Portnoy and Khait v. Pacific West Mechanical Date:, 2017 BCPC 165

Citation: Portnoy and Khait v. Pacific West Mechanical Date: 20170227 2017 BCPC 165 File No: 16-56503 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: ROMAN PORTNOY & LYUDMILA KHAIT CLAIMANTS AND: PACIFIC WEST MECHANICAL LTD. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: R. Portnoy and L. Khait Appearing for the Defendant: C. Gilbert, Director Place of Hearing: Vancouver , B.C.

Date of Hearing: January 25, 2017 Date of Judgment: February 27, 2017 [ 1 ] This matter concerns repairs carried out by the Defendant in the condominium unit owned by the Claimants at #1003 - 1228 Marinaside Crescent, Vancouver, B.C. (“#1003”). [ 2 ] The amount in dispute is nominal.

The parties advised me the dispute had become a point of principle between them. [ 3 ] The property management company, Rancho Management (“Rancho”) arranged for inspections to be carried out as part of the standard maintenance for the condominium building. [ 4 ] While representatives from the Defendant were at #1003, they advised Ms. Khait that the kitchen plumbing required minor repairs. Ms.

Khait arranged for the Defendant’s representative to discuss the repairs with her husband, Roman Portnoy, who had considerable construction experience. [ 5 ] The Claimants say that they made a contractual arrangement with the Defendant to have the repairs done for $99 as a fixed price based upon the time the Defendant’s representative estimated to complete the work. [ 6 ] The Defendant’s representative, Ms. Gilbert, testified that no fixed contract was made.

She relies upon the witness statements contained in the Trial Statement, but none of the representatives from the Defendant who provided statements testified. [ 7 ] Accordingly, if there is a dispute in the evidence between the Claimants and the Defendant concerning the contract, I accept the Claimants’ evidence. However, there is more to the story than the contractual arrangement. [ 8 ] During the Claimants’ evidence, I was told that they had recently replaced the kitchen sink.

When the repairs were carried out, there was debris in the line which could not have been known to the Defendant at the time of the contract.

These repairs account for the additional time over the one hour estimated by the Defendant’s representative, which resulted in the additional charges. [ 9 ] As the Defendant did not know that there was debris in the line when the contract was made, they cannot be held to the terms of the contract. [ 10 ] I accept the evidence of the Claimants and it does not appear to be seriously contradicted by the Defendant, that the additional work took between 2 and 3 hours to complete. [ 11 ] As the amount in dispute is $241.84, there is little more than I can do than to meet out some rough justice.

It is fair that the Claimants pay an additional $150, as I prefer the Defendant’s evidence of their recording of time than the time estimates provided by the Claimants. [ 12 ] Also, the Claimant seeks recovery of a full day of loss wages of Ms. Khait, as she was required to be at #1003 for entry of the Defendant’s representative to complete the work. [ 13 ] Ms. Khait works in Richmond and takes the bus to and from work.

She determined it was unrealistic for her to go to work and then return to be at the subject premises for 1 p.m., which she said was the set time for the appointment. [ 14 ] It is the practice of the Defendant to provide a window for the service appointment which, in this case, would have been between 1 p.m. to 3 p.m. [ 15 ] Ms. Khait testified that she works part-time and there was no explanation given that she had to attend work on that date or could not have completed her work task at another time. Furthermore, there is no explanation why Ms.

Khait did not take a taxi home so she could work part of the day. [ 16 ] The Claimants are not entitled to recover the loss wages, as I am not satisfied the Claimant could not have made other arrangements for her work. [ 17 ] The Claimants are entitled to: Difference in charge claimed $241.84 Less: Amount assessed to be paid ($150.00) $91.84 [ 18 ] As this dispute is a point of principle between the parties, I award 50% of the expenses the Claimants incurred. [ 19 ] There will be judgment in favour of the Claimants, as follows: Credit for invoice paid: 91.84 Corporate & BC Online Search $ 33.34 Filing fees: 100.00

Service fees: 20.00 $153.34 50% 76.67 76.67 Total amount owed: $ 168.51 [ 20 ] I decline to award pre-judgment interest. __________________________ Lawrence A. Kahn Adjudicator