McCrea v. Fournier Date:, 2017 BCPC 30

Citation: McCrea v. Fournier Date: 20170203 2017 BCPC 30 File No: 1547372 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS) BETWEEN: GRAEME MCCREA CLAIMANT AND: MARY-JANE FOURNIER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Appearing on their own behalf: G. McCrea Appearing on their own behalf: M.J. Fournier Place of Hearing: Prince George , B.C. Dates of Hearing: August 19, September 12, 2016; January 5, 2017 Date of Judgment: February 3, 2017 INTRODUCTION

INTRODUCTION [ 1 ] Graeme McCrea has filed a Notice of Claim under the Small Claims Act for the balance owing under a contract (the “Contract”) with the Defendant, Mary-Jane Fournier, for painting the exterior of her house. Mr. McCrea seeks contractual damages totalling $3,207.35 for all paint, labour and materials, plus 5% GST. Ms. Fournier acknowledges that Mr. McCrea painted her house but disputes the amount of his claim on the basis of alleged deficiencies and unapproved extras. She requests an order these proceedings be dismissed. ISSUES [ 2 ] The principle issues in these proceedings are as follows: 1.

What were the deficiencies or incomplete work under the Contract? 2. Did these deficiencies constitute a fundamental breach of the Contract? 3. What were the extras, if any? 4. Did Ms. Fournier repudiate the Contract on June 12, 2015? 5. What are Mr. McCrea’s damages? HISTORY OF THE PROCEEDING [ 3 ] On June 22, 2015, Graeme McCrea filed a Notice of Claim seeking damages in the amount of $3,207.35 from Mary-Jane Fournier for failing or refusing to pay his invoice dated June 12, 2015, for painting services he provided to her in Prince George, B.C.

He also claimed filing and service fees of $216, making his total claim for $3,423.35. [ 4 ] Andrew Côté filed a Certificate of Service on July 8, 2015, in which he said that on June 22, 2015, he served the Notice of Claim and Blank Reply Form on Ms. Fournier personally. [ 5 ] Ms. Fournier did not file a Reply and on August 19, 2015, Regional Administrative Judge Brecknell made a Default Order in the full amount of Mr. McCrea’s claim ($3,207.35) plus $261 in court related expenses for a total of $3,468.35. [ 6 ] On September 8, 2015, Ms.

Fournier applied to set aside the Default Order, which Judge Weatherly allowed on October 23, 2015. [ 7 ] On October 26, 2015, Ms. Fournier filed a Reply claiming the Contract was for $3,323, before the deduction of the deposit of $265, leaving a balance of $3,058.25. Given the deficiencies, Ms. Fournier agreed to pay $1,435. She did not file a Counterclaim. [ 8 ] On March 30, 2016, Mr. McCrae and Ms. Fournier attended a Settlement Conference, at which time the matter was referred to a Judicial Case Manager to

schedule a one day trial. At that time, Judge Gray made the following orders: a. The parties must exchange a copy of all relevant documents including photos, maps, or similar materials by April 30, 2016, and bring two copies to the next Court appearance; b. Each party must provide the other party with the name, address, and telephone number and a

summary of evidence of all witnesses the party intends to call as a witness at trial, including any expert witness 30 days before the trial. [ 9 ] On July 29, 2016, this matter was scheduled for a Pre-Trial Conference before Judge Sudeyko. Mr. McCrea did not appear. The Court record indicates the Notice of the Pre-Trial Conference was not sent to Mr. McCrea’s correct address. A further Pre-Trial

Schedule was scheduled for August 19, 2016, before me as a trial judge. [ 10 ] Both parties appeared at the Pre-Trial Conference and confirmed the September 12, 2016 trial date. Mr. McCrea and Ms. Fournier both indicated they intended to call two witnesses. Ms. Fournier said that one of her witnesses was an expert witness. [ 11 ] The trial commenced before me on September 12, 2016. It did not complete and at the end of the trial date the matter was adjourned to a Judicial Case Manager to fix an additional one-half day for continuation. The trial continued and completed on January 5, 2017.

The parties called no witnesses other than themselves. Ms. Fournier did not call an expert witness. At the end of the trial, I reserved my decision. These are my reasons for judgment. BACKGROUND FACTS [ 12 ] At all material times, Graeme McCrea was the sole proprietor of PG Student Painting in Prince George, B.C. He was in the business of painting the interior and exterior of houses. He has been in this business for four years. Mr. McCrea has since transferred his PG Student Painting to a former member of his painting crew. [ 13 ] Mr. McCrea acquired the PG Student Painting proprietorship in January 15, 2015.

Previously he owned a College Pro Painters franchise for two years. [ 14 ] Mary-Jane Fournier owns the house at 4150 Rainbow Drive, Prince George, B.C. (the “House”). The House is older and Ms. Fournier rents it to tenants. She said in the past she had painted the House herself. Ms. Fournier resides next door to the House at 4146 Rainbow Drive, Prince George, B.C. [ 15 ] In May 2015, Ms. Fournier noticed signs up in her neighbourhood advertising “PG Student Painters”. She also received a door

hanger advertising PG Student Painters which was entered into evidence as Exhibit 7. On May 16, 2015, Ms. Fournier sent Mr. McCrea an email asking him for an estimate to paint the House. This email was tendered as Exhibit 1 at trial. [ 16 ] On May 17, 2015, Mr. McCrea met with Ms. Fournier at the House. The House was constructed with wood, stucco and brick. They agree the House was in bad condition and “very beaten up.” [ 17 ] After meeting with her on May 17, 2015, Mr. McCrea presented Ms. Fournier with an estimate (the “Estimate”) for painting the House.

This Estimate itemized the work to be done on the exterior of the House. Initially, Mr. McCrea quoted Ms. Fournier $2,650 for all paint, labour, materials and guarantee, plus 5% GST. The original Estimate identified the areas to be painted included: (

a) wood siding; (

b) stucco; (

c) gutters; (

d) shutters; (

e) front door and mailbox; (

f) windows; (

g) soffits; (

h) downspouts; and (

i) facia. It did not include the deck, vinyl windows, or the garden doors in the back of the house. [ 18 ] Also in the Estimate, Mr. McCrea set out the details of the preparation work to include: (

a) pressure washing prior [to painting]; (

b) scraping the peeling paint on the wood siding on the front of the house; then sanding the ridges after scraping. [ 19 ] The Estimate sets out the priming and finishing coat to include: (

a) spot prime on the front of the house after sanding; and (

b) General Paint products HP 2000 on front siding. The Estimate also sets out the details of cleanup and special considerations to include: (

a) clean-up on completion; and (

b) painting around the front Christmas lights. [ 20 ] In formulating the Estimate, Mr. McCrea allocated $25 per hour for labour. [ 21 ] On May 21, 2015, Mr. McCrea amended the Estimate to include the deck and increased the price from $2,650 to $3,100. Also on May 21, 2015, Ms. Fournier selected the colours she wished for the House and these were indicated on the amended Estimate. Ms. Fournier agreed to contract the services of PG Student Painters on the terms set out in the amended Estimate and gave Mr. McCrea a deposit of $265. This became the written portion of the fixed-price Contract between the parties.

It was entered into evidence as Exhibit 2 at trial. [ 22 ] Ms. Fournier says the Contract also included oral representations Mr. McCrea made during their initial negotiations.

These included: a. sanding and priming the front wood siding to achieve a smooth finish; b. scraping, sanding, and pressure washing all wood surfaces; c. providing all wood surfaces with two coats of paint; d. providing the stucco with whatever amount of paint was necessary to achieve satisfactory results; e. tying back the juniper shrubs which surrounded the deck before painting it; f. sanding, scraping, and hand painting the deck; and g. painting the trim on the back garden doors. [ 23 ] Mr. McCrea says some of the work on Ms.

Fournier’s list of oral representations were done, and some were not, because it was not within the scope of the Contract. [ 24 ] On June 12, 2015, Mr. McCrea delivered Ms.

Fournier an invoice for the following services: a. painting the exterior of the House as set out in the Contract for which he charged $2,650; b. painting the insets on the back doors as an extra for which he charged $15 for materials and $50 for two hours labour; c. infilling the grooves in the front wood siding of the House as an extra for which he charged $17 for materials and $125 for five hours labour; and d. painting the deck as set out in the Contract for which he charged $450. [ 25 ] In total, Mr. McCrea charged Ms. Fournier $3,307 for his services. To this sum he added $165.35 in GST. After deducting Ms.

Fournier’s deposit of $265, Mr. McCrea’s final invoice totalled $3,207.35. [ 26 ] In her Reply filed October 26, 2015, Ms. Fournier says that she did not agree to pay extra for Mr. McCrea infilling the front exterior siding. In her view, infilling the grooves in the wood siding made Mr. McCrea’s task easier because it reduced the amount of sanding. Mr. McCrea says the infilling of the grooves in the front siding was done at the request of Richard Fairbanks, Ms. Fournier’s tenant at the time. Ms. Fournier says Mr. Fairbanks was an architect who advised her on certain aspects of the House painting. Ms.

Fournier did not call Mr. Fairbanks’ as a witness at trial, however, on page 2 of her Reply, she states: Robert Fairbanks then spoke to Graeme [McCrea] on my behalf, and they agreed that any dents or gaps could be filled. There was no discussion of an extra charge for this, it was a compromise that we agreed to for the purpose of less sanding. This actually reduced the labour - not increased it. [ 27 ] In my view, it was reasonable for Mr. McCrea to regard Mr. Fairbanks as Ms. Fournier’s agent with respect to the infilling which Mr. McCrea charged as an extra. [ 28 ] Mr.

McCrea says that he and his three man crew performed the Contract services from June 5 to 10, 2015, inclusive. He says

that a crew of two to three painters worked eight hours per day for five days straight. This crew included Mr. McCrea himself, David, who had worked in the industry for years and has since taken over the PG Student Painters proprietorship, and two other painters who had worked for Mr. McCrea for about one year. [ 29 ] Mr. McCrea described the work that he and his crew performed on the House as follows: Wood Siding: Mr. McCrea and his crew pressure washed, scraped, sanded, filled, re-sanded and painted the wood siding. He estimates that each of these activities took about at day.

He and his crew spent four days preparing and painting the siding on the front of the house. Stucco: Mr. McCrea and his crew pressure washed and spray painted the stucco. This task took two days. Gutters: Mr. McCrea and his crew pressure washed and painted the gutters. This task took one day. Shutters: Mr. McCrea and his crew took down the shutters off the siding, wash and sprayed them, allowed them to dry, and then reinstalled them. This task took one day. Front door and mailbox : Mr.

McCrea said he and his crew painted the front door and washed and sprayed the mailbox at the same time they attended to the gutters. Windows : Mr. McCrea and his crew washed, primed, and painted the wooden windows. They also scraped and sanded the windows where necessary. The vinyl windows were not painted. Mr. McCrea estimates there were seven wooden windows. This task took one to three people one day. Soffits : Mr. McCrea and his crew washed, primed, and painted the soffits. They also scraped and sanded the soffits where necessary. The vinyl windows were not painted. This took about a day. Downspouts : Mr.

McCrea and his crew took off the downspouts, sprayed the hubs, put them on the ground, let them dry then reinstalled them. This task took about a day. Facia : Mr. McCrea and his crew pressure washed, sprayed, sanded, primed, and applied several coats of paint to the facia. This task took about a day. Deck : Mr. McCrea said the deck was very beat up and actually rotting. After scraping it in some areas, the deck it was spray painted.

This task took about a day. [ 30 ] Many tasks were performed concurrently by one or more of the McCrea crew. [ 31 ] In his affidavit filed on August 14, 2015, and entered into evidence as Exhibit 3 at trial, Mr. McCrea included a copy of the Contract, his June 12, 2015 invoice and photographs showing the filling applied to the front exterior wooden siding, the masking of the exterior windows, and the back garden doors after they had been painted. [ 32 ] In order to service this Contract, Mr. McCrea paid $700 to General Paint for paint and $1,500 to his crew for wages.

He also provided his own equipment, including the pressure washer, ladders, scaffolding, stairs, painting equipment and supplies. His out-of- pocket expenses for this Contract totalled $2,200, and this did not include his own labour. [ 33 ] On June 12, 2015, Mr. McCrea attended at Ms. Fournier’s residence at 4146 Rainbow Drive, Prince George, B.C. He presented her with his final invoice showing $3,207.35 outstanding: see Exhibit 3. Ms. Fournier refused to pay the invoice.

She disputed the infilling was an extra and she was unhappy with the lack of preparation work to the deck before it was painted. [ 34 ] Anxious to get paid, Mr. McCrea told Ms. Fournier he would discount his invoice by deducting the $142 charged for infilling the front wooden siding and the $450 charged for painting the deck. This left a balance of $2,715, to which he added $135.75 for GST for a total of $2,850.75. He did not deduct the $265 deposit from this sum. Ms. Fournier agreed to pay $2,850.75 and Mr. McCrea wrote these figures on a copy of his June 12, 2015 invoice in anticipation of giving it to Ms.

Fournier as a receipt: see Exhibit 3. Ms. Fournier wanted to pay by credit card. Mr. McCrea provided her with his square credit card reader on his smart phone and entered $2,850.75 as the amount charged. She refused to pay. She said she was nervous providing Mr. McCrea with her VISA number in that manner. They then agreed Ms. Fournier could pay the invoice amount on Mr. McCrea’s account at General Paint. This she did not do. Instead, Ms. Fournier went on to her back deck, pointed to the facia on the House and insisted he give it another coat of paint. Mr.

McCrea said the facia had been painted in accordance with the Contract and that his crew had already applied two or more coats to the facia. Mr. McCrea eventually capitulated and agreed to return to the House and add another coat to the facia. He described it as a small job which would take less than an hour. He estimated its value at $20.50. [ 35 ] Ms. Fournier steadfastly refused to pay any money under the Contract until the facia had been repainted. She believed that if she paid, Mr. McCrea would not return to add another coat of paint to the facia. Mr. McCrea refused to do any more work without being paid.

He told her his offer to settle for less than the full Contract price would expire if she did not pay him immediately. She continued to refuse to pay Mr. McCrea any money under the Contract until he had given the facia another coat of paint. [ 36 ] Ms. Fournier and Mr. McCrea argued and on June 12, 2015, their business relationship completely unravelled. Mr. McCrea told her the $2,850.75 deal was off the table and that she would have to pay the full Contract price. He retrieved the document he intended to give Ms. Fournier as a receipt. Ms.

Fournier described the intended receipt as a “quote” and claimed it as her property. She accused Mr. McCrea of attempting to steal her property and demanded Mr. McCrea leave her residence or she would call the police. In her Reply, Ms. Fournier writes: I said he could not come into my house and take my property. I, again, told him to leave or I would call the police. He still refused to

leave. This time, I yelled and swore at him telling him to leave. Finally he left. He came back twice. The first time he came back, I told him not to come back on the property without making arrangements with me first (because I wanted him to come back and finish the job). The second time he came back I yelled through the door, “Go away”. [ 37 ] It was Mr. McCrea who eventually called the police. Ms. Fournier says Mr. McCrea complained to the RCMP that she had assaulted him; Mr.

McCrea said he complained to the RCMP about her refusal to pay him and the officer told him it was a civil matter and there was nothing the police could do. Mr. McCrea did not return to paint the facia and Ms. Fournier did not pay Mr. McCrea any portion of the outstanding Contract price, then or since. [ 38 ] Ms. Fourier has reduced the amount she said she would pay Mr. McCrea on the Contract incrementally until January 5, 2017, when she submitted the claim ought to be dismissed in its entirety. The evolution of Ms. Fournier’s position on paying Mr. McCrea’s invoice is as follows: a. On May 21, 2015, Ms.

Fournier agreed to pay Mr. McCrea $3,100 plus 5% GST. b. On June 12, 2015, Ms. Fournier agreed to pay Mr. McCrea $2,850.75 for his services. This sum represented the outstanding amount on Mr. McCrea’s invoice less the $142 for what she claimed was an unapproved extra (infilling the grooves in the front siding) and the $450 charge for the deck which she thought had been improperly prepared. This sum did not factor in her $265 deposit. All Ms. Fournier wanted Mr. McCrea to do at that time was add a further coat of paint to the facia, a job Mr. McCrea said would take less than an hour and worth $20.50. c.

In her correspondence to Mr. McCrea dated July 4, 2015 (see Exhibit 4), Ms. Fournier said that if Mr. McCrea put a further coat on the facia, she would “happily pay him” $2,850.75. In reference to the second coat of paint on the facia, Ms. Fournier states in part: On June 12 th , we both agreed that it would take two of your employees less than one hour to complete the job. This would be a cost of $20.50 to you. I do not understand why you don’t just complete the job for $20.50 and then I will happily pay you the $2,850.75 that we agreed on. I will pay on my Visa at General Paint as per our original agreement.

This can be so simple. It seems like you thrive on the drama. I will not be intimidated into paying for work that did not occur. I would love you to have my facia painted properly. I am not trying to get out of paying or get some kind of bargain. I wanted a good job done as per our agreement. I did not get that. Please make arrangements for a time for your employees to put a proper second coat of paint on the facia. I will be happy to pay the minute the work is completed. d. On October 26, 2015, Ms.

Fournier filed a Reply in which she states on page 3: If the work had been completed properly, the bill should have been: Original price: $2,650.00 Garden doors: $ 65.00 Sundeck: $ 450.00 Total $3,165.00 Tax $ 158.25 Minus deposit -$ 265.00 Balance Owing $3,058.25 [ 39 ] Ms. Fournier goes on to state: The spray-painting is the fastest and easiest part of the job. The labour is in the preparation and careful attention to details on the hand painting.

It is my estimation that approximately 2% of the workload was completed on the deck, and is of no value to me since it was not properly done. 50% of the workload was completed on the wood surfaces, and obviously the expected results were not achieved. I am satisfied with the spray painting to the stucco surfaces. I am agreeable to paying $2,000.00 for the house painting, $100.00 in GST, minus my deposit of $265.00 for a balance of $1,835.00. Subtract $100.00 for the cost and time to replace my extension cord, and $300.00 for replacing Christmas lights for a balance payable for $1,435.00.

I was not looking for a bargain. I want a good job done on my house. I am willing to pay $1,435.00 to settle this matter. [ 40 ] In her Reply on page 4, Ms. Fournier claims that Mr. McCrea “agreed the facia, soffits, and wood above the stucco were not second-coated, but promised to have his employees come back to finish that work.” She says this work was not done, and she does not “feel it right to be bullied and intimidated into paying for services not rendered.” [ 41 ] On January 5, 2017, the last day of trial, Ms. Fournier further discounted the amount she was willing to pay to zero.

She justified this extreme position on the basis that not only did Mr. McCrea refuse to complete the Contract to her satisfaction, she suffered stress and inconvenience by having to come to Court to defend this claim. Mr. McCrea’s Photographic Evidence [ 42 ] Mr. McCrea has entered into evidence photographs to show that he and his crew completed the Contracted services. These photographs were entered into evidence as Exhibit 6 and depicted the scenes set out below:

Mr. McCrea’s Photographs Page 1 depicts the freshly painted deck in the background and an extremely weathered burgundy fence in the foreground. Page 3 depicts the freshly painted side of the House with a weathered wooden fence to the left of the photograph. Page 4 is a finished view of the freshly painted wooden siding on the front of the House. Page 5 is a close-up view of the freshly painted wooden siding on the front of the House. Page 6 is a close-up of the railings and posts on the deck after it was spray painted showing the deck was rotting.

Page 7 depicts the bottom railings of the deck showing the posts were compromised, perhaps rotten, and not properly attached to the railings. Page 8 depicts a freshly painted split and cracked deck beam. Page 9 depicts the residue of white paint Ms. Fournier had scrapped off the trim from the back garden doors onto the freshly painted deck. Page 10 is a close up view of the front of the House with its freshly painted wood siding showing that the McCrea crew was able to obtain a fairly smooth finish despite the poor condition of the siding.

Page 11 is a close up of the front siding showing it freshly painted with a relatively smooth finish. Page 12 is a view of the freshly painted deck with painting supplies. Page 13 depicts the freshly painted back garden doors. Page 14 depicts the back garden doors with white paint Ms. Fournier scrapped off onto the freshly painted deck. Pages 15, 16 and 17 depict the front wooden siding at the stage of sanding, scraping, infilling and priming. The photographs also show the windows masked and covered and some of the equipment Mr.

McCrea brought to the site. [ 43 ] From the photographs comprising Exhibit 6, I have gleaned the following: a. The House was as the parties agreed: older, “very beaten up” and in bad condition; b. The deck was in particular rough shape; c. Mr. McCrea supplied paint and painting equipment in the form of scaffolding, ladders, paint brushes, rollers etc.; d. Mr.

McCrea and his crew: i. masked and taped the House windows; ii. scraped, sanded, infilled, and primed the wooden siding in the front of the House; iii. painted those areas of the House as set out in the Contract, including spray painting the stucco and deck; and iv. painted the trim on the back garden doors. Ms. Fournier’s Photographic Evidence

[ 44 ] Ms. Fournier put into evidence 17 photographs depicting various deficiencies. The photographs are close ups shots of individual deficiencies and appear to have been enhanced. Because of the manner in which the photographs were taken or presented, I cannot contextualize many of the defects in the areas where they occurred. I find the photographs of limited assistance in assessing the overall seriousness or pervasiveness of the deficiencies. These photographs were entered into evidence as Exhibit 8, and depict the following deficiencies: a.

Photograph 1 of Exhibit 8 shows that one of the lower deck joists was not painted and was still its pre-existing burgundy colour. Ms. Fournier says she had expected Mr. McCrea to tie back the juniper bushes obscuring this joist. Instead, it was left unpainted and the juniper bushes were sprayed with black paint. I can see from the photograph the lower joist is unpainted. It also appears to be surrounded by juniper bushes and other debris. It is not apparent to me the juniper bushes were sprayed, but I accept this may have occurred on some of its leaves; b.

Photographs 2, 3 and 8 show blistering in the paint on the wooden siding, although I cannot tell from these photographs the extent of this problem; c. Photograph 4 shows the Christmas lights which Ms. Fournier says Mr. McCrea failed to reinstalled; d. Photographs 5, 6 and 7, show inconsistent painting of the extension cord and Hydro box and paint spatter on the soffit vents; e. Photograph 9 is of the House facia taken from the deck of Ms. Fournier’s residence. Ms. Fournier says that this shows the facia are green at the edges, but that is not something I can discern from the photograph; f.

Photograph 10 is a pane from one of the windows for which Mr. McCrea and his crew had painted the trim. This photograph depicts the paint splatter on the window pane, which Ms. Fournier removed herself; g. Photograph 11 depicts an area where the underlying siding appears cracked or compromised in some manner; h. Photograph 12 depicts a small area of a window frame which was not properly sanded and painted. It is not clear to me where this frame is situated on the House or if it is the same window as that depicted in photographs 13, 14 and 17; i.

Photographs 13 and 14 show the paint smeared from the trim onto the window pane. Again, I do not know which window is depicted in these photographs; j. Photograph 15 shows a spatter of black paint on the white trim; k. Photograph 16 shows one of Ms. Fournier’s vinyl windows which I understood were not included in the Contract. The photograph indicates there was debris in the window frame which Ms. Fournier says Mr. McCrea ought to have cleaned; and l. Photograph 17 shows a badly gouged and scarred window frame which Ms. Fournier says Mr.

McCrea ought to have rendered smooth by sanding before painting. [ 45 ] I conclude from Ms. Fournier’s photographs that Mr. McCrea performed the services set out in Contract, but that some of the work was deficient and some was incomplete. Issue #1: What were the deficiencies or incomplete work under the Contract? [ 46 ] On May 21, 2015, Mr. McCrea and Ms. Fournier entered into the Contract to paint her House. The Contract was subsequently modified by the parties’ oral agreement with the addition of: (

a) infilling the grooves in the front siding on the House, and; (

b) painting the inserts of the back garden door frame. The Contract price was $3,100 before the oral amendments. [ 47 ] The Contract was a species of a building contract which provided for the improvement of a structure affixed to land. As such, it contained an express and implied term the services would be provided in a good and workmanlike manner and that the crew employed on the job would possess the requisite amount of skill to perform the contracted services. [ 48 ] Ms. Fournier complains of multiple deficiencies in Mr. McCrea’s work, which Mr. McCrea denies.

Neither party called any independent witnesses or experts to opine on industry standards or the quality of Mr. McCrea’s work. Since June 2015, Ms. Fournier has not remedied any of the deficiencies beyond cleaning windows and scraping excess paint from the inset to the back garden doors. Neither party introduced evidence of what it would cost to remedy the deficiencies or to hire reputable seasoned painters to perform the contract services to Ms. Fournier’s satisfaction. Without the benefit of independent and expert witnesses, I have only photographs and Mr. McCrea and Ms.

Fournier’s competing views as to the quality of the work and my own common sense as to what is reasonable. Front Siding [ 49 ] Ms. Fournier says she agreed with Mr. McCrea the front of the House was in rough shape. In fact, it was so poor she wondered if the wood siding was even worth painting or should be replaced with vinyl. Ms. Fournier says Mr. McCrea assured her he could make the siding look good as new. Mr. McCrea admits to no such promise. Mr. McCrea believes that he and his crew did a good job on the front siding and achieved a relatively smooth finish.

After considering the oral and photograph evidence at trial, I find Mr. McCrea substantially performed the contracted services on the front siding of the House with some minor deficiencies as depicted in Ms. Fournier’s photographs. From the limited evidence adduced at trial, I was unable to assess the magnitude of these deficiencies or the cost to remedy them. Other Wood Surfaces [ 50 ] Ms. Fournier says that Mr. McCrea was also obligated to provide the facia, soffits, and wood above the stucco a second coat of paint. Because this did not happen, Mr.

McCrea completed only 50% of the contracted work on the wood surfaces. I note the Contract

does not specify how many coats of paint were to be applied. Also, Mr. McCrea says these wood surfaces had received more than one coat and does not acknowledge a contractual obligation to provide them with yet another coat of paint. It is certainly not apparent from the photographs entered into evidence by either party these wooden surfaces require another coat of paint. [ 51 ] I do not know who to believe with respect to this issue. All I am able to conclude from the photographs and the oral evidence is that these surfaces were in fact painted.

There is insufficient evidence to persuade me on a balance of probabilities they required a further coat. Even if I were to find one or more of these wooden surfaces required another coat of paint, I have no evidence as to the cost of remedying this deficiency other than the $20.50 estimate to add further coat of paint to the facia. Window Frames [ 52 ] Ms. Fournier has identified a number of deficiencies with respect to the windows. She points to photograph 17 of Exhibit 8 as an example of Mr. McCrea’s lack of preparation. This photograph depicts a chipped and gouged window frame to which Mr.

McCrea had applied a fresh coat of paint. Ms. Fournier says the McCrea crew ought to have sanded down the frame until it was smooth before painting it. Mr. McCrea and his crew were not finishing carpenters, they were painters. In my view it’s unreasonable to expect that for the modest Contract price, Mr. McCrea would rehabilitate every wooden surface, despite its flaws. [ 53 ] Photograph 16 of Exhibit 8 shows debris in the vinyl window casing. As the vinyl windows were specifically excluded from the Contract, I do not agree that Mr.

McCrea was obligated to clean these areas. [ 54 ] Photograph 12 of Exhibit 8 shows a small area on a window frame that is poorly sanded and finished. I accept this as a minor deficiency which could be quickly and easily remedied. Deck [ 55 ] Mr. McCrea and Ms. Fournier agree the deck was in very bad shape. Mr. McCrea says that the deck was actually rotten in places and his photographs show its post and beams were split and splintered, and structurally unsound. [ 56 ] Ms. Fournier claimed the deck needed power washing, a lot of scraping, sanding, and hand painting. Mr.

McCrea does not acknowledge any contractual obligation to scrape, sand, and hand paint the deck. [ 57 ] Ms. Fournier said there was no preparation work done on the deck. The crew had painted over dirt and spruce needles. She did not provide any photographs corroborating this allegation and none of the photographs in evidence before me show this deficiency. [ 58 ] Ms. Fournier said the work on the deck that was done represented only 2% of what needed to be done, and therefore of no value to her. Mr. McCrea says there was preparatory work done on the deck, just not as much as Ms. Fournier desired.

He says the deck was in such poor condition it needed more than painting, it needed significant repairs. [ 59 ] Mr. McCrea charged $450 for painting the deck. He said the task took about a day. He did not break down how much of the $450 was for supplies, but it is uncontested he provided the paint. Ms. Fournier says the deck was painted in the hour she was absent from the site in contradiction to Mr. McCrea’s estimate of one day. [ 60 ] Whatever time Mr. McCrea and his crew spent on the deck, if they had completed only 2% of the work as Ms.

Fournier asserts, then she seems to have expected them to invest 98% more time and effort than they did. [ 61 ] I do not find the Contract, expressly or implicitly, required Mr. McCrea to spend several days, perhaps weeks, scraping, sanding, and hand painting a dilapidated rotting deck for $450, inclusive of materials. As Mr. McCrea pointed out, he and his crew were painters, not carpenters.

He did not agree to renovate or rebuilt the deck, but simply to paint it. [ 62 ] Although there are no photographs showing the condition of the deck before it had been painted, there are photographs showing the dismal condition of the fence. I accept the House in general, and the deck in particular, was poorly maintained. Given the cost of labour and materials for Mr. McCrea charged for the deck, I find it unreasonable for Ms. Fournier to expect that the deck required 98% more work than was done or it was of no value to her.

This claim is undermined by the fact that she has not done any further work on the deck since June 12, 2015. [ 63 ] I do not find that Mr. McCrea was contractually obligated to scrape, sand, and hand paint the deck. I conclude the deck was deficient because of the unpainted lower joist. I agree the McCrea crew ought not to have painted over dirt and spruce needles, if that in fact happened. I further agree the crew ought to have exercised care to avoid spraying paint onto the juniper bushes. Unfortunately, Ms. Fournier has provided no evidence of the extent of these defects or the cost to remedy them.

The only photograph of the deck Ms. Fournier entered into evidence was that depicting the unpainted joist: see Exhibit 8, Photograph 1. Given Mr. McCrea charged $450 for labour and materials to paint the entire deck, I can only infer the cost to remedy the incomplete job would be a small percentage of that sum. Trim on Back Garden Doors [ 64 ] Ms. Fournier says the Estimate was supposed to include the trim on the garden doors in the back of the House, but Mr. McCrea omitted this work from the Contract.

She claims the McCrea crew painted the trim with “dried out paintbrushes and gooey paint.” In her correspondence to Mr. McCrea dated July 4, 2015 (Exhibit 4), Ms. Fournier says it took her five hours removing the “globby paint” the McCrea crew applied to the trim. In her Reply, Ms. Fournier claims it took her six hours of scraping and sanding to remove the “globbed-on paint”. Also, she sanded those areas of the door where the paint was lifted by the crew removing their painter tape. [ 65 ] Mr. McCrea says the back garden doors were very beat up and Ms.

Fournier directed his crew to paint the one inch inset on the frame, although this was not part of the Contract. The crew taped off and painted the inset. When they removed the tape, the door was so rusted it pulled off some of the old paint that was on the threshold.

[66] I accept Ms. Fournier’s claim the work on the garden doors was deficient, which she remedied with her own labour. Given herpenchant for embellishment, I do not accept five or six hours as an accurate estimate of the time required to remedy this deficiency. White Paint on the Deck [67] Ms. Fournier complains Mr. McCrea dropped white paint on the deck. Mr. McCrea says that Ms. Fournier was not happy withthe preparatory work on back garden door insets and scraped off the white paint which Mr. McCrea’s crew had applied. The scrapedpaint fell onto the freshly painted deck. Mr.

McCrea’s photographs on pages 9 and 14 of Exhibit 6 and Ms. Fournier’s own evidencecorroborate this is indeed what happened. I accept Mr. McCrea’s explanation as to the genesis of the white paint on the deck and findthis was not a deficiency for which Mr. McCrea is responsible. Cleanup [68] Although Mr. McCrea and his crew covered and masked the windows, some required further cleaning. Ms. Fournier hasprovided some photographs showing panes of glass with paint smears. I do not know if these smears were on several different windowsor just one. Still, Mr. McCrea ought to have ensured the panes were cleaned.

I find the failure to clean the windows properly was adeficiency, but one that could be quickly and easily remedied. Ms. Fournier testified she devoted her own labour to clean up that whichwas Mr. McCrea’s responsibility. [69] Ms. Fournier also has identified other areas requiring clean up included the Hydro box (Exhibit 8, Photograph 5), the brickwork(Exhibit 8, Photograph 6), the soffit vents (Exhibit 8, Photograph 7) and a small

section of white trim bordering the stucco (Exhibit 8,Paragraph 15). I find these areas of paint spatter are minor deficiencies quickly and easily remedied. Christmas Lights [70] The Contract states the Mr. McCrea would paint around the front Christmas lights. This proved difficult and Ms. Fournieragreed the crew could remove the lights provided they reattached them upon completion. Clearly this was not done. Ms. Fournier nowseeks to set off $300, a little less than10% of the full Contract price for what I regard as a minor oversight. She has provided no evidenceto justify this sum.

I cannot accept that the value of adding another coat of paint to the soffit is $20.50 and the cost of reattaching astring of Christmas lights is $300. Issue #2: Did these deficiencies constitute a fundamental breach of the Contract? [71] Upon considering all the evidence before me, I find that by June 12, 2016, Mr. McCrea had substantially performed thecontracted services. There were some deficiencies, but these were not serious or widespread and Mr. McCrea could have remedied themhad his business relationship with Ms. Fournier not disintegrated when he sought payment on June 12, 2015.

Issue #3: What were the extras, if any? [72] In her Reply, Ms. Fournier claimed that painting the trim on the back garden doors was supposed to be included in the Contract. On June 12, 2015, she agreed to pay an additional $65 for labour and materials for this work. In her correspondence to Mr. McCreadated July 4, 2015 (Exhibit 4), Ms. Fournier states: I agreed to pay extra for the door to be painted even though I had to spend 5 hours removing the globby paint that your company applied. [73] Ms.

Fournier has previously acknowledged the painting of the back garden doors was an “extra” and not contemplated in theContract. She cannot now resile from that admission. On the other hand, Ms. Fournier has never accepted infilling the grooves in thefront siding was an extra. [74] In Sepco Estates Ltd. v. Dy, 2007 BCSC 1159 , Madam Justice Martinson, considered what constitutes an “extra” in abuilding contract. She states at para. 72: Extras [72] An extra is work that is substantially different from, and wholly outside, the scope of the work contemplated by the contract.

Whether a particular item of work is, or is not, an extra has to be determined by reference to the contract documents, the nature of thework performed, and the surrounding circumstances. If on the proper construction of the contract documents the item of work is one thatthe contractor is required to perform it cannot be an extra, even if the contractor may have failed to realise he would be required toperform such work: Barenco at paga.19. [73] Where additional work is claimed as an extra, it will fall into one of three categories: 1.

The additional work might be work which the contractor was already required to perform under the contract, i.e. work which wasspecifically called for by the contract. In these cases, “the contractor is obliged to perform [it] without being entitled to any additionalremuneration beyond the contract price ... notwithstanding the fact that the contractor may have failed to realize at the time of enteringinto the contract that he would be required to perform such work”. 2.

The additional work might be work “not specifically called for by the contract when properly interpreted, but ... neverthelessproperly within the scope of the work as originally contemplated”. Because such work comes within the scope of the contract, the ownermay compel its performance. There may be a contractual provision governing the performance of, and payment for, this type of extrawork; but where there is no provision for payment, the court may imply a promise to pay a reasonable amount on a quantum meruitbasis. 3.

The additional work might be work which is “substantially different from, and wholly outside, the scope of the work contemplated

by the contract”. The main difference between this work and the work in the second category is that whereas the owner can compelperformance of extra work in the second category, he or she cannot do so for work in this category. Where no price is fixed for thepayment of work in this category, the law may imply a promise to pay a reasonable amount on a quantum meruit basis. [75] Quantum Meruit means “as much as he deserves.” The principle of contractual quantum meruit, which was described by AdairJ. in C.J. Smith Contracting Ltd. v.

Kazem-Pour, 2014 BCSC 689 at paras. 82-83 as follows: [82] Contractual quantum meruit (as opposed to restitutionary quantum meruit) is, in effect, a principle of contract construction orinterpretation, to the effect that, where the parties to a valid contract have agreed for the provision of goods or services, clearly intendedto be paid for, but have failed to provide for the terms of remuneration, then they may be presumed to have intended a reasonable priceand, on that basis, a contractual term to pay a reasonable price may be implied.

There is no room for this doctrine, or for such animplication, where the contract explicitly provides for the amount of remuneration, or for the method for determining the same. . .[Citations omitted] [76] The burden is on Mr. McCrea to prove that the infilling is, in fact, an extra and not included in the Contract. (See Hugh’sContracting Ltd. v. Stevens, 2014 BCSC 1904 , citing: Barenco Inc. v. Ottawa-Carleton Regional Transit Commission (1999),48 C.L.R. (2d) 200 (ONSC) at para. 27.) [77] The Contract required Mr. McCrea to paint the House.

It specifically sets out the front wood siding as an area to be preparedand painted. The preparation is described as “scrape peeling paint, sand ridges on front after scrape.” I understand the purpose of thispreparatory work was to ensure the new paint would adhere to the siding. The sanding created grooves in the siding. Infilling thesegrooves ensured a smooth finish. Ms. Fournier argues infilling these grooves was work required under the Contract, even if Mr. McCreadid not recognize its necessity at the time he drew up the Contract.

Infilling fell into the first of Justice Martinson’s three categories ofextras and Mr. McCrea is not entitled to additional remuneration beyond the Contract price. The case of Cranbrook (City) v. GabrielConstruction (Alberta) Ltd., 2014 BCSC 2280 is apposite, wherein Mr. Justice Verhoeven states, at para. 78: 78. The fact that a contract becomes more difficult to execute than originally anticipated does not release a party from the expressterms of the contract… This concept was expressed as follows in Thomas G.

Heintzman & Immanuel Goldsmith, Heintzman and Goldsmith on Canadian Building Contracts, 4th ed., looseleaf (Toronto: Carswell, 1988) at

Chapter 2.1(a): …[if a contractor] chooses voluntarily to sign a contract based on assumptions which are not in accordance with the reality of thesituation, he may find himself tied to an improvident bargain from which he will be unable to escape. [78] In my view, the infilling fell into the second category of Justice Martinson’s enumerated extras in that it was work notspecifically called for by the Contract but nevertheless falls within the scope of the work that was originally contemplated. The Contractrequired Mr. McCrea to paint the House, not completely rehabilitate its weathered siding.

There was no price fixed for the infilling and Iimply there was a promise to pay a reasonable amount for the infilling on a quantum meruit basis. In Hugh’s Contracting Ltd. v. Stevens,2015 BCCA 491 , Justice Wilcock for the Court of Appeal, held at para. 33, that in assessing what is a reasonable amount, thetrial judge much consider, among other factors, “the course of dealings between the parties, any estimates obtained, the costs incurred,the scope of work, the actual work done, and the market value of the services provided…” I conclude that in the circumstances, the $142Mr.

McCrea charged for the infilling, inclusive of labour and materials, is a reasonable fee for the services rendered. APPLICABLE LEGAL PRINCIPLES [79] The law implies certain obligations to parties to a building contract. In Goldsmith on Canadian Building Contracts, 4th ed(Toronto, ON: Carswell, 2009), the learned authors state at 1-43 and 1-44: Canadian Building Contracts ...

Thus, in a building contract there is, in the absence of any express provision, an implied term that the owner will make the paymentsdue under the contract, and will do everything reasonable to enable the contractor to complete the work, such as making available the siteand any required plans within a reasonable time and refrain from any interference with the contractor’s work which may cause delay orextra cost in his completion of the work. In the absence of a specific completion date, it is implied that the contractor must finish thework in a reasonable time.

There is an implied term on the part of the contractor that he will perform the work in a workmanlike anddiligent manner, and that any materials supplied by him will be fit for use as intended. ... [80] At page 5-11 under the heading “Defective Work” the text states: Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach. ...

Whetherwork or materials supplied, is defective or not is, in each case, a question of fact depending on the constructions of the particularspecifications where there are any, and on expert evidence as to what is reasonable where there are none. The ultimate burden is on the party asserting that a breach has occurred and at the end of the day, the Court must be satisfied on balancethat the contract has been breached. In civil cases the onus is on the party who asserts a proposition, usually the Plaintiff. Issue #4: Did Ms. Fournier repudiate the Contract on June 12, 2015? [81] On June 12, 2015, Mr.

McCrea presented Ms. Fournier with his invoice for the services performed. She refused to pay it eventhough Mr. McCrea had discounted it in response to her concerns about the lack of preparatory work on the deck. She took the positionshe was not obliged to pay Mr. McCrea until such time the Contract was completed to her satisfaction. [82] In Columbia Bitulithic Ltd. v. D.C. Masonry Construction Ltd., (BC CA), the B.C. Court of Appeal held“where the builder has substantially complied with the contract, that is, where all the work to be done has been done, but where it has

been done negligently or in an improper manner, the builder is entitled to recover with deductions necessary to complete the work asspecified in the contract.” [83] I find that on June 12, 2015, Mr. McCrea had performed the work and supplied the material necessary for the substantialcompletion of his obligations under the Contract. Although there were deficiencies, none of them, individually or collectively, went tothe root of the Contract. Ms. Fournier was liable to pay the Contract price subject to a deduction for the deficiencies. Ms. Fournier wasobligated to give Mr.

McCrea adequate notice of, and an opportunity to remedy, the deficiencies. [84] Mr. McCrea said the Contract work was complete on June 10, 2015. He went to seek payment from Ms. Fournier on June 12,2015, which she refused to do even though he had discounted his invoice and agreed to return and add a further coat of paint to the facia. Although Ms. Fournier did offer Mr. McCrea an opportunity to remedy the deficiencies, she did not have the right to unilaterallywithhold payment for the entire Contract until she decided otherwise. [85] I find that Ms. Fournier repudiated the Contract by refusing to pay Mr.

McCrea any money other than that he had taken as adeposit on May 21, 2015. I find her claim Mr. McCrea tried to bully or intimidate her into paying his invoice without merit. It isconsistent with her view that she had no obligation to pay Mr. McCrea unless she was fully satisfied with all aspects of the contractedwork and it was convenient to do so. Issue #5: What are Mr. McCrea’s damages? [86] When Ms. Fournier repudiated the Contract on June 12, 2015, by not paying any amount of the Contract price, Mr.

McCrea wasentitled to accept that repudiation and forego the right to remedy the deficiencies. [87] In Burns v. Solariums Direct (Canada) Inc. (Sunview Solariums Ltd.), 2010 BCSC 407 , Mr. Justice Josephson states: Where a contractor substantially completes the contract, however, abandons the work prior to full completion, he is generally entitled torecover the value of the contract, less the work left incomplete. Likewise, where an owner repudiates a contract and the contractoraccepts that repudiation… the contractor is entitled to payment on a quantum meruit basis for the work completed. Mr.

McCrea’s position on damages [88] The question remains, what should Ms. Fournier pay under the Contract? [89] I find helpful Justice Gauer’s analysis in assessing damages in Sea-Bright Builders Inc. v. Graves, 2016 BCSC 709 : [88] In 0867740 BC Ltd. v.

Quails View Farm Inc., 2013 BCSC 1021 , upheld on this point 2014 BCCA 252 ,Madam Justice Gerow observed: [77] The cost of making good the defects will not ordinarily be applied if the cost is unreasonable in the circumstances, or the court isnot satisfied that, if damages are ordered, the claimant will carry out the work. [78] Alex Gair & Sons, adopts the following from I.N.

Duncan Wallace Q.C., Hudson’s Building and Engineering Contracts, 11th ed.(London: Sweet & Maxwell, 1995), as setting out the applicable law: [82] ... at page 1046 ... in the case of defective work (that is, work not in accordance with the contract), there are in fact three possible bases of assessingdamages, namely: (

a) the cost of reinstatement: (

b) the difference in cost to the builder of the actual work done and the work specified; or (

c) the diminution in value of the work due to the breach of contract. [83] The author goes on to state at page 1047: ... in some cases the cost of carrying out work so as to comply with the specification may be very great once the contract work as a wholehas been completed... It is suggested that, in deciding whether to substitute what are usually the lower bases of the difference in value, orthe difference in cost to the builder between the actual and specified work, the following factors should be taken into account, namely: (

a) whether the work actually carried out is reasonably satisfactory for its purpose; (

b) whether the building owner has carried out or in fact intends to carry out the work of reinstatement; (

c) whether the defect or omission has substantially affected either the market value or the amenity value to the building owner of theworks; (

d) whether the cost of reinstatement is wholly disproportionate to the advantages of reinstatement. [79] Alex Gair & Sons at para. 84, also adopted the following from Strata Corp. N.W. 1714 v. Winkler (1987), (BC CA), 45 D.L.R. (4th) 741: I find no support in the authorities for the proposition that the general rule governing damages for breach of contract requires the cost ofreinstatement to be awarded even where it would not be reasonable to reinstate, and where there is no intention to do so. Were the

plaintiffs to recover on the basis asserted by them in this case, they would be in a far better position than if the contract had been properlyperformed. They would then have a sum of money approximately equal to the original cost of that area of the building occupied by themand would still have a building serviceable for their purposes. That would not be a reasonable result.

It therefore cannot be one intendedby the general rule, the purpose of which is to grant full compensation, not a windfall. [80] In Alex Gair & Sons, the court was far from satisfied that if the defendant were to be awarded damages claimed to remedy thedefects, the work would be carried out.

Accordingly, the court went on to assess damages based on diminution in value of the propertyas a result of the defects. [81] The court, at paras. 90-93, reviewed the case law supporting the conclusion that even when there are evidentiary problems inassessing damages for a claim for deficiencies and incomplete performance of a building contract, if the claimant has suffered a loss, theevidentiary issues should not prevent an assessment being made, even though it may be somewhat arbitrary. [82] In 514953 B.C. Ltd. dba Gold Key Construction and Chiu v.

Leung, [2007 BCCA 114] at para. 7, the Court of Appeal approvedthe statement of law in McGarry v. Richards, Ackroyd & Gall Ltd., (BC SC), [1954] 2 D.L.R. 367 (B.C.S.C.): “that thecost of re-instatement is not the proper measure of damages where the owner does not intend to rectify the defective work, or where hewould be acting unreasonably or oppressively in doing so.” [89] This aspect of Gerow J.’s judgment was upheld on appeal: 2014 BCCA 252 ; except that her use of the phrase“somewhat arbitrary” at the end of para 81 was discouraged.

In the view of the Court of Appeal, the assessment that Gerow J made inaccordance with that paragraph could not properly be described as “arbitrary”. Mr. McCrea’s position on damages [90] Mr. McCrea seeks the balance outstanding under the Contract without deduction for any deficiencies. Ms. Fournier’s position on damages [91] On June 12, 2015, Mr. McCrea offered to accept $2,875 if Ms. Fournier paid immediately. Ms. Fourier regarded Mr. McCrea’ssettlement offer as the new Contact price from which she could further deduct monies in varying amounts.

She did not comply with theterms of offer by paying the money and Mr. McCrea’s told her the deal was off. [92] Since June 12, 2015, Ms. Fournier’s reasons for refusing payment to Mr. McCrea have swelled and the amount she has agreedto pay has shrunk to the zero. Her latest position is that no monies are owing under the Contract because: a. the work was deficient in the areas and manner she identified in her photographs (Exhibit 8) and oral testimony and thosedeficiencies have yet to be remedied; b. Mr. McCrea’s crew took an extension cord which she had lent them; e. Mr.

McCrea failed to reinstall the Christmas lights; and f. she has been subjected to stress and inconvenience by having to come to Court in this matter. [93] As set out previously in this judgment, I do not find the front siding was deficient or the other wood surfaces required a furthercoat of paint. Mr. McCrea had no contractual obligation to: (

a) scrape, sand, and hand paint the deck; or (

b) cure structural defects; or(

c) repair gouged and splintered window frames; or (

d) rehabilitate broken and cracked boards and beams; or (

e) remove debris from thevinyl window casings. A number of the defects of which Ms. Fournier has complained in my view are trifling and easily remedied. These include small areas of paint spatter as captured in Photographs 5, 6, 7, 10, 13, 14 and 15. [94] I do accept Ms.

Fournier would have been entitled to withhold from the full Contract price some money for the following minordeficiencies and oversights: a. failing to paint the lower joist on the deck; b. failing to properly wash the deck before painting it; c. failing to properly clean up paint splatter; d. failing to properly paint the trim on the back garden doors; e. failing to return her extension cord; and f. failing to reattach the Christmas lights. [95] I have found that it was Ms. Fournier who repudiated the Contract. Even had this not being the case, Ms.

Fournier is notentitled to compensation or set off for any distress, frustration, anxiety, or aggravation she may have experienced because she wasdissatisfied with the quality of Mr. McCrea’s work or because he sued for payment. (See Jozsa v. Charlwood-Sebazco, 2016 BCSC 78, para.24). [96] Ms. Fournier has provided little evidence of the cost of remedying the deficiencies other than to assert, without corroboration,the extension cord was worth $100 and the reinstallation of the Christmas lights would cost $300. Although I accept Ms.

Fournier isentitled to some set off from the Contract price because of these deficiencies, I do not accept her estimates as to their value. Ms. Fournierled no evidence of diminution in value of the House as a result of the deficiencies. She said she spent several hours cleaning paint from awindow and repairing the deficient paint job on the trim of the back garden doors. I accept she performed these tasks but I do not accept

her estimate as to the amount of time she laboured on work which was Mr. McCrea’s contractual responsibility. [ 97 ] Ms. Fournier has had the benefit of Mr. McCrea’s work now since June 10, 2015. She has not remedied any of the alleged deficiencies beyond cleaning the windows and repairing the garden door trim, nor has she provided any evidence she intends to do so. Moreover, I have also found the relationship between the parties had disintegrated to the point it was unreasonable to expect Mr. McCrea to return to the House after June 12, 2015, to remedy those deficiencies. CONCLUSION [ 98 ] I accept that Mr.

McCrea paid for paint and labour to paint the House and contributed his own equipment, materials, time, labour, skills and industry to the project. I find that some of the work he performed was deficient and had the parties’ relationship not disintegrated in the manner it did, he could have remedied those deficiencies quickly and easily. I am mindful that Mr. McCrea was a painting contractor charging a modest price to paint the exterior of the House that was old and beaten.

He was not obligated to do whatever it took to rehabilitate the House to the point it looked as good as new. [ 99 ] I am satisfied the deficiencies were not serious or widespread. I have determined the proper measure of set off for the deficiencies is the cost of repair . Despite the dearth of evidence, I must still assess that cost.

In this task, I am informed by the following: a. the total Contract price was $3,307, inclusive of labour and materials; b. the cost to paint the deck was $450, inclusive of labour and materials; c. the estimated cost of adding a further coat of paint to the facia was $20.50, for labour and materials; d. the charge for infilling the grooves in the siding totalled $142, inclusive of labour; e. the cost of painting the back garden doors for labour and materials totalled $65; f. Mr.

McCrea charged $25 per hour for labour; and g. it took the McCrea crew approximately 40 hours (8 hours per day x 5 days = 40 hours) to substantially complete the Contract. I find the value for all the deficiencies, I do accept to be $300. [ 100 ] Accordingly I order judgment in favour of Mr. McCrea as follows: a. Unpaid invoice under the Contract: $3,207 b. Less deficiencies: -$ 300 Total $2,907 [ 101 ] Mr. McCrae is also entitled to his filing and service fees in the amount of $261 and prejudgment interest on $2,907 ($3,207 - $300 = $2,907) from June 12, 2015 to judgment. I direct that Ms.

Fournier will pay the amount due to Mr. McCrea forthwith. [ 102 ] I direct the Prince George Registry to prepare the form of this order based upon the provisions of paragraphs 100 and 101 of these reasons for judgment with all necessary amendments. [ 103 ] The signatures of both of the parties approving the form of the order are dispensed with and not required. The Honourable Judge J. T. Doulis Provincial Court of British Columbia