Friendly Enterprises v. Sood, 2023 BCPC 216

Citation: Friendly Enterprises v. Sood 2023 BCPC 216 Date: 20231011 File No: 19045 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: FRIENDLY ENTERPRISES LTD. CLAIMANT AND: SACHIN SOOD AND SEEMA SOOD DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: V. Ghuman Counsel for the Defendants: P. Malhi and S. Singara Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 4, 5 and September 8, 2023 Date of Judgment: October 11, 2023

INTRODUCTION [1] In approximately August 2020, the parties entered into a contract for the Claimant, Friendly Enterprises Ltd., to provide stuccofinishing services to a home being constructed by the Defendants, Sachin and Seema Sood, in Port Coquitlam, B.C. (the “Property”) [2] There was a dispute about payment of the amount due under the contract, and the stucco work was not completed. [3] The Claimant seeks payment of $17,312.50 which it says is the amount still owing under the contract. [4] The Defendants paid others to complete the work and to attend to deficiencies. They have counterclaimed for the sum of$17,889.58. [5] At trial, I heard from the following witnesses:

a) Muhammed Sharif

b) Seema Sood

c) Pedro Lopes

d) Sachin Sood [6] At times during the evidence, Mr. Sharif was referred to or used the name “Khan.” To avoid any confusion, I will still refer tohim as Mr. Sharif. The Burden of Proof [7] The decision Vista Leadership Inc. v. Pilon, 2021 BCPC 320 , describes the burden of proof that rests upon a claimantas follows: 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. [8] The same burden rests on the Defendants who are making a counterclaim. The Claim of Friendly Enterprises Ltd. [9] Muhammed Sharif is the owner and director of Friendly Enterprises Ltd., which has been in business since May 2016 doingstucco work on residential homes. Before starting the company, Mr.

Sharif was employed for six years by another stucco company. [10] The Defendants, Sachin Sood and Seema Sood, are married. Sachin Sood has been a property developer for the last 10 years. Hehas been a builder of new homes since 2015 or 2016. Seema Sood has been a real estate agent since 2007. [11] The Property in question was to be the home for the Defendants. Construction of the Property commenced in 2019. [12] The Claimant previously did stucco work for the Defendants sometime in 2018. In July 2020, the Defendants hired the Claimantto do stucco work on the Property. [13] Mr.

Sharif described the stucco process as follows: 1) Apply the paper to the exterior of the home 2) Install the scaffolding around the house 3) Install rain screens. I understand this is a material applied to the exterior of the house to waterproof it. 4) Install the stucco wire. I understand that this is a wire mesh installed on the outside of the home. 5) Apply the first coating of cement over the wire mesh.

This is referred to as a “scratch coat.” 6) Apply the second coat of cement, which is referred to as a “smooth coat.” 7) Apply the last coat, which is the coloured acrylic coat of stucco 8) Remove the scaffolding. [14] Mr. Sharif provided a written quote for the work, referring to the work as follows:

a) Acrylic stucco work

b) Soft stucco work [ 15 ] The parties agreed that the original contract price for the stucco work was $45,000 plus GST. [ 16 ] In addition, the Claimant was to provide a scratch coat of cement to certain parts of the exterior of the Property over which another contractor would install stonework. The quote referred to the cost for the scratch coat as $5 per square foot and listed a price of $10,000 with GST of $500. [ 17 ] Mr. Sharif based the quote of $10,000 for the scratch coat on his measurement of the area to be covered by stonework, which was 2,000 square feet at $5 per square foot.

The written quote did not set out this measurement. However, Mr. Sood acknowledged that the price was determined according to the measurement of the area to be covered. [ 18 ] The overall contract price quoted was $55,000 with GST of $2,750 for a total of $57,750. This was based on the price of $45,000 for the stucco work and $10,000 for the scratch coat, plus GST. [ 19 ] The Defendants put into evidence a copy of the written quote. The quote set out a payment

schedule but the copy of the quote had a small portion cut off. Because of this, I could not see when each payment was due. What was clear from this document was that there were to be three instalment payments of $15,000 and a final payment of $12,750, for a total of $57,750. [ 20 ] The Claimant commenced its work in August 2020. Mr. Sharif said the scratch coat was completed in August 2020. The smooth coat was applied in September or October 2020. The acrylic coat of stucco was applied in December 2020. [ 21 ] I turn now to describe the claims by Friendly Enterprises Ltd. for extra work.

Claim for Applying Stucco to Beams at Back Patio $1,500 plus GST [ 22 ] Mr. Sharif testified that the Defendants asked him to do extra work by applying stucco to a beam located at the back patio. Mr. Sharif said the cost for the extra work was $1,500 plus GST. Mr. Sood said he only offered $500 for this work. There is no documentation showing an agreement for this additional work or to confirm the price. Claim for Removing and Reinstalling Wire Mesh $3,000 plus GST [ 23 ] After the installation of the wire mesh, Mr. Sharif said Mr.

Sood asked the Claimant to remove some of the wire mesh to allow for the installation of custom-made soffits. Mr. Sharif agreed to do this for an additional cost of $3,000. Based on this, Mr. Sharif said the stucco work costs increased to $48,000 from the original $45,000. The $10,000 cost for the scratch coat for the stonework and the GST were in addition to this. [ 24 ] There was no revised quote or contract reflecting this price increase. Mr. Sharif pointed to a text message from Mr.

Sood dated August 18, 2020, that stated: Please do my house a perfect and with a good craftmanship I will pay you 48,000 plus tax Just make it a good one please [ 25 ] Mr. Sood disputed an agreement to pay a further $3,000 for this extra work. He said he promised the Claimant a $3,000 bonus if the work was completed on time and without deficiencies. Because the work was not completed, Mr. Sood said the $3,000 bonus was not owed. Claim for Scratch Coat for Stone Work $11,750 plus GST [ 26 ] Mr. Sharif testified that Mr.

Sood wanted the scratch coat applied to an additional area of the Property exterior to allow for the installation of stonework. Mr. Sharif did a further measurement of the Property and said the area for the scratch coat now measured 2,350 square feet. As a result, the price for the scratch coat increased from $10,000 (2,000 square feet x $5 per square foot) to $11,750 (2,350 square feet x $5 per square foot). [ 27 ] There is nothing in writing from the Claimant or Defendants confirming the increased cost for the scratch coat.

The original quote was for a fixed price but both parties agreed that the price was based on a square footage measurement. What is in dispute is the measurement itself. Mr. Sood did not agree that the 2,350 square foot measurement was correct. I will discuss this in greater detail later in my Reasons. Total Claim [ 28 ] According to the Claimant, the total contract price was $64,312.50 inclusive of GST.

This was calculated as follows: • Base price for stucco work $45,000 plus GST $2,250 = $47,250 • Applying Stucco to Beams on the Back Patio $1,500 plus GST $75 = $1,575 • Removing and Reinstalling Wire Mesh $3,000 plus GST $150 = $3,150 • Scratch Coat for Stone Work $11,750 plus GST $587.50 = 12,337.50 [ 29 ] The parties agreed that the Defendants paid a total of $47,000. The Claimant says the balance due is $17,312.50.

The Work Continues [ 30 ] Mr. Sharif testified that because of the weather in December 2020, he told Mr. Sood that the acrylic coat should not be applied at the time. According to Mr. Sharif, Mr. Sood insisted that the acrylic coat be completed so that the scaffolding could be removed to allow for the installation of the stonework and the landscaping. Mr. Sharif proceeded with applying the acrylic coat of stucco in December 2020. Once that was completed, the Claimant removed the scaffolding. [ 31 ] Mr.

Sharif said there remained some partial work to complete although he estimated that 95% of the work had been done. [ 32 ] The Claimant returned to the Property in March 2021 when the weather had improved. In the meanwhile, the weather caused some discoloration of the stucco and washed away other parts of the stucco. [ 33 ] Mr. Sharif said the Claimant intended to complete the work, which he estimated would take two days to finish. [ 34 ] Mr. Sharif said that in March 2021 he inspected the soffits of the Property and noticed that they were wet.

Upon further inspection, he saw that a drain hole had been cut into the top of the soffit but there was no hole cut below the soffit to allow the water to drain. Mr. Sharif said he took pictures of this to show Mr. Sood. [ 35 ] Prior to March 2021, Mr. Sharif said he was not aware that a drain hole had not been cut in the bottom of the soffit. [ 36 ] The contract did not require the Claimant to install the soffits or the drain pipes, or to inspect the work of others.

There is no basis to support an allegation that the Claimant was negligent or in breach of the contract due to the lack of drain holes as this was never a responsibility of the Claimant under the contract. [ 37 ] In May 2021, Mr. Sharif requested a further payment from Mr. Sood of $10,000. Mr. Sood offered $6,000. Mr. Sharif rejected this offer. He testified that he needed to pay his suppliers and workers and that $6,000 was insufficient. [ 38 ] The Claimant left the job site at that time and did not return. [ 39 ] Subsequently, Mr. Sharif emailed Mr. Sood confirming his request for a further payment of $10,000.

The copy of the email put into evidence is Mr. Sood’s reply to Mr. Sharif’s email where Mr. Sood added comments to the body of Mr. Sharif’s email. Mr. Sood’s comments were highlighted in grey so I was able to see the contents of Mr. Sharif’s original email. [ 40 ] Mr. Sharif’s original email referred to the amount of a lien claim of $17,312.50 which the Claimant filed against the Property on May 13, 2021. Given the date of the filing of the lien, it appears the email was sent by Mr. Sharif sometime after May 13, 2021. [ 41 ] After taking out Mr.

Sood’s comments, it appears that the original email stated as follows: Sachin, There are few discrepancies in the amount below: Extra work to the beams on the patio at the back was $1,500 plus gst not $500 – Difference of $1,000.00 1) Scratch coat for stone work 2350 sq. ft (not 2,000) x $5/ sq. ft = $11,750 – Difference of $1,750 2) Total contract amount was for $48,000 not $45,000 please cheek (sic) your text amount dated August 18, 2020 3) You don’t need to pay be (sic) $3,000.00 as mentioned below.

Summary of difference Patio extra -$1,000 Scratch for Stone -$1750.00 Taxes -$137.50 Total difference -$2887.50 Balance still owing $14425 below plus $2887.50 = $17,312.50 Here is a list of pending items: 1) Finish three Sky lights on back patio with dens glass gold and coat matching color acrylic. 2) Paint all damage soffit vent black. 3) Repair the front right soffit on second floor with second coat of acrylic.

I will require minimum $10,000 not $6000 as mention below, if you agree to this I will start work by Wednesday May 12, 2021 and will complete by Wednesday of the following week weather permitted (sic). Please advise by today evening if you would like to proceed with this so, I can

schedule this. Thanks, Khan [phone number omitted] [ 42 ] This email is a confirmation from the Claimant that there remains work to be completed. What Were The Contract Terms? [ 43 ] I turn now to discuss the terms of the contract between the parties. [ 44 ] There is no dispute that the original price for the stucco work was $45,000 plus GST. That is our starting point. Claim for Applying Stucco to Beams at Back Patio [ 45 ] Mr. Sood acknowledged that he offered to pay the Claimant $500 as an extra for applying stucco to the beams of the back patio. [ 46 ] Mr.

Sharif said the agreed-upon price was $1,500. [ 47 ] There is no contract or change order confirming the price for this work. I find then that the Claimant has failed to prove on the balance of probabilities a claim for $1,500. I award the amount of $500 for this work as this was the amount acknowledged by Mr. Sood. Claim for Removing and Reinstalling Wire Mesh [ 48 ] The Claimant seeks payment of $3,000 for removing and reinstalling wire mesh so that custom-made soffits could be installed. [ 49 ] Mr. Sood agreed he sent Mr.

Sharif a text message stating: Please do my house a perfect and with a good craftmanship I will pay you 48,000 plus tax Just make it a good one please [ 50 ] Mr. Sood said this was an offer of $3,000 as a bonus for completing the work “with a good craftmanship” and not for removing and reinstalling wire mesh. [ 51 ] Once again, the Claimant must prove its claim on the balance of probabilities. There is no contract or change order confirming a price of $3,000 for extra work for removing and reinstalling meshwork. The Claimant has failed to prove this claim and so it is dismissed.

Claim for Scratch Coat for Stone Work [ 52 ] As I set out earlier, Mr. Sharif did a further measurement of the Property and said the area for the scratch coat was now 2,350 square feet. He increased the price for the scratch coat from $10,000 (2,000 square feet x $5 per square foot) to $11,750 (2,350 square feet x $5 per square foot). [ 53 ] Mr. Sood disputed this calculation. However, he does not base this on a measurement of the Property. Mr. Sood referred to the following:

a) An invoice issued by Pacific Art Stone dated September 29, 2020, for the purchase by the Defendants of 2,300 square feet of stone.

b) An invoice issued by Father and Son Masonry and Curbing Ltd. dated September 25, 2021, charging the Defendants for the installation of 2,055 square feet of stone cladding. [ 54 ] The Defendants did not call as witnesses a representative of Pacific Art Stone or Father and Son Masonry and Curbing Ltd. to give evidence about their invoices or the measurement of the Property. [ 55 ]

Section 16 of the Small Claims Act allows me to admit as evidence anything I consider credible or trustworthy, and relevant. However, I find that the two invoices submitted by Mr. Sood as proof of the area of the scratch coat are not convincing absent any corroborating testimony. [ 56 ] Mr. Sharif’s evidence is that he measured the area for the scratch coat. This is the only evidence of a measurement being taken and so I accept Mr. Sharif’s evidence of the area covered by the scratch coat. As such, the amount due for the scratch coat is $11,750

plus GST. Amount Due Under the Contract [ 57 ] Based on my findings set out above, the amount due to the Claimant by the Defendants under the contract was as follows: Initial Quote for stucco work $45,000 Claim for Applying Stucco to Beams on Back Patio $500 Claim for Scratch Coat for Stone Work $11,750 Subtotal $57,250 Plus GST $2,862.50 Total $60,112.50 Minus Payments ($47,000) Balance Due $13,112.50 Did the Claimant Breach the Contract? [ 58 ] The Claimant did not finish the work required under the contract. At the same time, the Defendants still owed money to the Claimant.

The Defendants acknowledged as such by offering $6,000 toward the balance due, while the Claimant sought $10,000. [ 59 ] I am unable to find that the Claimant breached the contract by not completing the work since the Defendant was not paying the Claimant. The Claimant is entitled to be paid but only for the work done. I must determine the amount due to the Claimant after considering the costs to complete the work and rectifying any deficiencies.

Did the Defendants Breach the Contract by Failing to Follow a Payment Schedule? [ 60 ] The copy of the contract that was entered into evidence was missing a portion so it was not possible to read when the four instalment payments were due. Mr. Sharif's testimony about the due date for the first payment of $15,000 was not clear. Mr. Sharif said the second payment of $15,000 was due on completion of the first coat of cement. The third payment of $15,000 was due on completion of the second coat of cement. The balance of $12,750 was due on the completion of the acrylic stucco coat, which Mr.

Sharif said was applied in December 2020. Based on Mr. Sharif’s evidence, the full contract price should have been paid at this stage. [ 61 ] Mr. Sharif acknowledged that the following payments totalling $47,000 were made by the Defendants:

a) August 22, 2020 $15,000

b) September 30, 2020 $ 4,000

c) October 19, 2020 $10,000

d) October 21, 2020 $10,000

e) December 31, 2020 $ 8,000 [ 62 ] The parties did not follow the payment

schedule set out in the contract given the dates and amounts of the actual payments made, and the discussions about further payments before the Claimant left the job. I find that the parties had effectively waived the term of the contract setting out a payment schedule, and the Defendants’ failure to follow this payment

schedule was not a breach of contract. [ 63 ] Absent a payment schedule, the amount due had to be paid within a reasonable time. What is uncertain is whether the balance was due before or after the work was completed. Given this uncertainty, I am unable to find that the Defendants breached the contract by not paying the balance due before the work was completed.

The Counterclaim [ 64 ] The Defendants counterclaim for the amounts they say were paid to complete the work and repair deficiencies as follows: • Antonio Lopes & Sons Stucco Ltd. $4,000, $3,350, and $3,318 = $10,668 • Sunrise Windows Ltd. $2,000 • Amana Painting Ltd. $1,575 • Iron Mountain Equipment Rentals $1,546.58 • Cleaners $2,100 Total $17,889.58 Antonio Lopes & Sons Stucco Ltd.

[ 65 ] Antonio Lopes & Sons Stucco Ltd. is operated by Pedro Lopes, a stucco contractor. Mr. Lopes has been a stucco contractor since 1994. He estimated that before 2010, he worked on some 60 houses a year. Since 2010, Mr. Lopes has only worked on one or two houses a year. [ 66 ] Mr. Sood contacted Mr. Lopes in April 2021 to repair deficiencies at the Property. [ 67 ] Mr. Lopes attended the Property and saw deficiencies in the ceiling of the main floor deck. Mr. Lopes also said the soffits in the front of the house were uneven and had rust marks on them. Mr. Lopes provided a repair quote of $9,000.

He attended to the work in May 2021. After the work was completed, he issued two invoices. The first was dated May 29, 2021, for $7,000 plus GST of $350 for a total of $7,350, and referred to a 1 st draw of $4,000. The second invoice was dated July 26, 2021, and referred to a balance owing of $3,350. In total, the amount paid by the Defendants to Antonio Lopes & Sons Stucco Ltd. was $7,350, which was less than the quoted price. [ 68 ] Mr. Lopes gave evidence supported by photographs showing the appearance of the front deck ceiling before he attended to the deficiencies and afterwards.

It was evident that the ceiling had several rough lines in the ceiling which Mr. Lopes removed to create a more appealing appearance. [ 69 ] The invoices themselves did not provide any details of the work performed. Under the invoice descriptions, there were references only to “stucco repairs at 514 Prairie Ave.” [ 70 ] Over a year later, Mr. Lopes did further work for the Defendants. He issued an invoice dated August 11, 2022, for $3,160 plus GST of $158.00, for a total of $3,318. The description in the invoice of the work performed was as follows: Repairs at 514 Prairie Ave.

Extra from original quote $1,180.00 Repairs for -around garage door -deck ceiling -crack driveway side Materials $300 [ 71 ] Besides the listing on the invoice of the repairs done is a calculation that read: “21 hours @ $80 per hour $1,180.00”. [ 72 ] Mr. Lopes testified that the work he did was to ensure the garage wall and back deck matched the existing soffit, and to repair stucco cracks. [ 73 ] He broke down the August 11, 2022 invoice as follows: 1) Garage door $1,180 2) Deck ceiling $1,680 3) Repair of cracks $300 [ 74 ] Mr.

Sood testified that he realized sometime in 2022 that the colour of the back deck did not match the colour of the pillar. This required painting although neither Mr. Lopes nor Mr. Sood said what was painted. [ 75 ] Mr. Sood confirmed that Mr. Lopes repaired the cracks. [ 76 ] Mr. Lopes’ invoice referred to work on the garage door but I was not told what kind of work was required. [ 77 ] The August 11, 2022 invoice also referred to “Extra from original quote $1180.” Mr. Sood said this was for work done on the front planter. I was not told what kind of work was done.

There was no evidence that the Claimant was hired to do any work on the front planter. [ 78 ] Mr. Lopes confirmed that he was not at court to say whether or not the Claimant did its work correctly. Mr. Lopes was not qualified to give expert opinion evidence at trial. [ 79 ] Given Mr. Lopes’ evidence, I cannot find that all the work he performed was to complete the Claimant’s work or to correct deficiencies. Since this is a counterclaim being advanced by the Defendants, the onus is upon them to prove their claim on the balance of probabilities.

The evidence in this regard is incomplete since some of the work billed by Mr. Lopes was not for work the Claimant was hired to do. Mr. Lopes also would not say if any of the Claimant’s work was deficient. [ 80 ] Mr. Sharif did acknowledge that there was still further work to be done to complete the stucco work. However, he did not return to the Property to attend to the work because he was not paid. [ 81 ] The Claimant’s claim for the full contract price may have been justified had all the work been done, but it was not. I do accept that at least some of Mr.

Lopes’ work was necessary to complete the stucco work and rectify deficiencies. Considering the amounts paid to Mr. Lopes, I fix the sum payable by the Claimant as a contribution toward the costs of Mr. Lopes’ work at $6,000. Sunrise Windows Ltd.

[ 82 ] Mr. Sood paid Sunrise Windows Ltd. $1,785.71 plus taxes for a total of $2,000 for window repair, replacement and installation. [ 83 ] Mr. Sood said there was cement on some doors and windows left by the Claimant. Mr. Sood hired cleaners to remove the cement and in doing so, the cleaners scratched two of the doors and one window. Mr. Sood paid Sunrise Windows Ltd. a total of $2,000 for window repair, replacement and cleaning. [ 84 ] Mr. Sood’s evidence was that the doors and window replacement were due to damage caused by the cleaners and not the Claimant. As such, the Claimant is not liable for this.

The Claimant should still be liable for the cost of cleaning any residual cement. I will fix the cost for that at $200. Amana Painting Ltd. [ 85 ] Mr. Sood paid Amana Painting Ltd. to repaint the soffit vents. The cost was $1,500 plus $75 GST, a total of $1,575. [ 86 ] Mr. Sood testified that the vent strips were painted by the Claimant at the same time that the acrylic coat was applied. The tape was used to cover the vent strips but the tape was not removed right away. When the tape was eventually removed, some of the paint came off. Mr. Sharif confirmed that this occurred.

The Amana Painting invoice was for the required re-painting. [ 87 ] Mr. Sharif acknowledged that there was paint damage when the tape was removed from the soffits. I will therefore allow this claim for $1,500 plus GST, a total of $1,575. Iron Mountain Equipment Rentals Ltd. [ 88 ] Mr. Sood paid Iron Mountain Equipment Rentals Ltd. $1,546.58 for the rental of a boom lift used to raise painters to repaint the vents. Mr.

Sood said these vents could not be reached by using ladders. [ 89 ] The Claimant was able to paint the vents and this was likely assisted by the scaffolding that was no longer in place around the Property. [ 90 ] The Claimant did not dispute the Defendants' claim that the boom lift was required to paint the vents. This part of the Counterclaim is therefore allowed. Cleaners [ 91 ] Mr. Sood said he hired unnamed cleaners at a total cost of $2,100.00. According to the invoice filed in support of the claim, the work done was as follows:

a) Power wash the torch-on decks

b) Remove scaffolding material

c) Remove cement from windows [ 92 ] Mr. Sood said the roof required cleaning. At first, the cleaners power-washed the roof but they stopped because this could have damaged the roof. The cleaners then used a push broom to clean the roof. If the power washing was not appropriate, the Claimant should not be liable for those costs. Mr. Sood also said the cleaners removed cement from some windows and doors, but in doing so damaged them. Mr. Sood then hired Sunrise Windows Ltd. to do the cleaning.

Given these circumstances, I see no basis for making the Claimant liable for the costs of improper or ineffective cleaning. This part of the Counterclaim is dismissed.

The Amount Due for the Counterclaim [ 93 ] The amounts I have allowed on the Counterclaim to complete the work required under the contract and to rectify any deficiencies totals $9,321.58 based on the following: • Antonio Lopes & Sons Stucco Ltd. $6,000 • Sunrise Windows Ltd. $200 • Amana Painting Ltd. $1,575 • Iron Mountain Equipment Rentals $1,546.58 JUDGMENT [ 94 ] The amount owing under the contract by the Defendants to the Claimant was $13,112.50. [ 95 ] The cost to the Defendants to complete the Claimant's work was $9,321.58. [ 96 ] The balance owing to the Claimant is $3,790.92. [ 97 ] I order that the Defendants pay the Claimant the sum of $3,790.92. [ 98 ] Because both parties were successful to some degree in their claim or counterclaim, there will be no order for costs payable by either party.

_____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia