Young Boy Drywall v. Housemaster Construction, 2020 BCPC 14

Citation: Young Boy Drywall v. Housemaster Construction 2020 BCPC 14 Date: 20200206 File No: 1862017 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: YOUNG BOY DRYWALL LTD. CLAIMANT AND: HOUSEMASTER CONSTRUCTION AND MANAGEMENT CO. LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing for the Claimant: J. Khera Appearing for the Defendant: S. Zhang Place of Hearing: Vancouver , B.C. Date of Hearing: January 28, 29, 2020 Date of Judgment: February 6, 2020

INTRODUCTION [ 1 ] Young Boy Drywall Ltd. (“Young Boy”) sues Housemaster Construction and Management Co. Ltd. (“Housemaster”) for $12,348 due because of drywall work performed at a home located at 5770 Chancellor Boulevard, Vancouver B.C. [ 2 ] Housemaster has filed a Reply and Counterclaim. The Counterclaim relates to two different claims. The first is a claim for lost business, unpaid material and labour. The second relates to personal injury suffered by Mr. Shouhe Zhang, the owner of Housemaster. [ 3 ] Mr. Zhang is not a party to this action and Housemaster cannot claim any losses suffered by Mr.

Zhang personally. I advised Mr. Zhang at the outset of the trial that he could not pursue any personal claim in this proceeding. [ 4 ] The trial was a challenge. Neither party had legal counsel to represent them. Neither party did a complete exchange of documents prior to court. Neither party brought the proper number of copies of documents to the trial.

There was no page numbering of documents to allow for a quick identification of each document. [ 5 ] Proper trial preparation requires that each party provide to the other party copies of all documents they will rely upon at trial beforehand or in accordance with any orders made by a judge. The parties must also bring two additional copies of all documents to the trial for use by the court. If there are numerous pages of documents, then the parties must number the pages to allow for easy reference to a specific document. Each set of documents should be placed into a binder.

The pages in each binder should be in the same order. [ 6 ] Mr. Zhang also failed to bring a court certified interpreter to the trial even though he was told of this requirement at the settlement conference. Instead, Mr. Zhang brought his wife Lucia Gunn to translate. I told him this was not acceptable. Ms. Gunn has an interest in the outcome of the proceedings and there was a risk that she would not simply interpret but also rephrase the evidence, or at least appear to do so. At a minimum, this would create an apprehension of unfairness. [ 7 ] I gave Mr.

Zhang the option of proceeding with the trial with his wife acting only as a support person. In such a case, only Mr. Zhang would be permitted to speak to the court or to question witnesses. The use of a support person is discussed in the Notice to the Profession and Public no. 11 , dated January 9, 2020. Mr. Zhang elected to proceed in this manner. [ 8 ] During the course of the trial, I also explained to the parties the importance of reviewing and explaining the relevance of any documents that they rely upon.

At times, though both parties seemed to assume I could fully understand their case despite the lack of adequate explanation. Another difficulty was that the president and representative of the claimant company, Jaskrat Singh Khera, submitted photographs for my review but he was unable to say when he took the photographs. [ 9 ] It became evident during the trial that Mr. Khera was having some difficulty with the English language. On the second day of trial, he requested that Shoaib Ali assist him as a support person. Mr.

Ali had already testified on the first day of trial and so I allowed this. [ 10 ] I did consider adjourning the trial given the lack of preparation by both sides. However, I chose to carry on given the age of the claim, the fact that both parties were present and willing to proceed, and because witnesses were in attendance. I am satisfied that despite the many issues, each party was able to present their complete case for my consideration.

THE EVIDENCE [ 11 ] The evidence from Young Boy came from the company president, Jaskrat Singh Khera, and construction supervisor, Shoaib Ali. [ 12 ] The evidence from Housemaster came from the owner, Shouhe Zhang, and site manager, Alex Guan. [ 13 ] Housemaster agrees that the parties did enter into a contract for drywall work for a quoted price of $17,460. The contract was not in writing. There is also no written quote. The invoice issued by Young Boy only set out the amount of $17,460 and did not refer to taxes.

Net of GST of 5%, the base price would be $16,800 plus $840 GST, or $17,640. [ 14 ] Housemaster says in its Reply that only 75% of the work was completed and calculates the amount owed as $12,600, being 75% of $16,800, plus tax. [ 15 ] Jaskrat Singh Khera testified that Young Boy completed its work in full. Young Boy seeks in the Notice of Claim payment of $12,348. Mr. Khera explained that the invoiced amount owing was $17,640. He says that Housemaster made two payments of $5,292 each, leaving a balance owing of $7,056.

He also says that extra work was performed at the request of Housemaster and for this Young Boy is owed a further $5,128.44. This is represented by an invoice dated June 11, 2018. There is no written contract or quotation for the extra work. [ 16 ] The total of the unpaid amounts is $12,184.44, which differs from the amount of $12,348 sought in the Notice of Claim. Evidence of completion [ 17 ] Alex Guan testified that the insulation inspection was completed and approved on February 6, 2018. He said he then called Mr. Khera to commence the drywalling. Mr.

Guan said that the homeowners required the home renovation to be completed on a tight

schedule to allow them to satisfy bank-financing requirements. Mr. Guan said he kept calling Mr. Khera to have the work completed but that workers were only sent to the home sporadically and they did not stay a full day. [ 18 ] On February 28, 2018, Mr. Zhang sent a text message to Mr. Khera. The message attached a

schedule for the drywall work, which was to start March 1, 2018, with further work to be done by March 3, 2018 and completion of the work by March 10, 2018. Mr. Zhang provided three post-dated cheques as follows:

Cheque #268 dated March 7, 2018 for $5,292. Cheque # 269 dated March 10, 2018 for $5,292. Cheque # 269 dated March 10, 2018 for $7,056. [ 19 ] The cheques totalled $17,640. [ 20 ] The

schedule states: Only when the work progressed base on the

schedule mentioned above the post dated checks (#268 Mar 07 2018 & #269 Mar 10, 2018) can be deposited. If work not done planned, we will stop payment. [ 21 ] Mr. Khera testified that the home needed proper heating so that the taping and mudding of the drywall work could be completed. Mr. Khera responded to Mr. Zhang by text on February 28, 2018, stating: can’t finish one week need 2 to 3 weeks. u didn’t heat install we so many time tell [ 22 ] Mr. Zhang replied by text that there was a heater at the job site and asked that Mr. Khera send workers in to finish the job. Mr. Zhang and Mr.

Khera then exchanged further text messages. I do not believe I have complete records of the text messages though and many of the copies given to me do not show the date of the message. [ 23 ] Three messages sent from Mr.

Khera toward the end of February 2018 read: one day bead. 2 day taping. 3 loading. mud. next depend. how many days dry if heat proper minimums 2 day after 4 roughly sending. and 2 nd code mud and corner. 5 depend how long dry mud minimum 2 days after sending. and. 6 polish start. 2 days. one day dry. 7 final sending ready to paint that’s seqzual. depend heat. we one time. job if. corner crown molding one day. 2 days earlier ready let me know. we do on time. i know i do fast job finish we need 24 hours non stop heat on we do

fast. job finish [24] Mr. Zhang responded that he would rent more heaters. [25] On March 1, 2018, Mr. Khera sent two text messages to Mr. Zhang that read: only one heater all house cold if not clean today one week my guys not come we no respsible. house not clean [26] Mr. Zhang responded that same day stating that everything was cleaned inside the job site and the heater was present. Mr.Zhang said he went to the site at 3:00 pm and no workers were present. [27] Further text messages were exchanged but I do not have complete copies of them. It appears though that either on March 1,2018 or March 2, 2018, Mr.

Khera sent a text message that read: ya, tomorrow more come 10 day we done for u no worries [28] It was clear that Young Boy did commence the drywalling work but it was not completed by March 10, 2018. Mr. Guantestified that two Young Boy employees attended on site March 15, 2018 to work on the drywalling. However, he said that Mr. Zhangsent them away because of the delays in completing the work. Mr. Zhang said this occurred on March 16, 2018. The exact date is notimportant. [29] Mr. Zhang and Mr. Guan said that Housemaster completed the drywalling. Mr. Guan pointed to pictures taken by Mr.

Kherashowing gaps between the drywall panels and the window frames that he personally worked to cover. Alex Guan said that at times otheremployees were also involved in finishing the walls. Mr. Zhang said that the drywall work was completed by the end of April 2018. [30] If the drywall work was fully completed as Mr. Khera states, there was no reason for two Young Boy employees to attend atthe home on March 15 or 16, 2018. As such, I do not accept Mr. Khera’s claim that 100% of the drywalling work was completed. [31] Mr.

Zhang says that it was a term of the agreement between the parties that the work would be completed by March 10, 2018.Mr. Khera said he knew Mr. Zhang was seeking completion of the work by that date but completion was delayed because the premiseswere cluttered and dirty. Mr. Zhang said that Young Boy was required to clean the premises but Mr. Khera disputes this. There isnothing in writing to confirm who had the obligation to clean the premises. [32] More importantly, Mr. Khera said the house lacked adequate heating which was required to allow the drywall mud and tape todry. Mr.

Khera said that Housemaster only had two heaters for a three-story house and this was inadequate to heat the home. Pictures ofthe interior of the home taken by Mr. Khera in fact show the presence of three propane heaters and two electric heaters. [33] As I have noted, there is no signed agreement between the parties setting out a deadline for completion of the work. Thedeadline of March 10, 2018 was set out in a text message sent to Mr. Khera on February 28, 2018. [34] The terms that govern the relationship between the parties to a contract are those in place when the contract is formed.

IfHousemaster wished to impose a construction completion deadline, that should have been agreed to at the outset. Housemaster cannotunilaterally impose a new term to the contract without the agreement of Young Boy. There was a text message from Mr. Kherasuggesting he could comply with a deadline of 10 days to complete the work but that has to be read in context of his other messagessaying that the work depended on whether adequate heating was in place.

I am not satisfied that an agreement was ever reached forMarch 10, 2018 to be the deadline for completion. [35] Absent a firm deadline for the completion of work, it remains implicit in any contract that work will be completed within areasonable time: see Diamond 11 Excavating and Demolition Ltd. v Dhunna, 2018 BCSC 2230 . I did not receive any evidencefrom the parties setting out what a reasonable time for completion of the work would have been. The evidence of whether the home wasproperly heated to allow for drywalling was also contradictory. [36] Mr.

Zhang said he sent two Housemaster employees away on March 16, 2018 and it was effectively on that date that thecontract between Housemaster and Young Boy ended. The claim by Young Boy is not based on a wrongful termination of the contractby Housemaster though. The claim is for unpaid work and materials and, as such, the question turns to the proper compensation for thework and materials actually provided. [37] Housemaster conceded that Young Boy completed 75% of the work. Young Boy has the onus of proving on the balance ofprobabilities that more than 75% of the work was completed, but it has not done so.

Accordingly, I find that Young Boy only completed75% of the contracted work.

[ 38 ] Housemaster says the sum due on the contract was $12,600, being 75% of total contract price of $16,800, plus tax. Housemaster paid a total of $10,584, which is the total of cheques 268 and 269, leaving a balance owing of $2,106 plus 5% GST, or $2,116.80. I accept this calculation and so Housemaster owes Young Boy the sum of $2,116.80. The invoice for extra work of $5,128.44 issued June 11, 2018. [ 39 ] I found the evidence of Alex Guan to have been reliable. He was candid in admitting what he did not know and he was credible throughout his testimony. Mr.

Khera’s evidence was contradictory in certain aspects, such as whether 100% of the drywall work was completed or the number of heaters on site. Where there was a conflict in evidence between Mr. Khera and Mr. Guan, I prefer the evidence of Mr. Guan. [ 40 ] Mr. Guan was not aware of any reason for the invoice of $5,128.44 issued June 11, 2018. There is no written evidence to show that an agreement for extras was entered into. The invoice itself is dated almost three months after Young Boy stopped work on the site. [ 41 ] The

schedule for work completion and the post-dated cheques sent by Mr. Zhang made no reference to extra work being performed. Since Mr. Zhang was seeking a quick completion of the job, I would have expected him to set a

schedule for the completion of any extra work as well. [ 42 ] Mr. Zhang denied entering into any agreement for extras. He questioned why Young Boy would issue an invoice dated June 11, 2018 when Young Boy was off site by March 16, 2018. [ 43 ] The June 11, 2018 invoice appears to relate to drywalling materials and work. It therefore deals with the same materials and work covered by the initial contract between the parties. Young Boy has not explained why the items covered by the June 11, 2018 invoice were not part of the original contract price.

This is not a case where something substantially different from the original contract was provided, as was discussed in the decision McCrea v. Fournier , 2017 BCPC 30 , involving a claim for extras. [ 44 ] I find that there is no evidence to show that the parties entered into a contract for extra work justifying the second invoice for $5,128.44. As such, I dismiss this part of the claim. Deductions for Missing Property [ 45 ] As set out in the Reply and Counterclaim, Housemaster claims a set off or deduction of $600 from the amount owed to Young Boy.

This is based on the claim that Young Boy took a propane tank worth $50, two chairs worth $150 and a heavy-duty heater worth $300. I note that this actually totals $500. [ 46 ] Alex Guan testified that Young Boy employees were using the propane tank. However, he did not see any Young Boy employee taking the tank from the home. Mr. Guan also testified that two chairs were missing from the home. He did not see anyone from Young Boy take the chairs though. [ 47 ] Mr.

Zhang also said he did not see any Young Boy employees take away the chairs or heater. [ 48 ] Because there is no evidence that Young Boy took away the missing items, I will not allow this deduction from the sum owed. Counterclaim for lost business [ 49 ] Housemaster counterclaims for $35,000 for a business loss and for unpaid labour and material. If I understand this claim correctly, Mr. Zhang argues that the delay in the drywalling caused the delay of the entire project.

As a result, the homeowner hired another contractor to complete the job and did not pay Housemaster the balance owed for work and materials. [ 50 ] Of note is that Mr. Zhang suffered a stroke on April 17, 2018 and had to be hospitalized for a number of days. Mr. Guan said that Housemaster effectively ceased operation at that time. [ 51 ] There is no evidence to show if the loss of the contract between Housemaster and the homeowner was due to the delays in the drywalling or due to the delays caused by the stroke. Housemaster did not call the homeowner as a witness at trial.

Given this lack of evidence, I dismiss the counter claim by Housemaster.

SUMMARY [ 52 ] Housemaster Construction and Management Co. Ltd. will pay to Young Boy Drywall Ltd. the sum of $2,116.80 plus the filing fee of $156 and the service fee of $80, a total of $2,352.80. [ 53 ] The counterclaim of Housemaster Construction and Management Co. Ltd. is dismissed. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia