El Shaddai v. Diogo Date:, 2014 BCPC 300

Citation: El Shaddai v. Diogo Date: 20140620 2014 BCPC 0300 File No: 14-47127 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: EL SHADDAI CONSTRUCTION AND MANAGEMENT LTD. CLAIMANT AND: HELENA DIOGO AND REACH FOR THE STARS MONTESSORI LEARNING ACADEMY INC DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing for the Claimant: Nelson Giron and Carlos Naranjo Appearing for the Defendants: Helena Diogo

Place of Hearing: Vancouver , B.C. Date of Hearing: May 21, 2014 Date of Judgment: June 20, 2014 Introduction [ 1 ] The Claimant, El Shaddai Construction & Management Ltd. (the Claimant) seeks to recover from the Defendants, Reach for the Stars Montessori Learning Academy Inc. and Helena Diogo (the Defendants) the sum of $2,627.64 as the outstanding balance owing with respect to renovations conducted in August, 2013, for the Defendants at premises located at Nanaimo Street and 20 th Avenue in Vancouver, BC (the Nanaimo Daycare) where the Defendants operated a daycare business.

The Parties do not dispute that work was done at the Nanaimo Daycare and it is also common ground that the Claimant has already been paid $15,293.33. The Defendants assert that there are a number of deficiencies respecting the work that have not been corrected or completed upon repeated requests and the value of those deficiencies is the amount in dispute. The Defendants have provided an estimate from another contractor to remedy the alleged deficiencies and that estimate is almost precisely the amount the holdback. [ 2 ] Thus the essential issue in dispute is whether there were deficiencies.

This raises two questions. The first is whether the work remaining unfinished was ever part of the original scope of work. If it was, then the question is whether the alleged deficiencies really are deficient work and if so what is a fair cost to correct them. [ 3 ] Although the total cost of the work done by the Claimant was $17,920.97, prior to commencement of the work there was simply an estimate dated March 4, 2013 in the total amount of approximately $6,000.00 including related plumbing and electrical works.

It is common ground however that the purchase of appliances and some other items were added to the Claimant’s scope of work. The essential work was a bathroom renovation and a bathroom conversion to a laundry. Detailed plans for the work and a City of Vancouver (City) permit were obtained.

The Defendants operated a licensed daycare and therefore were constrained to follow not only City bylaws but also the physical layout requirements of the daycare licensing authority. [ 4 ] The Defendants have annexed to their Trial Statement a series of photographs and text messages with the Claimant showing the alleged deficiencies. The deficiencies include:

a) failing to properly cover an opening leading to the basement and adjacent to the entrance to the daycare;

b) failing to finish and paint various baseboards installed;

c) failing to properly caulk around the newly installed sink, leaving open and unfinished grouting in the children’s washroom;

d) leaving a portion of one wall unfinished,

e) not installing a storage cabinet for chemical storage high above a sink;

f) leaving a hallway door unpainted;

g) lack of wall finishing in the staff washroom where a new change table was installed; and

h) placing non-matching tile in the staff washroom. [ 5 ] The Claimant asserts several answers to the claim of deficiencies. It says that all the deficiencies have been addressed and accepted by the landlord of the Defendants. It also says that there was never a complaint of poor workmanship and the Claimant was never asked to repair deficiencies. The Claimant questions the accuracy of the photographs of the Defendants suggesting that some of them were taken while the work was in progress and do not represent the finished work. [ 6 ] Ms.

Diogo’s evidence is that the photographs were taken in preparation for this hearing and represent accurately the current condition of the premises. The suggestion that the claimant was not made aware of any deficiencies or asked to repair them is belied by some of the text messages between the parties. On September 17, 2013 at 1:39pm Ms. Diogo sent a text message to the Claimant asking “Will u be completing Nanaimo St. deficiencies today?” She received a reply at 3:10 pm the same day advising “Yes I just finished.” That is followed by a further text message from Ms.

Diogo at 4:15 pm the same day attaching a photograph showing unfinished grouting with the text message “This doesn’t look finished.” On September 18, 2013 there is a further text message from Ms. Diogo to the Claimant attaching some photographs of unfinished work with the text message “Carlos, when you go to Nanaimo St. to fix deficiencies please remember the baseboards/paint, please fix the entrance paver … there is wood with nails there ... since the workers were there ...

I sent you a picture of this before ... this is a big safety issue for the kids before this is where they enter the classroom ... please fix today ... see attachments again.” At the hearing, Mr. Naranjo gave evidence that he did not remove any prior wood cover from the hole leading to the basement and suggested that he found a temporary cover as a courtesy. Ms. Diogo on the other hand asserts that the Claimant’s workers required access to the basement.

She was not able to provide access from the interior and accordingly the Claimant’s employees or sub-trades accessed the basement from this entrance opening. [ 7 ] I accept Ms. Diogo’s evidence where it conflicts with the evidence on behalf of the Claimant. Ms. Diogo’s evidence is supported by the text message and I find that the Claimant was made aware of a number of deficiencies in September 2013. The

Claimant points to its estimate dated March 4, 2013 which in item 7 says “Paint new walls”. At the hearing, the Claimant made a distinction between painting walls and baseboards, asserting that painting baseboards was not within its original scope of work. I do not accept that explanation. In a breakdown of its total project cost of over $17,000, there is included $5,000 for painting. The estimate which included 7 items of which painting new walls was only 1, estimated a total labour and material cost of $2,820.

The Claimant obviously accepted as part of the contract painting more than just the new walls as it charged for much more painting. In addition I note that Mr. Naranjo agreed that if the photographs were an accurate representation of the way the job was left, there were deficiencies in several areas with respect to the grouting. I have found that the photographs did accurately represent the state in which the work was left. [ 8 ] No challenge was made to the quotation of Hicks Interiors Inc. dated January 2, 2014 for the repair of the deficiencies and I accordingly find that their estimate is reasonable. [ 9 ] In

summary, I find that the Defendants were entitled to holdback the sum of $2,627.64 to repair deficiencies. The Claimant is not entitled to any further sum under its contract. The Claimant’s claim is therefore dismissed. The Defendants are entitled to recover their Court filing costs of $26.00 against the Claimant. [ 10 ] Since the action is being dismissed on the merits against both Defendants, it is not material but the estimate was addressed to “Reach for the Stars” and I would not have concluded that there was any personal liability on Ms.

Diogo. [ 11 ] The Defendants shall have judgment against the Claimant for $26.00 in costs. [ 12 ] Judgment accordingly. __________________________________ Justice of the Peace, Donald W. Yule, Q.C.