Leitner v. Hlina Const. and Rebel Fiberglass Date:, 2017 BCPC 272

Citation: Leitner v. Hlina Const. and Rebel Fiberglass Date: 20170803 2017 BCPC 272 File No: 16034 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROLAND LEITNER CLAIMANT AND: HLINA CONSTRUCTION LTD. and REBEL FIBERGLASS MFG. INC. and TAMMY WAGNER dba REBEL FIBERGLASS DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Appearing on his own behalf: Roland Leitner Appearing for the Defendants: Bruce Hlina and Tammy Bechtold Place of Hearing: Salmon Arm , B.C. Dates of Hearing: June 5, July 24, 2017

Date of Judgment: August 3, 2017 Overview: [ 1 ] The claimant is suing for either the return of his money he paid to have his deck covered in fiberglass and/or for the costs in repairing the leaking fiberglass deck. [ 2 ] This dispute arises out of a construction contract between the claimant homeowner, and the construction company, Hlina Construction Ltd. [Hlina] with whom the claimant contracted to do his foundation, basement, garage, and roof framing which included providing a plywood substrate on the porch and deck above the garage. [ 3 ] Another company, Rebel Fiberglass Manufacturing Inc. [Rebel] was hired to install the fiberglass on the deck above the garage.

The contractual relationships were not formalized in writing, nor is there evidence that they were clarified through discussion. [ 4 ] The claimant directly hired other companies to install his heating, electrical work, insulation, drywall, flooring, cabinets and finishing. Although the claimant testified he did not know the definition of a ‘general contractor’, he did say that he registered with the Homeowner Protection Office as an ‘Owner Builder’. [ 5 ] The defendant, Tammy Wagner, now Tammy Bechtold, is a sole proprietor doing business as Rebel Fiberglass.

At the time of the installation of the fiberglass deck, she was an employee of the corporate defendant Rebel Fiberglass Manufacturing Inc. [Rebel], and did the installation. She testified that the corporate defendant is no longer in business.

There is no evidence suggesting her relationship with the apparently defunct limited company was non-arms-length. [ 6 ] The location of the building project was outside the area where building inspections to confirm compliance with the Building Code were required or even available. [ 7 ] The claimant and defendant, Hlina Construction, disagree as to whether the unwritten contract with Rebel was with the claimant in his capacity as a general contractor, or with Hlina as a subcontractor. The distinction may impact on any liability found by the court.

The claimant’s position is that Hlina hired Rebel as a subcontractor, and consequently both defendants are liable for the installation of a fiberglass deck that developed cracks and areas of delamination. [ 8 ] It can be inferred that the self-represented claimant bases his claim on not only his main argument that fiberglass should not have been used for the application and that both the defendants breached a duty of care owed to him for failing to advise against its use for the particular application, but also, in the alternative, for poor workmanship in the application of the fiberglass deck covering.

Was Rebel a Sub-contractor to Hlina? [ 9 ] The claimant and the principal for Hlina, Bruce Hlina, had a discussion about what type of waterproof covering the claimant wanted to put on the large deck area over top of his garage. Mr. Hlina gave the complainant three options: torch down (which as I understand it is a rubber membrane with the edges sealed by heat), fiberglass, or vinyl. He told the claimant that he was using fiberglass for a project at his own home but that was not over living quarters. Mr.

Hlina denies that he told the claimant that fiberglass was the best option. [ 10 ] The parties do agree that it was the claimant who made the decision to install fiberglass. Mr. Hlina was not contradicted in his testimony that he gave the claimant the names of two fiberglass companies and that the claimant asked to see colour samples. The evidence shows that it is more probable than not that of the two companies it was left to Mr. Hlina to choose which the claimant should use. Mr.

Hlina contacted the defendant Rebel to arrange for the work to be done. [ 11 ] Hlina contacted the claimant, who lives out of province, to arrange for monies to be transferred to him so he could pay the deposit to Rebel. After the job was complete Hlina again contacted the claimant for the remainder of the money owed to Rebel. The claimant sent this money to Hlina who paid it to Rebel. Again, there was no discussion as to the contractual relationship between the parties with regards to the fiberglass job. Mr.

Hlina says the only reason he contacted the claimant directly for the money owed to Rebel was because the claimant lived out of province and was at times difficult to contact so he paid the money directly and was reimbursed by the claimant. [ 12 ] The claimant says that with other trade contractors that he hired he paid them directly.

He says that in the case with Rebel, given it was Hlina who ultimately chose Rebel, obtained a quote from Rebel, and paid Rebel, that it is appropriate that Rebel be viewed as a sub-contractor to Hlina. [ 13 ] However, there is no evidence that the claimant relied on Hlina for the supervision of Rebel, or that Hlina did in fact oversee the fiberglass job. There is no evidence establishing that the parties developed a written or verbal agreement or understanding that Hlina would add to its framing and foundation contract a contract for the installation of the fiberglass deck covering.

There is also no evidence that Hlina benefited financially or otherwise from the fiberglass job. [ 14 ] All of these considerations, when coupled with the fact that the claimant registered himself under the Homeowner Protection Program as an ‘Owner Builder,’ and acted as the General Contractor in relation to other trades, lead this court to conclude that the claimant has not established Rebel was a subcontractor to Hlina. Based on the evidence, it is more reasonable to conclude that Hlina acted as agent for the claimant in arranging the fiberglass job.

Was a Duty of Care owed to the Claimant by the Defendants regarding the choice of the use of fiberglass as a deck covering?

[ 15 ] I also find the claimant has not established that Hlina breached a duty of care owed to the claimant on the basis of suggesting that one of three options for waterproofing the deck over top of the garage included the option of using fiberglass. [ 16 ] On this point, firstly I am unable to conclude on the evidence that it is more probable than not that the defendant Hlina recommended using fiberglass over the other two options. The claimant says Hlina recommended fiberglass over the other two options, and Mr.

Hlina says he did not. [ 17 ] In a situation where the court is faced with conflicting testimonies, it is not a case of simply choosing whose version the court prefers. The overall question is whether the claimant has established his claim. [ 18 ] I do note that there was, in the course of the trial, one example of the claimant being an inadvertent but nevertheless inaccurate historian. On day 2 of the trial, he attributed a comment to the court while cross examining a witness that the court did not make.

It was important to clarify because the context of the comment implied this court had knowledge of details of what took place in the settlement conference. The defendant Hlina recalled the comment in question was made at the settlement conference and not by this court during or prior to the start of trial. It was not until the digital recording of the discussion at the start of trial, when the comment was alleged to have been made, was played in open court that the claimant withdrew his assertion. That said, I do accept that both the claimant and Mr.

Hlina honestly believe in the accuracy of their respective recollections regarding their discussion about the choices of deck covering material, and I am unable to say whose version is accurate. Consequently, the claimant has not established Hlina recommended the use of fiberglass over using ‘torch-down’ or vinyl. [ 19 ] The claimant also says that both defendants should have told him not to use fiberglass as a deck covering on the basis that the deck over the garage is properly considered a ‘roof’, and resin impregnated wet laid fiberglass is not an approved ‘roofing material’ under the B.C.

Building Code: something he says both defendants should have known, and they also should have known he was relying on them for their expertise in this regard. [ 20 ] In regards to the question of whether the fiberglass product used was, or was not, approved or suitable for the particular application under the Building Code, the claimant entered into evidence a letter from an architect who provides the opinion that wet laid chopped or woven fiberglass mat with impregnated resin is not listed as an allowable roofing membrane under the BC Building Code.

The architect’s opinion goes on to state the following: “I have also contacted the Roofing Contractors Association of BC, whose manual and standards are widely considered as the definitive resource for all manner of roofing matters in the province. Their position is also that wet laid fiberglass membranes are not suitable for roof/deck services above any occupied space. In my personal 40 year career as an architect, I have witnessed numerous attempts at using fiberglass as a deck and or roof surfacing material.

I would say that I have only rarely seen such an application over a wood substrate that has withstood the rigours of sun and weather for lengthy periods. I have more commonly seen such assemblies fail prematurely due to cracking, splitting, delaminating from the substrate, or blistering. I can only surmise that evidence such as this is what caused those who have authored the building code and the RCABC to reject its use as a roofing membrane.” [ 21 ] In the opinion letter, the architect references s. 9.26.2.1(1) of the Building Code. That

section states that roofing materials shall conform to the materials listed in (

a) through (s). Hlina points out that sub

section (

j) of those listed materials seems to suggest that reinforced fiberglass is a listed roofing material. That

section reads as follows: (

j) CGSB 41-GP-6M, “Sheets, Thermosetting Polyester Plastics, Glass Fiber Reinforced,” [ 22 ] The claimant responds by submitting a document entitled ‘CGSB 41-GP-6M [Withdrawn] Sheets, Thermosetting Polyester Plastics, Glass Fiber Reinforced’.

On the back of that document under the heading “Full Description”, it is stated “This standard applies to flat and configured glass fiber reinforced sheets or panels made from thermosetting polyester plastics, intended for use in structural and decorative applications.” [ 23 ] Although no explanation was provided as to what the word ‘Withdrawn’ on the document was in reference to, the claimant's point is that this description, he says, should make clear that the reference in the code to ‘glass fiber reinforced’ does not mean a fiberglass mat reinforced with resin as was used on his deck. [ 24 ] Hlina also provided as evidence a document entitled ‘Evaluation Report CCMC 13473-R’ that purportedly provides an opinion from the Canadian Construction Materials Center that a product named Flex-Stone, when used as cold, liquid applied polyurethane roofing membrane in accordance with the instructions, complies with the National Building Code of Canada requirements for roofing materials.

The inferred relevance of this document is that Hlina is attempting to point out that there are products that are suitable as a roofing membrane that are not specifically referenced in the BC Building Code. [ 25 ] The above evidence sets out the challenges self-represented litigants face in making technical arguments before the court, and also the challenges the court faces in trying to interpret that evidence. This court recognizes that in many cases the cost of bringing experts to court is viewed by litigants as not justified when the claim is for a relatively small amount of money.

However there are times when expert evidence is necessary to assist in establishing a particular claim or defence. [ 26 ] I find, based on the architect’s letter that although in the past resin impregnated fiberglass may have been more widely used as a waterproofing membrane for decks, its use has fallen out of favour with roofers and that it is not listed as an approved material under the BC Building Code.

[ 27 ] However, this does not mean that I can find that either or both of the defendants should be viewed as having such specialized knowledge that the claimant would be entitled to wholly rely on without further enquiry. Neither of the defendants are roofers.

There is no evidence that the claimant believed Rebel or Hlina had any expertise in roofing, or knowledge as to whether resin impregnated fiberglass as a waterproofing membrane over a garage was or was not consistent with the Building Code (specifically whether it was captured or not by the phrase ‘glass fiber reinforced’), or whether there was any discussion at all as to whether strict compliance with the B.C.

Building Code was a term of the oral contract, given the project was outside the area where inspections to confirm compliance were required. [ 28 ] As stated previously, it was the claimant who decided on using fiberglass after the defendant, Hlina, set out three options to waterproof the deck over the garage. It was the responsibility of the claimant as the Owner Builder registered under the Homeowner Protection Office to ensure that all structures are built according to the BC Building Code.

In the document entered as Exhibit 5 entitled ‘Development Guide When There Is No Building Inspection ’ put out by the Columbia Shuswap Regional District, it is stated: Within the Columbia Shuswap Regional District (CSRD), Building Inspection only applies to a portion of the Electoral Area F (North Shuswap). If you are planning to build in any other area of the CSRD, building inspection is currently not required.

However, it is your responsibility, as the homeowner, to do the following: [1] Ensure that all structures are built according to the BC Building Code. ….[emphasis added] [10] Contact Home Owner Protection Office (HPO) If you are building your own home, you must apply to the HPO for an owner builder authorization permit before you begin to build. Ensure that your contractor is registered with HPO. [ 29 ] The claimant's home was built in an area where inspection services are not provided.

Although the Development Guide set out above is not a legal document, it does set out the common sense expectations of an Owner Builder. [ 30 ] The claimant has established his ability to determine what is and is not covered under the BC Building Code.

The claimant has not established that he was relying on the defendant's expertise or that the circumstances were such that it was reasonable for him to assume the defendants had expertise such that it could be said he was not negligent by failing to inform himself or inquire as to whether the fiberglass product used was a product consistent with the BC Building Code. [ 31 ] I also note that given the building was outside the area where inspections would occur, there was nothing legally or practically preventing the claimant in choosing to use fiberglass over other options.

The claimant’s own expert did not say that the use of fiberglass as a waterproof membrane on a deck covering a garage would fail in all circumstances. The architect’s opinion was that he had rarely seen a fiberglass deck stand up to the rigours of sun and weather for lengthy periods of time. [ 32 ] In these circumstances, it would be unreasonable to hold Hlina liable for a brief discussion as to what deck covering options existed for the claimant.

It was incumbent on the claimant as a registered owner builder, to make further enquiries as to whether all three options were consistent with the Building Code, or even whether Hlina, who had been hired to do the foundations and framing, and not as a general contractor, should be viewed by the claimant as having sufficient knowledge in roofing to be able to answer that question. In these circumstances the claimant should have put no more weight on Hlina’s three options beyond Mr.

Hlina saying that is what he has seen used on prior projects in similar circumstances. [ 33 ] I also cannot find on the evidence that Rebel, or Ms. Bechtold, should be viewed as having any specialized knowledge in roofing. The expectation of these defendants was to simply fiberglass the deck in a workmanlike manner, not to investigate whether the product was approved under the Building Code for the particular application.

There is no evidence the claimant relied on the fiberglass installers for specialized Building Code knowledge. [ 34 ] The claimant's alternative argument is that, leaving aside the issue of whether the defendants should have advised that the material was not an approved roofing material under the Building Code, it should have been known to the defendants that covering such a large area [the claimant evidence was the area was 2000 ft.²] with fiberglass made it predictable that the fiberglass would develop areas of cracking and delamination as a result of expansion and contraction of the fiberglass due to weather related temperature fluctuations, and that to go ahead and install in the face of that knowledge cannot be said to be proceeding in a workmanlike manner. [ 35 ] In considering this argument, I note the fiberglass decking was installed by Rebel in the spring of 2013.

In October 2013 the claimant had the defendant Hlina reposition some of the large porch support posts. Prior to the repositioning of the support posts, there were no problems with the deck. [ 36 ] In the process of this repositioning, damage occurred immediately to some of the fiberglass decking. Although there was no testimony as to which posts were repositioned, photograph no. 1 of Exhibit 8 shows four large logs used as support posts for the roof that partially covers the deck that would appear to require raising in order to fit into the notched slots in the cross log header supporting the roof.

Although nothing turns on whether these were the posts that required repositioning, it is clear that if they were, it is not surprising that the fiberglass decking was damaged in the process, as was conceded by the claimant in his Statement of Claim that it was. [ 37 ] The damage that forms the basis of the claim was first noticed by the claimant in September 2014.

Tammy Bechtold, one of the employees for Rebel who had initially installed the fiberglass, made repairs to areas where the fiberglass had cracked notwithstanding that the defendant Rebel Fiberglass Manufacturing Inc. was no longer in business and that she was now running her own business as a sole proprietor. [ 38 ] Ms. Bechtold came to the conclusion that the failure in the fiberglass was due to movement of the wood framing material under the fiberglass, and she advised the claimant of such. In support of this theory, she provided decisive photographic evidence that shows

wood connections under the fiberglass had pulled away from each other. [ 39 ] The claimant does not disagree that there has been movement in the wood framing and facia but says the movement was caused by the expansion and/or contraction of the fiberglass decking material caused by direct exposure to the heat of the sun during the day and cooling temperatures at night. Ms. Bechtold during her cross-examination disagreed with this theory and says fiberglass deck covering does not do that.

She also showed a photograph of a fiberglass deck that had been in place for many years without any cracking or delamination problems. [ 40 ] I find that there is no evidence to support the claimant's theory that the movement of the wood under the fiberglass decking occurred as a result of what would have to be a multidirectional expansion and contraction of the fiberglass. There is no evidence whatsoever that fiberglass reacts to temperature fluctuations in the way suggested by the claimant.

If that was a characteristic of fiberglass, one would have expected his architect to have mentioned it in his opinion letter. [ 41 ] I find it is more likely that the wood moved as a result of stresses relating to the wood framing material itself, not dissimilar to when the fiberglass failed due to the repositioning of the support posts, and it was the stresses related to this movement that resulted in areas of cracking and delamination. [ 42 ] I do not find that it has been established that the installation of the fiberglass deck covering by Rebel was done in a non- workmanlike manner. [ 43 ] I pause here to note that the un-contradicted evidence of Tammy Bechtold is that the defendant Rebel, is a defunct limited company.

Ms. Bechtold was one of the employees of Rebel employee who did the fiberglass installation. That fact does not make her personally liable for a contract with the limited company that employed her. Tammy Bechtold started doing business as a sole proprietor under the name ‘Rebel Fiberglass’ sometime after the work on the claimant's house had been completed. Ms. Bechtold was not the principal of Rebel, and there's no suggestion that the change had anything to do with the claimant's claim. [ 44 ] For the reasons set out above, I find that the claimant's claim against the defendants must fail.

I also find that the defendant Hlina’s counterclaim for $500 for his time to prepare his documents and to tarp the affected area and to get another contractor must also fail. This counterclaim was not pursued at all during the trial. _____________________________ R. D. Morgan Provincial Court Judge