Vista Leadership Inc. v. Pilon, 2021 BCPC 320

Citation: Vista Leadership Inc. v. Pilon 2021 BCPC 320 Date: 20211231 File No: 19-0119 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: VISTA LEADERSHIP INC. DOING BUSINESS AS THERMAL KING GLASS AND MILAN PRPIC CLAIMANTS AND: MURIEL PILON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing for the Claimants: M. Prpic Appearing in person: M. Pilon Place of Hearing: Victoria , B.C.

Dates of Hearing: March 5, 6, May 25, July 24, 2020, February 18, 19, April 9, 2021 Date of Judgment: December 31, 2021 INTRODUCTION [ 1 ] Vista Leadership Inc. doing business as Thermal King Glass (the “Claimant TKG”) seeks in its Notice of Claim to recover a

judgment in debt in the amount of $16,020 being the balance owing on a rendered invoice. It further seeks damages for 30 hours ofadditional personnel time used and “wasted” in the amount of $2,850 plus interest at the invoiced rate of 2.5% per month against thedefendant Muriel Pilon (the “Defendant”). [2] These claims arise out of and in connection with the supply and installation of new replacement windows throughout theresidence of the Defendant. [3] The controlling shareholder of the Claimant TKG is Milan Prpic (the “Claimant Prpic”) who is also named as a Claimant.

Aswill be seen below, the Claimant Prpic has been improperly joined in these proceedings. [4] The Defendant disputes both of those claim and in essence says that she should not have to pay because she did not get what shecontracted for and then further counterclaims against the Claimant TKG and the Claimant Prpic for $7,500, being the entire depositamount originally paid by the Defendant.

The Defendant alleges in her counterclaim it is an amount that is required to fix, replace or tocomplete necessary installation work with respect to the replacement windows. [5] The Claimant denies the counter claim saying the Defendant has not allowed the Claimants to complete any remaining oroutstanding work. [6] While the foregoing describes the original claim and counterclaim, this matter has metastasized into a high conflict case witheach side seeking a broad range of remedies, including a claim for punitive damages. [7] The task of this court is to determine whether or not the Claimants (or either of them) has proven that the Defendant is liable forthe amounts claimed in either debt or in damages and whether the Defendant has proven her counterclaim and the relief sought. [8] I note parenthetically that the hearing of this trial took place over a lengthy time span.

It was interrupted and delayed in part bythe fact that on March 11, 2020, the World Health Organization classified COVID-19 as a pandemic. Shortly thereafter the BCProvincial Health Officer, Dr. Bonnie Henry, commenced issuing a number of orders under the Public Health Act.

Those orders had asignificant impact on trial scheduling within the Provincial Court. [9] However, a lack of preparedness by the Defendant and her failure to arrange for an expert witness in a timely manner, her failureto respond in a timely fashion to requests regarding scheduling from the court’s Judicial Case Manager, her failure to materially complywith both timelines and with court orders and directions, made both in advance and in the course of the trial and her failure to attend atcourt because she forgot a continuation date have also contributed to the length of these proceedings.

Burden of Proof [10] The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. TheSupreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 at paragraph 49, states: …in civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [11] Therefore, the Claimants must prove the existence of the facts and other essential elements upon which it relies in order tosucceed in their claim against the Defendant.

If they fails to do so, the Claimants cannot succeed. [12] Similarly the Defendant, as a Claimant by way of counterclaim, must do the same with respect to the subject matter of thecounter claim and in connection with that prove her mitigation of damages. [13] What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard of proofapplies only in criminal trials.

In civil trials the party who has the burden of proof on an issue must convince the finder of fact (herebeing the court) that what she or he asserts is more probable than not or to put it another way, that the balance is tipped in his or herfavour. (see F.H. v. McDougall, supra). [14] The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denningin the following terms: It must carry a reasonable degree of probability but not so high as is required in a criminal case.

If the evidence is such that the tribunalcan say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not. (see: Miller v. Minister of Pension, [1947] 2 All E.R. 372. at para. 374) [15] In Smith v. Smith (SCC), [1952] S.C.J.

No. 25 (SCC) Justice Cartwright (as he then was) of the Supreme Court ofCanada articulates the applicable test as follows: … that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of apreponderance of probability and I do not propose to attempt a more precise statement of the rule.

I wish, however, to emphasize that inevery civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonablysatisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment isformed including the gravity of the consequences of the finding. [16] Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) (“Sopinka”) at ss.5.52 and 5.53 provide the following useful

summary: [5.52] …Simply put, the trier of fact must find that the existence of the contested fact is more probable than its nonexistence.Conversely, where a party must prove the negative of an issue, the proponent must prove its absence is more probable than its existence.

[5.53] But how does a trier of fact determine if the standard has been met? Certainly not based on the number of witnesses or the volumeof evidence adduced. Also, if the nature of the inquiry is serious or the evidence adduced is very unsatisfactory, a jury may not besatisfied as to the existence of a disputed fact even though the proponent of the issue adduced a preponderance of evidence. [17] Sopinka in s. 5.53 at footnote 135 goes on to cite Dixon J. in Briginshaw v.

Briginshaw (1938), 60 C.L.R. 336 at paragraphs 361-362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existencebefore it can be found… [18] If the evidence on an issue is evenly balanced such that the trier of fact is unable to say where the balance of probabilities lies,then the decision on that issue must be made against the party who has the burden of proving it. [19] In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidencerelevant to that issue, no matter who produced it.

The Role of Expert Evidence [20] In the course of these proceedings, expert evidence was sought to be adduced by the Defendant. [21] The Supreme Court of Canada’s decision in R. v. Mohan, , sets out criteria for determining the admissibility ofexpert opinion. To qualify for admissibility the expert evidence must meet four criteria: (

a) relevance (

b) necessity in assisting the trier of fact (

c) the absence of any exclusionary rule; and (

d) must be given by a properly qualified expert. [22] A properly qualified witness must be independent and impartial (see: White Burgess Langille Inman v. Abbott and HaliburtonCo., 2015 SCC 23 at para 53) [23] Evidence from a qualified expert is admitted in a trial as an exception to the general exclusionary rule barring opinion evidence,in order to provide the trier of fact with the necessary technical or scientific basis upon which to properly assess the evidence presented(see: Sopinka at s. 12.35).

In other words, it is a tool to allow the trier of fact to better comprehend complex or technical evidence inmaking its decision, where the complex or technical evidence is likely outside the knowledge and experience of the trier of fact. [24] A previous rule of evidence known as the “ultimate issue rule” restricted an expert from opining on the very issue before and tobe determined by the court.

The concern was that court’s role as the trier of fact may be usurped by experts. [25] The modern judicial view is that the admission into evidence of the opinion of an expert on the “ultimate issue” is not necessarilyinconsistent with the prerogative of the trier of fact to decide the ultimate issue.

In all circumstances it is open to the trier of fact to acceptor reject the opinion of an expert on the ultimate issue. (see: The Continuing Legal Education Society of British Columbia: ExpertEvidence in British Columbia Civil Proceedings, third edition (2011) (“CLEBC: Expert Evidence”) parts 2.17 to 2.21 inclusive). Summarizing the Evidence [26] I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed andsomewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings.

This approach wasapproved by the Honourable Judge T.S. Woods in R. v. Connell, 2017 BCPC 123, at paras. 5 and 6. This approach has been followed inother fairly recent decisions of our court including my own: see for example Izzard v. Hopkins, 2021 BCPC 35 . [27] However, in drawing necessary inferences and in reaching my conclusions I have carefully considered all of the evidence, even ifI have not made specific reference to certain aspects of it.

Background of the Circumstances Giving Rise to the Claim The Parties to the Action [28] The Claimant TKG operates a well-established Victoria based business on southern Vancouver Island that provides a broad rangeof glass products and services for residential and commercial customers. [29] It includes the replacement and retrofitting of glass windows and glass doors for residential customers, which is a niche marketand a specialty for it.

The business was originally established in 1980 under the name of “Thermal King Glass”. [30] The corporate entity known as Vista Leadership Inc. under the direction of the Claimant Prpic acquired the business in 2017.Two of the founder’s sons continue as operational employees, one being Sean McIlveen, a product advisor, who was the Defendant’sproduct advisor. The other is Jesse McIlveen, a certified glazier since 1990. He primarily works as a window and door installer.Therefore, he has extensive experience in this type of installation and acts as a site supervisor overseeing other installers for hisemployer.

Jesse Mcllveen performed these roles for the Claimant TKG on the project that gives rise to these claims. [31] The Claimant Prpic is the controlling shareholder and an officer and director of the Claimant TKG. He is responsible for theoverall operations, administration and management of its business, which he described as a “growing business” that employs

approximately 10 to 11 people. [ 32 ] At the outset of the trial, the Defendant held long time employment as a room attendant and housekeeper with a prominent local hotel. The COVID-19 pandemic and resulting lockdown in March of 2020 may have impacted the Defendant’s employment. [ 33 ] The Defendant is the sole owner of an exterior stucco residential premises, originally constructed in 1958 and located within the City of Victoria (the “Residence”). The Defendant acquired the Residence some 18 years ago.

Although an extensive renovation of the Residence has never been undertaken by the Defendant she has completed some ongoing repairs and updating, including a roof replacement and the replacement of her heating system. Therefore, at the outset of her dealings with the Claimant TKG she had relatively little experience in home renovations and improvements and none with respect to modernizing her windows. [ 34 ] The Defendant decided to replace the original single pane windows throughout the Residence with modern and more energy efficient windows.

She testified that she was motivated to do so over her concerns about interior condensation accumulation on the existing single pane windows which required her constant attention, wiping down and treating with an essential oil to eliminate an existing mould condition and to prevent further mould growth. She testified that she was concerned about “liability exposure” to her international student tenant for harm caused by that mould.

There is nothing in the evidence to suggest that she ever shared these concerns with the Claimant TKG. [ 35 ] The Defendant obtained the name of Thermal King Glass from a neighbour who was a retired architect (the “Neighbour”). The Neighbour lived in a house a few blocks away from the Defendant (the “Neighbour’s House”) which is not dissimilar to the Residence. Some 6 to 8 years ago, the Neighbour apparently had engaged the business then known as Thermal King Glass to replace the original single glazed windows in the Neighbour’s House. He was apparently pleased with the results.

According to the Defendant, on her behalf the Neighbour contacted the business offices of the Claimant TKG. The Neighbour was not called as a witness and therefore there is no evidence about what transpired during those discussions nor what, if any, information was provided to the Claimant TKG by the Neighbour. The Arrangements and the Agreed Scope of the Work Between the Claimant TKG and the Defendant [ 36 ] Thereafter, Sean McIlveen, in his role as a product advisor, contacted the Defendant and met with her.

Sean McIlveen remained her main contact with the Claimant TKG. [ 37 ] Sean McIlveen has some 20 years of experience as a product advisor in the field of new windows and window replacements. His role is to meet with customers, discuss their needs, provide solution options and prices, determine the scope of the work to be undertaken, and take measurements. Those measurements are then subsequently provided to the actual window manufacturer who completes detailed drawings for the replacement windows.

Sean McIlveen then presents those drawings to the customer for approval, gets contracts signed, and places orders with the window manufacturer, all to get the project underway. He does not oversee nor supervise the project installation work but does remain as the customer’s principal contact, provides customer support and is responsible for dealing with customer satisfaction until the project is finished.

He receives both a salary and a commission on successfully completed projects and upon payment of the contract amount in full by a customer. [ 38 ] It is common ground that the Defendant and Sean McIlveen met at the Residence of the Defendant in mid-October of 2018 with nobody else present. Neither kept notes or other records of the discussions that ensued.

It seems likely that on that particular occasion Sean McIlveen took measurements for the windows in the Residence that were to be replaced with new replacement windows, that being all of the windows in the Residence totalling 13 windows except a bathroom window (the “Replacement Windows”). [ 39 ] Thereafter the Defendant visited the Claimant TKG’s showroom to discuss the available options and methods of installation and the respective benefits of these options. It is common ground and it was understood by both parties that the Replacement Windows were being sourced from a third party window manufacturer.

In this case it was VINYLTEK (the “Manufacturer”). As noted below the Defendant suggests she did not understand that the Replacement Windows were being custom manufactured for her Residence. [ 40 ] There is contradictory evidence provided by the Defendant and by Sean McIlveen. Sean McIlveen stated that in the course of their discussions, the Defendant had a “clear idea” of the type of replacement window she wanted and the method of installation to be utilized. Sean McIlveen says that this was the basis for the order taken by him from the Defendant for the Residence and then placed with the Manufacturer.

However, the Defendant suggests in her evidence that at the outset the Claimant TKG was made aware that she wanted the “same as” or “exactly the same” windows as the Neighbour’s House. She goes so far as to suggest that the civic location of the Neighbour’s residence at the very outset was provided to and made known to somebody when she called the business offices of the Claimant TKG and that was the specific reason the Claimant TKG was selected and hired by her. She also contends that Sean Mcllveen told her that he had copies of the documentation relating to the replacement of windows at the Neighbour’s House.

That is inconsistent with Sean Mcllveen’s evidence. [ 41 ] There is no doubt that eventually Sean McIlveen and the Defendant visited the Neighbour’s House for a viewing of those windows but that occurred later.

Sean McIlveen testified that he believes that discussions about “looking like” the windows at Neighbour’s House occurred after the signing of the Original Order Document and prior to signing the Order Modification Document, as each are described below. [ 42 ] As a result of the meetings between the Defendant and Sean McIlveen, Sean McIlveen described the Defendant’s choice for the Replacement Windows as “full removal and full replacement”.

This entails the removal of the existing windows and the original frames, and then the replacement installation of a new framed window, complete with a weather barrier, into each of the original rough opening gaps left after the removal of the existing windows. The replacement window unit is then attached to the superstructure of the house by way of a nailed flange system.

This system requires some cutting around the original opening gap which for the Residence, meant cutting into the stucco. [ 43 ] A type written “order” document dated October 17, 2018, identified as Order No. 3994 on the Claimant TKG’s form was prepared by Sean McIlveen. It specifically referenced the supply and installation of “new premium grade VINYLTEK windows “as per

attached details” with specific reference to a seven page document #51805. That seven page document was prepared by the Manufacturer (being VINYLTEK). It contains drawings, specifications and dimensions for the new Replacement Windows and a glass door (the “Manufacturer’s Plans”). The signature of the Defendant appears on this “order” document (the “Original Order Document”). Reference is made to other specifications and colours. [ 44 ] Specific mention is made in the Original Order Document to a: “Lifetime manufacturers Warranty, 10 year installation warranty”.

The Claimant Prpic confirmed that the Manufacturer provides the “Lifetime manufacturers Warranty” which covers any failures of the Replacement Windows. The Claimant TKG provides the “10 year installation warranty”.

The Claimant Prpic testified that there has never been a problem with any window installations of the Claimant TKG nor any warranty installation claims made against the Claimant TKG. [ 45 ] Specific mention is also made on the face of the Original Order Document about the “full removal of old frames and installation of new windows” and “Measured to fit inside the existing line space-interior trim will stay in place”.

It goes on to specify an upgrade of the living room to laminated glass for “better noise reduction of road noise” and for providing a specific type of glass door described as a “Inswing Eurotwist door with multi point lock” (the “Eurotwist Door”). [ 46 ] Another provision states: “Includes removal and disposal of old material from the site. Finish trims will be primed and ready for finish paint unless otherwise noted.

Electrical conduit above rear windows to be moved by homeowner prior to installation of windows.” [ 47 ] On the face of the Original Order Document the total price inclusive of taxes is stated to be $23,244.90 and then there is a handwritten insertion showing a deposit paid by Visa of $7,500 (the “Deposit”) with the outstanding balance being $15,744.90. [ 48 ] The Defendant testified that she saw the Manufacturer’s Plans before she signed the Original Order Document.

Sean Mcllveen conceded that the Manufacturer’s Plans do not provide information on the flanges but he testified that the available options were discussed between himself and the Defendant and were reflected in Original Order Document. [ 49 ] Notwithstanding that the Manufacturer’s Plans were attached to the Original Order Document, the Defendant testified that she did not recall knowing or being told by Sean Mcllveen or anybody else that the Replacement Windows had to be specifically custom manufactured for the Residence.

Changes to the Scope of the Work [ 50 ] Following the placement of the order with the Manufacturer based upon the Original Order Document, the Defendant contacted Sean McIlveen with concerns that what she was getting by way of the “full removal and full replacement” was not the same as the Neighbour’s House replacement windows which apparently was an option known as a “rebate window system”. [ 51 ] According to all of the evidence before the Court, the “rebate window system” form of installation involves removal of the original glass while retaining the original permanent window frames, which in this case are the original metal frames.

The new vinyl frame is then inserted inside that original metal window frame and then affixed by drilling through the vinyl frame from the interior side into the original metal frame and through into the superstructure of the house.

The result is that from the exterior the new vinyl frame generally covers the original metal frame, with some exceptions, depending upon the type of the exterior covering of the house such as stucco, wood or vinyl. [ 52 ] Following the placement of the Original Order Document with the Manufacturer, the Defendant apparently realized that the type of installation for the full removal and full replacement process that she had ordered resulted in cutting into the exterior stucco. How she became so aware is unclear.

The evidence suggests that what prompted her was the realization, from some unspecified source, that what the Neighbour’s House had was the “rebate window system” otherwise called a “partial replacement” window. [ 53 ] She contacted Sean McIlveen about her concerns sometime in mid-November of 2018. She indicated that what she had ordered is not what she what she actually wanted. They subsequently met at the Residence. Again, neither kept notes nor other records of the discussions. The Defendant described that she got “very, very upset” with Sean McIlveen and they argued.

She suggested that it was Sean McIlveen who was most argumentative but concedes that she was “fighting with him”. Sean McIlveen goes so far as to agree in his testimony that she was “upset”. [ 54 ] It is common ground that during this subsequent attendance at the Residence, that the Defendant and Sean McIlveen together then personally visited the Neighbour’s House to view the windows at that location. [ 55 ] Again, there is a conflict in the respective versions of what was then discussed during that subsequent visit.

The Defendant suggest that on that occasion she told Sean McIlveen that the windows of the Neighbour’s House was “what I want” and “exactly like this” and that it fit her budget. She goes on to say that Sean McIlveen then said: “I clearly see what you want”. In her evidence, the Defendant then goes so far as to say to Sean Mcllveen that she specifically wanted the “flanges” to look like those on the Neighbour’s House, although at that point it is uncertain that she even knew what a flange was on any of the windows.

She went on to testify that it was her belief that the Neighbour’s House replacement windows only cost about $6,000 when he had it done. The source of the information is unclear and its factual correctness was not verified from any independent source at trial. The Defendant did concede there were likely more Replacement Windows that had to be replaced on the Residence than on the Neighbour’s House. [ 56 ] On the other hand, Sean McIlveen testified that when he met with the Defendant on the subsequent time at the Residence that it was the Defendant who then had a “new clear idea” of what she wanted.

That then precipitated the visit to the Neighbour’s House. He also testified that he would have told the Defendant that the new Replacement Windows would not look exactly like those on the Neighbour’s House. The reason being that the original windows of the Neighbour’s House were likely a different kind of aluminium frame window from the 1950’s or 1960’s, with a different size opening and requiring a different size of flange, being a 2 inch flange. The Original Order specified a 2 1/2 inch flange to properly cover around the Replacement Windows.

Sean Mcllveen testified that the option reflected in the Original Order Document would have been more in keeping with the appearance of the Replacement Windows in Neighbour’s House. He had no recall of a discussion about a $6,000 cost amount nor any questions or concerns from the Defendant

about her budget at this time or on previous occasions. [ 57 ] Ultimately and shortly thereafter in an attempt to address the Defendant’s concerns, Sean McIlveen made inquiries with the Manufacturer regarding the status of the manufacturing of the new Replacement Windows. [ 58 ] As it turned out, the manufacturing of the new Replacement Windows had already been completed.

However, Sean McIlveen learned from the Manufacturer that some adaptations and modifications to the installation procedures could be made in order to make use of those completed Replacement Windows, to avoid cutting the stucco and to obtain something close to the look of the windows that had been installed at the Neighbour’s House. [ 59 ] However this modified installation process also required the removal of the existing nail flanges on the newly manufactured windows and in substitution of that existing nail flange, the use of a 2 1/4 inch stucco flange to cover the original frames of the Residence from the exterior.

A 2 inch flange, like that on the Neighbour’s House, would not provide satisfactory aesthetics coverage. As I understand Sean McIlveen’s evidence a 2 1/4 inch stucco flange was not available from the Manufacturer but a 2 1/2 inch stucco flange was available. However, that particular flange needed to be cut in order to properly install the new Replacement Windows on the Residence. [ 60 ] Sean Mcllveen testified that the flange was also important as a water seal and to keep bugs out and that cutting the flange resulted in an aesthetic change but no loss to its strength or its functions.

He further explained that this cutting was required in order to bring it into proper contact with the frame of the original windows in certain areas. [ 61 ] I understand from the whole of the evidence provided by the witnesses testifying on behalf of the Claimant TKG that the Replacement Windows are manufactured as a sealed unit.

However, it is essential to have the Replacement Window unit fitted properly into the window space; part of that installation procedure involves the covering of any gaps between the sealed window unit and the window space and that flanges often serve that purpose. [ 62 ] On November 15, 2018, a hand written document was prepared by Sean McIlveen and signed by the Defendant (the “Order Modification Document”). This changed the scope of the work. It references the order number of the Original Order Document and the net price before taxes, set out therein at $22,138.

It then sets out the required modifications to that Original Order Document which includes the following: (

a) add the addition of the 2 ¼ flange, which are to be “trimed (sic) to line up/ slighly (sic) overlap aluminium frame” on specifically identified windows and with specifications of colour, all for an increased cost of $1,742; (

b) the “driveway window to be finished with new primed combface trim to fill between vinyl frame and wood [at no charge]”; (c) “Brickmold/sill including new 2x combace exterior sill” [at no charge]”; (d) “Door exterior finishing to now be done with 1x pvc trim [at no charge]” and; (e) “no cutting of stucco/installation charge [resulting in a deduction of $1,480]”. [ 63 ] Therefore, the Order Modification Document shows a new total before taxes of $22,400, plus taxes of $1,120, for an aggregate of $23,520.

The Deposit amount of $7,500 is credited, resulting in a balance owing shown as $16,020. [ 64 ] The Defendant’s evidence is that she did not recall knowing or being told that the Manufacturer had already completed the Replacement Windows or that modifications would be required to the flanges. She conceded that she knew and approved some cutting of the flanges on some five windows in order to fit under the eaves.

She testified that she understood that when she was signing the Order Modification Document that she would be getting the same window appearance as the Neighbour’s House. [ 65 ] Sean Mcllveen testified, that in hindsight, there was a further possible option to remanufacture the Replacement Windows but the total cost, including the cost to the Defendant for the already manufactured windows under the Original Order Document, would have been in the range of between $30,000 to $40,000.

According to Sean Mcllveen’s evidence this hindsight approach may have provided an appearance closer to the Neighbour’s House but of course was much more expensive. He never presented that option to the Defendant.

The Installation of the Replacement Windows and the Defendant’s Complainants [ 66 ] As I understand the evidence of both Sean McIlveen and the Defendant the installation by the Claimant TKG of the new Replacement Windows and the new door proceeded following the execution of the Order Modification Document. [ 67 ] Based upon the evidence of the Claimant Prpic, Sean McIlveen and Jesse McIlveen the Claimant TKG’s installation work occurred at the Residence between January 7 thru to January 9, 2019, under the direction of Jesse McIlveen, who was overseeing a 3 or 4 person crew.

The Defendant testified that she was on paid vacation and was present at the Residence to observe the installation work. She says she spoke with and dealt with Jesse Mcllveen during the installation. She also says that she provided food and refreshments for the crew. She neither had nor expressed any concerns or dissatisfaction to either Jesse Mcllveen or Sean Mcllveen during the course of the installation of the Replacement Windows or the Eurotwist Door. [ 68 ] The Claimant TKG asserts that the installation was “substantially complete” on January 9, 2019.

Specifically the Claimant Prpic testified that approximately 3% to 4% of the work remained to be completed. [ 69 ] The Defendant says that she immediately saw there were things that were incomplete and deficient. [ 70 ] The usual practice of the Claimant TKG is to have the assigned product advisor (in this case Sean McIlveen) conduct a walk through inspection with the customer. This is to determine that the customer is satisfied or to determine what remaining work or

deficiencies have to be addressed by the Claimant TKG’s employees, and to thereby complete and finalize all project matters (the “Final Corrective Work”).

The Final Corrective Work also includes cleaning of the interior and exterior of installed windows and frames, the clean-up and touch up painting of rough cuts on the flanges, and other touch up painting and caulking. [ 71 ] In the meantime and prior to an opportunity for the Defendant’s walk through with Sean McIlveen, Invoice 101644 addressed to the Defendant (the “Invoice”) was generated by the Claimant TKG and apparently sent to the Defendant via email on January 10, 2019. It showed a total amount owing of $16,020 after a credit for the Deposit and a reduction of $1,480 for elimination of the stucco cutting.

Therefore, prior to the applicable credit for the Deposit the total gross amount inclusive of GST equalled $23,520. All of this was consistent with the Order Modification Document. [ 72 ] The Invoice contained a provision stating: “Due upon Receipt 2.5% per month service charge will be added on overdue invoices”. The Original Order Document signed by the Defendant makes no mention of payment terms or interest on overdue balances.

The Order Modification Document, also signed by the Defendant, does contain a line with a box for ticking that recites the payment terms contained in the Invoice but that box was not ticked as to become applicable.

There is no evidence that the Defendant agreed to pay interest at that rate or for that matter any interest at any rate. [ 73 ] According to the Claimant Prpic, it was an administrative error that caused the Invoice to be so rendered to the Defendant at that time and specifically prior to the walkthrough as between the Defendant and Sean McIlveen occurring. [ 74 ] In response to receiving the Invoice, the Defendant sent a return email of January 10, 2019 to Caroline Prpic, spouse of the Claimant Prpic, who as part of the Claimant TKG’s administration team had sent out the Invoice.

In that email, the Defendant indicated she was waiting for the “storage window” and the Eurotwist Door to both be repaired, being a reference to the door’s latch. She also raised a question about discounts for a “crack in the front window frame” which I understand to be in the window’s flange. [ 75 ] In a prompt email response from Sean Mcllveen, he apologized for the Invoice having being rendered before the walk through and before their in person discussions about the identified “service issues” and “appropriate compensation”.

He requested that she “please set the invoice aside for now” pending those discussions. He further indicated that the Claimant TKG was working with the Manufacturer to resolve the window and door issues and confirmed that the Claimant TKG had ordered “a replacement vent (the sliding window frame) for the storage window”.

He sought to arrange an in person meeting with the Defendant to arrange for the Final Corrective Work. [ 76 ] The Defendant’s responding email of January 13, 2019 noted the following specific concerns and made the following specific and general comments and raised the following questions: (a) “Why was the outside of the window of all the window frames cut? They are slightly narrow than [the Neighbour’s] AND there is no edge to the outside of mine like [the Neighbour] has. This did not need cutting at all. My window (sic) were to be the same as [the Neighbour’s].

His windows were my model for you to do.” (b) “Why do some of the windows move when open/ close and some do not?” (

c) Concerns about the installation of the Eurotwist Door, its subsequent removal by Jesse Mcllveen and the resulting “change” such that it would not stay closed without being locked and a resulting sound when the door was closed. The Defendant wanted this corrected. (

d) Concerns about a tear and repair in the “top left corner” of a window that occurred during the installation, which she thought was not cracked “in the inside but a deep scratch”. (

e) The downstairs bedroom window was “backwards”. (

f) She noted was seeing Sean on the following Monday to resolve these issues and she would not be paying until they can be resolved, noting that “these are a lot of mistakes and not what I have asked for.” [ 77 ] Thereafter, Defendant continued to complain about several things following what the Claimant TKG had considered to be the substantial completion of the scope of the work (but before completion of the Final Corrective Work).

These complaints of the Defendant included the quality of the installation work. [ 78 ] There is considerable disagreement between the evidence of the Defendant and that of the three witnesses of the Claimant TKG about the basis for the Defendant’s complaints and the validity of those complaints.

The evidence of the expert witness called by the Defendant does raise a couple of issues as discussed below. [ 79 ] There is no disagreement that the customer relationship and communications between the Claimant TKG and particularly, Sean McIlveen, with the Defendant became increasingly strained. [ 80 ] Personal communication was replaced by email communication at the insistence of the Defendant shortly after she first lodged her complaints. Her stated reason in her evidence for insisting upon the use of email was for “clarity” and because “our communication was not good”.

The Defendant refused Sean McIlveen’s suggestion made via email on January 21, 2019 for them to have a telephone chat. [ 81 ] As part of the documentary exhibits in this trial are a number of emails exchanged between the Defendant and Sean McIlveen from between approximately January 15, 2019 to February 11, 2019 following an actual in person discussion that apparently occurred between them on or about January 14, 2019. [ 82 ] It appears that at this juncture there were three categories of the Defendant’s concerns and one category of concern of the Claimant TKG that were discussed on or about January 14 to 15, 2019.

[ 83 ] The first category of the Defendant’s concerns appears to relate to what can be characterized as cosmetic work or minor work, such as touch painting on the cut flanges, touch up painting on all windows and cleaning of windows inside and out, providing a new vent for the storage room window and dropping off a sample of the 2 1/4 inch VINYLTEK flange, all of which was to be attended to by the employees of the Claimant TKG as part of Final Corrective Work. [ 84 ] The second category of the Defendant’s concerns appears to relate to the adjustments or repairs to the Eurotwist Door.

It seems that the Manufacturer had provided the wrong hardware at the time the door was installed by the Jesse Mcllveen. The available evidence suggests that the Defendant was insistent that this adjustment be attended to by the Manufacturer or its service agent, but not by the Claimant TKG.

However, this remedial work for the Defendant was to be arranged with these other service providers by Sean McIlveen. [ 85 ] The Defendant’s third category of concern was a “cracked” living room flange for which the Sean McIlveen offered an “additional discount” of $105; a further “discount” of $315 for a side bedroom window which Sean McIlveen stated in his follow up email was ordered by the Defendant, but what was not what she expected and “may have been my error in understanding what you wanted”.

He asked if that particular discount was acceptable to the Defendant or whether we should be looking into a full window replacement”. Again this appears to all be part of Final Corrective Work. [ 86 ] The sole category of concern for the Claimant TKG was payment of the rendered Invoice.

In that regard, the email exchanges indicated that the “adjusted balance” of $15,600 should be satisfied in part by a $13,100 progress payment (the “Progress Payment”) with an amount of $2,550 to be held back by the Defendant pending the completion of the services by the Claimant TKG. [ 87 ] All of this was confirmed in Sean McIlveen’s follow up email of January 16, 2019 sent at 12:13 pm. It appears that the Claimant TKG’s employees were to attend at the Residence on the Defendant’s next available date, being Monday, January 21, 2019 to deal with first category of concerns.

Sean McIlveen was to inform the Defendant when the representatives of the Manufacturer or its service agents were to attend to deal with the Defendant’s second category of concerns. [ 88 ] Very shortly thereafter the Defendant sent two emails to Sean McIlveen. The first sent at 6:33 pm, cancelled the next Monday’s attendance indicating she wanted to make it clear what her concerns were which included not being “satisfied with the work done” and enumerating a number of examples.

In one of those two emails the Defendant recounted that she had checked with three unidentified people who “had better quality doors” (presumably with reference to the Eurotwist Door) and also spoke with two other unidentified people who suggested to her that it sounded like the Claimant TKG had sold the Defendant their “reject orders”. Furthermore, those unidentified people allegedly told her that the flanges should not be cut. None of these people were ever identified nor were any of them called as witnesses for the Defendant.

The Claimant Prpic categorically denied the suggestion that the Claimant TKG had provided “reject orders” to the Defendant and both he and Sean Mcllveen denied that the flanges should not be cut. [ 89 ] A further email from the Defendant sent on January 17, 2019 listed more concerns and amplified on her past, identified concerns.

In response, Sean McIlveen acknowledged the concerns and suggested a meeting with the Claimant Prpic as the owner of the Claimant TKG which was then declined by the Defendant. [ 90 ] In further response to that January 17, 2019 email from the Defendant, Sean Mcllveen provided a point by point response to each of the concerns; in some instances explaining certain things as being what was ordered by the Defendant or with an explanation of how the Claimant TKG was planning or prepared to respond to certain deficiencies and proceed to rectify them, all as part of the Final Corrective Work. [ 91 ] In her response, by way of an email of January 21, 2019 sent at 11:49 am and specifically about the required adjustments to the Eurotwist Door, the Defendant stated she intended to replace it and had ordered another door from a different company because of the existence of a wooden sill on the Eurotwist Door that had been installed, and then contending that a wooden sill was not used nor installed by other door providers. [ 92 ] There appears to have been an assumption on the part of the Defendant that what had been provided was a door actually constructed out of wood.

She seemed to raise concerns about “quality” which I take to include the Eurotwist Door.

She then further stated she would let the Claimant TKG know when they could come and pick up that Eurotwist Door, being when the Manufacturer came with her “new window for downstairs”, which I understand is a reference to the window that was mentioned in earlier emails and which opened in the opposite direction to that envisioned by the Defendant. [ 93 ] Sean Mcllveen responded immediately at 12:05 pm, stating that they needed to “chat on the phone” about the Defendant’s intended action and further stating that Eurotwist Door was what she had ordered and had agreed to, with a cautionary note if she proceeded in this fashion she may be “contractually obligated to pay for two new doors.” He stated that the installed door “may have wood finishing, but the sill is made primarily of PVC, steel and rubber gaskets.” [ 94 ] The Defendant replied at 3:58 pm again on January 21, 2019 stating that she intended to get a “second opinion” and then again at 4:42 pm with a postscript saying that she had “taken pictures of everything and everything documented”.

There is further indication that she had watched Jesse Mcllveen install the door and “didn’t see anything but wood”. She then went on to note as follows: “You did not give me what I wanted AND with a LOT of mistakes that I will not be paying for.” [ 95 ] The Defendant then requested of Sean Mcllveen and was then provided with photos of the showroom version of the Eurotwist Door’s sill, taken between January 23 and January 28, 2019. This led the Defendant to identify in her email of January 28, 2019 of what appear to be some minor differences between her installed Eurotwist Door and the show room version.

Sean Mcllveen replied within less than an hour that these items would be taken care of by the Claimant TKG, along with other identified deficiencies as part of the Final Corrective Work. [ 96 ] Sean Mcllveen suggested a February 4, 2019 date, being a Monday and a day that Claimant was usually at home and not working, for the Claimant TKG’s employees to attend for the Final Corrective Work. He also said that he would attend at that time to explain the flange cutting and installation. Also, he would arrange to have the service representative from the Manufacturer attend that same day.

Sean Mcllveen did in fact contact the Manufacturer and arranged to have their service representatives attend at the Residence

on that date. [ 97 ] The email exchanges about the Eurotwist Door continued between the two of them. On January 29, 2019 the Defendant emailed Sean Mcllveen to confirm that she had received the “second opinion” on the back door to the effect that “it is a good door” but the unidentified individual shared her belief that the door sill was “wood” and she expressed concern about a difference of a sill height between what was depicted in the showroom pictures and her door.

Sean McIlveen indicated that this would be taken care of on February 4, 2019. [ 98 ] On Sunday, February 3, 2019 at 4:51 pm, the Defendant stated for the first time to Sean Mcllveen that Jesse Mcllveen had “put foam around door” during the first installation and when he had to remove the Eurotwist Door he had “cut all the foam out before installing a second time”. Therefore, as I understand it, she believed that Jesse McIlveen did not replace foam around the door during the reinstallation. She therefore concluded: “It changed the whole door” and she wanted the foam put back.

She said she was advised to do so, but again that was by an unidentified individual. [ 99 ] Jesse Mcllveen testified that he had installed the Eurotwist Door and then had to make an adjustment at the bottom of the Eurotwist Door to allow it to match correctly on both sides. He did not recall having to take the door off to do that. He testified that the foam that is used is actually an expandable foam product. It is used in the installation process to help shim doors into place and has nothing to do with insulation for the door.

He also indicated that he has no recollection of cutting into the Eurotwist Door nor would there be any reason for him to do so in making the necessary adjustments. [ 100 ] Furthermore, Jesse Mcllveen testified that he had no recollection of removing any weather stripping. He confirmed that replacement of any foam (if required or requested) and dealing with any weather stripping concerns were straightforward and easy matters to address and would be completed at the time that the Claimant TKG’s installers were permitted back to the Residence to complete the Final Corrective Work.

He confirmed that there was an issue with latching of the Eurotwist Door because of the incorrect hardware that had been provided by the Manufacturer and that this was something with which the Claimant TKG had intended to deal with, again as I understand it as part of the Final Corrective Work. [ 101 ] It is noteworthy that throughout this entire period Sean Mcllveen consistently was attempting to arrange times for the employees of the Claimant TKG to attend at the Residence in order to complete matters forming part of the Final Corrective Work.

However, the Defendant continuously deflected those requests and failed to provide alternative dates and continuously indicated she would be in touch with Sean Mcllveen at some non- specified date in the future. [ 102 ] Finally, February 4, 2019 was arranged by Sean Mcllveen as the date that both the employees of the Claimant TKG and the Manufacturer’s service representatives would attend, all at the same time, for the purposes of dealing with the identified concerns and to complete the Final Corrective Work. It was a specific requirement of the Defendant that this all be done on the same day.

Sean Mcllveen kept assuring her in his emails that he had made the necessary arrangements with and was awaiting confirmation from the Manufacturer’s service representatives of their planned attendance. [ 103 ] In the meantime, on or before January 31, 2019, the Defendant also contacted the Manufacturer’s office about the February 4, 2019 date and began an email exchange with their controller.

Those email exchanges continued for several weeks thereafter, during which the Defendant’s complaints about the Claimant TKG were being expressed. [ 104 ] When the Manufacturer’s service representatives were unable to attend on February 4, 2019 due to staff illnesses, and when the Defendant became aware of the cancellation, she blamed Sean Mcllveen, who of course had no control over that happening. The Defendant went so far as to tell Sean Mcllveen that it was a “broken promise” on his part, which Sean Mcllveen found to be quite troubling.

The Defendant stated that she did not want the employees of the Claimant TKG to attend on February 4, 2019. [ 105 ] The Defendant then told Sean Mcllveen in a series of subsequent emails that it would be necessary for new appointment dates to be arranged and that the Manufacturer’s service representatives and the employees of the Claimant TKG would have to come on separate days.

Sean Mcllveen pressed for a date when that could occur but the Defendant continued to deflect that request. [ 106 ] Starting on January 28, 2019, the emails from the Defendant to Sean Mcllveen raised other concerns including a thin black mark on one of the new windows which she took to be a crack which, as it turned out, was not and was found to be a removable streak. As I understand it, the most noticeable black marks were removed when the Manufacturer’s service representatives eventually did attend on or about March 5, 2019.

The Defendant was provided with some cleaning products by the Manufacturer’s service representatives that she used herself to remove some remaining black marks. [ 107 ] However, in her later evidence she suggests that there were also “streak marks” which she had never seen, before they were pointed out to her by the Manufacturer’s service representatives. As I understand the Defendant’s evidence, she has been unable to remove those streak marks, which she also describes as “smudge marks” inside some of the largest front windows.

She testified that these streaks or smudge marks are particularly visible on a sunny day from some 50 feet away inside the Residence. They are less visible on a cloudy day and she would have to be about 10 feet away, inside the Residence, in order to see them. She says that she cannot get these streaks or smudges off by using any of the cleaning products that she received from the Manufacturer’s service representatives. [ 108 ] The Defendant conceded that there are no photographs among the several that were admitted into evidence that show these marks or smudges.

She testified that she has never called anybody to attend at the Residence to examine these marks or smudges. She suggests that she spoke to Sean Mcllveen about these marks or smudges by way of verbal communication after the Manufacturer’s services representatives had been at the Residence, notwithstanding her insistence on using email to communicate with Sean Mcllveen. The Defendant acknowledged in her evidence that she knew about the Lifetime Manufacturer’s Warranty but she never has contacted the Manufacturer about the remaining marks or smudges.

She contended in her evidence the that expert called by her, being Gordon Kyle had observed these marks or smudges, but there is nothing in the Kyle

Summary (as hereinafter referenced) or in Mr. Kyle’s evidence to this effect. [ 109 ] The Defendant testified that she was very pleased with the work done by the Manufacturer’s service representatives on the

Eurotwist Door and ultimately very pleased with Eurotwist Door, notwithstanding all of her prior complaints and concerns.

She testified that Manufacturer’s service representatives “tweaked the door” (which I understand to be the Eurotwist Door) and that fixed it “right away” and that it was not necessary for them to change any hardware on that door. [ 110 ] In her various email, the Defendant also raised concerns about the look of the flanges not being identical in appearance to that of the Neighbour’s House, and about her other observed deficiencies such as in the sealing and caulking around the Replacement Windows. [ 111 ] The Defendant says that when she attempted to discuss her concerns about the flanges with the Manufacturer’s service representatives, they just referred her to the Claimant TKG. [ 112 ] The Defendant in her evidence suggests that Sean Mcllveen did in fact conduct a final walk around inspection but she was not certain when that occurred and whether or not it occurred before or after the Manufacturer’s personnel did their corrective work on the Eurotwist door which was March 5, 2019.

She then said she thought it was before. On the whole of the evidence, it appears that there may have in fact been a walk through at some point in time by the Defendant with Sean Mcllveen, possibly around January 14, 2019 during which the Defendant continued to press her growing list of concerns. [ 113 ] The Defendant contends that throughout this phase Sean Mcllveen was not addressing her multitude of concerns and was only speaking in terms of “touch up work” on things like the flanges.

She concedes that Sean Mcllveen told her that the Claimant TKG was more than happy to do the “touch ups” and offered to give her the paint to do it herself, if she wished. [ 114 ] In her evidence she rejects the notion that what remained outstanding was in the nature of what had been characterized as “touch up” work. In her view, this “touch up work” did not address her larger concerns, which were now multiple in number including cracks in the flanges, and the cut edges of the flanges; she contends these were problems Sean Mcllveen was ignoring.

She also suggested in her evidence that she was raising concerns with Sean Mcllveen about the strength of the flanges being jeopardized, because they had been cut. She went so far as to say she understood that the cut flanges had no strength whatsoever. The source of that information and the basis of that belief is unclear on her evidence because it pre-dated her discussions with Mr.

Gordon Kyle and further no other informed individual had apparently visited the Residence to inspect the Replacement Windows. [ 115 ] She confirmed in her evidence that she has never permitted the crews from the Claimant TKG to come back and complete any of the Final Corrective Work or for that matter any other work on her Residence. [ 116 ] In her evidence the Defendant suggests that there was a wooden bottom window sill that she was told (again by an unidentified source) should have been replaced.

She agreed that there is nothing in the Original Order Documentation or the Order Modification Document that requires that work to be completed by the Claimant TKG. She also stated that she did discuss that uncompleted work as a deficiency with Sean Mcllveen when they conducted a walk around inspection of the Replacement Windows. So far as I can see, there is no mention of this particular alleged deficiency in any of her emails. [ 117 ] During this period of time, the Claimant Prpic was informing Sean Mcllveen by way of an email on February 5, 2019, about the Claimant TKG’s concerns.

Specifically the concerns about the “protracted resolution” of outstanding matters with the Defendant since the “project was substantially completed Jan. 7, 2019”. The Claimant Prpic stated that because of the alleged deficiencies that the Defendant would be “entitled” to a “holdback of 10% of the contract amount” (which contract amount Mr. Prpic stated to be $25,320) and therefore he calculated the maximum holdback amount to be $2,532. Again, I note parenthetically, that based upon the Invoice the total amount billed was actually $23,520.00, including taxes, and after adjustments.

After giving a credit for the Deposit $7,500 the balance owing on the amount of the Invoice was $16,020. [ 118 ] The Claimant Prpic indicated to Sean Mcllveen that he was to inform the Defendant that she was required to immediately make a payment to the Claimant TKG of $13,488 on the outstanding amount of the Invoice by February 7, 2019. Failing that, a builder’s lien would be filed against the lands and premises forming the Defendant’s Residence by the Claimant TKG for the entire outstanding balance of the Invoice.

The Claimant Prpic urged Sean Mcllveen to inform the Defendant about the adverse effect this could have on her credit rating and further that the Claimant TKG may be “forced” to take court action shortly thereafter, which I presume to be after the filing of the builder’s lien and to then enforce the builder’s lien. [ 119 ] On February 11, 2019 at 11:57 am Sean Mcllveen emailed the Defendant and told her that he was being pressured by the Claimant Prpic to get the Defendant’s job completed because it had taken too long to resolve and “at the very least to collect payment for work we have already completed”.

Sean Mcllveen then went on to indicate what was required from the Defendant was to make a payment to the Claimant TKG of “at least $15,000 prior to February 13, 2019 for the work completed”. He then went on to say to the Defendant that failure to pay, left the Claimant Prpic “no choice but to register a building lien on your property”. Furthermore that the original holdback suggested to her by Sean Mcllveen of $2,500, in the Claimant Prpic’s assessment, “far exceeds the value of the work left to be completed”.

There was also a further request to contact Sean Mcllveen to arrange for the Claimant TKG’s employees to attend at the Residence to complete the remaining work as part of the Final Corrective Work. [ 120 ] In the Defendant’s responding email of February 11, 2019 to Sean Mcllveen she stated as follows: I am NOT HAPPY with work done. I will let you know when I get the work checked out by Vinyltek. I will contact you afterwards. You as well as me will have to wait. I have done a lot of research on what is done also. NO ONE has the flan [sic] cut on the edges of the window as I have.

It was agreed that a prior client [being the Neighbour], that recommended you [sic]. You said you would do say as his [sic]. You had his work done on file. I want to make sure you have been above board before I pay you another penny, I will do what a customer is entitled to do. The door and front window have a lot of marks which after work done you checked and didn’t say a thing about the marks. I have a possible crack under the sticker of the front window. THESE ARE CONCERNS FOR ME. You will wait as i [sic] have to.

I will let you know the results as I get them. [ 121 ] The amount sought from the Defendant to be paid to the Claimant TKG was never paid. Sean Mcllveen sent further emails on February 21 and March 6, 2019 seeking to get an update about VINYLTEK’s attendance with the Defendant at the Residence and to seek to arrange the dates for completion of the Final Corrective Work by the Claimant TKG. On March 14, 2019 Sean Mcllveen emailed

the Defendant again to say he understood VINYLTEK had completed their visit on March 5, 2019 to service the Eurotwist Door and he sought to

schedule the Claimant TKG’s appointment for the Final Corrective Work; however those inquiries and suggestions were again rebuffed by the Defendant. [ 122 ] The Claimant Prpic had now become directly involved with the Defendant. Late on February 11, 2019 by way of email and in apparent reply to the Defendant’s email of that date, the Claimant Prpic made formal demand for payment $15,600 by the end of the day on February 12, 2019 and further demanded that the Defendant confirm service appointments with the Claimant TKG by that same deadline, and threatening to file a builder’s lien in default.

On February 13, 2019, by way of a further email, the Claimant Prpic informed the Defendant that a builder’s lien had been filed in the Victoria Land Title office on that date against her real property and suggested that if funds were paid were paid within the next 3 or 4 days that the builder’s lien would be withdrawn and they could proceed to resolving issues. [ 123 ] That demanded payment did not occur and eventually the builder’s lien expired and no formal steps were ever taken by the Claimant TKG or the Claimant Prpic to either enforce or remove the filed lien in the Land Title Office from the Defendant’s lands and premises.

It is noteworthy that the Claim of Lien was drafted in such a fashion that the Claimant Prpic was named as the lien claimant in the following manner: “Milan Prpic, owner of Vista Leadership Inc. dba Thermal King Glass of 250 Island Highway Victoria, BC V9B 1G2, British Columbia, claims a lien against the following lands: …”. It was registered in the Land Title Office with the registered owner of the charge being shown as “Thermal King Glass”. [ 124 ] On March 18, 2019 an email exchange occurred between the Claimant Prpic and the Defendant.

The Claimant Prpic demanded full payment by the end of the day on March 20, 2019, or legal action would be filed, to which the Defendant stated she was waiting for “the sleeve” for the window downstairs from VINYLTEK and that the Claimant TKG would have to wait “like me”. [ 125 ] In response, the Claimant Prpic stated “that is unacceptable” and further that he had paid VINYLTEK “in full”. The Defendant then responded by asking if she paid in full, could she still “do a rebate or grant on my windows”.

The Claimant Prpic sent the Defendant a lengthy email explaining about that there was no connection between payment and the rebate programs through EfficiencyBC, explaining features of those programs and reiterating about the payment deadline.

Apparently this was the first time that a question about a rebate had ever been raised by the Defendant. [ 126 ] In the Claimant Prpic’s evidence, he stated that the Replacement Windows which had been ordered and installed would not likely qualify for a rebate program and the cost of meeting the required standard would have increased the Defendant’s cost of the Replacement Windows by some $7,000 to $8,000 and the extra cost would not result in a rebate to the Defendant that would cover that extra amount. [ 127 ] As noted above, no further payment was received from the Defendant by the Claimant TKG.

A Notice of Claim was filed on March 22, 2019 naming the Claimant TKG and the Claimant Prpic as the Claimants and the Defendant as the defendant. The Defendant filed a Reply and Counterclaim against both Claimants on April 4, 2019. A Reply to the Counterclaim was filed only on behalf of the Claimant TKG and not on behalf of the Claimant Prpic. [ 128 ] It appears from the Claimant Prpic’s evidence that naming himself as a claimant in the Notice of Claim (and as the lien claimant in Claim of Lien document) was an error on his part and that of the Claimants.

In his evidence he confirmed that he was not asserting any personal claim for any monies being owed to him by the Defendant and conceded that the amount claimed was solely for the benefit of the Claimant TKG. Further Evidence Presented at Trial About the Various Complaints [ 129 ] According to the evidence of Claimant Prpic, the Claimant TKG adheres to the “Residential Construction Performance Guide for New Homes Covered by Home Warranty in British Columbia”. Specific reference was then made to

section 4.40 entitled Window or door frame exhibit damage which provides as follows: Acceptable Performance/Condition When reported on the pre-delivery inspection ( see page 7 ), window and door frames shall be free of chips, scratches, gouges or other damage when viewed from 2m (6’), under normal lighting and viewing conditions. Claim Response Windows or door frames not meeting the Acceptable Performance/Condition at possession are to be rectified.

Where repairs are made, an exact match of colour, finish, grain, sheen or texture may not be possible. [ 130 ] Exhibit 3 being part of the evidence contains a number of photographs of both the Defendant’s Residence and the Neighbour’s House. The photographs of the Neighbour’s House are relied upon by the Defendant to demonstrate that its replacement windows have a materially different appearance than the Replacement Windows in the Defendant’s Residence.

The photographs of the Defendant’s Residence are also being relied upon to demonstrate the Defendant’s complaints about the alleged poor quality of the installation of the Replacement Windows by the Claimant TKG and the incomplete work on the project. [ 131 ] The alleged defects identified by the Defendant and depicted in the photographs forming part of Exhibit 3 and the responding evidence of the witnesses called on behalf of the Claimant TKG may be summarized as follows: (

a) Streaks on one of the front windows. The Claimant TKG’s witnesses testified it was a minor matter and would be dealt with as part of the Final Corrective Work. (

b) The differences in the width and appearance of the flanges used on the Neighbour’s House and the Residence, and specifically

with the Neighbour’s House having a rounded uncut flange and the Residence having wider and cut flanges and hence not rounded. The Claimant TKG’s witnesses evidence in response was the same for the reasons as noted in the evidence of Sean Mcllveen: that the Replacement Windows could not be an exact match, because of the required changes reflected in the Order Modification Document. Hence the flanges had to be cut and that the touch up painting of the cut edges was part of the Final Corrective Work. (

c) Certain flanges that were not making proper contact or were incorrectly deflected out or were not properly caulked. Sean Mcllveen testified this could and would be corrected as part of the Final Corrective Work, including making available adjustments or for aesthetics purposes filling with foam and adding a new piece of trim. (

d) The existence of black marks or streaks on certain of the Replacement Windows. Sean Mcllveen testified this could and would be corrected as part of the Final Corrective Work. (

e) The unevenness of the vinyl on certain Replacement Windows in comparison to the wood exterior frame surrounding those windows; the exterior wood frame was attached to the exterior stucco and appeared to have been installed at some time after the installation of original aluminum windows. Sean Mcllveen testified that the unevenness stemmed mainly from the actual wood exterior frames which were in place prior to the Replacement Window installation and which were not to be replaced or adjusted by the Claimant TKG. However, some adjustment could and would be made as part of the Final Corrective Work. (

f) Replacement Window frames required some touch up painting and one which was “starting to peel”. Sean Mcllveen testified that could and would be corrected as part of the Final Corrective Work. (

g) A Replacement Window whose “sleeve” had not been replaced at the time of taking of the photo, following the substantial completion of work by the Claimant TKG on January 9, 2019. As I understand from the whole of the evidence this may have been dealt with subsequently by the Manufacturer’s service representatives when they made their March 5, 2019 visit to the Residence. In any event it was part of the Final Corrective Work. (

h) Two of the Replacement Windows being ground floor lower windows of different sizes, opened in different manners such that the smaller one cranked out and large one slid open and hence had different locking mechanisms. Sean Mcllveen testified these features are different mainly because of the different sizes of the windows, but would be examined and dealt with as part of the Final Corrective Work. (

i) The surrounding flanges for various Replacement Windows were of different widths. Sean Mcllveen explained in his testimony that this difference arose because of the specific location of certain of the Replacement Windows and such things as the relative location of exterior electrical fixtures that had to be relocated but still left issues of inadequate space for the flanges. He further indicated that the cutting of the flanges to accommodate the available space was contemplated in the Order Modification Document and that this was discussed with the Defendant. (

j) The cut flanges on the Replacement Windows required some additional finishing and painting. Sean Mcllveen testified this could and would be corrected as part of the Final Corrective Work. (

k) The original lower edge below certain of the Replacement Windows had not been replaced. Sean Mcllveen suggested that perhaps this should have been part of the Original Order Document but was not included in the original plan and may have to be rectified as part of the Final Corrective Work. (

l) The backdoor showed a gap. Sean Mcllveen testified it did not need caulking and for aesthetic reasons should not be caulked to fill the space and further indicating that it was properly installed. (

m) A cracked flange around a Replacement Window. Sean Mcllveen’s evidence is that he had offered to have it repaired as part of the Financial Corrective Work and he had proposed the financial discount. (

n) The Eurotwist Door with a hand written notation on the photograph of “no insulation”. This assertion was contradicted and further explained in the evidence of Jesse Mcllveen.

In any event the hardware and latching issues were to be dealt with by the Manufacturer’s service representatives, which apparently occurred at the time of their attendance at the Residence on March 5 of 2019. [ 132 ] Sean Mcllveen confirmed in his testimony that all of the Final Corrective Work, including anything mentioned above and beyond what would commonly be regarded as Final Corrective Work, on this project would take an estimated one to two days to complete.

The estimated monetary value to complete all of it was equal to between 10% and 15% of the total cost of the project of $23,520 as set out in the Invoice. That figure to complete the Final Corrective Work and the other noted items is therefore between $2,352 and $3,528.

[ 133 ] The Defendant conceded that at all material times there was an expressed willingness on the part of the Claimant TKG to do the work in order to deal with some of her complaints but she says not the complete list of all her complaints. She testified that she never allowed the Claimant TKG’s crew to return to the Residence for that purpose. [ 134 ] The Defendant testified that she obtained some advice from the Manufacturer’s service representatives when they attended at her Residence but that most of her concerns were simply referred back by those representatives to the Claimant TKG.

She continued to email the Manufacturer but never received any responses but did receive some type of messages back from them but she believes they eventually blocked her emails. [ 135 ] Gordon Kyle, being the individual called by the Defendant and qualified as an expert witness canvassed some of the complaints of the Defendant in his evidence. He was not entirely in agreement with the evidence adduced by the Claimant TGK’s witnesses. However, as noted below, Mr.

Kyle’s evidence did not entirely contradict the Claimant TKG’s evidence and in particular the evidence presented by the Claimant TKG’s witnesses as to: (

a) the quality of the Replacements Windows; (

b) the quality of the installation of the Replacement Windows; (

c) the amount of outstanding work that remained to be completed; and (

d) the relative expense of completion of the outstanding work as part of the Final Corrective Work and other deficiency matters noted by Mr. Kyle. [ 136 ] By the time all of the evidence was before the court the Defendant had not incurred any personal expense to complete any of the Final Corrective Work and specifically she was not billed by the Manufacturer for any work completed by its service representatives. [ 137 ] Similarly, there is no evidence that the Claimant TKG was required to pay anything to the Manufacturer for any of their work completed at the Residence.

Further Evidence of the Defendant [ 138 ] The Defendant’s further evidence was that she was not going to retain the services of a third party to complete any of the Final Corrective Work nor to complete annual inspections nor to complete any possible ongoing work such as caulking or other possible work identified by Gordon Kyle in his evidence. She did not present any estimates for completing that type of work.

Similarly, she indicated that she had not made any annual inspections or, for that matter, any regular inspections around the Replacement Windows, other than possibly to clean them. [ 139 ] It was a consistent theme of the Defendant throughout the trial, both in submissions to the court, in mid-trial conferences, and in her evidence that nobody would assist her with her case or be a witness for her (until she located Mr.

Kyle in the midst of the trial) and nobody would come out to the Residence to provide her with quotes or estimates. [ 140 ] Another consistent theme she presented was that Sean Mcllveen was not hearing her as to her wishes as to what she wanted in the Replacement Window or he was ignoring her wishes or was not understanding her, although she thought she was making herself clear.

She went so far as to suggest that she was “forced” by Sean Mcllveen to sign the Original Order Document and the Order Modification Document. [ 141 ] In her cross examination the Defendant conceded that there is nothing in the Original Order Document and the Order Modification Document about the cosmetics of the Replacement Windows and further stated that the aesthetics of the Replacement Windows were not important to her but rather the functionality of the Replacement Windows was important to her.

This is a curious comment having regard to her litany of complaints about the appearance of the Replacement Windows. [ 142 ] It is very noteworthy that the Defendant confirmed that the Replacement Windows remain in place as at the date of the conclusion of the evidence in the trial and there are no functional problems with any of them. [ 143 ] She did express her concerns about “possible” water ingress, (especially from storms) occurring around the Replacement Windows because of the alleged improper installation by the Claimants.

She had not observed any such water ingress up to the time of the conclusion of the evidence in the trial in April of 2021. [ 144 ] The Defendant reported her concerns about the Replacement Windows to her home insurer but did not get a favourable response. Nobody from her insurance carrier ever came out to complete an inspection. [ 145 ] The Defendant either denied seeing or could not recall ever receiving a number of email exchanged between herself and either Sean McIIveen or the Claimant Prpic which only appeared in the Claimant’ documents but not in the Defendant’s documents.

She held to this denial notwithstanding the subject several of the emails were part of a string of emails. Many of the email exchanges omitted from the Defendant’s documents were not particularly beneficial to the Defendant’s case. She also contended that there were additional emails, which she alleged were important to her case, but did not appear in either the Claimants’ or the Defendants documents. [ 146 ] Of significant concern to this court is an email sent by the Defendant on August 9, 2019 to the Victoria Judicial Case Manager, who was attempting to

schedule the trial of this matter. It was copied to the Claimant Prpic. In that email the Defendant indicates that she wishes to obtain a trial date “A.S.A.P.” (i.e. as soon as possible) citing “intentional dangers” to the Residence caused by the work of the Claimant TKG. The Defendant then goes onto to make what I will characterize and call “Criminal Allegations” against the Claimants. She starts by stating that she “has had a lead” that “this company is with” and then she specifically names a certain organization.

I take judicial notice that this specifically named organization is frequently described or referred to in the public media and in the evidence adduced in a large number of Canadian criminal cases as an international “motorcycle gang”; some of its members have

at various times been convicted of a number and variety of criminal offences; it has been alleged to be a “criminal organization” within the meaning of

section 467.1 of the Criminal Code and a number of its chapters and related organizations have been the subject matter of various civil forfeiture proceedings because they are the alleged proceeds of alleged criminal activity. [ 147 ] The Defendant then goes on in that August 29, 2019 email to the Judicial Case Manager to state that she believes it is necessary for her to get a criminal record check on “both owners to see what I will be dealing with”. She then suggests that she has been “threatened” by the owner of the Claimant TKG.

I include this particular statement about a threat as part of the Criminal Allegations. [ 148 ] In response, the Judicial Case Manager tells the Defendant not to send those allegations to the Judicial Case Manager and that the email exchange was strictly for scheduling dates. [ 149 ] In his evidence the Claimant Prpic strenuously and categorically denied any of these Criminal Allegations. There is absolutely no evidence before this court that supports nor substantiates any basis for the truth, accuracy or the reliability of those Criminal Allegations.

I accept the Claimant Prpic’s evidence on this point without any qualifications. [ 150 ] In the usual course, I would not make mention of these Criminal Allegations. However, I do so because they form part of the basis for the damages being sought by the Claimants. Also, they go to the credibility and reliability of the Defendant. [ 151 ] The August 29, 2019 email was contained in the Claimant’s documents which were exchanged in advance of the trial and were admitted into evidence as part of the Claimants’ case. [ 152 ] In her cross examination, the Defendant: (

a) accepted that the email address shown on the hard copy of the August 29, 2019 email was her email address; (

b) denied ever seeing this email and stated that it was not familiar to her at all, notwithstanding that it appeared in the Claimant’s documents exchanged in advance of the trial and she never objected to it being entered as part of the Claimant’ documentary evidence at trial; (

c) denied writing or sending the August 29, 2019 email to the Judicial Case Manager, notwithstanding that it was part of the chain used to

schedule the trial of this matter; (

d) denied ever s

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