Jerace v. Iranzad Date:, 2017 BCPC 196

Citation: Jerace v. Iranzad Date: 20170621 2017 BCPC 196 File No: 1625460 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: GARRY JERACE dba BLUE RIDGE PLASTER AND STUCCO CLAIMANT AND: SHAHRAM IRANZAD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Claimant: Kevin McKenzie Appearing on his own behalf: S. Iranzad

Place of Hearing: North Vancouver , B.C. Dates of Hearing: April 4, 5, 6, 25, and 26, 2017 Date of Judgment: June 21, 2017 [ 1 ] The claimant, Mr. Jerace, is the proprietor of Blue Ridge Stucco. His claim is for unpaid invoices for stucco work performed on the defendant’s new home.

The defendant and claimant by counterclaim say the stucco work was not properly done and he will be required to expend monies over and above what he owes Blue Ridge in order to rectify the deficiencies. [ 2 ] The claimant is also asking to be awarded monies for extra costs for scaffolding rental due to delay in the construction which in turn delayed the stucco work, repairs to a beam which was damaged by another tradesperson, and for work already performed but which had to be redone due to a rain screen deficiency on a deck. Mr.

Iranzad says he is not responsible to pay for the extra scaffolding as any delay was due to the claimant and the costs for the repair to the beam and the work Mr. Jerace said had to be redone was minimal and therefore the amount claimed is excessive. [ 3 ] The contract price was $62,000.00 plus GST. The claimant has been paid $45,000.00 leaving $20,100.00 owing including GST plus $5564.00 for the extras. Mr. Iranzad claims the cost to remedy the deficiencies will be $36,277.50. [ 4 ] Mr. Jerace has 50 years of experience doing stucco work. He started when he was 12 years old working for his father.

He said the majority of his work now is doing repairs which require a high level of expertise. Mr. Jerace had done work on another home for Mr. Iranzad who is a general contractor. He was building the subject home for himself and his family to reside in. Mr. Iranzad agreed that Mr. Jerace did excellent work on the previous project and he hired him again because of his meticulous attention to detail. [ 5 ] Mr. Jerace also called Ms.

Zantza who is a long time employee who applies tar paper, caulk, rods and blue skin around windows and engages in some aspects of the k-lathe all of which forms the base upon which the scratch coat, double coat and acrylic is applied. She made clear that Mr. Jerace is very exacting in his standards and does not tolerate any substandard work. Ms. Zantza said that the subject job site was the most poorly managed she had ever worked on. [ 6 ] Mr. Jerace provided a quote based on drawings in February of 2016. He returned to the site regularly to assess when it would reach a state where the stucco work could commence.

In early March, Mr. Iranzad said the site would be ready for the stucco work at the end of March. Mr. Jerace checked on the progress at the site during March and observed that there were many things not yet completed which should be done before the stucco work commenced. In particular, the ground where the scaffolding needed to be erected had not been back filled, there were problems with some flashings, and a roof over the front entrance needed to be completed. This was of concern to Mr. Jerace as he was arranging for skilled crews to be available for various stages of the stucco work as it progressed.

He said the home was not fully ready to have the stucco work done until early May and as a result they were only able to work part time in April doing what they could. As of early May, a worker he had arranged had taken other work due to the delay and Mr. Jerace attempted to find a replacement without success. Mr. Jerace also had another contract starting in July. He expected the subject job to be done by the end of May. [ 7 ] Mr. Jerace noted that the windows had a 1” rather than a 1.5” trim which would make it more difficult to work with and therefore more expensive.

The smaller trim would also make it more difficult to produce a clean line. Mr. Jerace said Mr. Iranzad did not seem to appreciate his concern. Mr. Jerace asked him several times for the building envelope engineer’s specifications in order to provide an accurate estimate of the extra costs but these were never produced. Mr. Iranzad simply asked him to try and keep the costs as low as possible. Mr. Jerace suggested a method of dealing with this issue which in his experience would have produced the best result. Mr. Iranzad did not agree with him and so Mr.

Jerace proceeded in a more time efficient manner which was in accord with industry standards. [ 8 ] Mr. Jerace also described that the flanges around the windows were bent or improperly caulked and some frames were scratched. The carpentry work was also deficient in various areas and some areas of flashing were lacking 2 x 2s to support them. He brought these concerns to the attention of Mr. Iranzad but they were not addressed except that 2 x 2s were installed after the fact behind the flashings which were not straight or high enough to prevent water from seeping in. This was mentioned in the context of what Mr.

Jerace saw as generally substandard carpentry work. Mr. Jerace did what he could to remedy some of these issues cosmetically. In particular, he tried to deal with the bent flanges by cutting the Styrofoam trims as a work around to conceal the uneven flanges. [ 9 ] Mr. Jerace said any protrusions for electrical or plumbing or vents, etc. should all be in place before the stucco work commences. This is due to the code requirements regarding the proper application of the tar paper. Mr. Jerace said protrusions were still being installed as the stucco work was being carried out. Ms. Zantza invoices Mr.

Jerace piecework for this and an invoice she prepared and gave to him evidences that she spent 41 hours dealing with repairs around protrusions. [ 10 ] Mr. Jerace testified Mr. Iranzad specifically authorized him to repair the beam for the amount quoted. Mr. Iranzad admitted in his evidence that the trade who damaged the beam had agreed to pay for the repair and subsequently did so in the amount Mr. Jerace invoiced for. Despite alleging that Mr. Jerace was “gouging” him with respect to the cost of this repair in his pleadings, he agreed in evidence this was something that should be credited to Mr.

Jerace. [ 11 ] Mr. Jerace testified he warned Mr. Iranzad that the rain screen which had been installed on the floor of the deck would not pass on inspection. Nevertheless, Mr. Iranzad instructed him to proceed with the paper and k-lathe on the walls in that area. Mr. Jerace and Ms. Zantza described in detail the state of their work at the time the decking material had to be removed and what they had to re-do which took 26 hours total. It was memorable as it involved very difficult work on their knees or lying flat. [ 12 ] Mr. Jerace said Mr.

Iranzad never provided a bin for debris and the various trades were dumping their debris in a pile in an area of the driveway which is contrary to Worksafe BC requirements. Mr. Jerace spoke to Mr. Iranzad about the need for a bin but one was

never provided. In order to have a place for the sand and cement required, Mr. Jerace and his crew had to clean up and move the debris which took several hours. [ 13 ] As a result of the delay and his usual crew no longer being available, Mr. Jerace arranged for a crew from Alberta to come to apply the window trims, scratch coat, double coat and acrylic. Mr. Jerace was on site throughout their work through the application of the double coat. The Alberta crew left while it cured for the required 21 days. Mr.

Jerace was unable to contact them to determine when they would be returning to complete the trim and acrylic. Mr. Iranzad was able to contact them and they returned to the site. However, Mr. Iranzad instructed them to continue working after hours and on weekends and at other times when Mr. Jerace was not on site to supervise them. In Mr. Jerace’s opinion, their work was “mostly acceptable” however he was not satisfied generally with their standard of work on the window trims. It is significant that the areas that Mr.

Jerace completed on his own or that were done under his supervision were assessed to have been done to a very high standard by Mr. Iranzad and his expert. [ 14 ] In accord with the advice of Mr. Iranzad the scaffolding was delivered on March 31 st . The last of the scaffolding was returned on July 19 th . The period of time the scaffolding was required on site was 45 days longer than Mr. Jerace anticipated. [ 15 ] In mid-July, Mr. Jerace addressed any deficiencies he was aware of and said there were no issues brought to his attention by Mr. Iranzad. Mr.

Jerace said he was required to return to the site at some future time to finish areas which were not yet ready to be dealt with by him. When this occurs it is considered to be an extra cost as all their equipment has to be brought back and smaller areas have to be addressed which requires more time to perform than if the entire job can be done in an orderly and complete fashion. Mr. Jerace said Mr. Iranzad was aware of this as the same issue arose at the previous job and had been invoiced and paid for as an extra. [ 16 ] In early August, Mr.

Jerace inquired about his final invoice and was informed for the first time about Mr. Iranzad being unsatisfied with the way the work had been done and that it had not been done in a timely way. Mr. Jerace returned to the site and remedied several minor deficiencies and was told he would be paid. Thereafter, Mr. Iranzad refused to pay the final invoice or for the extras. [ 17 ] Mr. Iranzad testified. He did not contest the events up to the delivery of the scaffolding. He expected the stucco would be complete by mid-June at the latest. Mr. Iranzad said the site was ready and he could not understand why Mr.

Jerace and his workers were only on site part time in April. He thought they should be working for more than 8 hours a day at that time and there should have been more people on the crew. By the end of April he had become concerned the job would not be done in time. [ 18 ] By mid-May he thought the stucco was only 25% complete and Mr. Jerace assured him they would catch up. Contrary to his impression of the progress being made by Mr. Jerace, the envelope was inspected and passed on June 5 th and the Alberta crew then started the scratch coat. By mid-June he said the stucco work was 50% complete.

He said the Alberta crew left after the first week of June to allow the double coat to cure. They returned the first week of July and did not complete the acrylic until the end of July. He said Mr. Jerace and his crew were no longer coming to the site after the first week of July. Mr. Jerace did return for a few days at the end of July or early August to address some deficiencies. [ 19 ] He said there was never any mention of extras by Mr. Jerace at any time. Mr. Jerace only spoke to him about making sure he prioritized the protrusions and about the trouble he was having hiring workers. Mr.

Iranzad said all the protrusions were complete in time and that it is just a matter of a bit of patching if they are added after the fact. [ 20 ] In cross-examination Mr. Iranzad was not able to explain how the acrylic was done if the scaffolding had been dismantled and removed from the site. He resiled from much of the timeline he testified to in direct when confronted with the allegations in his Reply and Counterclaim. He suggested the invoices in the claimant’s evidence had been falsified and the work attested to by Mr. Jerace and Ms. Zantza had not been done.

He described their work as sloppy and inconsistent in quality but said he was hopeful Mr. Jerace would return to re-do the work. [ 21 ] He conceded Mr. Jerace had spoken to him about the extra time that would be required due to the 1” inch trim but said he never mentioned there would be extra cost. He also agreed Mr. Jerace had asked for input from his building envelope engineer but said he would deal with it himself.

He took the position that even if he was aware that extra labor would be required to re-do work due to late installation of protrusions or due to deficiencies from the work of other trades and even if he specifically requested that extra work be done by Mr. Jerace, he was not responsible to pay for it because it had not been reduced to writing. His evidence as to the extent of the work required to be done to re-do the area around the rain screen on the deck was vague and I do not accept he has any actual knowledge about this issue. [ 22 ] Mr.

Iranzad called Karl Elmore as an expert witness who was qualified to give evidence in the application of stucco. He provided a one page report in point form which was prepared in September of 2016. He attached 6 photographs he took of some minor deficiencies. He also commented on some photographs taken by the building envelope engineer. He pointed out a number of deficiencies in the finish and some very small areas where double coat was missing. [ 23 ] In his opinion the all window trim should be removed and replaced with manufactured trim.

He did agree that if the substrate material under the trim is not plumb or true, the trim would inherit the irregularities. In his view there would not be a significant amount of extra work involved in dealing with 1” trim around the windows as opposed to 2”. Overall, Mr. Elmore’s opinion cannot be given significant weight as he did not conduct a detailed assessment of the condition of the finished stucco. I accept the direct evidence of Mr. Jerace and Ms. Zantza on this issue as they had the benefit of seeing and working with the substrate and the windows. [ 24 ] Mr.

Elmore opined that to remedy the deficiencies, the trims should be removed and replaced and the acrylic on the walls re- applied. No evidence was submitted by Mr. Iranzad as to the cost of such work. He did provide a single quote for the refinishing of the stucco which sets out a greater scope of work than his expert testified would be necessary. [ 25 ] Mr. Jerace and Ms. Zantza testified in a forthright, fair minded, and sincere manner. Each witness demonstrated a clear understanding of all aspects of their trade. Their evidence was internally consistent, consistent one to the other, and consistent with the

photographs. Their evidence was logical, reasonable, and in accord with the preponderance of probability. I accept that Mr. Jerace is a highly qualified tradesperson who is meticulous about his work. Ms. Zantza was also a very impressive witness in terms of the clarity of her evidence and recollection. I accept their evidence as to the events and the work they had to do. [ 26 ] On many points Mr. Iranzad was evasive or non-responsive. His evidence was often inconsistent and, at best, careless as to detail. I find his recollection of the course of events is not reliable. I do not accept his evidence that Mr.

Jerace never spoke to him about any extra costs related to the contract work or extra charges outside of the scope of the contract. [ 27 ] I accept Mr. Jerace’s evidence concerning his interactions with Mr. Iranzad about the various challenges and the extra work and expenses which would arise from them. I accept that any delay was due to circumstances on the job site which were not within the claimant’s control. I accept that Mr. Jerace discussed the various issues he encountered with Mr. Iranzad. Given that he is an experienced contractor, I infer Mr.

Iranzad would have known that additional costs would be incurred as a result even if the amounts were not specifically discussed and agreed to. In the circumstances, I find neither party operated on the basis that written agreement was required for any extras. As such, Mr. Jerace is entitled to be compensated for these extra charges on a quantum meruit basis. [ 28 ] I find Mr. Iranzad arranged for them to commence their work prematurely which resulted in many of the extra expenses. I find that Mr. Iranzad was concerned with cost savings and so did not accept the expertise of Mr.

Jerace when he addressed him about any deficiencies which would affect the quality of the appearance of the final product. I accept that the deficiencies in the quality of the appearance of the finished stucco is due to underlying deficiencies in the carpentry or window flanges and to work by the Alberta crew which was done without Mr. Jerace on site to supervise. [ 29 ] I find Mr. Jerace dba Blue Ridge Stucco is entitled to be paid for the outstanding amount of his invoice on the main contract and for the extras claimed. I find it was an implied term of the contract that Mr.

Jerace would be able to complete all the stucco work in one uninterrupted period and that the failure of Mr. Iranzad to have the site completely ready was a breach of that implied term and Mr. Jerace is entitled to the full contract price without a deduction for the area around the front door. [ 30 ] It appears from his argument that Mr. Iranzad does not appreciate that Mr. Jerace is not claiming for all the extra time incurred with respect to the 1” trim around the windows, the protrusions, reinforcement of the foot bridge, or the garbage clean up.

He is claiming only for the extra scaffolding cost which I have found to have been occasioned by delay on the part of Mr. Iranzad, the beam repair which has been conceded, and the work relating to the replacement of the rain screen on the deck which he is entitled to on a quantum meruit basis in the circumstances. [ 31 ] I find Mr. Iranzad has failed to prove his counterclaim to the balance of probability. [ 32 ] Judgment is granted to the claimant Mr.

Jerace dba Blue Ridge Stucco in the amount of $25,664.00 consisting of $20,100.00 for the balance owing on the contract, $2100.00 for the beam repair, $1200.00 for the extra labor required to re-do the deck area and $2264.00 for the extra scaffolding costs. This judgment will be reduced to $25,000.00 due to the jurisdictional limit of this court. [ 33 ] The claimant is also entitled to filing fees in the amount of $156.00 and service fees of $80.00 and pre-judgment interest from August 1, 2016. ________________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia