Lund v. Appleford Building Date:, 2017 BCPC 91

Citation: Lund v. Appleford Building Date: 20170228 Company Ltd. et al. File No: 16-0113 2017 BCPC 91 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARKETA LUND and WILFRED LUND CLAIMANTS AND: APPLEFORD BUILDING COMPANY LTD., CHARLES APPLEFORD and MELISSA OLLSIN DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Appearing on her own behalf: M. Lund Appearing on his own behalf: W. Lund Appearing on his own behalf

and on behalf of Appleford Building Company Ltd: C. Appleford Appearing on her own behalf: M. Ollsin Place of Hearing: Victoria , B.C. Dates of Hearing: December 19, 20, 2016 and January 9, 2017 Date of Judgment: February 28, 2017 INTRODUCTION [ 1 ] THE COURT: The Claimants Marketa Lund and Wilfred Lund (collectively the "Claimants") are owners of a residence, originally built circa 1928, which is located on Fifth Street in the City of Victoria, British Columbia (the "Residence").

The Claimants have undertaken an extensive renovation of the Residence, which renovation work commenced in early January of 2014. [ 2 ] In that regard, after a significant amount of due diligence and investigation they selected and retained the services of the Defendant Appleford Building Company Ltd. (the "Corporate Defendant") as their general Contractor prior to the commencement of the renovation work. [ 3 ] The Defendant Charles Appleford (the "Defendant Appleford") and the Defendant Melissa Ollsin (the "Defendant Ollsin") are officers, directors and shareholders of the Corporate Defendant.

They are also employees of the Corporate Defendant. They are also spouses. [ 4 ] The Claimants and the Corporate Defendant entered into a written Building Contract dated for reference the 10th of January, 2014 (the "Building Contract") in connection with the initial phases of the renovation work on the Residence. [ 5 ] In the Building Contract, the Corporate Defendant is named as the "Contractor" and the Claimants are named as the "Owner".

The Defendant Appleford and the Defendant Ollsin are not named as parties, nor have they executed the Building Contract in their personal capacities. [ 6 ] The Claimants now allege that they have suffered damages resulting from a breach of contract by the Defendants. In essence the Claimants say in their Notice of Claim that the Corporate Defendant was obliged to hire "a skilled and qualified painting company to apply interior and exterior paint" to the Residence and that "[T]his job was poorly managed, and left incomplete".

The amount of the damages claimed includes the cost for paintwork "to correct the previous painting, fix damaged areas, and paint areas that have no paint at all." [ 7 ] The action was commenced February 19, 2016 solely in the name of the Claimant Marketa Lund, apparently out of concern as to the availability of her husband Wilfred Lund due to military service commitments.

During the course of the trial and with the consent of all parties Wilfred Lund was joined as a Co-Claimant on the basis that he adopt the pleadings set out in the Notice of Claim. [ 8 ] As part of their Reply, the Defendants raised several issues including an allegation that the choice of the original painting contractor was that of the Claimants and not their choice, and specifically say that what they offered to the Claimants was sufficient to cover warranty work.

SUMMARY OF THE CIRCUMSTANCES GIVING RISE TO THE CLAIMS [ 9 ] Based on the evidence, there is no issue that the Claimants and the Corporate Defendant entered into the formal written Building Contract at the outset and immediately prior to the commencement of the renovation work. [ 10 ] The arrangements evidenced by the Building Contract identified the scope of the work to be completed from the "Demolition and Excavation" stage to the "Framing Lock Up" stage and to the "Drywall" stage, and stipulated a

schedule of payments due upon completion of each stage. [ 11 ] Drawings and a breakdown of expenses in an Excel format formed part of the Building Contract. In paragraph 8, a Contract Price of $278,118.33 was stipulated plus GST of 5 percent.

The drawings were completed by the Claimants' designer and not by the Defendants. [ 12 ] Provision was made in the Building Contract for "additional services" on a cost plus basis at an agreed hourly rate and the cost of materials plus a "10 percent increase to provide coverage of the Contractors' overhead and profit". [ 13 ] There was a further provision contained in paragraph 9 for charges and the payment of Owner authorized labour, materials and services provided by the Contractor which were "not set out in the drawings or reasonably inferable therefrom". These are described as "Extras".

Similarly Extras were agreed to be charged for and payable on a "cost plus" basis. [ 14 ] The Contractor provided regular updates on the cost to the Owners. This was generally the responsibility of the Defendant Ollsin, who undertook a majority of the communications with the Claimants throughout the project.

The Claimant Wilfred Lund was the person who assumed communication responsibilities on behalf of the Owners. [ 15 ] The Defendant Appleford, being a trained and experienced carpenter, oversaw the day-to-day construction and work of both the Corporate Defendant's crews and also the sub-trades hired by the Corporate Defendant. The Defendant Ollsin was responsible for dealing with the painting contractors.

[ 16 ] The Owners and the Contractor did not enter into a further written contract at the end of the original scope of work and following the completion of the "Drywall" stage as set out in the Building Contract. [ 17 ] However, there appears to be no significant issue that the work completed after the "Drywall" stage or what may be characterized as the "finishing work" continued on much the same contractual basis as that set out in the Building Contract for and up to the work completed to the end of the "Drywall" stage. [ 18 ] Thus the contractual arrangements between the parties continued to be as set out in the Building Contract, which appeared to have been extended both verbally and by a course of conduct between the parties.

Consultations and communication between the Contractor and the Owners continued and updates on financial information, including solicitation of quotes from sub-contractors, the ongoing budget, budget variations and other expenditure information in spreadsheet form was provided by the Contractor to the Owners. [ 19 ] Under paragraph 5(

a) of the Building Contract, the Contractor was obliged inter alia to do, perform and complete the work in a good and workmanlike manner in accordance with the Drawings, in accordance with all applicable building codes and laws, in satisfaction of all municipal and regional district inspectors, governmental agencies, bodies and departments, as required and in accordance with the manufacturer specifications and instructions as applicable. [ 20 ] In addition, under subparagraph 5(b), the Contractor was obliged to furnish all necessary labour, materials, equipment, skills, supervision and expertise to do the Work. [ 21 ] Under paragraph 5(g), the Contractor was required: To hire sufficient skilled and qualified persons to provide such supervision as shall be necessary to Work continuously to affect completion of the work and to hire only those workmen, subcontractors and other persons to supply the work as are skilled, qualified and fit therefore. [ 22 ] The provisions of paragraph 5(

p) and (

q) set forth further obligations of the Contractor as follows: (

p) To make good and repair without cost to the Owner within 21 days of written notification by the Owner any defect in materials or workmanship in the work appearing from time to time within one (1) year from the date of delivery of possession of the premises to the Owner; (

q) To make good during construction within twenty-one (21) days of receipt of written notification thereof by the Owner of the same any defect in materials or workmanship in the work and each and every noncompliance with the drawings and specifications which have not been authorized by the Owner in writing. [ 23 ] These provisions in subparagraphs 5(

p) and (

q) are the warranty provisions found within the Building Contract. However in addition to these Building Contract provisions, the Contractor provided the Owners a document entitled "Warranty Information for Appleford Building Company". [ 24 ] There is some confusion about the final form of that document. At least two versions were presented in court and they are not completely identical in nature.

One version is contained in Exhibit 21 at Tab 8 (in the Defendants' book of documents) and another version is contained within Exhibit 25 of the documentary evidence about which the Defendant Ollsin testified in cross-examination. I will refer collectively to the two versions of this document as the "Warranty Information Document". [ 25 ] Referring to the version comprising Exhibit 21 at Tab 8, the materially relevant portions of the Warranty Information Document in both versions states as follows: Warranty will start as of September 1, 2014.

Appleford Building Company will provide a one-year warranty on all labour and materials. Please refer to the homeowner's warranty package to see what falls under warranty and what is homeowner maintenance. If it is unclear, that we will follow the same guidelines ​as Pacific Home Warranty within the year . The Owner is required to give written notice of an issue by email and Appleford had 21 days to rectify the issue from that date. Certain products have warranty past the one-year date. Some of the numbers are provided below.

It is advised that the homeowner keep manuals and a copy of the receipts to access manufacturer's warranty. [ 26 ] The Exhibit 25 version of the Warranty Information Document states that the warranty will start as of September 9, 2014.

The last sentence of the second paragraph reads differently, as follows: “If it is unclear, we will follow the same guidelines.” [ 27 ] Hence there is no mention of the words " as Pacific Home Warranty within the year " that are contained within Exhibit 21. [ 28 ] According to the evidence of the Defendant Ollsin, the version introduced as Exhibit 25 is the "final version" of the Warranty Information Document.

It was her testimony that the "Residential Construction Performance Guidelines" that are apparently used by the Homeowner Protection Office were incorporated by reference into the warranty coverage provided by the Corporate Defendant. [ 29 ] It is not entirely certain when the final version of the Warranty Information Document was delivered to the Owners by the Contractor, but that appears to have been sometime in the period between November 2014 and January 2015. [ 30 ] I further understand from the evidence that, due to the fact that this was a renovation project, that it did not qualify for protection under the programs offered by the Homeowner Protection Office, being a branch of BC Housing, and that there was no third party warranty provided to the Owners by the Contractor.

That became an issue of dispute between the Claimants and the Corporate Defendant. [ 31 ] No specific mention is made in the Warranty Information Document about defects in painting, or otherwise about the painting

on the exterior or the interior of the Residence. However, as I understand the evidence, the Residential Construction Performance Guidelines do have specific provisions concerning both exterior and interior paint finishing which the Corporate Defendant, by way of the evidence of the Defendant Ollsin, as a principal of it, says has application to their warranty. [ 32 ] The work described under the Building Contract commenced in January 2014.

The Claimants and their children moved into the Residence around the third week of August 2014 and the final finishing work was completed towards the end of October 2014. [ 33 ] As with many renovations, there were unanticipated delays, including obtaining necessary municipal approvals, unanticipated expenses for such things as a seismic upgrading, and overruns on certain budgeted expenses. [ 34 ] The Building Contract had stipulated a June 9 (2014) "completion date" for the scope of work described in the written Building Contract.

The Contract Price, inclusive of GST, for the scope of work covered by the stages described within the written Building Contract was $278,118.33. The scope of work identified in the written Building Contract was completed approximately three weeks late, on June 30, 2014. According to the evidence, the delay resulted from an initial three-week delay in the issuance of a required municipal permit which required a Board of Variance approval for the addition of a second storey. The municipal permits were required prior to the commencement of the stages of work described in the Building Contract.

After June 30, 2014, the "finishing work" proceeded. [ 35 ] Ultimately, the Claimant spent approximately $530,000 to complete the entire renovation of the Residence, which included all of the finishing work and any extras. [ 36 ] The renovations were substantially completed by September 9, 2014, when the occupation permit was issued. [ 37 ] From what I can determine from the evidence, the Claimants and the Defendants had a relatively good working relationship during the course of the renovation project. [ 38 ] However, the relationship began to sour shortly after the Claimants had moved into the newly renovated Residence in mid- August, 2014.

That strained relationship continued thereafter. [ 39 ] The Claimants filed three complaints together with the Better Business Bureau around August 10, 2015. Complaint number one was in connection with the receipt and non-return of a $1,500 landscape deposit that was paid to and was being held by the City of Victoria, and which was paid back to the Corporate Defendant and not the Claimants.

The Claimants sought payment of this amount to them by the Corporate Defendant. [ 40 ] Complaint number two was a complaint that the interior and exterior paint job on the whole Residence was not finished in accordance with the terms of the contract between the Claimants and the Corporate Defendant. Part of that complaint was that when a dispute over the quality of the work arose with the painting company, the painting company had "walked off the job" and that an insufficient amount of $1,564.50 of the total amount had been held back by the Corporate Defendant from that painting company.

Accordingly it was contended that "this job was poorly managed and left incomplete" by the Corporate Defendant. The Claimants sought to have the interior and exterior painting deficiencies "as set out in the painting instructions of our contract" rectified by the Corporate Defendant at their own cost.

The Claimants stated that they would provide two different quotes from painting companies who they felt "would do a good job finishing the work required" from the Corporate Defendant to choose. [ 41 ] The third complaint was that "there [were] systematic errors in accounting on the final bill received from the [Corporate Defendant] whereby the charges on the final invoice are not supported by bills and receipts". The Claimants sought to have the Corporate Defendant "rectify errors in accounting on the final Excel sheet, explain the invoice discrepancies, and adjust the final payment accordingly".

The Corporate Defendant's final invoice, received December 17, 2014, which contained a disputed NSF charge of $320 would be paid, less the charge "if proper receipts are provided", and any monies owing to the Claimant were to be returned by the Corporate Defendant. [ 42 ] The Corporate Defendant provided a comprehensive written response to the Better Business Bureau complaints which addressed each complaint. The Corporate Defendant provided certain information in order to deal with Complaints number one and three, and made proposals to resolve the Complaints, and in particular Complaint number two.

The proposal with respect to Complaint number two was rejected by the Claimants. [ 43 ] As I understand it, the Claimants' Complaints to the Better Business Bureau went through the preliminary stages of a facilitation, which was never formally completed nor referred to arbitration as a result of the retirement of the representative of the Better Business Bureau. [ 44 ] Paragraph 12 of the Building Contract contains an arbitration provision which purports to refer any unresolved disputes between the parties to a sole arbitrator.

Neither the Claimants nor the Corporate Defendant took any steps to have the matter taken to arbitration, either through the Better Business Bureau or pursuant to the provisions of the Commercial Arbitration Act of British Columbia. [ 45 ] Complaint number two is the subject matter of this court action.

Without getting into all the details, no claim has been advanced by the Claimants in this court, nor has there been a counterclaim brought by the Defendants with respect to either Better Business Bureau Complaint number one or Complaint number three, or for that matter Complaint number two. [ 46 ] There is common ground that the original painting contractor who was engaged to complete the interior and exterior painting was Chad Loster, carrying on business as "Absolute Painting". [ 47 ] There is a substantial disagreement about the circumstances surrounding the engagement of Absolute Painting. [ 48 ] Very briefly, it is the Claimants' evidence, which is not in dispute, that they had met Mr.

Loster at a Victoria area home show in 2013 prior to the commencement of the renovation work and the engagement of the Corporate Defendant as the general Contractor.

[ 49 ] The Claimants apparently were fairly impressed with Mr. Loster and arranged for him to make a site visit to their then existing residential premises in the evening during the last two weeks of December 2013. At that time, they showed Mr. Loster the plans for their proposed new residence and solicited a painting quote from him. This, of course, all took place prior to any renovation, construction work or site preparation taking place. I will refer to this as the "Original Loster Painting Quote".

It is not disputed that the Claimants sought the Original Loster Painting Quote in order to get an idea about what they could expect for painting costs. The Claimants did not follow up to check any references provided to them by Mr. Loster. [ 50 ] In the Original Loster Painting Quote, Mr. Loster provided the Claimants with a quote for the exterior painting, including two coats of paint on the siding, trim, fascia boards and doors, windows and frames, but excluding the railings. It was $3,465, inclusive of GST. [ 51 ] As part of the Original Loster Painting Quote, Mr.

Loster also provided the Claimants with a further separate quote for the interior house painting, including two coats of paint, preparation and priming of all walls and ceilings and preparation of the house for spraying, and the painting of the walls and ceilings in various described rooms, stairwells, closets and all baseboards, doors and frames. That quote was $5,460 inclusive of GST. [ 52 ] There is no dispute that Mr.

Loster was subsequently approached by the Corporate Defendant in its capacity as the Contractor in order to obtain a further revised quote based upon his observations of the Residence that was under construction. That produced what I will refer to as the "Second Loster Painting Quote". [ 53 ] The Second Loster Painting Quote for the interior painting breaks down the scope of work into a "stage number one main and upper floor" and a "stage number two main and upper floor".

The stage number one scope of work describes the area simply as the "main and upper floor" rather than listing the rooms and areas, it specifies a prime coat and one coat on the walls and two coats on ceilings, and the "doors sprayed to finish two coats". The amount quoted is $3,675, inclusive of GST. The stage number two main floor and upper floor describes the scope of work as "fill all holes, sand, smooth, caulking baseboards, second coat on all walls". Stage number two is quoted at $2,550 inclusive of GST.

Stage three was a quote for priming wall and two coats on ceiling in the basement, quoted at $892.50 inclusive of GST. Thus all the interior painting was being quoted higher, at $7,117.50, but the scope of the work was greater for the inclusion of the basement. For the remaining part of the interior painting exclusive of the basement, the quote had increased from $5,460 to $6,225 all-inclusive of GST, being an increase of $765. [ 54 ] The Second Loster Painting Quote for the exterior painting breaks down the scope of the work in much the same fashion as the Original Loster Painting Quote.

There were some additions to the scope of the work, including filling window holes, specifying two- tone trim, including the addition of painting of the fibreglass doors and gel-coating the front doors, and specifies the inclusion of the beams and posts that support the decks and front entrance area. The excluded items included the railings and the stair stringers. It states a higher figure of $5,092 inclusive of GST.

This represented an increase from the Original Loster Painting Quote of $1,627 inclusive of GST. [ 55 ] Notwithstanding that it was the Corporate Defendant that sought the Second Loster Painting Quote; the quote was addressed to the Claimant Marketa Lund. It appears to have been provided in or about May 13, 2014. [ 56 ] It is clear from the email correspondence in and around May 13, 14 and 15 of 2014 that the Defendant Ollsin, on behalf of the Corporate Defendant, met in person with Mr. Loster and then provided Mr.

Loster with a significant amount of information and details as to the painting requirements and the scope of work in order to obtain the Second Loster Painting Quote, and to clarify it. The Claimant Marketa Lund was copied with the email exchanges and hence was being kept updated. I further understand from the evidence that the information to Mr. Loster provided by the Defendant Ollsin included a two-page document entitled "Painting Instructions". It is somewhat unclear when that was sent to Mr. Loster, but the parties seem to agree that it was sent to Mr.

Loster by email around August 3, 2014. [ 57 ] At the time that the Second Loster Painting Quote was provided, a significant amount of exterior and interior construction work remained to be completed. Ongoing decisions were still being made about the interior finishing. [ 58 ] The interior and exterior painting was one of the later things to be completed in the course of the finishing. The interior priming and the exterior painting was undertaken and completed in the period from about the last week of June to the middle of July 2014.

Final interior painting started in the first week of August, prior to the Claimants moving their furniture into the Residence, and continued thereafter. [ 59 ] Chad Loster provided a crew of two, and sometimes three, painters to undertake the work. He was not part of the painting crew, but was there on the first day and at the very end of the job. It is unclear how much supervision he was actually providing. [ 60 ] Shortly following the commencement of the exterior painting in June 2014 some issues arose. The wrong exterior colour was being applied. Apparently that arose out of the fact that Mr.

Loster had obtained the wrong colour of paint from the dealer. A replacement batch of paint was obtained, but it also was not the correct colour. Finally, after the second attempt, the correct colour was obtained. Fortunately, only a small portion of the exterior had been painted with the wrong paint. The Claimants were satisfied with the exterior colour, and the painting completed by Mr. Loster's Absolute Painting crew, other than a number of items that they state are deficiencies in the nature of uncompleted items.

That is further discussed below. [ 61 ] The interior painting and the application of the priming coat commenced immediately prior to the exterior painting, and was completed in June 2014. The final interior coat started around August 4th and 5th, 2014. [ 62 ] In the course of completing the priming coats in the basement, the painter over sprayed onto the concrete floor, thus depositing fine particles of paint on the concrete floor that originally had been planned to be sealed concrete. That overspray necessitated a change to the floor covering.

There were also other issues with over spraying on windows, a skylight, and other portions of the interior. This resulted in a significant amount of additional cleanup time by the painters to resolve these issues, likely taking up to around two days and also involving assistance from Ms. Ollsin.

[ 63 ] At the outset, deposits were requested by Mr. Loster and paid to him on account of the painting work to be undertaken.

As I understand it, progress invoices were submitted by Absolute Painting and those were paid by the Corporate Defendant. [ 64 ] As the interior painting was proceeding, the Claimants had further concerns about the quality of the workmanship and the completion of the work. [ 65 ] Although there is a dispute on the evidence, it is clear that a number of alleged defects and deficiencies were identified by the Claimants, which were brought to the attention of the Defendant Ollsin and subsequently to Mr. Loster. That occurred following a walkthrough involving the Claimant Marketa Lund and the Defendant Ollsin and Mr.

Loster. The purpose was to identify the defects, deficiencies and incomplete work. According to Ms. Lund, Mr. Loster requested the release of the remaining holdback amount due to Absolute Painting, being $1,564.50, and offered to personally attend to the completion of a number of these items. That proposal was rejected by the Claimants. Mr. Loster left and did not return to the job, nor did any of his crew. [ 66 ] Thereafter the Corporate Defendant arranged to have other painting firms attend at the Residence to deal with the alleged defects and deficiencies.

The work undertaken by those other painters failed to fully satisfy the Claimants.

SUMMARY OF EVIDENCE OF THE CLAIMANTS [ 67 ] Both of the Claimants testified during the trial and submitted an extensive amount of documentary evidence, including photographs of portions of the Residence which, in their opinion, depicted the alleged defects and deficiencies in the painting work. The bulk of the Claimants' evidence was provided by Marketa Lund. [ 68 ] The following were identified in the Claimants' evidence as being interior painting defects and deficiencies, including items where no painting or insufficient painting was required by the scope of work in the Second Loster Painting Quote: (

a) quite a few of the walls were sanded prior to being primed, debris was left on the wall surfaces and accordingly particles were left on the painted walls resulting in them being rough to the touch; (

b) there are areas where there is an absence of caulking on the trim and areas where required caulking is missing; (

c) there are areas of trim that were not primed or painted; (

d) the tops and bottoms of all interior doors were primed but were not painted; (

e) the surface of four of the eight doors on the upstairs floor were painted the wrong colour; (

f) there are touch-up areas where the paint mismatches the main paint colour throughout the Residence; (

g) there is bubbling of the paint in the master bedroom ceiling which was evident shortly after the Claimants moved into the Residence, and there is bubbling in the bathroom ceiling above the sinks and between the sinks and the shower; (

h) a dozen or so nails have popped in the drywall surface and have not been repaired. [ 69 ] The following were identified in the Claimants' evidence as being exterior painting defects and deficiencies, including items where no painting or insufficient painting when required by the scope of work in the Second Loster Painting Quote: (

a) areas of the trim have only had one coat of paint applied to them rather than two coats, and in some areas such as around the belly band and the window frames, the paint is translucent and there is an uneven coverage; (

b) on the inside of some of the window frames which are wood, there are small exposed areas which have not been painted; (

c) fascia on the peaks of the driveway side of the Residence have an uneven coverage, are darker in some areas than others, and appear translucent and patchy; (

d) a triangular portion of approximately two feet by three feet in the peak above the dining room on the right side of the Residence has not been painted; (

e) three pillars on the front porch and the single rear entrance pillar have been primed but not painted; (

f) the trim in the porch area has been primed but not painted; (

g) the tops and bottoms of exterior doors have been primed but not painted. [ 70 ] The Claimants also contend that in the course of attempting to deal with deficiencies and the defects, sub-trades or employees hired by the Corporate Defendant removed and damaged an upstairs closet door, and that it requires replacement. [ 71 ] As a result of the dispute with the Defendants, the Claimants engaged the services of M.P.D.A. Specification Services Inc. ("MPDA").

A six-page report dated January 13, 2016 and apparently authored by Glenn Ashmore, ACT, ACS, who is identified as a "MPDA technical representative" (the "MPDA Report") was sought to be entered by the Claimants as an expert's report in these proceedings. Mr. Ashmore was not called as a witness, nor do I understand that the Defendants served the required notice to have him attend and to be subject to cross-examination. [ 72 ] For the reasons set forth below, the MPDA Report was not admitted as an expert's report and the opinions expressed in that report were not accepted as expert opinions.

I understand from my review of the MPDA Report that Mr. Ashmore attended at the Residence for the purposes of conducting a visual inspection and to make examinations and observations of the painting work within

each room of the Residence. The date of that attendance is not stated in the MPDA Report. The MPDA Report indicates that the author reviewed the "Painting Contractor's submitted scope of work/contract provided by the homeowner".

That information is not specifically or sufficiently identified or detailed in the MPDA Report. [ 73 ] Having reviewed the MPDA Report, which contained a number of observations critical of the paint job, the Claimants then provided the MPDA Report to a number of painting contractors in order to obtain quotes or estimates from them to complete what can be characterized as remedial painting work in the Residence. [ 74 ] Some of the quotes or estimates were tendered and accepted as exhibits in the trial. [ 75 ] The MPDA Report was not provided to White Knight Painting Ltd.

White Knight Painting provided a comprehensive "Proposal for Painting", dated November 6, 2015, which outlined the proposed work to be undertaken. The interior painting is quoted at $2,524 plus GST, and the exterior painting, including cleaning prior to painting, is quoted at $5,935 plus GST. The complete quote inclusive of GST totals $8,881.95. In some areas one coat of paint is specified and in other areas two coats are specified. The Claimants base the quantum of their claim for damages on the White Knight Painting quote. [ 76 ] The MPDA Report was provided to A.B. Painting Services.

It provided a quote dated February 3, 2016 for the interior of $5,700 plus GST, $1,700 for the doors plus GST, and $1,700 plus GST for the exterior. A separate quote is provided regarding re- taping the drywall seam in the master bedroom for $300 plus GST. Those amounts total $9,400 plus GST of $470, for a total of $9,870. [ 77 ] The MPDA Report was shown to Top Coat Painting.

The quote prepared by them, dated March 9, 2016, specifies the amount of $7,827.75 inclusive of GST for the interior painting, and $2,782.50 inclusive of GST for the exterior painting in selected areas. [ 78 ] It is unclear from the evidence that the MPDA Report was shown to Nu Edge Painting and Drywall. Unlike several of the other quotes, Nu Edge did not perform a site visit and apparently worked from the building plan drawings. Three separate quotes are provided, as I understand it, on the basis that no painting had taken place in the Residence.

The first quote is for both the interior and exterior painting, with a one year warranty, which is quoted at $7,124.25 inclusive of GST. The second quote, with a two year warranty, totals $8,925 inclusive of GST. The third quote, with a three year warranty, and which is characterized as a "Cadillac job", was $10,867.50 inclusive of GST. [ 79 ] To date the Claimants have not proceeded with any remedial work on the painting job because of their financial constraints. [ 80 ] The Claimants point to a series of emails commencing June 26, 2014 regarding their observations of "a few issues with the painters".

In particular, the over spraying of the basement concrete floor is expressed to be of significant concern. An email dated August 7, 2014 from the Claimants makes reference to a further problem with paint on the floors, which was a significant concern to them. [ 81 ] In all instances, the Defendant Ollsin responded promptly and indicated that she would be assessing the situations and dealing with the painters. In particular, in response to the Claimants' email of August 7, 2014, she replied that day to confirm that she would be dealing with the cleanup of the fresh paint.

The Claimant Wilfred Lund replied that same day, thanking her and then stating: We will control final payment on this contract as we need to be satisfied with the end product and repair of all damage.

Pls give us a call once you have completed your inspection. [ 82 ] Notwithstanding that the Claimants say that by August 8, 2014, they had noticed what they considered to be numerous defects and deficiencies in the painting, the Claimants only learned in or around September 4, 2014 that progress payments had continued to be made to Absolute Painting by the Corporate Defendant, and that only around $1,500 had been held back. [ 83 ] These concerns were raised in an email from the Claimants to the Defendant Ollsin dated September 4, 2014.

In response to the Claimants' email raising their concerns, the Defendant Ollsin responded by email and apologized for the miscommunication, which she stated was because she presumed the Claimants were concerned about getting the paint off the floor. She conceded that she should have discussed with both of the Claimants as to how much should be held back from Absolute Painting. [ 84 ] The Claimant Marketa Lund testified that the walk through with Mr. Loster and with Ms.

Ollsin occurred in early September 2014, and that she had her own notes of what was to be discussed regarding the various defects and deficiencies. Those notes were admitted as Exhibit 22 (the "September 2014 List") but she concedes the first page may have been subsequently added by her. As I understand it, based on this list, the alleged defects and deficiencies were pointed out to Mr. Loster. It is not clear if that list was actually provided to Mr. Loster or to Ms. Ollsin at the time of that walk through. [ 85 ] It is Ms. Lund's evidence that Mr.

Loster was not prepared to recall his crew in order to deal with the deficiencies, that he was only prepared to do the work outstanding himself, but only on the basis that the holdback of funds be released to him, and that the work be conducted in such a fashion that the doors would remain hanging while they were being re-sprayed, thus giving rise to environmental concerns on the part of the Claimants. [ 86 ] Furthermore, she testified that it became apparent during the walk through that the man hours required in order to complete the remedial work would exceed the amount of the holdback.

That said, she testified that Mr. Loster never indicated how much it would take or cost to complete all the remedial work for the identified defects and deficiencies. She conceded that Mr. Loster did not "just walk off the job" and agreed that she had asked Mr. Loster not to continue with the remedial work, apparently having lost confidence in him. [ 87 ] The Claimant Marketa Lund further testified that arrangements were made by the Defendant Ollsin to obtain two painting firms to deal with the deficiencies and defects. The first firm was Marigold Painting who completed some work.

The second firm was New Image Painting. There was a subsequent walk through involving Ms. Lund, Ms. Ollsin, and a representative from New Image Painting prior to starting work. New Image Painting was to complete the final outstanding painting matters.

[ 88 ] A list dated October 15, 2014 entitled "Outstanding Work to Complete Prior to Final Payout" (the "October 15, 2014 List") was provided to the Defendant Ollsin and was utilized during the walk through with New Image Painting. This list was admitted as an exhibit. It contains the following under the heading "Painting", "all interior touch ups on walls and trim (main floor, stairwell, upper hallway and family bath)". Under the heading "Doors", there are five items that specify either touch up or staining that required completion.

One further item under the heading of "Concrete" was the removal of paint overspray off of the porch railings and on the French doors in the master bedroom. [ 89 ] New Image Painting apparently proceeded with the painting items set forth in that list. The Claimant Marketa Lund conceded that, after New Image Painting had finished, that she was "happy with the walls" but remained unhappy with the exterior work and where the painting of the trim was undone.

She further testified that, at this point, cracking in the caulking in some areas had not appeared. [ 90 ] The Claimant Marketa Lund testified that the Claimants considered a good paint job to be essential. They had hired an interior designer to provide advice with respect to the colour selections for the interior and exterior of the Residence, as well as the paint products and the paint manufacturers to be used. The interior designer had provided advice to the effect that the Claimants should be budgeting a sufficient amount for painting in order to obtain a good quality paint job. Ms.

Lund testified that the Defendant Ollsin was in attendance during a meeting with the interior designer at which time this advice was given. That meeting was held sometime around January 12th or 13th, 2014. [ 91 ] Ms. Lund further testified that, when the Second Loster Painting Quote came in higher than the Original Loster Painting Quote that she was not concerned, notwithstanding that in her email of May 15, 2014, she confirms and notes that the new price was now roughly $11,000. Then she poses the question: What are our other options?

Do you have a quote for the same work through the painters you use or any other companies to compare? Will discuss more on this. [ 92 ] I do not read her emails as suggesting that the quote was too low for the scope of work being undertaken, and that the Defendant Corporation should be soliciting higher quotes. However, in the Claimants' evidence, the suggestion is made that Mr. Loster had underbid the job. [ 93 ] The Claimant Marketa Lund testified that she did not recall some of the discussions that she had with Ms.

Ollsin about "trading" of certain types of work to be undertaken by Absolute Painting, such that the Claimants themselves would do certain work because of various interior and finishing changes that had been made subsequent to obtaining the Second Loster Painting Quote. She did concede that there were a couple of items that the Claimants had agreed to deal with on their own.

SUMMARY OF EVIDENCE OF THE DEFENDANTS [ 94 ] The Defendant Ollsin and the Defendant Appleford and a member of the Corporate Defendant's building crew, Adam Henry, provided evidence on behalf of the Defendants. The bulk of that evidence came from Ms. Ollsin. She testified that she was responsible for dealing with and overseeing the painters. She testified that she has quite a bit of experience with commercial painting, including hands on experience. [ 95 ] Ms. Ollsin testified that, at the outset of this project, she did not have a particular painting contractor in mind but was considering two separate firms.

She testified that the Claimants had expressed to her that they were impressed with Mr. Loster. Accordingly she sought a quote from him. She met and discussed the job with Mr. Loster. She discussed the various aspects of the job and generally about commercial painting. Based on those discussions, she was satisfied that Mr. Loster was an experienced painter.

It does not appear that she spent much time, if any, checking his references. [ 96 ] She agreed that the Second Loster Painting Quote, although higher than the Original Loster Painting Quote, was "pretty low", but said that her usual painting contractor Marigold Painting also provided low quotes. She checked out the quote with Marigold Painting and was told that it was "good". There is no indication that it was described as being too low. [ 97 ] Ms. Ollsin observed the painters provided by Mr. Loster on a daily basis, although she was not at the job site on a constant basis throughout the day.

She rated their skills as "pretty good", and it was evident to her that they were qualified painters. She did concede that their organizational skills could have been better. They apparently put in eight hour work days on a regular basis. They did not work overtime. [ 98 ] Ms. Ollsin testified about some changes that were made by the Claimants following the receipt of the Original Loster Painting Quote.

Examples included the Claimants switching the exterior siding, which then required priming, changes to the rear deck, the addition of a rear deck post box, some interior modifications such as added nooks in the truss system, additional louvre doors and an extended attic space. There were also further changes after the Second Loster Painting Quote. Ms. Ollsin testified that, as a result of the changes, the Claimants agreed to "trade" certain work that they would complete on their own for additional work in lieu to be completed by Mr. Loster.

She testified that some of the exterior work on the porch was left incomplete and such was part of the "traded" work that the Claimants were to complete. [ 99 ] According to Ms. Ollsin's evidence, the stage number one interior painting work outlined in the Second Loster Painting Quote took about three days, exclusive of about two additional days for cleanup arising from the over spraying. It started around June 23, 2014, and immediately thereafter the exterior painting started, and was completed in early July.

She was uncertain whether all of the priming to be undertaken by the Claimants had been completed by them. [ 100 ] She further testified that the interior painting described in stage number two of the Second Loster Painting Quote started August 8, 2014. She explained that the timeframe for completion of that interior work was very tight, given the fact that the Claimants wished to move in earlier, by about mid-August. Thus it is her recollection that the painters only had three days on their own, without furniture, to complete the work when it would have been fairer to them to have seven days.

[ 101 ] Ms. Ollsin testified that she did not receive a list of any complaints from the Claimants prior to the September 2014 walk through involving Ms. Lund, Mr. Loster and herself. She and Mr. Lund had done a pre walk through inspection, and had used "post-it notes" or green masking tape to mark areas of concern. As a result of the September 2014 walk through, and based upon her own observations, Ms.

Ollsin agreed that it was necessary to clean up some cut lines, clean up some over spraying, correct the unpleasant texture of doors that had been sprayed and then touched up with a roller, correct some rough walls and painting work in the living room, and deal with insufficient painting in the master bedroom, the children's playroom, the front den and the hallway and powder room. [ 102 ] Ms. Ollsin denies that Mr. Loster made his proposal to complete the work personally contingent on the immediate release of the $1,500 holdback amount. In her view, the Claimants did not provide Mr.

Loster with the opportunity to correct the deficiencies as he had proposed. She also confirmed that Mr. Loster was prepared to leave the holdback amount and "to leave" the job. [ 103 ] Ms. Ollsin said that she no longer has the notes that she took during that walk through. [ 104 ] Ms. Ollsin also confirmed in her testimony that she told the Claimants that she would make arrangements to have the remaining painting work done.

However, she found it challenging to obtain painters who were prepared to do a small job for the budgeted amount of the holdback, being approximately $1,564, but she was able to have Marigold Painting do some interior doors, but they were only able to do the exterior work and not the rest of the interior. [ 105 ] She was able to get New Image Painting to do the interior painting, which started October 17, 2014. She further testified that the Corporate Defendant was willing to put in more than the holdback amount of $1,564.50 to get the work done, although no specific amount was mentioned to the Claimants.

It appears at the end of the day that the amount contributed by the Corporate Defendant was approximately $1,349, based on the paid invoices rendered by Marigold Painting and New Image Painting, and amounts paid to Adam Henry, all over and above the holdback amount. It also appears that the Corporate Defendant covered the cost of additional paint that was required, being just over $100. On top of that was the extensive number of hours that Ms. Ollsin personally put in that were not billed nor paid for by the Claimants. [ 106 ] In her evidence, Ms.

Ollsin reviewed the September 2014 List and provided comments about what was completed in connection with it and if it was not, why not, and whether the Corporate Defendant did or did not have responsibility for a particular item. [ 107 ] According to her testimony, the items for which the Corporate Defendant was still responsible included correcting paint deficiencies on a door (see Exhibit 12, picture N), replacement of a damaged door in the master bedroom, completing the missed exterior gable peak, painting of some sub sills in the bathroom and the master bedroom, painting of trim around a late installed transom window, patching of the door frame on the exterior French doors (which she thought had been completed), and applying a second coat on the exterior fascia that was not done. [ 108 ] Ms.

Ollsin stated that she understood that the October 15 2014 List was the entire list of outstanding work and deficiencies, including the painting issues. During the October 15, 2014 walk through with Jamie Havens of New Image Painting, Ms. Lund and Ms. Ollsin, discussions took place about which matters were a priority. Ms. Ollsin testified that it was agreed with Ms. Lund, and her instructions to Ms. Ollsin and Mr.

Havens were to concentrate on touch-up work on the walls and less attention was required to the previously sprayed trim in order to avoid any problems that may have arisen as a result of attempting to touch them up. Ms. Ollsin assisted with the required sanding before the touch-up painting was done. She testified that New Image completed all of the painting items on the October 15, 2014 list by early November of 2014. [ 109 ] Ms.

Ollsin testified that any exterior work (except for a small missed area in a gable peak which she only found out about at trial) that was not completed by November 17, 2014 was not intended or required to be completed by the painters, most of which fell into the category of "traded" work. Prior to that date Marigold Painting and New Image Painting had completed the items outlined on the October 15, 2014 list. [ 110 ] Ms. Ollsin points to an email from Ms. Lund dated November 17, 2014. The relevant portions read as follows: We will also finish the work on the French door window panes.

I am disappointed that this wasn't done. The holes need to be filled and then the trim needs to be painted. I was also expecting the painters to do more of the trim, especially the upstairs around the linen closet and the piece of trim under the window in the master bath. At this point, with the left over work outside to do on the trim and with the touch-ups inside, I will have to set aside some time in the spring and do it then. What I would like to help facilitate this work is the following: a can of paint to match the exterior trim, and a can of paint to match the interior trim. [ 111 ] Ms.

Ollsin also referred to another portion of that email found in the first paragraph. Reference is made by Ms. Ollsin to the following provision that reads as follows: We are still waiting for Charlie to come in and finish the grout in the kitchen. I think other then [sic] the outstanding paperwork, we can call the job done after that. [ 112 ] Ms. Ollsin interpreted the entire contents of the November 17, 2014 email as a confirmation of a final resolution of all outstanding issues, and in particular as it related to the painting. Ms.

Ollsin testified that the requested paint was provided, but that occurred sometime after December 21, 2014. [ 113 ] However, on December 21, 2014, she received a further email from Ms. Lund in which Ms. Lund indicated that she felt that the "painting issue has yet to be resolved". She acknowledged she agreed to finish the interior touch-ups as detailed in the earlier email of November 17, 2014, but then goes on to indicate: I have noticed that there are still areas where the trim has not been painted or finished inside the house.

I understand the $1,500 paid to Integral Design Painting was not enough to fix all the work left undone by Absolute Painting. However the interior trim was part of the original job and needs to be rectified.

[114] The email then goes on to demand an additional $2,000 from the Corporate Defendant to have the remaining paint work insidethe house finished by other painting companies. Daily rates of $460 for an eight-hour day and an estimate of three to four days tocomplete the work were referenced in that email. The reference to Integral Design Painting should actually have been to New ImagePainting. [115] Ms. Ollsin stated that then and now that new items had been added to the Claimants' painting deficiency list.

Those additionalitems included the exterior front porch posts, a window sill in the family bathroom and two transom windows. [116] A meeting was held between the Claimants and the Defendant Ollsin. Ms. Ollsin had previously told the Claimants, some oneor two months earlier, that she could make a drywaller and a painter available at no cost to the Claimants. The Claimants had not takenthe Defendants up on that offer. [117] Ms.

Ollsin estimated that there were one to one and a-half days of work to complete the outstanding painting for which she saidthe Corporate Defendant was responsible, not the three to four days stated by the Claimants. Ms. Ollsin also took issue with the statedcharge-out rates as being excessive in comparison to the three hundred dollar daily rate of the painters that she used on a regular basis. [118] In her evidence, Ms. Ollsin reviewed the series of photographs tendered by the Claimants and stated that, with some exceptions,all the items portrayed would be corrected by the Corporate Defendant.

Among the items portrayed in those photos, which Ms.

Ollsinstated would not be the responsibility for the Corporate Defendant to correct, were those shown in: Photo D, because caulking on amoving window is not usual; it would not correct the caulking shown in Photos H, I, Q, S, T, U, Y, AA, and BB, because the visiblecaulking splits are from usual settling of the house, and not defects in workmanship or materials; it would not complete the additionalpainting of the transom frame shown in Photo CC because the Claimants agreed to paint it; it would not complete the work in Photo FFshowing the interior tops of doors that were only primed because that was beyond the scope of the Second Loster Painting Quote; itwould not complete the exterior pillars in Photos FF and GG because they were not covered by the Second Loster Painting Quote, andwould therefore be an extra on a cost plus basis; it would not complete the exterior pillar in Photo HH because it was part of the "traded"work; it would not complete the exterior window trim in Photo JJ because only two coats were covered in the Second Loster PaintingQuote and therefore that would be a cost plus extra; and it would not complete the trim on the front porch in Photo LL because it waspart of the "traded" work. [119] Ms.

Ollsin, on behalf of the Corporate Defendant, still contends that there would be approximately one to one and a half totaldays and totalling about $840 to complete all warranty work related to the painting for which the Corporate Defendant is responsible,plus an amount for replacement of the door, which had an approximate cost of $320, for a total of approximately $1,160.

She doesconcede that there may be an additional amount required of $200 to cover possible work by a drywaller to deal with any warranty issuesrelating to popped nail heads in the drywall if there are a sufficient number of them. [120] The evidence of the Defendant Appleford confirmed that he was not a personal signatory to the Building Contract. In essencehe adopted the evidence of the Defendant Ollsin. [121] Adam Henry is a trained carpenter and joiner employed by the Corporate Defendant.

He recalled working on the site of theResidence for the Corporate Defendant until late in October 2014, and he was the last tradesperson on site. He was working on thedeficiency list that involved carpentry. He characterized himself as having an "eye for detail" and said he was keeping an eye out for anyproblems, especially cracks and any missing caulking. He reviewed the photos tendered by the Claimants, and specifically indicatedthat a number of the cracks in the caulking depicted in the photographs were not evident at the time he finally left the project.

Heconceded that there were some items that appear in the photographs that he might have missed. He was not overly complimentary aboutthe painters. APPLICABLE LEGAL PRINCIPLES Burden of Proof [122] The burden of proof in a civil case rests with the Claimants to prove their case on a balance of probabilities. The Supreme Courtof Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, at paragraph 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [123] Therefore, the Claimants must prove the existence of the facts and other essential elements upon which they rely in order tosucceed in their claim against the Defendants. If they fail to do so, they cannot succeed. OTHER LEGAL PRINCIPLES AND LEGAL FRAMEWORK The Burden to Prove Defective Work [124] In the recent decision of the Honourable Judge J.T. Doulis of this court, in McCrea v. Fournier, 2017 BCPC 30 ; 2017B.C.J.

No. 240 (which is also is a case involving a dispute over a painting contract), reference and reliance is placed upon Goldsmith onCanadian Building Contracts, 4th ed. (Toronto, ON: Carswell 2009). Specifically, at paragraph 80, the court notes as follows: [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. ...

Whether work 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 onbalance that the contract has been breached. In civil cases the onus is on the party who asserts a proposition, usually the plaintiff. If the Claimants Prove Deficiencies, What Damages Are They Entitled to Receive [125] Like Judge Doulis, I find Justice Gauer's analysis in Sea-Bright Builders Inc. v.

Graves, 2016 BCSC 709 , in assessingdamages in this type of deficiency case, to be helpful: [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, [1998] B.C.J. No. 494, adopts the following from I.N.

Duncan Wallace Q.C., Hudson's Building andEngineering 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 awhole has been completed. ... It is suggested that, in deciding whether to substitute what are usually the lower bases of the difference invalue, or the 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), (BCCA), 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 theplaintiffs 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., (BCSC), [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". Analysis Assessing Credibility and Reliability of Witnesses

[ 126 ] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence. [ 127 ] In doing so, I must weigh all of the evidence.

In so weighing the evidence, I may reject or accept some or all of a witness's testimony, after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour; ability to perceive, ability to recall; motivation; probability or plausibility; and internal or external consistency. [ 128 ] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [ 129 ] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. ( See R. v.

Jackson , 2007 BCSC 636 ; see also R. v. Mann , [2010] A.J.

No. 1094 .) [ 130 ] Here I have heard evidence from the Claimants and from the Defendants that is conflicting on material matters regarding the extent of the alleged deficiencies, the various attending circumstances, about the costs to rectify any alleged deficiencies, and the agreements with respect to "trading" of certain work. [ 131 ] In assessing credibility, the testimony of each of the witnesses can be considered from three perspectives: (1) their truthfulness -- whether they are trying to tell the truth or intentionally lying when testifying; (2) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions; and (3) the accuracy of their observations, their abilities to observe, remember, and communicate accurately. [ 132 ] In R. v.

Cuhna , 2015 BCPC 60 , at paragraphs 5 and 6 , the Honourable Judge Merrick provides a useful review of the factors to be considered when assessing the testimony of a witness from these three perspectives. I have utilized those factors in assessing credibility in this case. [ 133 ] I do not find any of the witnesses to be purposefully untruthful or deceptive. However, their evidence must be analyzed to determine how reliable it is. In some instances, I have noted that the reliability of certain witness's evidence is more reliable or more objective or more accurate than others.

Findings With Respect to Facts in Dispute [ 134 ] In the evidence of Ms. Lund, she confirmed that the Claimants were suing in contract on the basis of the Building Contract. I note that no specific mention is made to a claim in negligence against the Defendants in the Notice of Claim. The submissions of the Claimants make various references to "negligence" on the part of the Defendants in the engagement and management of the work of Absolute Painting. However, in my view, and based upon the admissions of Ms.

Lund, this claim has, in my view, been framed in breach of contract and not in negligence. [ 135 ] Neither the Defendant Charles Appleford nor the Defendant Melissa Ollsin are parties to the Building Contract. Only the Corporate Defendant is a party, along with the Claimants. The Claimants have not proven any claims personally against the Defendant Appleford or the Defendant Ollsin, who were only involved in representative capacities as employees, officers, and directors of the Corporate Defendant.

Accordingly the claims against them are dismissed, and there will be an order accordingly. [ 136 ] I am satisfied that the contractual arrangements between the Claimants and the Corporate Defendant were based on the Building Contract which was not amended in writing. That Building Contract continued in force following the completion of the stages originally identified in it, and then throughout the finishing work, which included the painting work. There were from time to time oral variations and changes to the scope of the work for the finishing stage.

Most of this was done orally or by confirming email. [ 137 ] I am satisfied that the Claimants agreed to "trading" of certain items of work for others by Absolute Painting, as arranged from time to time, and as described by Ms. Ollsin. Her recollections on these issues were superior to that of Ms. Lund and some of what Ms. Ollsin stated in her viva voce evidence was corroborated by email exchanges and other documentary evidence. [ 138 ] The Contractor's warranty obligations are contained in paragraphs 5(

p) and (

q) of the Building Contract. The Warranty Information Document does not, in my view, formally modify the Contractor's warranty in order to limit or reduce it. In my view, that would require the consent of the parties to the Building Contract. The Warranty Information Document does provide some useful additional information about third party warranties that benefit the Owner. I am of the view that, given the broad language of paragraphs 5(

p) and (q), that proven painting defects and deficiencies are covered by the Contractor's warranty. [ 139 ] No issue has been raised by either party about any alleged failure to provide required notices under the warranty provisions. There are some instances where the Corporate Defendant denies that some of the deficiencies and defects alleged by the Claimants arise from defects in materials or workmanship. Some are in fact beyond the scope of the agreed work under the Second Loster Painting Quote and were late add-ons.

Some might have arisen beyond the one-year warranty timeframe. [ 140 ] On the whole of the evidence that I do accept, I find that the Corporate Defendant, and not the Claimants, entered into a contractual arrangement with Chad Loster doing business as Absolute Painting, in accordance with their obligations to provide and supervise sub-trades under the Building Contract. That obligation is contained in paragraph 5(

b) of the Building Contract. [ 141 ] Notwithstanding that the Claimants provided the Corporate Defendant with Mr. Loster's name, the representatives of the Corporate Defendant assumed all responsibilities, as they were required to, under the Building Contract with respect to qualifying and engaging Absolute Painting and its personnel as sufficiently skilled and qualified painters. That is a requirement of paragraph 5(g).

[ 142 ] I am of the view that Ms. Ollsin was perhaps overly swayed in the Corporate Defendant's selection of Mr. Loster and Absolute Painting because of the Claimants' previous contact with Mr. Loster. In my view the Corporate Defendant did not do sufficient due diligence work to check references and to clarify who was actually going to be performing the painting work. Mr.

Loster appears to have had limited involvement in supervising and overseeing his crew and being present at the Residence during much of the painting work, and was thereby not able to oversee quality control of the work and to avoid some of the problems that arose. [ 143 ] The evidence of Ms. Ollsin and Mr.

Henry discloses that there were apparent strengths and weaknesses in the painting crew provided by Absolute Painting. [ 144 ] Notwithstanding there was a failure to check out references for Absolute Painting, I do not fault the Corporate Defendant in accepting the quantum of the Second Loster Painting Quote from a financial perspective. Steps were taken to consult with another painter known to the Corporate Defendant for some confirmation as to that quote. I do accept that the Claimants accepted and approved the Second Loster Painting Quote.

I do not accept that the Claimants were looking to find a higher quote, or that they initially had any concerns that the Second Loster Painting Quote was too low, or ever expressed that concern to the representatives of the Corporate Defendant. [ 145 ] The evidence discloses that the Corporate Defendant, through the efforts of Ms. Ollsin, performed the supervisory tasks of the Absolute Painting crew and the oversight of the painting contract in a satisfactory manner, but with a couple of exceptions. One problem that the Corporate Defendant faced was the absence of Mr. Loster from the job.

That posed a problem and increased the necessary responsibilities of the Corporate Defendant. The main problem occurred when it became apparent that the Claimants' expectations and concerns about the quality of the painting became known to the Corporate Defendant and, in particular, when Mr. Lund notified the Corporate Defendant about these concerns in the August 7, 2014 email, and further directed that no further funds be advanced to Absolute Painting without authorization from the Claimants. The Corporate Defendant failed to heed that direction.

The responsibility of dealing with Absolute Painting was that of the Corporate Defendant and they had the discretion on how to deal with Absolute Painting. However, at this point the Corporate Defendant became aware of a problem and a mismatch between the high expectations of the Claimants and those of the painters. At that point a formal meeting between the Claimants, Ms. Ollsin on behalf of the Corporate Defendant, and Mr. Loster would have been in order to resolve issues at an earlier stage. That did not occur.

In my view, that, combined with a further unauthorized advance of additional funds, amounted to a breach of the Corporate Defendant's obligations under the Building Contract. [ 146 ] I do not accept the MPDA Report as an expert's report for several reasons. It does not contain a statement of qualifications of the author of the report, as contemplated by Rule 10(5) of the Small Claims Rules . It does not contain anything that confirms the duty of the purported expert to the court to provide an independent opinion.

It utilizes some undefined acronyms which are not in common usage outside of the world of perhaps construction or architecture or building design. As mentioned above, the timing of the apparent inspection and what collateral information was used to formulate the opinion is absent from the MPDA Report. The MPDA Report is not useful to the court. [ 147 ] Notwithstanding that, I do accept from the other evidence of the Claimants and the evidence of Ms. Ollsin that there were some defects and deficiencies in the painting work at the time that Mr.

Loster and any remaining employees of Absolute Painting left the job. [ 148 ] However, I am not satisfied that all of the Claimants' alleged defects and deficiencies are such. Similarly, I am of the view that the defects and deficiencies go beyond those admitted by the Corporate Defendant. [ 149 ] I accept that the Claimants' concerns about the alleged defects and deficiencies continued to increase as time passed. Further demands were added.

I also accept that the Corporate Defendant, for the most part, used reasonable efforts to attempt to remedy the defect and deficiencies and added their own money. [ 150 ] The Claimants contend that using the White Knight painting quote, $8,881.95, will be required to rectify the painting deficiencies and defects.

I am also mindful that the entire Second Loster Painting Quote, which included all of the painting and what appears to be more coats of paint than contemplated by the White Knight painting quote (but exclusive of the basement) only totalled $11,317. [ 151 ] The Corporate Defendant states that the painting warranty work (exclusive of the door replacement) can be corrected for $860. No third party estimates have been tendered in support of that amount. The estimate provided seems, on the whole of the evidence, to be unrealistically optimistic.

FURTHER ANALYSIS AND CONCLUSIONS [ 152 ] Using the guidance of Justice Gerow in the Quails View Farm case, I am of the view that the proper approach to assessing damages in this case should be on the "cost of reinstatement basis". I am satisfied that the Claimants will proceed to use any damages award to correct deficiencies and defects. I am also of the view that the approach of using "the difference in the cost to builder of the actual work done and work specified" or using the approach of "the diminution in value of the work due to breach of contract" are not relevant in this case.

In this case, the work was for the most part done but in some areas not done to an adequate standard. I am of the view that it is unlikely that there has been any appreciable diminution in the value of the Residence caused by the inadequate painting that I do accept as being a proven defect or deficiency. There is certainly no evidence to suggest that. [ 153 ] The quantum of what those damages should be is a challenging question. The Claimants are to be compensated, but not to gain a windfall from a damages award.

I am not satisfied that, based on all of the evidence, that the measure of damages should be as submitted by the Claimants. The painting job completed by Absolute Painting was, at best, adequate and certainly not superior. There are some continuing problems with the results produced by Absolute Painting. The Claimants agreed to a low price for their painting and they received a job of commensurate quality.

By way of analogy, I do not view it as equitable that having contracted for the Kia, being the economy version of a motor vehicle, that they should now be entitled to be compensated with the Cadillac, being the luxury version of a motor vehicle, and to have somebody else pay for that luxury version. Such would be the result if I accepted the White Knight Painting proposal as the measure of damages.

[ 154 ] I am mindful that the Claimants apparently put a great deal of value in the appearance of the paint job throughout their Residence. [ 155 ] However, I put a fair amount of weight on the evidence of Ms. Ollsin as to the nature and the extent of the deficiencies and the defects. For the most part, I accept her evidence in that regard. Notwithstanding that, having looked at the photographs, I am of the view that some of the caulking problems require warranty attention.

I am also mindful that I do not have an independent painting estimate that ties in directly with the specific deficiencies that have been identified by her. [ 156 ] I am also mindful that in December 2014, the Claimants were prepared to accept $2,000 to have the remaining inside work completed. According to their December 21, 2014 email, this was based upon having a couple of painting companies come through the house and give an "unbiased view" on the paint work.

It was also at a time apparently before the Claimants' expectations began to increase significantly about what was and was not a defect or a deficiency and their demands began to accelerate greatly. [ 157 ] Even though there may be some additional caulking required as evidenced in some of the photographs, in my view the amount of $2,000 will permit the actual proven defects to be corrected without overcompensating the Claimants.

DECISION AND ORDER [ 158 ] As noted above, the Claimants' claim against the Defendants Charles Appleford and Melissa Ollsin, in their personal capacities, is dismissed. [ 159 ] There will be a judgement in favour of the Claimants against the Corporate Defendant as follows: (

a) for damages to complete all warranty work for defects and deficiencies in the painting job of Absolute Painting and any remedial work arising therefrom, the amount of $2,000; (

b) for damages to replace the damaged closet door, the amount of $361.74; (

c) for the filing fee, the amount of $156; being a total of $2,517.74. [ 160 ] In addition, the Claimants will be entitled to other reasonable expenses in accordance with Rule 20, to be determined by the Registrar on the basis of paid invoices submitted, which may include, without limitation for service and attempted service upon the Corporate Defendant, but not upon the two personal Defendants. [ 161 ] The Claimants will also be entitled to court order interest to be calculated as prejudgment interest by the Registrar from February 19, 2016 to today's date, all in accordance with the Court Order Interest Act , RSBC 1996, c. 79, and amendments thereto.

Thereafter court order interest will be calculated as post-judgment interest in accordance with the Court Order Interest Act . [ 162 ] The payment order made pursuant to Rule 11(1) is that the total amount of the judgment will be payable immediately by the Corporate Defendant to the Claimants, but subject to further submissions that I will now hear from the representative of the Corporate Defendant regarding a payment schedule. [ 163 ] The Claimants will not be entitled to recover the cost of the MPDA Report. [ 164 ] Subject to further submissions regarding the payment schedule, this concludes my reasons for judgment. (DISCUSSION RE PAYMENT INSTALLMENTS) [ 165 ] THE COURT: Okay.

So the payment will be 25 percent, I will say within one week's time. [ 166 ] MELISSA OLLSIN: Yes. [ 167 ] THE COURT: Twenty-five percent of the total judgment within one week's time of today's date, and then 25 percent thereafter on the first day of each month commencing April 1st, 2017, and continuing with regular instalments thereafter of 25 percent of the total judgment on the first day of each month until the entire balance is paid in full.