Lively v. R&R Construction Ltd., 2019 BCPC 365

Citation: Lively v. R&R Construction Ltd. 2019 BCPC 365 Date: 20190830 File No: 20658 Registry: Tumbler Ridge IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CATHERINE LIVELY CLAIMANT AND: RUSSELL COLBOURNE and R & R CONSTRUCTION LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEVEN Appearing on her own behalf: C. Lively Appearing for the Defendants: R. Colbourne Place of Hearing: Dawson Creek , B.C. Date of Hearing: Oct. 31, Nov 1, 2018 and June 26, 2019 Date of Judgment: August 30, 2019 BACKGROUND [ 1 ] On or about July 13, 2013, Catherine Lively (“Ms.

Lively”) entered into a contract with R & R Construction Ltd. to make improvements to Ms. Lively's residence at 203 Sukunka Avenue in Tumbler Ridge, B.C. The contract included the construction of a carriage house with an apartment and a garage as well as some work on the existing house. The work commenced in August 2013 and continued until February 2014 when the parties had a disagreement about an account and R & R Construction Ltd. ceased work on the

project. [ 2 ] Ms. Lively filed a notice of claim against Russell Colbourne and R & R Construction Ltd. on August 5, 2014. That claim was for the small claims limit at the time of $25,000 for breach of contract plus filing and service fees. [ 3 ] Russell Colbourne (“Mr. Colbourne”) and R & R Construction Ltd. (“R & R”) filed a reply on August 18, 2014, disputing Ms. Lively's entire claim and counterclaiming for breach of contract for the small claims limit at the time of $25,000 plus filing fees. [ 4 ] Ms. Lively filed a second claim against Mr.

Colbourne and R & R on December 22, 2015, for $20,378.25, plus service and filing fees. [ 5 ] Judge Keyes subsequently ruled that Ms. Lively was improperly splitting her claims against the Defendants and thereby exceeding the small claims court monetary limit. The second action was joined with the first under the original file number by Judge Keyes. [ 6 ] It is understood by Ms. Lively that her maximum claim against the Defendants is for $25,000. [ 7 ] Ms. Lively's notice of claim was amended on May 26, 2016 substituting R & R Construction Ltd. for R & R Construction. [ 8 ] Mr.

Colbourne conceded that he represented R & R Construction Ltd. but argued that he should not be personally liable. I agree. The contract quite clearly states it was between R & R Construction Ltd. (R &

R) and Ms. Lively. I see no reason why any liability should attach to Mr. Colbourne personally and I dismiss the claim against him. [ 9 ] Because Mr. Colbourne was present in his capacity as director for R & R, I find that he has not been inconvenienced to any significant degree by having been wrongfully added as a party. He did not bring an application for costs. Even had he done so, I would not have awarded any. [ 10 ] There is also an application by Ms. Lively originally made on September 18, 2018, for costs pursuant to Rule 20(6) of the Small Claims Rules .

That application was adjourned and heard with the trial. Ms. Lively alleges that Mr. Colbourne's conduct has caused her to travel to Dawson Creek and incur unnecessary expenses. [ 11 ] Both parties were required to comply with a disclosure order by providing all the materials they were going to rely on at trial to the other on or before September 18, 2018. [ 12 ] A pre-trial conference was scheduled on September 18, 2018, at 2 PM in Dawson Creek. [ 13 ] Mr. Colbourne delivered his documents to the Dawson Creek registry and advised Ms.

Lively by email on September 14, 2018, that the documents were there for her to pick up. Ms. Lively responded to him by email to leave the documents at the Tumbler Ridge Elementary School for her and that she did not wish to travel to Dawson Creek to pick them up. Mr. Colbourne never responded to this email. Ms. Lively testified that she did not intend to attend the pre-trial conference in person but says she was required to travel to Dawson Creek for the pre-trial conference because she needed to see the documents prior. [ 14 ] Ms. Lively testified that a judge had asked Mr.

Colbourne to deliver those documents to her house and to call before he attended. Mr. Colbourne testified that Ms. Lively had made it clear to him that he was not to attend at her residence. He also testified that there had been a police file about alleged thefts by him from the Lively residence and that he had been instructed not to attend there. [ 15 ] There is no independent evidence before me about what may have previously been directed by a judge.

There is a court order requiring the parties to exchange information on or before September 18, 2018, but the order is silent about how that was to occur. [ 16 ] I accept that Mr. Colbourne had good reason not to attend at the Ms. Lively’s residence. He advised Ms. Lively on September 14, 2018, that the documents were at the Dawson Creek registry which was a full four days before the documents needed to be disclosed. [ 17 ] The documents consisted of forty-one pages of printed materials. Ms.

Lively provided no evidence about what efforts, if any, she made to have the registry forward those materials to her in Tumbler Ridge. In the circumstances, I decline to award any costs under Rule 20(6) and I dismiss this application. [ 18 ] The trial proceeded over the course of three days. Ms. Lively represented herself and Mr. Colbourne represented R & R. [ 19 ] Both Ms. Lively and Mr. Colbourne testified. In addition, Ms. Lively called Rory Pettipas, John Snider (“Mr. Snider”), Terry Bourdon, and Kenneth Klikash (“Mr. Klikash”). R & R called Christopher Lively, Ms. Lively’s husband (“Mr. Lively”).

Each party filed a number of exhibits. [ 20 ] The evidence and arguments concluded on June 26, 2019, and I reserved my decision to give written reasons. THE CONTRACT [ 21 ] The contract is dated July 13, 2013, and was drafted by a representative of R & R. It was signed by Mr. Colbourne on behalf of R & R and by Ms. Lively. The contract was filed as Exhibit 7 and reads as follows: R&R Construction Ltd. July 13 2013 Russell Colbourne PO BOX 1965

Tumbler Ridge BC VOC 2W0 GST# 80067 5605 RT0001 newfie09@hotmail.com 250-257-0032 Contract for Chris and Catherine Lively 203 Sukunka Addition and garage: Construct addition as per drawings 23x36 ft. Remove front fence. Excavate area in preparation for foundation and tying into sewer and water supply. Prepare ground for footings. Frame and pour footings. lnstall quad lock forming blocks for foundation walls. Back fill and prepare ground for garage floor. Construct garage 23x36 ft. Install floor system for upper level. Construct upper level. Install roof system. Install windows and doors in garage and apartment.

Have electrician wire garage and apartment. Install plumbing. Insulate, drywall and tape garage and apartment. Install soffit, facia and siding. Construct stairway from upper level. Prime and paint garage and apartment. Install bathroom fixtures and kitchen system. Install flooring. Install interior doors and closets. Install lighting fixtures. Install baseboard heaters. Install decking and railing on veranda. Supplies package: $47,140.00 Ground work and foundation: $30,800.00($15,000.00 supplies & $15,800.00 labour) Labour: $46,200.00 Subtotal: $124,140.00 PST: $4349.80 GST: $6207.00

Total: $134,696.80 Main house: Replace windows, doors, soffit and facia. Frame in for garden door. Close off rear door. Install new gutters and downspouts. Install imitation stone on front basement wall. Supplies: $17,125.00 Labour: $7,730.00 Subtotal: $24,855.00 PST: $1198.75 GST: $1242.75 Total: $27,296.50 Grande total: $161,993.30 100% supplies to be paid up front: $88,776.80 50% of labour to be paid up front: $36,608.25 ½ of remainder of labour to in paid ¾ way of job: $18,304.13 Remainder to be paid at job completion: $18,304.13 COMPLETION TIME [ 22 ] Ms.

Lively argued that there was a verbal addition to the contract that it be completed within 3 months. She also argued that it was a term of the contract that R & R provide a concrete floor in the garage. [ 23 ] Mr. Colbourn argued that Ms. Lively and Mr. Lively requested certain additional work after the contract was signed and that these were to be billed as “extras”. [ 24 ] Ms. Lively testified that she had made it clear to Mr. Colbourne that she did not wish the construction to become a “winter project” and that she needed to have it done before winter.

She testified that the parties had reached a verbal agreement that the project would be completed in three months. Mr. Colbourne denies that there was such a verbal agreement. [ 25 ] There is nothing in the contract or in any other documentation submitted at trial supporting Ms. Lively's claim that it was a term of the contract that the project be finished before winter. If Ms. Lively had wanted this as a term, she could have insisted on its insertion before signing it. I find that it was not a term of the contract that the project needed to be completed in three months. THE CONCRETE FLOOR [ 26 ] Ms.

Lively says the contract included the pouring of a cement floor in the garage. The contract itself states “backfill and prepare ground for garage floor”. The contract is silent about pouring a garage floor although it specifically mentions “pour footings”. [ 27 ] Mr. Colbourne testified that R & R is not in the business of doing concrete floors and that the contract did not include or intend to include the concrete floor. [ 28 ] Ms. Lively testified that she understood R & R would either pour or subcontract someone to pour the concrete floor as a part of the contract.

She submitted part of an email chain between her and Mr. Colbourne from May 2013 where an estimate was discussed. The email was entered as Exhibit 5. In the email, Mr. Colbourne mentioned “groundwork, foundation, concrete $28,000”. Her response to him was “if this estimate includes almost everything - turn key and ready to move in then yes, it look (sic) good. Please do a quote for the house as well, that would be fantastic”. [ 29 ] I found both parties credible when it came to their evidence on this point. Ms.

Lively was adamant that she thought she was paying for a completed project and Exhibit 5 supports her claim. [ 30 ] Mr. Colbourne stated that his company was not in the business of pouring concrete floors and in fact the contract is silent about pouring the floor. [ 31 ] I see this as a misunderstanding and in such cases the legal principle of contra proferentem , or “interpretation against the draftsman”, applies.

If a contractual term is ambiguous, its meaning is generally interpreted against the party who drafted it. [ 32 ] I therefore find that R & R, who drafted the contract, is the party responsible to clear up any potential ambiguities within the

contract. The contents of the email filed as Exhibit 5 are not disputed by Mr. Colbourne. [ 33 ] In light of this email, and knowing Ms. Lively’s expectation that the project be “turn key and ready to move in”, R & R should have made it very clear in the contract that the floor was not included. Because R & R did not do so, I find that R & R is required by the terms of the contract to supply Ms. Lively with a concrete floor in the garage. [ 34 ] Ms. Lively, in a

summary for extra expenses marked as Exhibit 4, claims $13,232.96 for completion of the garage floor. She was not cross-examined about this expense. She also referred to materials which were not filed as an exhibit but were included in a binder that was filed in the proceedings and provided in advance to R & R. Ms. Lively referred to these materials extensively and specifically referred to invoices from John Snider. On such invoice was dated September 6, 2014, and entitled “interim statement” for an amount of $13,232.96.

That invoice makes reference to garage floor: “cement” $3,476.40, “labour” $1,435.66, and “sealer” $193.26 for a total of $5,105.32. She was not cross examined on any of the cost figures she presented. [ 35 ] However, Ms. Lively is required to prove on a balance of probabilities her cost for completing the cement floor. The invoice from John Snider dated September 6, 2014, includes a significant amount of labour and other items not seemingly related to the garage floor. She did not elaborate on this invoice nor did John Snider. She has not proven that she is entitled to $13,232.96 for the garage floor.

I will credit her $5,105.32 for the garage floor. EXTRAS [ 36 ] There were also some extras R & R says they completed which were not included in the original contract. Exhibit 8 is an invoice issued to Mr. Lively and Ms. Lively (“the Livelys”) on February 4, 2014 by R & R. That invoice included $7,186.73, inclusive of PST and GST for extras R & R says they completed at the request of the Livelys. [ 37 ] R & R concedes that the Livelys purchased the door for the rear of the garage which R & R had invoiced for $850.

The credit to the Livelys for the door inclusive of taxes amounts to $952, reducing the claim for extras to $6,234.73. [ 38 ] Not in dispute are the extra costs for: trim around the front windows and doors $1,150; remove soffit board and insulate under house overhang $200; and, frame up door at rear of garage $360. [ 39 ] The extras in dispute on the invoice are: a fee of $572.50 for Northern Geo Testing & Engineering Ltd.; twenty extra ICF blocks $500; three extra yards of concrete $1,050; labour for the concrete work $1,200; and, trim over the foundation walls $680.

These items total $4,002 before taxes. [ 40 ] There is no dispute that the work was done. The dispute is about whether the work should have been included in the original contract. [ 41 ] On the issue of the Northern Geo Testing & Engineering Ltd. invoice, this was an expense which appears to have been required when an excavation occurs next to an existing structure.

An engineer’s soil report was apparently required and the fact that one had not been done came to light during a WCB inspection. [ 42 ] I am satisfied based on all the evidence, and in particular the evidence of Kenneth Klikash, the building inspector from the district of Tumbler Ridge (“Mr. Klikash”), that homeowners are responsible for all the required permits and associated costs. To this end, I note that Mr. Lively obtained and signed the building permit for the project which was filed as Exhibit 10. I therefore allow the Northern Geo Testing & Engineering Ltd. cost as an extra.

However, R & R claims $601.13 for an account paid to Northern Geo testing and engineering as a material expense. I will deal further with this item later in this judgment and exclude it at this point from R & R’s claim for extras. [ 43 ] Mr. Colbourne testified that Mr. Lively had asked him to raise the foundation of the project an extra 18 inches to account for future landscaping. [ 44 ] Mr.

Lively testified saying that he had asked R & R to raise the foundation because, in his opinion, the original foundation for the project was too low and needed to be raised 18 inches to be above the grade of the soil to prevent water from leaking into the garage. [ 45 ] Mr. Lively agreed that another solution to prevent water from running into the garage would have been to build a retaining wall but denied any discussions about a retaining wall. Yet another solution would have been to remove soil to bring the existing foundation above grade. [ 46 ] Mr.

Colbourne argues that future landscaping could have brought the project up to code. [ 47 ] Ms. Lively argued that the project in its current state did not pass inspection. [ 48 ] When Mr. Klikash testified, he confirmed that while the foundation may not currently pass inspection, it was difficult to assess whether the foundation was deficient until the entire project including any landscaping was complete. [ 49 ] In this case, I accept that R & R was requested by Mr. Lively after the contract was signed, to raise the foundation an extra 18 inches. I do not accept, based on the evidence of Mr.

Klikash, that the original plan for the foundation was necessarily deficient. I therefore find that the extras totalling $4,002 for raising the foundation were extras and were not covered by the original contract. [ 50 ] I therefore allow R & R's claim for extras as follows: Twenty ICF blocks $ 500 Three yards concrete 1,050 Labor for concrete work 1,200

Trim over foundation walls 680 Trim front windows and doors 1,150 Remove soffit and insulate 200 Frame rear Garage Door 360 TOTAL $ 5,140 THE DISPUTE [ 51 ] The dispute became evident when R & R rendered an invoice on February 4, 2014. This invoice included a request for payment of $18,304.13, which was for labour due at three-quarters completion of the project pursuant to the contract. The Livelys refused to pay this invoice, disputing some of the extras as discussed above and disputing that the project was at three-quarters completion. [ 52 ] R & R performed no further work and left the jobsite. [ 53 ] Ms.

Lively testified that she retained a lawyer and that attempts were made to have R & R complete the project with some new terms added to the contract. [ 54 ] Mr. Colbourne testified that R & R would have been prepared to complete the project but was not prepared to rewrite the contract. Specifically, the new contract would have contained a deadline by which time the project had to be completed. The new contract would also have required a number of alleged deficiencies to have been repaired at no extra cost to the Lively's [ 55 ] Mr.

Klikash conducted a preliminary inspection of the project on February 14, 2014, and noted a number of issues. [ 56 ] Mr. Klikash testified that his inspection revealed some issues where parts of the project did not appear to conform with the B.C. building code or the municipal bylaws of Tumbler Ridge. Mr. Kilkash also testified that because the project was not yet complete, it was hard to determine whether the deficiencies were temporary or would yet be corrected before the project was complete. [ 57 ] I found Mr. Klikash to be a credible witness and accept his evidence in its entirety.

THE DELAYS [ 58 ] It is clear from her evidence that Ms. Lively was frustrated with R & R and that she was particularly frustrated with how long the project was taking. [ 59 ] The project was initially shut down near the end of July by Pacific Northern Gas because somebody had not called “dial before you dig” before excavation for the foundation occurred. Each party says the other was responsible for making this call. [ 60 ] The project was again shut down on August 28, 2013, by Work Safe BC.

Work Safe B.C. noted several infractions including the slope of the excavation for the foundation as well as some exposed rebar. Mr. Colbourne testified that R & R rectified these concerns within one day. [ 61 ] Work Safe BC then required an engineer’s soil report discussed above as the Northern Geo Testing & Engineering Ltd. report. This report took some time to prepare and work was delayed until September 23, 2013. Again, both parties say the soil report was the responsibility of the other. [ 62 ] Ms. Lively testified that she believed R & R was responsible for these delays.

She also testified that R & R took on other projects and did not immediately resume work for her as soon as the issues causing the delays were resolved. [ 63 ] She called Rory Pettipas as a witness who confirmed that R & R also worked on his residence in Tumbler Ridge between September and December of 2013. [ 64 ] Mr. Colbourne testified that he had to run his business and keep his people employed which meant when one project was delayed, R & R had to take on and complete other projects. I accept the realities a business owner faces when a project is unexpectedly placed on hold. [ 65 ] I also accept that Ms.

Lively was anxious to have the project completed and was becoming frustrated by the delays. Ms. Lively testified that she stopped speaking with Mr. Colbourne in November 2013 because of her frustration with R & R's work on the project. WAS THERE A BREACH OF THE CONTRACT? [ 66 ] I found Ms. Lively's demeanour during the course of the trial to be confrontational and inflammatory. She frequently raised her voice and talked over Mr. Colbourne while he was attempting to give his evidence. I accept that she often disagreed with Mr.

Colbourne’s evidence, but her manner of communication, made it difficult at times for Mr. Colbourne to communicate his evidence. Mr. Colbourne, while retaining his composure, often appeared frustrated. [ 67 ] I consider the demeanour of both parties and conclude that their different communication styles frustrated their abilities to communicate effectively with each other. [ 68 ] Both parties are alleging that the other breached the contract and that they are entitled to damages. I am not prepared to find that either party breached the terms of the contract.

I find that the terms of the contract were partially fulfilled by both parties and that completion of the contract was frustrated by unforeseen delays and a lack of communication. [ 69 ] The issue is whether Ms. Lively has already paid R & R too much or whether R & R has been adequately compensated for the goods and services it provided.

OBLIGATIONS FULFILLED UNDER THE CONTRACT [ 70 ] Mr. Lively made an initial payment of $130,000 by way of a bank draft to R & R on July 17, 2013. [ 71 ] The contract required 100% of supplies to be paid up front. Supplies for the entire project amounted to $88,776.80. [ 72 ] 50% of the labour had to be paid up front for an amount of $36,608.25 for a total of $125,385.05.

R & R Construction Ltd. received $130,000 which leaves the Livelys with a credit of $4,614.95 on the original payment for supplies and 50% of the labour. [ 73 ] Another 25% of the labour was to have been paid to R & R at three-quarters completion for an additional $18,304.13. Mr. Colbourne testified that he believed the project was three-quarters complete and he is owed the additional 25% labour payment. This amount plus the outstanding extras form R & R's counterclaim and is disputed by Ms. Lively. THE MATERIALS [ 74 ] An argument was made by Ms.

Lively that R & R removed materials from her residence to use on another project. [ 75 ] Mr. Pettipas testified that someone else told him materials used on his project by R & R may have come from the Livelys. I also heard evidence from Ms. Lively and Mr. Colbourne that the police were called over this allegation. The evidence provided by Mr. Pettipas is hearsay and is inadmissible. [ 76 ] I do not find that R & R removed any materials belonging to the Livelys from their residence.

The issue is whether R & R purchased all the materials to begin with. [ 77 ] It is not in dispute that the Livelys paid $88,776.82 to R & R for materials. Ms. Lively testified that she hired Mr. Snider from JCS General Carpentry to complete the project. [ 78 ] Mr. Snider also testified and was qualified as an expert in carpentry. He testified about the purchases he was required to make and the labour he charged to complete the project. [ 79 ] R & R submitted a number of receipts which were collectively marked as Exhibit 13. These receipts detail purchases made by R & R between August 2, 2013 and December 6, 2013.

Mr. Colbourne testified that he had receipts for $63,000. [ 80 ] When I reviewed the receipts marked as Exhibit 13, I noted that there were two almost identical documents from Peace Windows and Renovations Ltd. One is marked “estimate” and is for $11,305.79. The second is marked “invoice” and is for $13,136.50.

I have disregarded the document marked “estimate” in my calculations. [ 81 ] By my calculation, the receipts disclosed by R & R total $51,453.66: RECEIPT AMOUNT Concrete stone & tile $ 4,739.92 Convoy Supply (Alberta) Ltd 5,923.50 Southpaw 80.64 Tumbler ridge Redimix 757.89 Tumbler ridge Redimix 522.61 Northern Geo Testing & Engineering Ltd. 601.13 Grizzly Crane 525.00 Tumbler ridge Redimix 1,088.26 Convoy Supply (Alberta) Ltd 3,292.28 Convoy Supply (Alberta) Ltd 3,841.45 TRU Hardware & Building Centre 7,732.55 TRU Hardware & Building Centre 564.95 TRU Hardware & Building Centre 20.56 TRU Hardware & Building Centre 167.45 Century Services inc 303.37 Home Depot 9.96 TRU Hardware & Building Centre 15.78 TRU Hardware & Building Centre 33.10 TRU Hardware & Building Centre 29.55 TRU Hardware & Building Centre 27.35 TRU Hardware & Building Centre 100.69 TRU Hardware & Building Centre 91.25 Century Services Inc 358.90 Rona 446.30 Rona 975.97 Eldor Trusses Ltd. 5,436.75 Peace Windows & Renovations Ltd. 630.00 Peace Windows & Renovations Ltd. 13,136.50 TOTAL $ 51,453.66 [ 82 ] The receipts disclosed by R & R include one for $601.13 from Northern Geo Testing and Engineering.

This item was discussed above under extras. I credit this item to R & R under materials rather than extras. [ 83 ] Mr. Colbourne testified that these are the receipts for materials purchased for the project. He testified that there may be others

because the project spanned two business years. I do not find this explanation acceptable. A business is required to retain receipts for all legitimately incurred business expenses for audit purposes. Furthermore, in the event of a litigation, receipts are valuable evidence. Without them, a litigant is at a great disadvantage. [ 84 ] Mr. Colbourne testified that it is common for a business to mark up their materials. He testified that he gets discounts of up to 40% below the retail price as a contractor and that it is a general practice to mark materials up to the retail price.

I accept that this is a common business practice and am prepared to allow a mark-up of 30% on all the materials. By applying that figure to the amounts indicated on the receipts, I find the cost for materials proven to have been purchased by R & R is $66.889.76. [ 85 ] Mr.

Colbourne testified that he is prepared to accept the following deductions from the $88,776.82 for materials R & R had not yet purchased: Kitchen cabinets countertop sink faucet $ 1,400 Bathroom tub, tub surround, vanity, toilet and faucets 500 Flooring for suite 1,000 Paint, drywall compound and taping supplies 500 Trim for windows, doors and baseboards 200 Plumbing 100 Light Fixtures 100 TOTAL $ 3,800 [ 86 ] I find it unnecessary to consider these estimates in my calculations for materials.

The only issue I need to decide is how much R & R can prove they actually spent on materials for the Lively's project. [ 87 ] By adding the expenses proven through receipts ($51,453.66) plus mark up of 30% ($15,436.10) I get a figure of $66.889.76. Subtracting this amount from the $88,776.80 received by R & R, there is an unexplained shortfall of $21,887.04. [ 88 ] Ms. Lively is entitled to a refund of $21,887.04 from R & R for overpayment on materials. LABOUR [ 89 ] R & R claims $18,304.13 for labour on their counterclaim.

This was the amount due at three-quarters completion and was on the invoice marked as Exhibit 8 from R & R to the Livelys dated February 4, 2014. [ 90 ] Ms. Lively referred to an appraisal from McDonald Appraisals who apparently inspected the project and provided an opinion that the project was 52% complete. This document was not marked as an exhibit and no-one from McDonald Appraisals gave evidence. I find this document inadmissible hearsay and it forms no part of my decision. [ 91 ] Ms. Lively testified that in her opinion, the project was far from complete.

After receiving the invoice from R & R on February 4, 2014, she and her husband discussed the state of the project. They agreed that neither thought the project was near three- quarters completion. Ms. Lively testified that none of the interior of the carriage house had been finished. [ 92 ] She also testified that a number of deficiencies became apparent at some point and that these deficiencies needed correction. [ 93 ] Mr. Colbourne testified that he believed the project was three-quarters complete and that R & R is entitled to the three-quarters complete labour payment of $18,304.13. [ 94 ] Mr.

Colbourne also points to a letter received from Ms. Lively's legal counsel which was marked as Exhibit 17. This letter dated March 31, 2014 marked “ WITHOUT PREJUDICE ” seems to suggest that the Livelys were agreeing to recognize that the project was three-quarters complete. I am not prepared to give any weight to this letter because it is marked ‘without prejudice’ and was clearly intended to further settlement discussions between the parties. [ 95 ] No details were provided by R & R about the total number of hours of labour the project was expected to take, nor were hours recorded.

I contrast this with the estimates and accounts of Mr. Snider. Those contain a detailed breakdown of estimated and invoiced materials and labour. [ 96 ] I appreciate that some contractors prefer to work on a flat rate basis as it eliminates keeping track of time and doing hourly calculations. This, of course, is completely acceptable, however, it makes the Court's task difficult when trying to determine the percentage of completion for a project. [ 97 ] The court is left with the challenging task of determining damages.

In my view, the fairest way to resolve this matter is to ensure that the Livelys be given credit for most of the work proven to have been invoiced by Mr. Snider. EXPENSES TO COMPLETE THE PROJECT [ 98 ] Ms. Lively testified and referred to receipts for various expenses she incurred to complete the project. In the invoice dated September 6, 2014, JCS General Carpentry claims labour for $4,955 which amount was paid by the Livelys. I give her credit for $4,955 in labour paid to JCS General Carpentry. [ 99 ] Mr.

Colbourne testified that he was prepared to give a credit of $3,500 to the Livelys for electrical work because all electrical work was to be billed as labour under the contract and not materials. [ 100 ] The electrical work which Ms. Lively says she paid to complete the project exceeds $3,500, but I am not prepared to give her credit for the amount she claims. She did not elaborate upon which electrical expenses she had agreed upon with R & R. For example, in

an account from D&S Electric dated December 29, 2014, the account refers to “heavy up service”. No evidence was given whether this was a required item or an extra item for which extra expenditures were necessary. [ 101 ] On all of the evidence, I find she is entitled to $3,500 for the electrical work. [ 102 ] Ms. Lively submitted an invoice from Zwicks Plumbing and Heating Ltd. dated December 4, 2014. Mr. Snider subcontracted Zwicks Plumbing and Heating Ltd. to complete the plumbing. The labour costs identified on that invoice are for $1,805 and I am prepared to credit that amount to Ms.

Lively. [ 103 ] By adding the amounts for JCS labour, $4,955; electrical labour, $3,500; and, plumbing labour, $1,805; I find that Ms. Lively has proven she is entitled to a further credit of $10,260 for labour to complete the project. CONCLUSION [ 104 ] Ms. Lively bears the onus, on a balance of probabilities, to prove what it cost her to complete the project. [ 105 ] I base my calculations on the evidence of Ms. Lively and that of Mr. Snider. I found Mr. Snider to be a credible witness who provided detailed invoices for all his labour and materials. Mr.

Snider's evidence about the labour and materials necessary to complete the project was not challenged by R & R in cross-examination. I accept his evidence and that his accounts to the Livelys were necessary and reasonable to complete the project. [ 106 ] The total payable under the contract for labour, expenses and taxes was $161,993.30. I have allowed $5,140 in extras. Had R & R completed the contract and all the extras, the Livelys would have paid $167,133.30. [ 107 ] The Livelys pre-paid $130,000. Ms.

Lively is entitled to a credit of $21,887.04 for overpayment of materials and $5,105.36 for the concrete floor for a total credit of $156,992.40. [ 108 ] Subtracting this credit of $156,992.40 from the total payable under the contract (plus extras) of $167,133.30, leaves an unreconciled amount of $10,140.90. [ 109 ] I am satisfied that Ms. Lively has proven that her costs in labour to complete the project are $10,260. The labour costs she has proven exceed the unreconciled amount of $10,140.90 by $119.10.

On the evidence I accept, she has proven that she has paid $119.10 in excess of what she would have paid had R & R completed the contract. THE COUNTERCLAIM [ 110 ] I find that R & R has not proven that the project was at three-quarters completion. I find that the project was only about one half complete and that R & R is not entitled to any compensation for labour over the amount they have already received. I therefore dismiss the entire portion of R & R's counterclaim of $18,304.13 for labour claimed for three-quarters completion.

Based on the calculations I made above, R & R is not entitled to any further compensation for extras. I dismiss the counterclaim in its entirety. [ 111 ] I allow the following for Ms. Lively: Overpayment of materials $ 21,887.04 Concrete floor 5,105.36 TOTAL $ 26,992.40 [ 112 ] The small claims limit when Ms. Lively filed this claim on August 5, 2014 was $25,000. I award judgment to her against R & R for $25,000 plus filing fees of $156 and service fees of $100 for a total of $25,256.00. _______________________ G. Leven, PCJ Provincial Court of BC