Lind v. Storey, 2021 BCPC 2

Citation: Lind v. Storey 2021 BCPC 2 Date: 20210106 File No: 18220 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: DARRELL LIND CLAIMANT AND: DAVID STOREY HEATHER STOREY DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on his own behalf: D. Lind Appearing on their own behalf: H. & D. Storey Place of Hearing: Quesnel , B.C. Date of Hearing: November 30, 2020, and December 1, 2020 Date of Judgment: January 6, 2021 Introduction [ 1 ] David Storey is disabled with Multiple Sclerosis. In the summer of 2019, he and his wife decided to renovate one of the

bathrooms in their family residence to make it wheelchair accessible. David and Heather Storey live at [omitted for publication], Quesnel, BC. It is an older home, built in the mid-1970s which the Storeys purchased in 2014. In order to make it accessible and accommodating to persons who are wheelchair dependant the bathroom had to be redesigned and reoutfitted. This included: (

a) widening, moving, and redesigning the doorway to allow for the passage of a wheelchair; (

b) installing a curbless shower; (

c) installing grab bars near the toilet and in the shower; (

d) replacing the existing vanity with a pedestal sink; and (

e) installing fixtures which persons with diminished agility could manoeuver. [ 2 ] The Storeys sought estimates from three sources and ultimately contracted with Darrell Lind of “Lind on Homes” to renovate the bathroom. Mr. Lind’s estimate was significant lower than the other two the Storeys obtained. The Storeys were dissatisfied with Mr. Lind’s workmanship, delay in completing the project, and invoices for “extras.” Shortly before Mr. Lind completed the project, the Storeys told him he was “finished” and directed him not to return.

The Storeys hired other contractors to finish the project and rectify the deficiencies. They deducted the cost of doing so from the balance owing to Mr. Lind. The Storeys deny any liability for extras. Mr. Lind seeks payment of the outstanding amounts owing under his invoices without deduction. Issues: [ 3 ] The issues before the court in this matter are as follows: a. What were the terms of the contract? b. What is the extent and value of the work completed by Mr. Lind outside the scope of the contract? c. Was there delay in completing the Project and damages arising from the delay? d.

What were the deficiencies in Mr. Lind’s work on the Project? e. Did either party breach the contract? f. What amount, if any, are the Storeys entitled to set-off to remedy the deficiencies? g. Can the Defendants rely on the doctrine of accord and satisfaction? [ 4 ] This matter came before me for trial in Quesnel Provincial Court on November 30, 2020, and December 1, 2020. I heard oral evidence from Darrell Lind, Heather Storey, David Storey, Patrick Jones, and Hank Schiller. I accepted Patrick Jones as an expert witness qualified to give opinion evidence on residential bathroom plumbing.

I received into evidence the following exhibits: Exhibit 1: A booklet of documents tendered into evidence by Mr. Lind containing documents identified as sub-exhibits 1 to 16; Exhibit 2: Mr. Lind’s July 12, 2019 Quote for the Project; and Exhibit 3: A forty page booklet of documents tendered into evidence by Heather Storey. [ 5 ] At the conclusion of the trial on December 1, 2020, I reserved my decision. These are my reasons for judgment. Background Facts [ 6 ] David and Heather Storey have been married for 47 years. In 2014, the Storeys lived in Grande Prairie, Alberta. As Mr.

Storey was becoming increasing physically disabled with multiple sclerosis, they decided to look for a more wheelchair accessible residence in a milder climate. In 2014, the Storeys purchase the residence at [omitted for publication], in the [omitted for publication] just outside Quesnel, BC. It was an older home constructed in the mid-1970s, but attractive to the Storeys because it was a single-story rancher. [ 7 ] Unfortunately, the [omitted for publication] residence had been vacant for two and one-half years prior to its purchase and needed significant work to make it liveable.

The Storeys had the crawl space fully remediated, as three of its four sides were rotten. They also replaced a number of windows, replaced carpets with vinyl flooring, installed a new furnace and hot water tanks, and painted the residence throughout. The Storeys hired various contractors and tradespersons to perform the renovations, including painters, electrician, and plumbers. [ 8 ] The Storeys had a significant history in renovating residential properties. For 20 years Mr. Storey owned and operated S & S Contracting, a business providing renovation services in northern Alberta.

Over the years, the Storeys also acquired and renovated for their own use five older residences in Alberta and British Columbia. [ 9 ] The [omitted for publication] residence had more than one bathroom. I gather one of the bathrooms had a bathtub and the other a shower. The one subject to these proceedings was the shower bathroom. Although fully functional, the shower bathroom was not accessible or accommodating to a person who was wheelchair dependant. Initially, Northern Health provided assistance with bathing Mr. Storey in the bathtub.

In 2019, the home health supporters advised the Storeys it had become too dangerous to transfer Mr. Storey from his wheelchair to the bathtub so the Storeys endeavoured to renovate the shower bathroom to make it wheelchair accessible. [ 10 ] The Storeys applied for a grant from BC Housing’s Home Adaptations for Independence Program (HAFI) to assist with the costs of adapting the shower bathroom to accommodate Mr. Storey’s wheelchair and disability.

The grant process required the Storeys to provide written estimates from different contractors able and willing to perform the renovations for which funding was sought. The Storeys submitted the following three estimates, two of which were in writing: a. An oral quote from a contractor named Eddy, last name unknown, who estimated it would cost $18,500 to renovate the bathroom. Eddy’s estimate included the cost of reinforcing the bathroom walls with plywood to facilitate the installation of grab bars;

b. A written estimate from Schiller Flooring and a subcontractor, who estimated the cost of labour, materials, and fixtures to renovate the bathroom would be approximately $22,000; and c. A written quote from Mr. Lind’s proprietorship, Lind on Homes, dated July 12, 2019, which estimated the cost of materials and labour to renovate the bathroom to be $7,250: Exhibit 2. [ 11 ] In July 2019, Mr. Lind was not busy and available to undertake the Storeys bathroom renovation project immediately (the “Project”). He came and inspected the premises and checked the plumbing in the crawl space.

He anticipated the Project would take about three weeks. The Storeys decided to contract with Mr. Lind as his estimate for the Project was significantly lower than the other two they had acquired. In mid-September 2019, Ms. Storey called Mr. Lind and postponed the Project until the end of October because the Storeys had not received a response from BC Housing on their HAFI application. [ 12 ] By mid-October the Storeys still had not heard from the HAFI Program as to whether or not their application for financial assistance had been approved. Ms. Storey contacted Mr.

Lind and again postponed the Project for another month or so. Mr. Lind says at that time he warned Ms. Storey his

schedule was becoming booked up with pre-Christmas renovations. She asked him if he could fit in their project whenever he could, to which he agreed. [ 13 ] The HAFI application process took much longer than the Storeys anticipated and ultimately it was not until late October 2019 when BC Housing notified the Storeys their application had been denied. Upon receiving this information, Ms. Storey contacted Mr. Lind and asked him to undertake the Project in any event. By this time, Mr. Lind was booked solid with other projects. Ms. Storey asked him to undertake the Project when he had time available. Mr.

Lind agreed and in late November 2019, Ms. Storey provided Mr. Lind with a $4,000 deposit for his work on the Project. [ 14 ] Mr. Lind has been in the renovation business since 2008. He was trained in carpentry at the College of New Caledonia in Prince George, BC. Although he is able to build a house from a blueprint, he prefers smaller jobs. He says if he encounters anything in a project he does not think he can handle he subcontracts the work to a qualified tradesperson. [ 15 ] Mr. Lind’s proprietorship, “Lind on Homes” has its business premises at 623 McLean Street, Quesnel, BC. Mr.

Lind’s son also works in the business. [ 16 ] Mr. Lind commenced work on the Storeys’ bathroom project on December 3, 2019. He worked intermittently until February 11, 2020, at which time Ms. Storey advised him he was finished and instructed him not to return except to pick up a cabinet and a water tap fixture he had provided and she did not want. [ 17 ] Mr. Lind dealt with both Mr. and Ms. Storey over the course of the Project, although 75 percent of his dealings were with Ms. Storey. During this period Ms. Storey worked outside the home at Shoppers Drug Mart. Mr.

Storey no longer worked and was often sleeping while Mr. Lind and his son worked on the Project. Ms. Storey frequently left Mr. Lind notes with instructions or suggestions. The Storeys refused Mr. Lind access to their home unless one of them was present. [ 18 ] Mr. Lind ordered the shower basin from a dealer in Prince George and a supplier in Abbotsford. It took three and one-half weeks to cast and deliver the basin and Mr. Lind had to drive to Prince George to pick it up. Mr. Lind also ordered quartz panels for the shower walls, which he had to drive to the Lower Mainland to pick up. Initially Mr.

Lind believed the shower base was not that which he had ordered because it had a small lip on the front which could impede wheelchair access. He decided to keep and use the basin rather than having a new one cast and deal with the lip by way of a transition strip. [ 19 ] In the course of his work on the Project, Mr. Lind discovered the Storey residence had 1.5 inch piping, which was acceptable in the 1970s when the house was built, but undersized by today’s plumbing standards. The current BC Plumbing Code (2018) requires two inch piping in a bathroom: Exhibit 1.16. [ 20 ] As Mr.

Lind was busy with other commitments he could not devote much time to the Project until January 2020. [ 21 ] On December 6, 9, and 30, 2019, Mr. Storey ordered grab bars from Grab Bars Canada, for which he paid $224.81, $64.17 and $36.18 respectively: see Exhibit 3, pp. 8, 9, and 10. [ 22 ] On December 31, 2019, with Mr. Lind’s permission, the Storeys asked The Great Indoors HVAC Company (“HVAC”) to relocate a heat register in the shower bathroom, at a cost of $163.14: see Exhibit 3, p. 4. The existing register was situated in a location where the new and larger shower was to be installed.

HVAC performed this work as an adjunct to other work they had undertaken in the Storey residence at the time. [ 23 ] On February 11, 2020, the Project was nearing completion and Mr. Lind left his invoices in the bathroom on the back of the toilet. He had intended on returning the following day, completing the Project, and presenting the Storeys with his invoices. Ms. Storey returned home after work in the late afternoon on February 11, 2020. She discovered Mr.

Lind’s two invoices in the bathroom, one of which was for the work included in the July 12, 2019 Quote in the amount of $7,250 and one for “extras” in the amount of $1,758.75: see Exhibit 1.2 and 1.3; Exhibit 3, pp. 1, 2, and 14. The extras included: (

a) installing the pedestal sink twice in two different locations; (

b) installing a two inch shower downpipe; (

c) installing the toilet grab bars; (

d) reinforcing the bathroom floor; (

e) shower fixtures; (

f) extending the hallway flooring; (

g) time lost when Mr. Lind and his son were denied access to the residence; and (

h) repairing damage to the hallway walls caused by Mr. Storeys wheelchair. At that time, Mr. Lind did not deliver to the Storeys an invoice for the installation of the quartz shower panels. [ 24 ] Ms. Storey called Mr. Lind at 5:57 pm on February 11, 2020. She had discovered the invoices and was angry Mr. Lind had billed for extras. She told Mr. Lind he was “finished” and directed him not to return. At that time there was about one day’s worth of work yet to be done to complete the Project and correct deficiencies.

On February 19, 2020, the Storeys hired HVAC to provide plumbing services and fixtures in the bathroom they considered absent or deficient. HVAC billed the Storeys $899.03, which the Storeys paid immediately: See Exhibit 3, p. 5.

[ 25 ] On February 19, 2020, Ms. Storey paid $335.99 to Home Hardware Building Centre for a bathroom linen cabinet: Exhibit 3, p. 7. [ 26 ] On February 22, 2020, the Storeys retained Schiller Floors to replace the oversized schluter edge on the bathroom tile and install a transition strip on the shower basin. Schiller Floors invoiced the Storeys $914.49 for work and materials: Exhibit 3, p. 6. [ 27 ] On March 27, 2020, Mr.

Lind signed a Claim of Lien under the BC Builders’ Lien Act (the “Builder’s Lien”) against the lands and premises situated at [omitted for publication], Quesnel, B.C., legally known and described as: [omitted for publication] [omitted for publication] [omitted for publication] See Exhibit 3, p. 13. [ 28 ] In his Builders’ Lien, Mr. Lind states the sum of $4,588.67, was owing to “Darrell Lind” (Lind on Homes) as of February 16, 2020. The Builders Lien was registered under number WX2144959 on April 3, 2020. The $4,588.67 represents the aggregate of the monies owing under Mr.

Lind’s two invoices issued on February 11, 2020: $3,250 outstanding from the July 12, 2019 Quote of $7,250, plus Mr. Lind’s invoice for extras in the amount of $1,758.75 ($7,250 – $4,000 deposit + $1,758.75 - $420.08 paid March 2, 2020 = $4,588.67). [ 29 ] On April 2, 2020, Mr. Lind wrote a letter to the Storeys confirming: (

a) he had sent the invoice for the extra work; (

b) the vanity and grab bars and their installation were not included in July 12, 2019 Quote; and (

c) he was not liable for the invoices rendered by HVAC or Schiller Floors. Mr. Lind agreed the schluter needed replacing, but that Schiller Floors had charged five times its actual cost. Mr. Lind makes no reference to the quartz shower panels as an extra in his April 2, 2020 correspondence: see Exhibit 3, pp. 20-21. [ 30 ] On July 28, 2020, Mr.

Lind filed a Notice of Claim in Small Claims File 18220, Quesnel Registry, in which he claimed against the Storeys $8,553.95, comprising of: a. $3,250 outstanding on the July 12, 2019 Quote ($7,250 - $4,000 deposit) invoiced on February 11, 2020; b. $1,758.75 invoiced as extra work on February 11, 2020; c. $2,625.75 as an upgrade for the quartz shower panels; d. $763.45 for “late charges”; and e. $156 filing fees. [ 31 ] Mr. Lind’s Notice of Claim did not account for the $420.08 the Storeys paid him by bank draft on March 2, 2020. [ 32 ] On August 10, 2020, the Storeys filed a Reply disputing Mr.

Lind’s Notice of Claim. In their reply, the Storeys claim they incurred $2,829.92 to fix the poor workmanship. They deducted this sum from the $3,250 outstanding on the original invoice (the July 12, 2019 Quote), and paid Mr. Lind the remaining $420.08 by bank draft on March 2, 2020. The Storeys denied any liability for the $1,758.75 billed as extras. They specifically deny the quartz panels were an upgrade to which they agreed to pay as an extra to the July 12, 2019 Quote. [ 33 ] On August 25, 2020, Mr. Lind and the Storeys attended a Settlement Conference in the Quesnel Provincial Court.

Issue # 1: What were the terms of the contract? [ 34 ] On July 12, 2019, Mr. Lind provided the Storeys with a written quote from “Lind on Homes,” which was marked Exhibit 2 at trial. The quote provided: a. Complete tear out and redo a bathroom to accommodate wheelchair access; b. Supply all materials and labour to complete; c. Time line: three weeks are needed to complete this job; and d. Senior discount: no taxes. [ 35 ] Mr. Lind quoted the Storeys $7,250 for the Project, 50 percent of which was payable prior to his commencing work.

Legality of the contractual terms [ 36 ] At the outset, I found the reference to the “senior discount: no taxes” troublesome. As a real property contractor, Mr. Lind must pay Provincial Sales Tax (“PST”) on taxable goods necessary to fulfil his contact, although he does not charge the customer PST. Mr. Lind is, however, obligated to collect and remit to Canada Revenue Agency the Goods and Services Tax (“GST”), which in British Columbia, is 5%. The Excise Tax Act , RSC 1985, c.

E-15 , requires every recipient of taxable goods or services to pay the value added GST or Harmonized Sales Tax (“HST”) depending on the province or territory in which they live. The Excise Tax Act imposes on the vendor of goods and services the responsibility to collect the GST/HST. It also allows the vendor to initiate a court action against the recipient to recover the GST/HST as though it were a debt due to the vendor.

[37] At common law, a contractual provision designed to perpetrate a fraud on a public taxing authority is contrary to public policyand unenforceable: Bursey v. Bursey, (NLCA), para. 25. In the case before me, neither party raised issues ofillegality and enforceability in pleadings or at trial. Neither party testified as to his or her intention with respect to the term “seniordiscount: no taxes.” Nevertheless, a court is not precluded from addressing issues of illegality and enforceability because they are notraised in the pleadings: Sun v. Duan, 2020 BCPC 167 , citing (at paras. 77-79) Top Line Industries v.

International PaperIndustries, 2000 BCCA 23 and Stevens Pools Ltd. v. Carlsen and Carlsen, 2015 BCPC 23 . [38] In assessing the illegality issue, I am guided by Transport North American Express Inc. v. New Solutions Financial Corp, 2004SCC 7, a case involving a contract which provided for an illegal interest rate contrary to s. 347 of the Criminal Code. Justice Arbour, forthe majority, held that in some instances a court may sever the illegal portions of a contract and enforce its legal terms.

Sheacknowledged that traditionally contracts in violation of statutory enactments were void from the beginning, however this was notnecessarily the proper approach. The Court has considerable discretion to fashion an appropriate remedy given the specific contractualcontext and the nature of the illegality involved. The Supreme Court (at para. 42) adopted four factors relevant to the determination ofthe degree to which an otherwise illegal agreement will be partially enforced. Those factors are: a. Whether the purpose or policy of the statute would be subverted by severance; b.

Whether the parties entered into the agreement for an illegal purpose or with evil intention; c. The relative bargaining position of the parties and their conduct in reaching the agreement; and d.

The potential for the debtor to enjoy an unjustified windfall. [39] Justice Arbour goes on to state at para. 32: The preferred severance technique is the one that, in light of the particular contractual context involved, would most appropriately curethe illegality while remaining otherwise as close as possible to the intentions of the parties expressed in the agreement. [40] In this case, I do not find the parties intended to enter into an illegal contract for any nefarious purpose. There is no evidence theStoreys paid Mr.

Lind in cash, which is the hallmark of parties attempting to avoid paying taxes: see Stevens Pools Ltd. v. Carlsen andCarlsen and Sun v. Duan. I do not know the manner in which the Storeys paid Mr. Lind the $4,000 deposit; I do know that on March 2,2020, the Storeys paid Mr. Lind $420.08 by bank draft. Also, I do not detect any significant inequality of bargaining power between Mr.Lind and the Storey’s. It would be profoundly unfair to Mr. Lind and an unjustified windfall for the Storeys for the Court to refuse toadjudicate Mr. Lind’s Notice of Claim.

In my view the most appropriate cure for the impugned “no tax” provision is to consider the$7,250 contract price inclusive of 5% GST which Mr. Lind would remit to Canada Revenue Agency (“CRA”). This means Mr. Lindwould receive $6,887.50 at the conclusion of the Project for his services plus $352.50 to remit to CRA as GST ($6,887.50 + $362.50 =$7,250). Certainty of terms [41] As is the case with many residential renovation projects, the contract between the homeowner and contractor was partly writtenand partly oral. The resulting agreement included most of the essential prerequisites of a contract, namely (

a) the intention to create legalrelations; (

b) competent parties (

c) an offer containing the essential terms; (

d) an acceptance of the offer; (

e) consideration; and (f)certainty of most of the agreed terms: Blue Line Hockey Acquisition Co. v. Orca Bay Hockey Limited Partnership, 2008 BCSC 27 at paragraphs 38-46, aff’d 2009 BCCA 34, leave to appeal denied [2009] S.C.C.A. 176; citing Whistler Mountain SkiCorporation v. Projex Management Ltd. (1994), (BC CA), 90 B.C.L.R. (2d) 283 (C.A.) at para. 41. [42] The July 12, 2019 Quote falters in the certainty of its terms with the result the parties do not agree on the scope of the workincluded under the contract. Although they do not use this terminology, the Storeys submit Mr.

Lind’s July 12, 2019 Quote onceaccepted, constituted a fixed-price contract. In construction projects, a fixed-price contract generally means the owner will provide thecontractor with detailed specifications and the contractor agrees to work for a fixed-price based on those specifications. The contractoragrees to perform the work on-time and for a predetermined amount, regardless of whether costs and expenses increase. A contractorwho agrees to a fixed-price contract is responsible for accurately pricing the project and scheduling the work to insure it will cover thecontractor's expenses overhead and profit.

If the project comes in on budget then the contractor achieves a profit. If the project is overbudget then the contractor absorbs the loss. A fixed-price contract provides an owner with certainty as to the exact cost and nature of thework the contractor is obligated to perform. [43] In Savings v. Mark Swallow Thompson Allard & Co., 1996 1152 (BC SC), Justice MacDonald held, “the key feature ofa fixed price contract is that the work is defined with sufficient particularly so that the cost is essentially fixed.” He goes on to cite thefollowing authorities: 17.

Hudson's Building and Engineering Contracts, 11th. ed., 1995, at p. 415, describes a fixed price contract as one where a fixed price isquoted for carrying out and completing the work described in the drawings and specification. 18. My view of the contract approved by Thompson in this case is closer to these words in J. Holland & Son v. Chisholm (1989) 37C.L.R. 301 (N.B.Q.B.) at p. 306: There is one further comment with respect to the question of a fixed contract price. There were no plans or even diagrams prepared withrespect to this matter and there was nothing in writing with respect to specifications.

This would have been essential to establish a fixedprice and to establish any variation from a fixed price contract. 19. Hudson’s goes on to say, at pp. 435/6 under the heading "Where Extent of Work Uncertain": ...

the more usual methods of letting contracts on a measured or lump sum basis are only practicable if the works have been designed in sufficient detail to enable them to be defined and priced by the builder ... . . . 21. All fixed price contracts contemplate extra work or deletions from the work, with resulting variations in the stated contract price.

The absence of specifications and plans for significant portions of the work rendered this contract uncertain and the price therein nothing more than a budget figure. . . . [ 44 ] The July 12, 2019 Quote does not include plans or schematics or any details of sufficient specificity to ascertain precisely what work Mr. Lind was obligated to perform and what materials he was obligated to supply. Mr. Lind testified there was no plan, other than the shower had to be installed in a certain spot and the existing toilet was to remain in place.

It seems the scope of the work evolved through ongoing discussions between the parties. Unfortunately, the parties did not reduce these discussions, directions, or modifications to writing. [ 45 ] The Storeys say they had contracted with Mr. Lind to renovate the shower bathroom in their [omitted for publication] residence to make it wheelchair accessible and accommodate Mr. Storeys physically disabilities. The Storeys assume the contract included the following terms, either express or implied: a. The fixed contract price was $7,250 with no “extras”; b.

The Storeys were to pay one-half the contract price before the work commenced and one-half upon completion; c. The Project was to be completed within three weeks; d. Mr. Lind was to supply at his own cost for all materials and fixtures necessary or desirable for the Project; e. Some of the materials would be new and some may be reused, for example the paint and tiling was new and the crown moldings reused; f. Some of the fixtures and accessories would be new and some reused. Specifically, the shower and pedestal sink were to be new, the toilet, towel bars and toilet paper roll holder could be reused; g. Mr.

Lind was to provide and pay any labourers or tradespersons require to complete the Project, including plumbers or electricians; h. Mr. Lind would reimburse the Storeys for any materials or fixtures they purchased for the Project, including grab bars, water taps, and accessories (towel bars and toilet paper roll holder); i. Mr. Lind would reimburse the Storeys for any tradespersons they hired to work on the Project; j. All work would be performed by licenced tradespersons; k. Mr.

Lind would obtain the necessary work permits for the Project; l. the Project would comply with the applicable building or plumbing codes; and m. The scope of the Project included: I. replacing the existing shower with a curbless shower in which Mr.

Storey could roll into with his wheelchair without assistance; II. outfitting the shower and toilet area with reinforced gab bars; III. replacing the existing vanity with a new pedestal sink and linen closet; IV. moving the existing toilet if necessary; V. tiling the bathroom floor and base board; and VI. retiling a portion of the hallway floor adjacent to the bathroom. [ 46 ] Mr. Lind asserts his July 12, 2019 Quote included the following work and materials but not all fixtures. He says the work to be performed included the following: a.

Replace the existing small shower with a larger one which was wheelchair accessible; b. Remove the existing vanity and replace it with a pedestal sink; c. Reuse the existing toilet; d. Reuse the existing shower taps; e. Reuse the existing vanity sink taps; f. Reuse the existing crown molding;

g. Reuse the existing fixtures or accessories such as the towel bars and toilet roll holder; h. Replace the existing floor tile with new tile of the same or similar colour; i. Move, widen, and convert the entrance doorway to a pocket sliding door; j. Repaint the bathroom walls the same colour; and k. Move the light switch slightly closer to the wall. [47] Mr. Lind says under the July 12, 2019 Quote, he was to provide all construction materials, such as wood, drywall, paint, tile,grout, silicon, etc. Mr.

Lind did not contract to provide fixtures; however, he did provide the shower basin and I assume, the pedestalsink. [48] When determining the intentions of the parties to a contract, a court must look at the outward expression of their intentions, nottheir personal knowledge or unexpressed understanding. In other words, the question a court must ask is what a reasonable outsideobserver would conclude from the facts. [49] In 0746727 B.C. Ltd. v. Cushman & Wakefield LePage Inc., 2008 BCSC 415 , aff’d 2008 BCCA 486, Justice Neilson(as she then was) summarized the principles of contractual

interpretation [citations omitted]: [16] The principles of contractual

interpretation are clear . . . [17] The goal is to determine what the intention of the parties was at the time the contract was entered into, looking first to the plain andordinary meaning of the words in the contract. The words are to be interpreted in the context of the whole of the contract and in a mannerthat does not render one part of the contract ineffective. [18] As well, the language of the contract must be read in the context of the surrounding circumstances at the time the contract wasmade.

Such evidence will include evidence of facts known to both parties prior to the execution of the agreement, but not negotiations orevidence of the subjective intent of the parties. The context should not take priority over the words themselves. [19] The standard is objective. What is a reasonable

interpretation of the provision in question? [20] If this examination reveals an unambiguous meaning, it is not necessary to go further. However, if it produces two reasonableinterpretations, thereby creating ambiguity, or if the plain language leads to an absurdity, the court may look beyond the words of thecontract to extrinsic evidence to assist in determining the parties’ intent.

Such evidence will include facts leading up to the agreement,circumstances existing at the time of it, and evidence of subsequent conduct. [50] Canadian courts have held that evidence of post-contractual conduct can be considered in the event of an ambiguity in a contract:British Columbia Hydro and Power Authority v. Cominco Ltd. (1989), (BC CA), 34 B.C.L.R. (2d) 60 (C.A.);Adtronics Signs Ltd. et al. v. Sicon Group Inc. et al., 2004 BCSC 1201 at paras. 142 and 143. [51] I conclude the July 12, 2019 Quote was intended by both parties to include much of the work Mr.

Lind actually performed on theProject and most of the materials and fixtures he supplied. Those items which Mr. Lind says fell outside the scope of the July 12, 2019Quote were those he billed as “extras.” [52] Mr. Lind offered to “supply all materials and labour” to “complete tear out and redo a bathroom to accommodate wheelchairaccess.” It is silent as to how the bathroom was to be “redone” and what materials were to be used or fixtures provided. In my view the$7,250 cited in the July 12, 2019 Quote is best characterized as a budget rather than a fixed-price contract.

I do not find the scope of thecontract was so broad as to require Mr. Lind to absorb the cost of all changes, upgrades, unforeseen or latent defects. It makes nocommercial sense to interpret the July 12, 2019 Quote to include everything the Storeys subjectively deemed necessary or desirable tomake the bathroom accessible and accommodating to a person who was disabled and wheelchair dependent. Mr. Lind testified he toldthe Storeys all extra work would be billed separately. The Storeys do not admit to any such discussions.

Nevertheless, “extras” is astandard if not contentious condition of most construction projects. The Storeys have renovated many houses for their own use and Mr.Storey owned and operated a renovation business. If the Storeys believed the July 12, 2019 Quote obligated Mr. Lind to performwhatever work they directed and provide whatever materials they requested, that belief was not reasonably held. I say this because insupport of their HAFI application, the Storeys obtained two other estimates, one from “Eddy” for $18,500, and one from Schiller Floors’for $22,000.

The Storeys did not put these written estimates into evidence or particularize what they included and how they differed fromMr. Lind’s July 12, 2019 Quote. Ms. Storey did say, however, Eddy’s estimate included reinforcing the walls with plywood in order toinstall the grab bars. Hank Schiller testified Schiller Floor’s estimate included all work, materials, and fixtures provided by a sub-contractor experienced in renovating bathrooms for persons with disabilities. [53] In her testimony, Ms.

Storey quotes the folk wisdom, “if it seems too good to be true, then it probably is.” It strikes me theProject evolved from an inchoate plan. I surmise Mr. Lind had little experience in renovating bathrooms to accommodate persons withphysical disabilities, which is why he did not know how to source the grab bars and considered them an extra. It seems to me that Mr.Lind interpreted the July 12, 2019 Quote as a contract to renovate the bathroom and shower to make them wheelchair accessible.

TheStoreys interpreted the July 12, 2019 Quote as a contract for a bathroom and fixtures which were wheelchair accessible, safe, andaccommodating for persons with Mr. Storeys particular disabilities. Issue #2: What is the extent and value of the work completed by Mr. Lind outside the scope of the contract? [54] Mr. Lind was adamant he told the Storeys any additional work or materials would be billed separately as extras, meaning it wasnot work contemplated in the July 12, 2019 Quote.

[55] In McCrea v. Fournier 2017 BCPC 30 at para. 74 I referenced the following passage from Justice Martinson’s decisionin Sepco Estates Ltd. v. Dy, 2007 BCSC 1159 : Extras [72] An extra is work that is substantially different from, and wholly outside, the scope of the work contemplated by the contract.Whether a particular item of work is, or is not, an extra has to be determined by reference to the contract documents, the nature of thework performed, and the surrounding circumstances.

If on the proper construction of the contract documents the item of work is one thatthe contractor is required to perform it cannot be an extra, even if the contractor may have failed to realise he would be required toperform such work: Barenco at 19. [73] Where additional work is claimed as an extra, it will fall into one of three categories: 1. The additional work might be work which the contractor was already required to perform under the contract, i.e. work which wasspecifically called for by the contract.

In these cases, “the contractor is obliged to perform [it] without being entitled to any additionalremuneration beyond the contract price ... notwithstanding the fact that the contractor may have failed to realize at the time of enteringinto the contract that he would be required to perform such work”. 2. The additional work might be work “not specifically called for by the contract when properly interpreted, but ... nevertheless properlywithin the scope of the work as originally contemplated”. Because such work comes within the scope of the contract, the owner maycompel its performance.

There may be a contractual provision governing the performance of, and payment for, this type of extra work;but where there is no provision for payment, the court may imply a promise to pay a reasonable amount on a quantum meruit basis. 3. The additional work might be work which is “substantially different from, and wholly outside, the scope of the work contemplated bythe contract”. The main difference between this work and the work in the second category is that whereas the owner can compelperformance of extra work in the second category, he or she cannot do so for work in this category.

Where no price is fixed for thepayment of work in this category, the law may imply a promise to pay a reasonable amount on a quantum meruit basis. [56] Quantum Meruit means “as much as he deserves.” The principle of contractual quantum meruit, which was described by Adair J.in C.J. Smith Contracting Ltd. v.

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

There is no room for this doctrine, or for such animplication, where the contract explicitly provides for the amount of remuneration, or for the method for determining the same. . .[Citations omitted] [57] On February 11, 2020, Mr. Lind invoiced the Storeys for extras in the amount of $1,675, plus GST of $83.75 for a total amountof $1,758.75. This invoice charged as extras the following changes, improvements, and fixtures: a. Mr. Storey told Mr. Lind he wanted to “roll straight” into the shower. To accommodate this request, Mr.

Lind proposedinstalling the pedestal sink in a niche opposite the toilet where the original shower once stood. Mr. Storey agreed and Mr. Lindreconfigured the plumbing to install the sink in the niche. When Ms. Storey came home after work, she told Mr. Lind she believed thespace between the toilet and pedestal sink was too small to accommodate Mr. Lind’s wheelchair and directed Mr. Lind to relocate thesink, which he did. These contradicting instructions, created five additional work hours for which Mr. Lind billed as an extra $200 (5hours x $40 per hour = $200); b. The Storeys asked Mr.

Lind to install a two inch down pipe from the shower drain which Mr. Lind was hesitant to do given thebathroom had only 1.5 inch piping. He consulted with the building inspector at the regional office who advised him that because theplumbing in the Storey residence was still in its original state, Mr. Lind could use an adapter to connect the two inch downpipe to the 1.5inch original piping. Mr. Storeys request for a two inch down pipe caused Mr. Lind three additional work hours, for which he billed$120 (3 hours x $40 = $120); c. The Storeys asked Mr.

Lind to install grab bars they had purchased in December 2019 for the toilet and shower area. Mr. Linddid not charge as an extra the work necessitated by installing the reinforcing beams and grab bars in the shower as he had the wallsexposed in any event. In order to install the toilet grab bars, Mr. Lind had to remove the existing gyprock (drywall), install reinforcing 2x 6 inch supporting beams, install new gyprock and paint the walls. The additional time spent for installing the grab bars around thetoilet was 15 hours, for which Mr. Lind charged $600 (15 hours x $40 = $600); d. Mr.

Lind reinforced the floor support the Storeys’ request. He did not believe it was required as he and his son collectivelyweighed 550 pounds and the floor carried this weight without issue. Nevertheless, the Storeys insisted he reinforce the floor, which hedid. This directive caused Mr. Lind five additional work hours for which he charged $200 (5 hours x $40 = $200); e. Mr. Lind purchased new water taps and shower parts at Ms. Storeys request despite their having agreed to reuse the existingfixtures. These items cost Mr. Lind $195, which he billed as an extra; f. Ms. Storey asked Mr.

Lind to extend the existing flooring in the hallway to the new bathroom tile given the transitional changecaused by replacing the original doorway with a pocket door. This change caused four additional work hours for which Mr. Lind billed$160 (4 hours x $40 = $160); g. Mr. Lind and his son were told they could work on the residence on a certain date. When they arrived neither Mr. nor Ms.Storey was home. The Linds waited two hours as they had no access to the worksite in the owner’s absence. Mr. Lind billed $160 forthese two wasted hours (2 persons x 2 hours x $40 = $160); and

h. Mr. Lind fixed a dent in the wall outside the bathroom caused by Mr. Storey’s wheelchair. This took one additional hour forwhich he billed $40. [58] Mr. Lind says that in early December 2019, he discussed with Ms. Storey the benefits of installing large quartz shower panelsover other types of shower walls. In his view, the July 12, 2019 Quote obligated him to replace the existing shower with one ofcomparable materials, which was plastic laminate. Ms. Storey asked him to install the quartz panels. By way of an invoice datedFebruary 11, 2020, Mr.

Lind charged as an extra the time and materials involved in upgrading the shower to include quartz panels. Mr.Lind charged $2,500 for materials and labour plus $125 GST. He says the actual cost of the upgrade was $3,000, however, he deducted$500 because that is the sum he would have paid for plastic laminate shower unit. [59] The Storeys do not deny Mr. Lind performed the work or provided the fixtures he billed as extras. They maintain, however, thiswork and those fixtures were included in his July 12, 2019 Quote. Ms. Storey says Mr. Storey repeatedly asked Mr.

Lind if he was surethat he had included “everything” in the July 12, 2019 Quote, and Mr. Lind confirmed he had. Specifically, she says: a. The pedestal sink had to be relocated from where Mr. Lind initially installed it across from the toilet. Mr. Storey could notmaneuver his wheelchair into the small space between the two fixtures; b. The BC Plumbing Code requires the shower downpipe be at least two inches; c. Although the cost and installation of the grab bars may not have been specifically discussed, they are essential to make thebathroom safe for a wheelchair dependent person. When they lived in Alberta, Mr.

Storey was active in the Society for Persons withDisabilities. In December 2019, Mr. Storey agreed to source the grab bars because he had contacts in the industry and Mr. Lind agreed toreimburse him for the cost; d. The quartz shower walls were very heavy and the Storeys were concerned their weight may not be adequately supported by theexisting floor. Reinforcing the floor was an integral part of the Project; e. Because of his disability, Mr. Storey required shower and sink fixtures which he could manipulate with his hands. He alsorequired a hand-held shower. The fixtures Mr.

Lind initially installed were not appropriate for a person with Mr. Storey’s disabilities.Ms. Storey told Mr. Lind to come and retrieve the shower taps together with the cupboard he supplied because she did not want theseitems. The cupboard was too small and the tap too difficult for Mr. Lind to operate. Neither Mr. Lind nor his son retrieved the water tapfixtures or cupboard and they remain unused and unwanted at the Storey residence; f. When the bathroom door was redesigned the flooring on the hallway had to be extended to meet the bathroom tile.

If thebathroom tile were extended to meet the hall flooring, it would have been noticeable from the hallway when the bathroom door wasclosed. The hallway floor covering had to be extended for esthetic purposes; and g. Mr. Lind raised the issue of the quartz panels with Ms. Storey at the outset of their negotiations and she understood the July 12,2019 Quote included these items. The first time the Storeys received an invoice for the quartz panels was at the Small Claims SettlementConference on August 25, 2020. This extra was not included in the Builder’s Lien Mr.

Lind filed against the title to their property onApril 3, 2020. They were not mentioned in Mr. Lind’s April 2, 2020 correspondence to the Storey’s. Although the Notice of Claimincludes the cost of the quartz shower panels, Ms. Storey says she was “gob smacked” when she was presented with the invoice for thequartz shower panels at the Settlement Conference. Analysis on extent and value of the extras [60] Mr. Lind bears the burden of proof to establish his claim for extras on a balance of probabilities: Hugh’s Contracting Ltd. v.Stevens, 2014 BCSC 1904 , at para. 87 citing: Barenco Inc. v.

Ottawa-Carleton Regional Transit Commission (1999), 48 C.L.R.(2d) 200 (ONSC) at para. 27. [61] Ordinarily, a contractor cannot charge for extra work that is not approved, either explicitly or implicitly, by the owner. Mr. Lindasserts he specifically told Ms. Storey the quartz panels and linen cabinet were extras and she asked him to provide these items. Otherthan that, there is a dearth of evidence of Mr. Lind discussing with the Storeys what work or materials he considered extras and how theywould be priced. [62] The difficulties the Court has in adjudicating Mr. Lind’s claim for extras is threefold: a. Mr.

Lind interpreted the words, “redo a bathroom to accommodate wheelchair access” narrowly and literally and the Storeysinterpreted it to mean a bathroom which was wheelchair accessible and safe and accommodating to persons with Mr. Storeys disabilities; b. Mr. Lind did not provide the Court with any evidence how he came up with the $7,250 July 12, 2019 Quote. All I can gleanfrom his invoices is that Mr. Lind charges $40 per hour for labour. I do not know how many work hours were incorporated into the July12, 2019 Quote, nor do I know how many hours the Linds actually worked. All I know is Mr.

Lind vigorously disputes Ms. Storey’srecord of the time he and his son were onsite. I do not know the amount Mr. Lind anticipated paying or actually paid for materials,fixtures, and labour; and c. There was a four month delay between the date of the July 12, 2019 Quote and the date when Storeys provided Mr. Lind withthe deposit and he agreed to proceed. This gave rise to two sets of negotiations at two different times in two different circumstances. InJuly 2019, Mr. Lind was looking for work; in December 2019, he was fully booked with other projects. In July 2019 Mr.

Lind wasprepared to work fulltime for three continuous weeks on the Project; in December 2019, Mr. Lind told Ms. Storey he could no longercommit to that time frame. Whatever discussions Mr. Lind had with the Storeys about the Project in July 2019, were modified to someextent by their discussions in December 2019, when he accepted their deposit. [63] I have set out below what I consider additional work not specifically called for by July 12, 2019 Quote, but nevertheless fell

within the scope of the work originally contemplated. Because the July 12, 2019 Quote did not contain any payment provision for payment for extra work, I have also set out what I consider to be a reasonable amount on a quantum meruit basis: a. Having to install and relocate the pedestal sink twice: In my view Mr. Lind was entitled to rely on Mr. Storey’s direction as to where he was to install the pedestal sink. After all, Mr. Storey knew the size and maneuverability of his own wheelchair, was experienced in residential renovations, and knowledgeable about adapting residences for persons with disabilities.

There is no suggestion that Mr. Storey was not competent or capable of giving these instructions. I accept as an extra Ms. Storeys directive that Mr. Lind change the location of the sink after it had already being installed and I find his $200 charge for five additional work hours reasonable; b. Replacing the 1.5 inch down pipe shower drain: I accept Mr. Lind reasonably expected to use the existing piping, which was 1.5 inches. I accept as an extra Mr. Storeys directive Mr. Lind replace the existing 1.5 inch shower downpipe with 2 inch piping and his $120 charge for three additional work hours reasonable; c.

Toilet grab bars: I accept the installation of the toilet grab bars was not contemplated in the July 20, 2019 Quote as evidenced by the fact Mr. Storey did not order them until December 2019. I accept Mr. Storey ordered and paid for the grab bars because they were not included in the July 20, 2019 Quote. Accordingly, I accept as an extra the work Mr. Lind performed to reinforce and rehabilitate the bathroom walls and install the toilet grab bars and I find his $600 charge, reasonable; d. Reinforcing the bathroom floor: I accept as an extra Mr.

Lind’s work reinforcing of the bathroom floor and I find his $200 charge for five additional work hours reasonable; e. Hallway flooring: I accept as an extra the work Mr. Lind performed on the hallway floor, and I find his $160 charge for four additional work hours reasonable; f. Inability to access the worksite: I accept as an extra the two hours Mr. Lind and his son remained idle because the Storeys refused them access to the worksite in their absence, and I find his $160 charge for these two wasted work hours excessive, but would allow $80; and g. Dent in wall: I also accept as an extra Mr.

Lind fixing the dent in the wall outside the bathroom caused by Mr. Storey’s wheelchair and I find Mr. Lind’s $40 charge for one additional work hour reasonable. [ 64 ] I would not accept as an extra the $195 Mr. Lind charged for the new water taps, as these were not useful to the Storeys and they advised Mr. Lind he could retrieve them. [ 65 ] In sum, with respect to extras Mr. Lind initially invoiced the Storeys on February 11, 2020, I find allowable $1,400 plus 5% GST in the amount of $70 for a total of $1,479. [ 66 ] Mr. Lind says in December 2019, at the time Ms.

Storey delivered the deposit, he told her the quartz shower panels would cost an extra $3,000, but he would deduct $500 to account for the shower he would have otherwise installed. Ms. Storey says she has no recollection of any such conversation in December 2019. She maintains Mr. Lind extolled the benefits of the quartz walls (including being mildew resistant), but these conversations took place in July 2019, when she first asked for his quote. Ms. Storey’s version of the events is corroborated by the fact Mr.

Lind did not present the Storeys with an invoice for the quartz shower walls until the Settlement Conference on August 25, 2020. Mr. Lind says it was an oversight, in much the same fashion as he had neglected to deduct from his February 11, 2020 invoice the Storeys $4,000 deposit or their March 2, 2020 payment of $420.08 from the Builder’s Lien or Notice of Claim. [ 67 ] I accept that in December 2019, at the time he received the deposit and agreed to take on the Project, Mr. Lind told Ms. Storey the quartz shower walls were an upgrade. Given Mr.

Lind’s estimate was less than half of Eddy’s and one-third of Schiller Flooring’s, I find it entirely plausible Mr. Lind July 12, 2019 Quote was intended to include the more economical plastic laminate shower unit. I find the quartz shower panels were an extra. Still, I do not believe Ms. Storey agreed to pay the $2,500 Mr. Lind invoiced for the shower upgrade. This is over one-third of the contract price for the entire Project. [ 68 ] Mr. Lind says the shower walls cost $1,000 which was $500 more than the shower unit he would have installed. Mr. Lind says it took 17 hours to install the quartz shower panels.

I accept the quartz shower walls involved more labour to install than a plastic laminate unit, however, Mr. Lind has not quantified how much more time it would have otherwise taken. He bears the burden of proving the value of the extras. Accordingly, I will allow as an extra the quartz shower upgrade in the amount of $800 consisting of $500 for materials plus $300 for delivery and additional work hours for their installation, plus $40 GST (at 5%) for a total of $840. [ 69 ] In sum, I find the Storeys are liable to Mr. Lind $2,310, for extras ($1,470 + $840 = $2,310).

Issue # 3: Was there delay in completing renovations and damages arising from the delays? [ 70 ] Ms. Storey told Mr. Lind he was finished at their residence on February 11, 2020, because it had been 12 weeks since Mr. Storey had been able to shower. As Mr. Lind had contracted to complete the work in three weeks, the Storeys were fed up with the delays and dissatisfied with Mr. Lind’s workmanship. [ 71 ] Mr. Lind says he committed to completing the Project in three weeks in July 2019 because at the time he had no other work. By the time the Storeys provided him with the deposit and instructions to proceed, Mr.

Lind was fully booked with other projects. Mr. Lind says Ms. Storey asked him if he could try and fit in their project whenever he had time and Mr. Lind agreed. Ms. Storey does not dispute Mr. Lind’s evidence, rather, she maintains the original contract stated the Project would take three weeks to complete and Mr. Lind ought to have done so. [ 72 ] Mr. Lind began the Project on December 3, 2019, however, because of his prior commitments, he was unable to devote much time to it until the 2020 New Year. Mr. Lind says his progress on the renovation project was further impeded by: (

a) the late delivery of

the shower basin; (

b) the Storeys’ request for extras; and (

c) the Storeys refusing him access to the worksite if neither homeowner was present. Analysis on delay [ 73 ] In their text Goldsmith on Canadian Building Contracts , 4th ed. (Toronto: Carswell, 2009), Immanuel Goldsmith & Thomas G. Heintzman write: Canadian Building Contracts 1-43...

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

There is an implied term on the part of the contractor that he will perform the work in a workmanlike and diligent manner, and that any materials supplied by him will be fit for use as intended. . . [ 74 ] I conclude Mr. Lind got off to a slow start in December 2019, because of his previous work commitments, of which the Storeys were aware. It also took three and a half weeks for the supplier to cast and deliver of the shower basin. Once his other projects wrapped at the end of December 2019, Mr. Lind was able to commit more time to the Project. [ 75 ] Ms.

Storey says she recorded the hours the Lind’s worked on a calendar. Her records indicate Mr. Lind was on site approximately 31 hours in December 2019, 63 hours in January 2020, and 27 hours in February 2020, for a total of 121 work hours. Mr. Lind says he and his son worked many more hours than Ms. Storey recorded. Ms. Storey was generally working outside the residence when the Lind’s were onsite. Ms. Storey says she asked her husband how long the Lind’s were onsite and Ms. Storey recorded his response on the calendar. [ 76 ] Mr. Lind asserts Ms.

Storeys records grossly under estimated the actual hours he and/or his son worked on the Project, although he did not introduce into evidence his own records. I do not find Ms. Storeys records a reliable account of the time Mr. Lind spent on the renovation project because: a. Ms. Storey was generally working outside the residence and did not know who was working or when; b. Mr. Storey often slept while Mr. Lind and/or his son were onsite; c. Ms.

Storey does not account for any work done offsite (ie: ordering and picking up materials and fixtures, including driving to Prince George to pick up the cast shower basin or Vancouver to pick up the quartz shower walls); and d. Ms. Storey does not record the times Mr. Lind and his son could not work because the Storeys were not home and refused them access in the circumstances. [ 77 ] Ms. Storey commented the 12 week delay in Mr. Storey being able to shower constituted elder abuse. I accept the Project proceed at slower pace than the Storeys expected which caused them some frustration and inconvenience.

Nevertheless, I do not see how Mr. Lind can be held responsible for the entire delay or its consequences. Firstly, the Storeys accepted the Project would not be completed according to the time estimate set out in the July 12, 2019 Quote when they asked Mr. Lind in November if he would still take on the Project notwithstanding his now fully booked schedule. Secondly, Mr. Storey was unable to use the shower bathroom prior to Mr. Lind taking on the Project because it was not wheelchair accessible. I understand from Ms. Storey’s evidence that Mr.

Storey was being bathed with the help of Northern Health in a bathtub, presumably in another bathroom in the residence. [ 78 ] The Storeys did not provide Mr. Lind with notice of their intention to terminate the contract if the work was not completed by a specific and reasonable time. In any event, the Storeys have not counterclaimed compensation for delay in their Reply. Moreover, the Storeys have not established any compensable loss as a result of the delay in completing the Project. Issue # 4: What were the deficiencies in Mr.

Lind’s work on the Project? [ 79 ] Deficiencies feature prominently in construction projects. Often they are minor and easily cured. There are well-established procedures in the construction industry to address deficiencies. Typically the owner and contractor prepare and agree to a deficiency list. They attribute values to the deficiencies and the owner holds back that amount. The contractor is entitled to return to correct the deficiencies to the owner’s satisfaction. [ 80 ] The Storeys assert Mr. Lind is responsible for the following deficiencies: a.

The bathroom plumbing did not comply with the British Columbia Plumbing Code . The Storeys paid HVAC to rectify the plumbing deficiencies; b. The sink and shower taps Mr. Lind installed were not suitable for Mr. Storey given the nature and extent of his physical disabilities; c. On February 19, 2020, HVAC rectified the plumbing deficiencies and replaced the water taps to ones which Mr. Storey could easily use. The Storeys paid HVAC $899.03 for these services and seek reimbursement of this sum from Mr. Lind; d. Ms.

Storey said initially she was willing to reuse the existing towel bars and toilet paper roll holder, but could not locate all the pieces to these used fixtures after Mr. Lind left the Project. The Storeys purchased new towel bars, toilet roll holder, and a shower-rod at Home Hardware for a total cost of $160.72 inclusive of tax. They seek reimbursement of this sum from Mr. Lind;

e. The metal trim (schluter), Mr. Lind installed or had installed on the tile baseboard was too wide and needed replacing with a thinner trim; f. A transition slip needed to be installed on the shower basin to facilitate wheelchair access; g. On February 22, 2020, Schiller Floors removed and replaced the tile baseboard and oversize schluter and installed the transition slip on the shower for a total cost of $914.49, inclusive of labour, materials and taxes. The Storeys seek reimbursement of this sum from Mr. Lind; h. Mr. Lind removed the vanity and replaced it with a pedestal sink, as the parties agreed.

The Storeys argue that because the vanity had shelving and cupboards, Mr. Lind was responsible for the cost of replacing these items. They acknowledge Mr. Lind did provide a shelving unit but considered it too small. The Storeys purchased a linen closet they thought suitable for their needs from Home Hardware at a cost of $335.99, inclusive of tax, and now seek reimbursement of this sum from Mr. Lind; i. On December 31, 2019, HVAC was at the Storey residence working on the heating system. The Storeys asked Mr. Lind if HVAC could move the heat register located where the new shower was to be installed and Mr.

Lind agreed. The Storeys paid HVAC $163.14 for 1.15 hours labour, materials and GST for this service, They submit is an expense for which Mr. Lind is liable; j. The Storeys ordered grab bars for the toilet and shower for which they paid $325.16 ( $224.81 + $64.17 +$36.18 = $325.16). They claim Mr. Lind is responsible for reimbursing them for this sum; k. The Storeys paid $31.99 for the slide bar for the hand held shower, for which they seek reimbursement from Mr. Lind; l. Mr. Storey still requires assistance in getting into and out of the shower with his wheelchair even with the transition strip in place; m. Mr.

Lind did not cover the drywall with primer before painting it; n. The crown moldings are not seamlessly joined; and o. The quartz shower wall is not aligned parallel to the bathroom door frame. [ 81 ] The Storeys claim the deficiencies and damages for which Mr. Lind is liable total $2,829.92. [ 82 ] Mr. Lind response to the Storeys claim for deficiencies are as follows: a. Undersized piping: The Storeys do not dispute their bathroom plumbing did not comply with the current British Columbia Plumbing Code. Mr. Lind never agreed to re-plumb the bathroom to bring it into compliance with the current

(2018) Code . The bathroom was plumbed with 1.5 inch piping in the 1970s when the Storey residence was built. The piping adhered to the Code in force at the time but is undersized by today’s standards. The more stringent requirements under the 2018 Code do not apply retrospectively to existing buildings except in certain circumstances, which Mr. Lind say did not apply (i.e. the residence is altered or renovated or relocated or its components are replaced); b. Unsuitable water taps : Mr. Lind reused the existing taps and fixtures as the parties agreed; c. Plumbing Deficiencies: Mr.

Lind denies liability for the services HVAC provided and billed under Invoice 0000134953 issued February 19, 2020. These services were not ones he was contractually required to provide under the July 12, 2019 Quote; d. Accessories: Mr. Lind would have installed the towel bars, toilet paper roll and shower slide bar had he not being expelled from the Project prior to its completion; e. Oversized schluter: Mr. Lind intended on removing the 5/8 inch schluter and replacing it with 3/8 inch schluter when he returned to the worksite after February 11, 2020.

He was unable to do so because the Storeys expelled him from the Project; f. Transition strip: Mr. Lind intended on installing the transition slip to the shower basin, however, was unable to do so because the Storeys refused to allow him to complete the Project; g. Schiller Floor’s Invoice: Schiller Floor’s February 22, 2020 Invoice (17577) is vastly inflated both as to labour and materials. According to the invoice, Schiller Floor charged the Storeys $198 for three lengths of schluter, which is over four times the cost of that material. Mr.

Lind put into evidence an invoice from Schiller’s Floor indicating the actual cost for a length of schluter is $15 plus tax. Mr. Lind also put into evidence an estimate from Nelson Construction and of Renovations for removing the replacing the oversized schluter. This estimate, dated October 16, 2020, is for $220.50, inclusive of three hours labour at $50 per hour and three lengths of schluter at $20 each plus GST at 5%; h. Linen closet: Mr. Lind agreed to replace the vanity with a pedestal sink. He did not agree to purchase the Storeys a new linen closet. Nevertheless, Mr. Lind did provide Ms.

Storey with a cupboard which she thought too small and did not want. Because she did not want the cupboard, Mr. Lind never billed it as an extra; i. Relocation of the heat register: The Storeys asked HVAC to move the heat register on December 31, 2019, when they were at their residence working on the heating system. Although Mr. Lind agreed HVAC could relocate the register, he did not agree to reimburse the Storeys for HVAC’s charge for doing so; j. Grab Bars: Mr. Lind did not ask Mr. Storey to purchase grab bars on his behalf. The July 12, 2019 Quote did not require Mr.

Lind to install grab bars, which is why Mr. Storey ordered them. Mr. Lind agreed to reinforce and install the grab bars in the shower because he had the wall exposed already. He did not agree to absorb the cost of purchasing the grab bars or installing them around the

toilet; k. Shower slide bar: Although Mr. Storey did provide some fixtures, he says he was not required to do so under the contract; l. Crown moldings: Wherever possible, the Storeys wanted to reuse existing materials, including the crown moldings. Usedmoldings will not dove tail as tightly as new moldings. However, had he not been prematurely expelled from the Project Mr. Lind wouldhave tried to reduce the gap in the moldings; and m.

Alignment of quartz shower panel: The photograph the Storeys put into evidence at trial suggests one of the quartz showerpanels may not be perfectly parallel to the bathroom door frame. Mr. Lind is certain the quartz is correctly proportioned. He says hewould have to inspect the door frame and panel alignment to determine if there was in fact a discrepancy. Again, Mr. Lind could haveaddressed this concern had he been allowed to finish the Project. Analysis on deficiencies [83] There is nothing in writing specifying the manner in which Mr. Lind would perform the work.

Nevertheless there is an impliedwarranty in all contracts for work and labour that the work will be carried out in a good and workmanlike manner: McCrea v. Fournier,2017 BCPC 30 , citing p. 5-11 from Goldsmith on Canadian Building Contracts. [84] In Lagrisola v. Mapa, 2018 BCPC 356 , Judge Chettiar cites the following passage from Halsbury's Laws of Canada,1st ed., vol. "Construction" (Markham: LexisNexis Canada, 2008) at HCU-52: There is an implied term in a construction contract that a contractor will perform its work diligently and in a good and workmanlikemanner.

Absent agreement to the contrary, a contractor need not build to a standard of perfection, but only in a good and "workmanlike"fashion. The workmanship obligation requires care and skill in the physical execution of the specified work. [Citations omitted] [85] In A.A.A. Aluminum Products Ltd. v. Grafos, 2015 BCSC 2128 , Mr. Justice Brown states: [20] The common law implies a warranty that construction contracts will be carried out in a reasonable and workmanlike manner . . .

Thebuilder’s obligation also extends to making good on defects and deficiencies . . . [Citations omitted]. [86] The Storeys bear the burden of proving those items they say constitute defects or deficiencies: Lund v. Appleford BuildingCompany Ltd. et al., 2017 BCPC 91 at para. 124. Specifically, they must prove on a balance of probabilities that Mr. Lindfailed to perform his work in a good and workmanlike manner and they sustained damages as a result: Absolute Industries Ltd. v.

Harris,2014 BCSC 287 , at para. 61. [87] I accept the Storeys have established on a balance of probabilities the following items were deficiencies for which Mr. Lind wasresponsible for rectifying: a. Plumbing: Mr. Lind was responsible for ensuring the piping he personally replaced and installed complied with the currentBritish Columbia Plumbing Code. This would include the wet vent connecting the toilet and sink; b. Replacing the oversized schluter: I accept: (

a) Mr. Lind was responsible for replacing the over-sized schluter on the bathroomtile baseboard with a narrower trim; (

b) had he not been expelled from the Project prior to its completion, Mr. Lind would have replacedthe schluter; and (

c) the amount the Storeys paid to Schiller Floors far exceeded the amount Mr. Lind would have expended on labourand material to rectify the problem; c. Transition Strip: Mr. Lind was responsible for installing the transition slip on the shower basin and would have done so hadhe not been expelled from the Project. If the current transition strip is problematic, then it is the responsibility of Schiller Floors whoinstalled it; d. Unsuitable water taps: Mr. Lind was responsible for installing suitable water taps, but not for the cost of purchasing them.

Iaccept he would have replaced the water taps with ones of the Storeys’ choosing had he not been expelled from the Project; e. Accessories: Mr. Lind was responsible for reinstalling the towel bars, toilet paper roll, and shower slide bar, but not forpurchasing new ones. I accept he would have installed these accessories had he not been expelled from the Project. [88] I find that on February 11, 2020, Mr. Lind had performed the work and supplied the material necessary for the substantialcompletion of his obligations under his contract with the Storey’s. Mr.

Lind estimates he had one more day of work to complete theProject. Although there were deficiencies, none of them, individually or collectively, went to the root of the contract. A number of thedeficiencies were attributable to the Storeys refusing Mr. Lind access to the worksite so he could finish the Project and address thedeficiencies. [89] A contractor has the right to return to a worksite and repair deficiencies: see Meszarics et al v. Hart Modular Homes et al, 2020BCPC 234 , citing C.S. Bachly Builders Ltd. v. Lajilo, (ONSC), at para.114, Rocksolid v.

Bertolissi, 2013ONSC 7343 , Don Pocock Construction Ltd. v. Brady, [2004] O.J. No. 688, (ON SC) at para. 42; LongwellEnterprises Ltd. v. McGowan [(1989), 37 C.L.R. 13 (B.C. Co. Ct.) [90] In Connolly v. Greater Homes Inc., 2011 NSSC 291 at para. 48, the Court stated: . . . the governing legal principle is that wherever it is reasonable, a party has a positive obligation to afford to the party alleged to havecaused a deficiency an early opportunity to examine and to rectify it.

That is consistent with general principles of mitigation . . .[Citations omitted] [91] If an owner fails to provide the contractor with a reasonable opportunity to correct the deficiencies in its work, which do not

constitute a fundamental breach of the contract and where there is no urgency, the owner is not entitled to claim damages based on his orher cost to have the deficiencies repaired by a third party contractor: Rocksolid v. Bertolissi, at para. 92. Issue # 5: Did either party breach the contract? [92] On February 11, 2020, Ms. Storey told Mr. Lind he was “finished” and not to return. Ms. Storey says she gave this directivebecause the renovation project had taken so long and [Mr. Lind] had not made any progress. On February 11, 2020, Mr.

Lind had onlyone more work day to complete the Project, which he intended to do on February 12, 2020. Mr. Lind says Ms. Storey became angrywhen she discovered he was billing for extras and this was the actual reason for the Storeys terminating the contract. I agree with Mr.Lind. It makes no sense for the Storeys to terminate their contract with Mr. Lind in order to expedite its completion through third partycontractors. Mr. Lind was planning to complete the outstanding work on February 12, 2020. HVAC and Schiller Floors were notavailable to correct the deficiencies until February 19 and 22, 2020.

Moreover, the hourly rate of these third party contractors was fargreater than that [93] An owner has three basic obligations under a construction contract: (

a) to pay the contractor on a timely basis; (b), to make theworksite available and in a condition so the contractor can perform the work; and (

c) to not interfere with or delay the contractor’sperformance of the work (see Goldsmith on Canadian Building Contracts, at 7-6). The owner must make the worksite reasonablyavailable for the contractor to carry out its work, which includes curing any defects. [94] An owner has the right to terminate a building contract where there has been a substantial breach of the contract by the contractorwhich amounts to repudiation of the contract by the builder.

In Goldsmith on Canadian Building Contracts, the learned authors state inpart: An owner is entitled to terminate a contract if it is clear that either before the commencement of the work, or during the course of it, thecontractor is not in substance able or willing to perform the work . . .

Mere bad or defective work will not, in general, entitle an owner toterminate a contract, but the contractor's work may be so bad or so defective as to amount, in substance, to a failure or refusal to carry outthe contract work, and thus amount to repudiation. [95] If a breach by the contractor is not serious enough as to amount to repudiation, the owner's only remedy is for damages andcannot invoke termination. It is equally clear that if the owner does not have the right to terminate, the contractor will be entitled todamages.

Goldsmith, supra at p. 6-5 states: If an owner clearly repudiates a contract, the contractor may accept the repudiation and terminate the contract. He may then also sue forany damages which he has suffered as a result of the repudiation. [96] Where there are deficiencies the contractor is obligated to either remedy them or bear the cost of doing so. Where a contract hasbeen substantially performed but with some deficiencies, the owner is entitled to set-off, the cost of remedying the defect.

In Jozsa v.Charlwood-Sebazco, 2016 BCSC 78 , the court states: “73 Even where an owner terminates a contract, the owner can still counterclaim for defective work: Keating on Construction Contracts,at p. 293. However, the contractor has the right to remedy any defects in the work himself, and if he is deprived of that right the owner'sright of set off may be curtailed: Wiebe v. Braun, 2011 MBQB 157 (Man. Q.B.), at para. 32. As stated in Obad v. Ontario HousingCorp., [1981] O.J. No. 282 (Ont.

H.C.), at paras. 47-48: 47 With reference to the counterclaim or claim of set-off for damages arising from non-completion of the work, the effect of thedefendant, Ducharme, telling the plaintiff to “get off the job” was to revoke the plaintiff’s license to continue working there.Furthermore, in a practical way, engaging other persons to do the work of the plaintiff, effectively prevented the plaintiff fromcompleting his contract.

The defendant, Ducharme, having thus prevented completion cannot obtain damages for failure of the plaintiffto complete. 48 With respect to the claim for damages resting on expenditures to correct the plaintiff’s work, it would seem that, although thedefendant, Ducharme, is entitled to have a set-off for defective work, its obligation to mitigate its damages would require that it allow theplaintiff to continue, having in mind the reasonable probability that the plaintiff would correct its own work in order to obtain payment ofthe price.

On that basis the defendant, Ducharme, is not entitled to have damages based on its own costs of correction. Alternatively, theplaintiff was obliged to correct its defective work and the defendant, Ducharme, having prevented the plaintiff from fulfilling thatobligation, cannot have damages in the ordinary way based on its having undertaken itself to carry out such corrections. [97] The Storeys denied Mr. Lind access to the worksite in order to complete the Project and repair the deficiencies. The contractcontained no express provision Mr.

Lind was entitled to repair his defective workmanship, however, in British Columbia, the courtsimply that an owner will not take steps to prevent or hinder a contractor from performing his work. [98] I do not regard the delay and deficiencies in this case sufficiently serious to constitute a fundamental breach of Mr. Lind’sobligations under the contact. I conclude the Storeys were not entitled to terminate the contract as and when they did, and in doing so,they wrongfully repudiated the contract. [99] Where one party repudiates its contractual obligations, the other has two options: (

a) to accept the repudiation and thus terminatethe contract, or (

b) decline to do so and thus keep it alive for both: Norfolk v. Aikens, (BC CA). Mr. Lind accepted theStoreys repudiation of the contract, thereby extinguishing his obligation to return to their residence and complete the unfinished workand remedying the deficiencies. Mr. Lind was entitled to sue for the Storeys’ failure to pay his invoices for the work he had done. Issue # 6: What amount, if any are the Storeys entitled to set-off to remedy the deficiencies? [100] The Storeys did not counterclaim for the value of deficiencies, rather they set-off from the monies owing to Mr. Lind those sumspaid to third parties in the amount of $2,829.92.

[101] In Columbia Bitulithic Ltd. v. D.C. Masonry Construction Ltd., (BC CA), the B.C. Court of Appeal held: [25] In Hutchinson v.

Mathias it was said at p. 453: The law seems clear that in a contract of this sort where the builder has substantially complied with the contract, that is, where all thework to be done has been doe, but where it has been done negligently or in an improper manner, the builder is entitled to recover withdeductions necessary to complete the work as specified in the contract. [102] In Goldsmith on Building Contracts at page 5-5 it is stated: A contractor is not, in the absence of some express provision in the contract, entitled to payment until substantial completion of the work.On completion, however, and on the proper fulfilment of any conditions precedent provided for in the contract, the owner must pay theagreed price.

In the case of defects in the work, he may have a right to set up a counter-claim for damages to remedy the defective work,but he cannot escape liability for payment of the price agreed upon. Whether the owner is entitled to set off a counterclaim against hisobligation to pay the contractor will depend on whether the two claims are inextricably entwined and it would be unfair to permit thecontractor to be paid in the absence of a reduction to allow for the counterclaim. [103] I find the principles espoused in Jozsa v. Charlwood-Sebazco apply in this case. When the Storeys denied Mr.

Lind anopportunity to return to the worksite and complete the work and correct the deficiencies, they repudiated the contract, thereby curtailingtheir right of set-off to correct deficiencies. [104] On Exhibit 3, page 3, the Storeys have itemized the sums they set-off against the balance owing to Mr. Lind when theyterminated the contract. As set out above I did not find Mr. Lind contractually responsible for the following: a. Reimbursing the Storeys for the cost of the grab bars in the amount of $325.16; b. Reimbursing the Storeys for the cost of the slide bar for the hand shower in the amount of $31.99; c.

Reimbursing the Storeys for the cost of the linen closet and accessories purchased from Home Hardware in the amount of$496.11; and d. Reimbursing the Storeys for the $163.14, they paid to HVAC on December 31, 2019, to move the heat register in thebathroom. [105] I do not find the grab bars, slide bar or linen closet were intended to be included in the July 12, 2019 Quote. I do not find itplausible Mr. Lind agreed to reimburse the Storeys for paying a third party contractor to work on the Project at a rate far in excess inwhich Mr. Lind himself charged. [106] I found Mr. Lind was responsible for the following: (

a) ensuring the plumbing he opted to do himself complied with the BCPlumbing Code; (

b) replacing the oversized schluter; (

c) installing the transition strip; (

d) replacing (but not purchasing) the water taps;and (

e) installing (but not purchasing) the accessories. Despite their having repudiated the contract with Mr. Lind, I am satisfied theStoreys are entitled to some compensation for the deficiencies. Given the lack of evidence, my fixing any amount to address thedeficiencies is somewhat arbitrary, informed only by the amount of the July 12, 2019 Quote, which was $6,890 (plus $360 GST). [107] Plumbing: Although I cannot determine what portion of HVAC’s February 19, 2020 invoice is for correcting Mr. Lind’sdefective plumbing work, I am allowing the Storeys to set off $450, which is roughly 50 percent of the monies they paid to HVAC under

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