Starlight Painting Ltd. v. H & I Environmental Groups Ltd., 2016 BCPC 66

Citation: Starlight Painting Ltd. v. H & I Environmental Groups Ltd. 2016 BCPC 0066 Date: 20160315 File No: 1424555 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: STARLIGHT PAINTING LTD. CLAIMANT AND: H & I ENVIRONMENTAL GROUPS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Claimant: B. Harvey Counsel for the Defendant: P. Malhi Place of Hearing: North Vancouver , B.C.

Dates of Hearing: September 15, 16, and December 8, 2015 Date of Judgment: March 15, 2016 [ 1 ] Starlight Painting Ltd. is claiming damages for breach of contract relating to the incomplete removal of asbestos tiling and mastic from a warehouse space (the “premises”). The claimant says the defendant also caused damage to newly painted walls requiring them to be repainted. Mr. Mehdipour and Mr. Zarkeshar testified for the claimant. They also called Mr. Roskell who is the owner of the warehouse and two of their painters. [ 2 ] The claimant had a contract with Mr.

Roskell’s company to paint the premises and to remove the tile floor. Mr. Roskell agreed to pay the claimant $16,500.00 for the removal of the tiles and mastic. This is set out in an email dated November 4 th , 2014. At that time, the testing which Mr. Roskell had done showed the mastic also contained asbestos. As the materials contained asbestos, WorkSafe BC protocols were required to be followed including the cost of proper disposal of the materials. [ 3 ] The claimant subcontracted with the defendant to do the tile and mastic removal. Mr.

Mehdipour said that on November 4 th the defendant came to the premises and agreed to remove the tile and mastic for $4,200.00 cash which included the cost of testing. Mr. Zarkeshar testified he made a notation on Mr. Sidhu’s business card on November 11 th when Mr. Sidhu attended the premises to commence working and provided an oral quote in that amount. This is the only written evidence of the agreement. [ 4 ] Mr. Sidhu testified for the defendant.

The defendant says that they were only contracted to remove the tiles only and this was performed competently and completely and they are entitled to be paid under the terms of the contract. They say the quote provided to the claimant was $22,000.00 for removal of the tile only. As their testing showed the mastic did not contain asbestos, they did not agree to remove it as they only deal with materials that contain asbestos.

The defendant denies making any attempt to remove the mastic. [ 5 ] The issues are the scope of the sub-contract between the parties and the amount which was agreed to be paid for the services contracted for. Also at issue is who attempted to remove the mastic with a power washer which caused extensive spattering of mastic on the newly painted premises. The claimant says they incurred costs to complete the removal of the mastic and were then required to carry out stain removal and repainting. [ 6 ] I will first review the evidence of Mr. Roskell, the owner of the premises.

His evidence is central to the issues before the court. He was a careful, forthright witness and his evidence was both internally and externally consistent. He did not suffer any loss or damages as the claimant performed their contract with him fully, in a satisfactory manner and for the original contract price. I accept his evidence of the events and observations he testified to. [ 7 ] Mr. Roskell said the claimant had substantially finished painting the premises by November 10 th , 2014. He had seen their work and was very happy with it. He had also become familiar with the employees of the claimant.

There was no tenant in place and so no need to rush to get the premises finished. [ 8 ] On November 12 th Mr. Roskell went to his office which is in the same area as the premises. As he did so he observed people working on the premises. He believed the workers on site were not complying with safety protocols as they were not wearing any protective clothing or masks so he stopped in. At that point the floor tile had already been removed. He saw a power washer and noted the floors were wet.

The walls were not covered in any kind of protection and were spattered with mastic. [ 9 ] He spoke to someone who identified himself as the owner of the company who was removing the floor. That person told him they were not going to continue as it was “too hard”. Mr. Roskell was given a business card by this person but did not keep it. He did not recognize any employees of the claimant on site. [ 10 ] Mr. Roskell immediately contacted the claimant and advised of his observations and what the person had told him. Mr. Roskell returned to the premises the next day or day after with Mr. Mehdipour and Mr. Zarkeshar.

He was present when photographs were taken depicting the condition of the premises at that time and identified those photographs in the claimant’s book of documents. He said the photographs do not accurately depict how extensive the mastic spatter was. The premises were in the same condition that day as when he had been there on the 12 th . [ 11 ] Mr. Shaw and Mr. Cruz were employed by the claimant. They testified they had substantially finished painting the premises by November 10 th at the latest. I find that Mr. Cruz was mistaken that they still had one coat of paint yet to do.

They left the premises for a few days with the understanding that the tile was to be removed by the defendant company and they would do the final touch up once the floor work was done. Mr. Shaw and Mr. Cruz did not have clear recollections as to the dates when specific events occurred. They also testified to engaging in the removal of the remaining tiles and mastic and the repair and repainting of the walls. [ 12 ] Mr. Mehdipour testified that once they had reached agreement with Mr. Roskell about the amount they would be paid to remove the tile and mastic, they determined to sub-contract that work out.

They contacted the defendant and Mr. Sidhu attended the premises the same day, being November 4 th , and they orally agreed to pay him $4,200.00 cash for the tile and mastic removal. Mr. Mehdipour said a note about the contract price on Mr. Sidhu’s business card was made then. Mr. Sidhu said they would only need two or two and a half days to complete the job and would start on Remembrance Day. [ 13 ] He then heard from Mr. Roskell about what had happened at the premises and attended there on the 13 th or 14 th . Mr. Mehdipour called Mr. Sidhu who said he was going to come back to finish the job.

However, all that occurred is that someone came back and removed the defendant’s remaining equipment. [ 14 ] Mr. Mehdipour sent texts to Mr. Sidhu on November the 17 th and 25 th complaining about the damage to the walls and that the

mastic had not been fully removed. He also advised he would have to arrange for someone else to do the work and would be looking to Mr. Sidhu to cover the cost of that. Mr. Sidhu responded by saying the job was done and that he wanted to be paid. This was inconsistent with Mr. Mehdipour’s evidence that they had already determined to do the mastic removal themselves by the 18 th . [ 15 ] Mr. Mehdipour then described the work they did to remove the mastic and repair the walls. Their book of documents contains quotes they obtained for the mastic removal before deciding to do it themselves. [ 16 ] Mr.

Zarkeshar testified that he first met Mr. Sidhu on the morning of November 11 th at the premises. He was there to let the defendant’s workers in. He asked for Mr. Sidhu’s card, confirmed the contract price with him and noted in on Mr. Sidhu’s card. His evidence of further prior discussions and contact with Mr. Sidhu was inconsistent and unclear. Mr. Zarkeshar also testified that they replaced some of the drywall. No receipts in this regard were produced. [ 17 ] The claimant said the defendant quoted $4,200.00 ($1.00/sq. ft.) for the removal of the tile and mastic and testing.

The claimant filed a number of quotes for removal of the asbestos tile and contaminated mastic which postdate the events in question. Those quotes range from a low of $7,500 ($1.88/sq. ft.) to a high of $13,000.00 ($3.25/sq. ft.). Mr. Roskell had determined the cost should be $16,500.00 (@ $4.00 per square foot. [ 18 ] Mr. Sidhu says he attended the premises on November 4 th. He said he called Mr. Mehdipour later that day with the quote for $22,000.00. It was not until the 7 th that the claimant agreed to have them do that work for that price. It is of note that Mr.

Sidhu said the claimant needed to get the work done immediately and so was willing to pay more than they were receiving from Mr. Roskell. [ 19 ] The work was expected to take two to three days. The defendant produced an estimate for internal purposes in the amount of $15,477.56 and an invoice for $22,000.00 which included straight profit of just over $6,500.00. Both of those documents are dated November 16 th , 2014. The estimate/invoice works out to $5.50 per square foot for the removal of the tile alone. [ 20 ] According to Mr. Sidhu, they were working on site for two and a half days. He says Mr.

Roskell was never on site. According to Mr. Sidhu’s evidence when Mr. Roskell says he was there, the premises would have been masked and sealed. There is no evidence, save for the testimony of Mr. Sidhu, that they undertook any of the safety protocols required or did any masking of the newly painted walls. [ 21 ] The defendant did not produce any records to show when they were on site, who their workers were or what hours they worked setting up the safety equipment or removing the tile. They did not produce any receipts for materials for this job.

Rather, they produced general receipts for the costs of the material they would have used. [ 22 ] The transport manifest document filed predates when they agreed to do the job by several days and refers only to the transport of drywall without asbestos. Although an explanation was given by Mr. Sidhu that the date refers to when the bin began to be filled, due to the nature of the document I find it can be given no weight. [ 23 ] The date the samples were taken for the testing to be done for Mr.

Sidhu’s WorkSafe purpose also predates when he said they were hired by two days. [ 24 ] I do not accept that the photograph Mr. Sidhu said was of his workers at the premises in full safety gear and with the entire premises masked is a photograph of the premises while they were there working. [ 25 ] The evidence of Mr. Roskell is that the defendant did not appear to be following appropriate WorkSafe protocols for the removal of the tile and mastic. The evidence suggests the claimant also did not follow WorkSafe protocols for the removal of the remaining tile and mastic.

It is unclear what precautions were required to remove the mastic as the testing done by the defendant found the mastic itself did not contain asbestos. [ 26 ] Both the claimant and the defendant companies kept completely inadequate records of their own work or costs and their dealings with each other.

Given the nature of the work the defendant does and the extremely high material and labor costs testified to, I find it incompatible with common experience that the scope of work and costs would not have been committed to writing prior to their agreeing to do the work. [ 27 ] I find the claimant’s position that the defendant agreed to remove the tile and the mastic for $4,000.00 also untenable given the other information before the court by way of estimates to do the entire job and to remove the remaining tile and mastic. [ 28 ] I am unable to determine to the balance of probability what the parties agreed to with respect to the scope of the work or the cost of the removal of the tiles and/or mastic.

I do accept that the defendant said they could to the job in two to three days. I find that nothing turns on the defendant’s and the claimant’s failure to comply with WorkSafe protocols except that it supports the likelihood the defendants agreed to do the work in two to three days for a price substantially less than $16,500.00. [ 29 ] The evidence from both parties with respect to the manner in which they dealt with contacting each other after Mr. Roskell attended on November 12 th was inconsistent with common sense and practice.

Their evidence about the invoices they each prepared and what was included in them also did not accord with what they testified had happened or was happening. [ 30 ] Having considered all of the evidence of the witnesses individually and as a whole and in light of the evidence of Mr. Roskell, I find as fact that the claimant left the premises fully painted and in good condition as of November 10 th . I find that no one from the claimant company was on site from the 10 th to the 13 th or 14 th when Mr. Mehdipour, Mr. Zarkeshar and Mr.

Roskell attended and took photographs of the damage to the walls and the incomplete removal of the mastic and tiles. [ 31 ] I find whatever agreement the parties came to, the agreement must have included the removal of the mastic given that this work

was undertaken by the defendant and then abandoned when it became “too hard”. I infer the defendant assumed the mastic would have been easily removed along with the tile. [ 32 ] I find that the defendant is responsible for the damage to the walls and in turn for the costs incurred by the claimant in repairing that damage and repainting. [ 33 ] The evidence of the claimant as to the costs they incurred in repairing and repainting the walls was not fully disclosed, was incomplete and unsupported by any records except for some receipts for supplies.

I infer that the work to remove the stains would have been more or less equivalent to the initial preparation time involved. I find that the evidence of the claimant that they were paid $6,500.00 for painting the premises the first time is a useful measure of their damages to re-paint. [ 34 ] The claimant obtained quotes for the removal of the mastic prior to doing the work themselves which were $12,000.00, $14,460.00 and $22,630.00. However, these quotes assumed the mastic contained asbestos which was not correct. The claimant said they incurred costs well in excess of the lower quotes.

They are not entitled to be paid more for doing that work than a qualified company would have charged. [ 35 ] The evidence of the claimant as to the cost of their labor and the materials required to finish removing the mastic was also not fully disclosed, was incomplete and unsupported by any records save for some receipts for supplies. I find I am not able to calculate what if any damages the claimant incurred for the removal of the mastic. They did receive the $16, 500.00 for this from Mr.

Roskell so in any event their damages would have had to exceed that amount less a reasonable profit margin. [ 36 ] I do find that they are entitled to be paid $2,358.72 for the receipts for materials for the mastic removal and painting they produced before trial. [ 37 ] The claimant has not paid any money to the defendant for the work they did. The claimant did receive the benefit of the removal of the tiles. On the evidence before me and in particular considering the rates and hours set out in the internal estimate of costs, I find the defendant is entitled to be paid on a quantum merit basis for that work.

However, given that they have failed to prove they did that work following WorkSafe protocols and that they have failed to establish their material costs, I am only able to grant them their labor costs. [ 38 ] I find that there were three workers on site for two and a half eight hour days at $18.00 per hour and one supervisor at $25.00 per hour. This results in a total of $1,580.00 owing to the defendant. [ 39 ] The amount owing by the claimant to the defendant will be set off against the amount owing by the defendant to the claimant.

There will be judgment for the claimant in the amount of $4,950.00 plus materials in the amount of $2,358.72 for a total of $7,308.72. The claimant is entitled to pre-judgment interest from January 1 st , 2015 to the date of judgment. Each party has succeeded and there will be no fees or expenses to either party. ___________________________ The Honourable J. Challenger Provincial Court Judge