All Star Excavating v. Goluboff Date:, 2016 BCPC 170

Citation: All Star Excavating v. Goluboff Date: 20160518 2016 BCPC 0170 File No: 15-52164 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: ALL STAR EXCAVATING & DEMOLITION LTD. CLAIMANT AND: DANIEL DAVID GOLUBOFF DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing for the Claimant: A. Buttar Appearing in person: D. Goluboff

Place of Hearing: Vancouver , B.C. Dates of Hearing: October 14, 2015 & April 20, 2016 Date of Judgment: May 18, 2016 [ 1 ] All Star Excavating & Demolition Ltd. is claiming $4,398.25 plus filing fees of $156 and service fees of $80 for a total of $4,634.25 against the Defendant regarding labour and materials provided for the Defendant’s property at 842 East 26 th Avenue, Vancouver, B.C. [ 2 ] The entire contract was for $19,398.25. The Defendant paid $15,000 and disputes the balance.

The Defendant disputes the workmanship of the Claimant. [ 3 ] This matter was heard on two dates several months apart. [ 4 ] Throughout the hearing, reference was made to several photographs, which were not clearly explained, but represented areas in which the work was undertaken. [ 5 ] A brief

summary of the defects alleged by the Defendant are set out in

Schedule B to the Counterclaim which I have repeated below:

a) Old concrete and excess dirt was left on the Property that had to be subsequently removed.

b) The Telus cable line was broken during the excavation, which had to be reconnected.

c) The Gas location exposure marked by the Contractor was out of line and Fortis could not provide the connection without the trench being re-excavated in order for Fortis to make the proper connection.

d) The drain tile was improperly completed causing a backfill without a connection.

e) The Sewer line was severely cracked and this was only discovered during the landscaping. As a result, the sewage would have emptied into the back yard.

f) At the time of the inspection for the final occupancy permit, the inspector found that the laneway connection of the storm and sewer line was improperly connected, resulting in re-excavation and reconnection.

g) The Defendant alleges negligence against the Claimant and the cost to remedy the mistakes and improper work amounted to $3,375.50. [ 6 ] The Claimant had been hired to provide the services, so that the Defendant could erect a laneway house. It became apparent that one of the disagreements was whether or not the Defendant was completing work on the property at the same time as the Claimant. [ 7 ] I found the Claimant’s evidence to be unsatisfactory. There was little explanation about the nature and scope of the work that was to be completed for the laneway house.

When the Claimant was cross-examined regarding the broken connection to the main house, excess debris or excavation materials remaining on the property, and generally, regarding the quality of the work, I found the Claimant’s answers to be very confusing. Furthermore, most of the answers to questions under cross-examination concerning the quality of work were deflected by the Claimant. [ 8 ] Also, it became clear that the Claimant had subcontracted some of the work, and the Claimant looked to blame his sub-trades. I have concluded that the Claimant was not certain of the work that was subcontracted.

He suggested during his evidence that the subcontractor, Jewel Mini Excavating Ltd., was working for the Claimant at some point in time, or at another time for the Defendant. [ 9 ] I found the Defendant’s evidence to be preferable. [ 10 ] The Defendant’s wife, Vanessa Goluboff, testified about the work that was undertaken and explained the various defects that occurred. Daniel Goluboff testified about the specific defects. Furthermore, Mr.

Goluboff testified that because of the poor quality of the work and the defects, the City of Vancouver refused to pass the inspection until certain defects had been remediated. [ 11 ] The Defendant steadfastly denied that he had caused these defects, as the Claimant had alleged that if there were any deficiencies, they were the responsibility of the Defendant, because the Defendant had work undertaken for the main house. [ 12 ] Where the testimony of the Claimant differs from the Defendant’s, I prefer the Defendant’s testimony. [ 13 ] Therefore, I find the Claimant breached its contract with the Defendant as a result of the poor quality of the work undertaken, and the amount that the Defendant paid ($15,000) was the appropriate amount to be paid under the circumstances. [ 14 ] However, I have concluded that the Defendant’s Counterclaim must be disallowed. [ 15 ] Although the amount that was not paid by the Defendant is a reasonable estimate of the cost for the work that had to be completed by the Defendant to remedy the defects caused by the Claimant, I am not prepared to award the Defendant any damages as a result of the monies expended to repair the defects. [ 16 ] The Counterclaim seeks $3,375.50 for damages and costs of remediation.

This amount is less than the amount claimed by the

Claimant. Had the Claimant completed the contract appropriately, the Defendant would have paid the $4,398.25 that the Claimant alleged was outstanding from the contract. [ 17 ] Therefore, the Defendant has not incurred any damages. Damages would have only arisen had the cost of remediation been greater than the outstanding amount claimed by the Claimant. [ 18 ] Accordingly, I dismiss the Claim and the Counterclaim and award no costs to either party. __________________________ Lawrence A. Kahn Adjudicator