ 112 ] Morgan said that Andrew being out of town asked him to make the first instalment payment to Bracken and he did so as above ($1,770.90). [ 113 ] Morgan was asked if when he told Bracken to start work on the Alpine project, had he advised Bracken as to who would be paying him and answered that he told him that he would be making the first payment.

Thus I do not find that when the contract to do the drywall work was being negotiated, Bracken was even made aware someone other than the defendant would be paying him. [ 114 ] Morgan said as far as the first instalment payment was concerned, Andrew and he had agreed that Andrew (or Alpine) would reimburse him.

He testified that he had asked Andrew to do so and to pay for the materials I assume the defendant paid for on the Alpine project and that thus far Andrew was taking the position that Morgan brought Bracken to the job, that he is Morgan’s responsibility and that Morgan should bear the consequences including a loss of two months’ rent due to delays I assume Andrew feels Bracken caused on the job. Andrew has not paid Morgan for these costs. [ 115 ] Andrew testified as to the discussions early on pertaining to Bracken’s hiring.

He agreed Morgan in early discussions agreed to help out but said Timberview had no official contract to assist Alpine with the construction of the demising wall, for example, as a general contractor. He said he and Morgan had an oral arrangement whereby Morgan would help them out with someone to do the drywall, look it over for them, and deal with the Municipality “as they like to talk to a contractor”. Morgan was not to be paid as Andrew had helped him out with electrical work on his house.

He could not recall when Bracken started his work and first met him on site at his building. [ 116 ] I find based on all the evidence in this case that on or about May 11, 2012, Bracken entered into a contract to do drywall work at the rate of $45.00 an hour as per his quote of this date with the defendant. In my view the same rate would apply to any proven extras unless agreed otherwise.

There is no clear evidence that Morgan then told Bracken that he was merely an agent for the owner of the work or a friend helping him out and that Andrew or AWSE or someone other than the defendant would be paying him. [ 117 ] It matters not in my view what arrangement Morgan and Andrew may have had (and I accept it was as they both testified it to be) if Bracken was not privy to or a party to the arrangement and I find he was not. [ 118 ] The above May 11, 2012 contract is not one that might be described as an entire contract at law in my view, putting aside any changes that might have been made to it after May 11, 2012 and hence not one whereby all work specified in it must first be completed or at least substantially completed before any payment at all is due to the contractor.

It clearly calls for three instalments when only parts of the work are done. The deposit which Morgan says Bracken insisted on before he began work, I assume was really a prepayment of the first 1/3 instalment. [ 119 ] This point, namely, the difference between an entire contract and one permitting part payments, is discussed in Hudson’s Building and Engineering Contracts (11 th edition)

Chapter 4 at pp. 438 and 488 et seq under the heading “Completion for purposes of interim payments” as follows: At p. 438: The essence of a building contract is a promise by the Contractor to carry out work and supply materials in consideration of a promise by the building Employer to pay for it. In most contracts for major works the Contractor is given an express right to payment by instalments on account of the contract price as the works proceed, and so to that extent no question of an entire contract arises.

But the rules as to entire contracts will still apply to the last instalment, to any general balance due, or to any individual instalment if the work is abandoned or brought to an end before the instalment is completely earned. Furthermore, in many smaller contracts without a term for instalment payment it is still possible that entire performance could be a condition precedent to payment. and at p. 488-89: (iii) Completion for purposes of interim payments (

A) Express terms for payment by instalments . The great majority of substantial construction contracts contain express provisions for interim payment. The two commoner forms of these provide either for stage payments of stipulated sums on completion of various defined stages of the work (“stage payments”), or regular periodical payments based on interim valuation of work done to date (“periodical valuation payments”). Occasionally, some provisions are not periodical, but depend upon the value of work done reaching a certain amount, but this is comparatively rare in the United Kingdom at the present day ….. .

It will be immediately apparent that entire performance will not be of much relevance in cases of periodical valuation, save only that, until expiry of any relevant stipulated period, clearly nothing will be due to the contractor.

In the case of stage payments, on the other hand, there will be no room for any theory of substantial performance, it is submitted, save in regard to purely trivial failures, although sometimes it may not be an easy question of fact, when dealing with stipulated stages of construction of an uncompleted project, to determine when sufficient completion of a stage of the work on which an instalment depends has been achieved.

Since the purpose of such provisions is to secure an interim payment on account, with a possibly substantial retention, extreme exactitude is no doubt not envisaged, but effective and satisfactory completion of the required stage will be a condition of any instalment payment, it is submitted, and there could be no question of substantial performance arguments entitling a contractor to sue for the instalment while giving credit for incomplete or defective work, such as might be possible with the price or a final balance due for work on completion ….. .

Most disputes arising from the entire contract rule in relation to interim payments are likely to occur when the contract is prematurely terminated, either under an express provision or as a result of repudiation and rescission or abandonment. In such cases, it is important to consider the position of a contractor who fails to complete the works as a whole under such a contract.

Where the contractor has become entitled to an instalment payment, he will not normally forfeit his right to such payment by a subsequent abandonment or repudiation of the contract, but will be entitled to sue for any unpaid instalment, if he has satisfied the conditions for it to become due, subject, of course, to the owner’s right to counter-claim for damages for breach of contract. (emphasis added) [ 120 ] It follows that I do not accept the defendant’s arguments that no contract existed with respect to the Alpine project with the defendant and that if there was one, it was an entire contract and nothing was due under it as Bracken had not fully performed it. [ 121 ] This latter point has nothing to do in my view with whether or not legitimate extras were agreed upon or whether the scope of the work had changed.

As to abandonment, in my view Bracken and any contractor was and is entitled to leave a job if an instalment payment is due and the other contracting party refuses to pay it. Such departure would be justified as a matter of contract law. Contractors are not required to work for nothing. [ 122 ] I return to Bracken’s evidence relating to the work he says he did under the contract and relating to his claim for extras. Bracken said the demising wall constructed of steel studs was 63′ long and 20′ high save for the area above the mezzanine floor where it was only 12 feet high.

The quote or contract refers only to the demising wall and not three bathrooms. He recalled starting work on the Alpine project in approximately the first week of June 2012, but said in his direct evidence it could have been earlier and in cross-examination, it could have been late June or even early July. Bernard Tyerman and his brother helped him. He kept track of their hours, but did not have them anymore.

He could not estimate on April 10, 2015 at trial the number of hours spent on this alleged extra – building bathrooms. [ 123 ] This bathroom work was an extra as was putting drywall around the stairs and what he described as the framing.

He never gave a separate quote for the 3 bathrooms, which work he was asked to do after the initial quote and described as a separate contract and then testified that was more of a continuum of the contract based on the first May 11, 2012 quote. [ 124 ] On April 10, 2015, Bracken testified that bathrooms were first discussed with Morgan in July or August 2012 who then asked him to complete them, to build one bathroom from empty space. He said this was an “add-on” or extra work not referred to in the May 11, 2012 contract.

He was to build, i.e., frame up with steel and drywall three bathroom walls and then said he was to build 3 bathrooms with 2 or 3 walls per bathroom. [ 125 ] On January 15, 2016 Bracken again testified in direct as to the 3 bathrooms he was asked to build. There was nothing in writing relating to this work. I understood he was referring to a contract. He was to complete spaces ready for a plumber. He said with respect to the downstairs bathrooms, there were walls there; he had to remove some to rebuild new walls to make a working space.

There was a bathroom upstairs that had no existing walls which he built measuring 8 feet by 6 feet. Bracken said while Morgan came by a few times to deal with I assumed the location of these bathrooms – that Andrew was mostly regularly supervising everything and assisting as well with the construction. Morgan saw him working on them and never criticized his work. [ 126 ] By the end of August 2 of the 3 bathrooms were finished, but the downstairs one was not – Bracken estimated it was 90% finished.

A few pieces of drywall connecting it to the stairwell remained to be done. [ 127 ] I should mention that Ex. 2, tab 7 – the four pages of plans all dated February 9, 2011 show only 2 bathrooms on the main floor of the site and I see no reference to an upstairs bathroom or bathrooms.

The revised plans, which I would understand Architect Venter referred to in the letter referred to below (Ex. 2, tab 5), were never produced by either party nor did either by way of a summons to a witness, for example, in Andrew’s summons, require him to bring his copy to court so that the alleged extras could be clearly explained with reference thereto.

The court and witnesses have hence been required to try to make sense of the witnesses’ evidence as to same with reference to the early I expect first set of plans which do not show them. [ 128 ] Morgan said, prior to Bracken starting work, that Timberview would be responsible for the extra cost at $45.00 an hour, but that Morgan tried to put the onus on the owner who told Bracken that Morgan owed him money. Bracken said variously he did this work in July or August with Bernard and his brother helping him.

In his direct evidence given on January 15, 2016, he said he discussed the costs of these bathrooms with Morgan and he and his helpers were to be paid at $55.00 an hour not $45.00 an hour. Timberview was to supply all needed materials. Bracken gave no estimate of the cost of the 3 bathrooms. Nor was one requested by Morgan. [ 129 ] Bracken was asked on April 10, 2015 by the court if there were other add-ons on the Alpine project and said just the plywood that went on top of the drywall. He believed he installed 5/8” plywood the entire 63 feet length of the wall but only eight feet high.

This was done in late August or September after the stairs went in. This was an add-on Morgan requested saying he, i.e., Timberview, would pay for it and extra bathroom work at the rate of $45.00 an hour. He could not estimate on April 10 the number of hours involved in doing this add-on or extra. [ 130 ] The original quote and contract (May 11, 2012) called for a double layer of drywall 5/8” thick on both sides of the demising

wall. He said he did one layer on one side. [ 131 ] He said there were complications along the way with respect to the drywall work. [ 132 ] He recalled problems arose on the job immediately. Early on there were problems getting materials to the site. Bracken suggested that notwithstanding the May 11, 2012 contract language where materials were Timberview’s responsibility, that Morgan told him he relied on his sub-trades to get materials and thus he had to go to Rona at Morgan’s direction and put drywall and screws on Morgan’s account. He was able to get some materials from Rona, but not all he needed.

He could not recall exactly what he got. [ 133 ] On the first day he testified in court (April 10, 2015), Bracken was asked when was the demising wall finished? He said he had done the steel part and the majority of the drywall within two weeks of the start date which he put at roughly July 15, 2013, but agreed it had not been completed at that point. [ 134 ] At this point, Timberview and AWSE “pulled in an engineer” because the ratings were changed to suit a tenant moving in to operate a crossfit studio.

As a result of changed ratings, he was asked to pull off one side of double layered 5/8” drywall but leaving one side intact. He said somewhat inconsistently when testifying on April 10 that he made this change but did not then say his workers did the demolition. The new drywall was supplied by PacWest in Squamish.

This change and demolition occurred when he was midway through the project and had partially finished framing and boarding one side of the demising wall with 5/8” drywall – they – in essence Alpine - changed the scope of the work to ½” Type C drywall which could prevent hazardous chemicals if spilled in one of the units travelling through the wall into the adjoining unit. [ 135 ] This required some of the 5/8” drywall he had installed to be taken down; he estimated a big portion or 2/3 of the wall. [ 136 ] This demolition work was done by AWSE workers, but he was not sure exactly who they were.

He showed up one day to find this work already done. As soon as he saw that his wall was taken apart, he told Morgan there would be an extra charge calculated at $55.00 an hour and he agreed and did not solicit a quote for this work from Bracken. [ 137 ] Morgan had told him nothing about this change. When Bracken called him, he told Bracken to call an owner of AWSE. Bracken talked to two men on site, one of whom he said was Andrew, a part owner who started managing the site as well.

They told him to hold off on his work because they had to put stairs in from the ground floor to the mezzanine floor and then he was to rebuild the wall that they took apart with ½” material. They also agreed to give him a new set of plans. [ 138 ] Bracken said this change from 5/8” drywall double layered to ½” Type C drywall was a change in the scope of the work as set out in the original May 11, 2012 contract. Andrew told him about the change.

He was sort of helping managing the project Bracken said because Morgan was failing to manage it more appropriately. [ 139 ] Another change that occurred on the job was that a large portion of the steel in the middle of the warehouse had to be removed in the wall he had built because Alpine had to put stairs into the building. This change was brought to his attention by one of AWSE’s owners, possibly Andrew. It occurred before the Type C drywall change occurred.

Bracken said Timberview agreed to these changes in several phone calls, first wanting a change order before Bracken did the new work but then instructing him that because he and Andrew were friends, to just keep going and charge by the hour for any extras on the jobsite. [ 140 ] On January 15, 2016, Bracken testified about his calls with Morgan and that Morgan said that Bracken could

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