Unger v. Hayer, 2023 BCPC 277

Citation: Unger v. Hayer 2023 BCPC 277 Date: 20231212 File No: 2159957 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: DEANNA UNGER and STEVEN UNGER CLAIMANTS AND: ROBIN HAYER, ROOP HAYER and HAYER R. CONSTRUCTION FIRM INC. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on their own behalf: D. Unger and S. Unger Appearing on his own behalf: Robin Hayer Appearing for the Defendant Roop Hayer: No appearance Appearing for the Defendant Hayer R. Construction Firm Inc.: W. Van Delft Place of Hearing: Prince George , B.C.

Dates of Hearing: January 31, February 1, 2, May 9, October 26, 2023 Date of Judgment: December 12, 2023 INTRODUCTION

INTRODUCTION [ 1 ] In 2019, the defendant Hayer R. Construction Firm Inc. custom built a residence for the claimants Deanna Unger and Steven Unger at [omitted for publication] in Prince George, BC. The claimants were happy with their new home and had an amicable relationship with their builder. Hayer R. Construction subcontracted out the installation of the concrete driveway and walkway to the residence, which were poured and finished on Halloween 2019. The claimants are unhappy with these outside concrete structures.

They claim the concrete froze before it cured, robbing it of its strength and structural integrity. Despite Robin Hayer’s repeated assurances to remediate the concrete structures, they remain in their defective condition. The claimants want these concrete structures replaced. The defendants say the claimants breached their duty to mitigate the damage by failing to make a timely claim under their new homeowner’s warranty policy. Moreover, the defendants say the concrete structures need only repair, not replacement. ISSUES [ 2 ] The issues the court must decide are as follows: 1.

Are the defendants individually or collectively liable to the claimants for the defective concrete structures installed in the residence? 2. If so, what is the scope of the deficiencies to the concrete structures? 3. Were the claimants required to make a claim under their Homeowner’s Protection Act Policy? 4. What is the measure of damages, if any?

EVIDENCE [ 3 ] At trial, on behalf of the claimants, I heard from Deanna Unger and Steven Unger and Glen Compo, a qualified expert. [ 4 ] The claimants tendered into evidence the following exhibits: EXHIBIT 1: USB drive containing a video and photographs depicting the claimant’s driveway and sidewalk, as well as a recording of a telephone conversation between Ken Thomas of Thomas Concrete Finishing Ltd. and Steven Unger. EXHIBIT 2 : An estimate from All-Star Concrete LTD. dated December 4, 2021, quoting $16,091.04 as the cost of replacing the sidewalk and driveway.

EXHIBIT 3: Internet weather reports, October 30, 2019 to November 2, 2019 in Prince George, BC. EXHIBIT 4: Text messages exchanged between Robin Hayer, [omitted for publication], and Deanna Unger, [omitted for publication], from August 12, 2019 to September 9, 2021, inclusive. EXHIBIT 5: Emails exchanged between Deanna Unger and Jessie Sekhon, Underwriting Administrator for the National Home Warranty Group Inc., between June 29, 2020 and October 12, 2020. EXHIBIT 6: Email correspondence from Andy Lakey of Brock White to Steven Unger sent September 9, 2021, regarding patching the claimants’ spalling driveway.

EXHIBIT 7: Invoice #47903 from Rolling Mix Concrete (B.C.) Ltd. for concrete delivered to [omitted for publication] on October 31, 2019. EXHIBIT 8: Email correspondence from Deanna Unger to Robin Hayer dated November 30, 2020, setting out the list of deficiencies at [omitted for publication]. EXHIBIT 9: Correspondence from Aviva Insurance Company of Canada to the claimants dated December 4, 2020, formally denying the claimants’ claim they say was received on November 30, 2020, under the Homeowners Protection Act policy, together with a copy of that policy commencing November 29, 2019.

EXHIBIT 10: Twenty pages of email correspondence from June 19, 2020 to December 4, 2020, inclusive, exchanged between Deanna Unger and: (

a) Jessie Sekhon of the National Home Warranty Group Inc.; and (

b) Aviva Insurance Company of Canada’s employees: (

i) Liz Miyashita; (ii) Antonella Lagana; (iii) Erin Giddings; (iv) and Austin Chuck-Yin. EXHIBIT 11: City of Prince George occupancy permit for [omitted for publication], Prince George, BC, dated November 28, 2019. EXHIBIT 12: Ten-page document from Jessie Sekhon of the National Home Warranty Group Inc. sent to Deanna Unger, post-marked December 10, 2020, enclosing Aviva’s Limited Home Warranty Insurance Policy dated August 4, 2020. EXHIBIT 13: A three-page document with the title "BC Housing - New Homes Registry” dated November 25, 2019. This document sets out the name of the builder of the residence (Hayer R.

Construction Firm Inc.), the builder’s warranty number (NHWB97088), the warranty provider and its contact information (Aviva as represented by NHWG at 604-608-6678), and the civic address and legal description of the residence. EXHIBIT 14: Contract of Purchase and Sale between Hayer R. Construction Firm Inc. as Vendor, and Steven Jacob Unger and Deanna Dawn Unger as Purchasers, dated July 25, 2019, for the property at [omitted for publication], PID: [omitted for publication], Cariboo District Plan [omitted for publication].

EXHIBIT 15: Text messages exchanged between Ken Thomas ((250) 960-9035) and Steven Unger, from June 16, 2021 to September 4, 2021 inclusive.

EXHIBIT 16 : Correspondence from Bill Pajimopolos of 2197 McBride Crescent, Prince George, British Columbia, V2M 1Z5, dated September 4, 2021, quoting the cost of replacing the sidewalk and driveway as $25,300 plus 5% GST in the amount of $1,265, for a total of $26,565. [ 5 ] At trial, on behalf of the defendants, I heard from Robin Rupinder Hayer (“Robin Hayer”). The defendants tendered into evidence: EXHIBIT 17 : Two pages of emails exchanged between Robin Hayer and Kelly Ringrose between August 10, 2021 and August 17, 2021.

EXHIBIT “A” Rolling Mix Concrete (BC) Ltd.’s correspondence to Robin Hayer dated December 16, 2021. [ 6 ] Neither party contested the provenance of any of the documents tendered into evidence as exhibits at trial. THE PARTIES [ 7 ] The claimants are Deanna Dawn Unger (“Deanna Unger”) and Steven Jacob Unger (“Steven Unger”, and together with Deanna Unger, the “Claimants”), who are husband and wife. They were married for over 30 years and are the parents of two adult daughters. [ 8 ] Deanna Unger is 49 years old.

She is employed by School District 57 as an educational assistant at Duchess Park Secondary School in Prince George, BC. [ 9 ] Steven Unger works for the College of New Caledonia (“CNC”) in grounds maintenance. Previously, Steven Unger worked for 32 years in the automobile industry. [ 10 ] Steven Unger’s position in maintenance for CNC involves snow removal in the winter and lawn care and tree trimming in the spring and summer months. He has no expertise with pouring and finishing concrete. [ 11 ] The Claimants have been self-represented throughout these proceedings. [ 12 ] The corporate defendant is Hayer R.

Construction Firm Inc. It was incorporated in March 2011 pursuant to the laws of British Columbia, and assigned business number 821416401 BC0001. In these Reasons for Judgment, I will refer to the corporate defendant as “Hayer R. Construction”. [ 13 ] Hayer R. Construction is a family-owned business whose directors and officers are Rupinder Robin Hayer (“Robin Hayer”) and his father Roop Hayer. Robin Hayer and Roop Hayer are also named as defendants in these proceedings. In these Reasons for Judgment, I will refer to Robin Hayer and Roop Hayer, together with Hayer R.

Construction, as the “Defendants”. [ 14 ] The Defendants are in the business of residential development. [ 15 ] Hayer R. Construction is a licensed residential builder under the Homeowner Protection Act , S.B.C. 1998, c. 31 (the “ HPA ”) and its regulations, including the Homeowner Protection Act Regulation , BC Reg 29/99 (the “ HPA Regulation ”). [ 16 ] Robin Hayer works with his father Roop Hayer, who has been in the business of residential development for 47 years. The Defendants have conducted their operations in Prince George, Northern British Columbia, and the Lower Mainland. [ 17 ] The Defendant Hayer R.

Construction has been represented throughout these proceedings by legal counsel Mr. W. Van Delft. Robin Hayer appeared at trial as a principal of Hayer R. Construction, and on his own behalf. Roop Hayer did not appear in person or by counsel or agent. THE CONTRACT [ 18 ] On July 25, 2019, the Claimants entered into a contract (the “Contract”) with the corporate defendant Hayer R. Construction Firm Inc. for the purchase and construction of a residential dwelling at [omitted for publication], Prince George, British Columbia, for a purchase price of $429,000 inclusive of GST: Exhibit 14.

In these Reasons for Judgment, I will refer to the dwelling and the lot upon which it was constructed as the “Residence”. The Contract provided that the Residence would include a front driveway with broom finish and a concrete walkway to the front door. In these Reasons for Judgment I will refer to the driveway and walkway together as the “concrete structures”. [ 19 ] The Contract completed on

schedule on November 29, 2019. The City of Prince George issued Occupancy Permit RP040439 for the Residence on November 28, 2019: Exhibit 11. [ 20 ] The Claimants took ownership in fee simple and possession of the Residence on November 29, 2019. They moved into the Residence on December 4, 2019. [ 21 ] Hayer R. Construction, as required by the HPA , arranged for third-party home warranty insurance on the Residence through Aviva Insurance Company of Canada (“Aviva”), as represented by its agent National Home Warranty Group Inc. (“NHWG”): Exhibit 9.

Aviva issued a limited home warranty insurance policy, number NHWB97088-A-157 (the “ HPA Policy”), protecting the Residence against construction defects pursuant to the HPA and HPA Regulation, commencing November 29, 2019. Aviva, as represented by the NHWG, is one of many home warranty insurance providers approved by the BC Financial Services Authority (“BCFSA”).

The BCFSA is a Crown agency responsible for the supervision and regulation of the financial service sector in British Columbia. [ 22 ] When the Claimants completed their purchase of the Residence on November 29, 2019, they received from their conveyancing notary public a print out from the BC Housing – New Homes Registry. This document confirmed the Residence was registered with home warranty insurance, and Aviva as represented by the NHWG was the warranty provider. It also provided the address of the NHWG’s website and telephone number: Exhibit 13.

THE CONCRETE STRUCTURES [ 23 ] Hayer R. Construction subcontracts out all concrete finishing on its construction projects. Robin Hayer personally has no expertise in pouring or finishing concrete. Hayer R. Construction hires subcontractors to perform these specialized tasks. [ 24 ] The concrete for the concrete structures was provided by Rolling Mix Concrete (BC) Ltd. (“Rolling Mix Concrete”) of Prince George, BC: Exhibit “A”. The concrete was a 32 MPA (megapascal) mix. Hayer R. Construction attached as a

schedule to its Amended Reply a letter to Robin Hayer from John Milani, General Manager of Rolling Mix Concrete, dated December 16, 2021. It states: To Robin Hayer Regarding the concrete that was used on the driveway located at [omitted for publication], Prince George BC on October 31, 2019. The concrete that was ordered and delivered to this job site was our 32MPA mix. This is the same mix that is used on all City of Prince George sidewalks and outside slabs.

It is also the standard mix for all driveways, sidewalks and outside slabs required by the building code that all contractors practice. [Marked as Exhibit “A” for identification; Amended Reply, CEIS 8.] [ 25 ] Hayer R. Construction subcontracted the installation of the concrete structures to Goyer’s Concrete Finishing (“Goyer Concrete”), whose business is owned and operated by Josh Goyer. Neither Josh Goyer, nor anyone on behalf of Goyer Concrete, testified in these proceedings.

The Defendants did not adduce any documentation from Goyer Concrete with respect to their installation of the concrete structures at the Residence. [ 26 ] Hayer R. Construction arranged for the concrete structures to be poured and finished on October 31, 2019. In Prince George, as in most places in North America, October 31 is Halloween, when youngsters dress up in costumes and go from house to house “trick or treating”. [ 27 ] Deanna Unger and Steven Unger attended at the Residence to view the newly-poured concrete structures.

They were present from 3:30 p.m. to 5:00 p.m. when “two boys” from Goyer Concrete were present “finishing” the concrete. Neither Josh Goyer nor Robin Hayer were present at the worksite. [ 28 ] As it was Halloween, the Claimants worried that children out trick or treating might tread on the soft concrete. Deanna Unger and Steven Unger kept a vigil of the freshly-poured concrete structures until 9:00 p.m. on October 31, 2019. No person stepped on the wet concrete under their watch. [ 29 ] On October 31, 2019, the weather was cold. Nobody covered or insulated the concrete structures.

Steven Unger testified the weather was freezing when he and Deanna Unger left the Residence at 9:00 p.m. [ 30 ] Deanna Unger testified: That evening, because we were worried about kids trick or treating and putting their footprints into the concrete, we sat in our pickup on the street watching every kid go by trick or treating and jumping out and making them stay off of the concrete when they would pass by.

This is how I know that the driveway was not covered with an insulated blanket or any heat source at all. . . . [ 31 ] The Claimants are not aware of anyone protecting the freshly-poured concrete with insulated covering, nor did they observe anyone arrange for the concrete to be heated. Having no expertise in the craft of concrete finishing, the Claimants were not concerned the freshly-poured concrete was unprotected from the elements. Their primary focus was ensuring the children did not walk on the wet concrete. On October 31, 2019, the Residence was still owned by Hayer R.

Construction. [ 32 ] The Claimants tendered into evidence as Exhibit 3 an Internet weather report indicating that between October 31, 2019 and November 2, 2019, the outside temperature dropped to a low of -3 o C. [ 33 ] The Claimants say in November 2019 it began snowing and the concrete structures became covered in snow and ice, which remained until the spring thaw of 2020. [ 34 ] Steven Unger also observed the sidewalk suffer extensive damage from water pouring off the house roof. At the time the concrete structures were poured, the eaves troughs had not yet been installed.

The sidewalk, like the driveway, was uncovered. Steven Unger observed the fresh sidewalk concrete trenched and pitted from water pouring off the roof. At the time, Steven Unger expressed concern about the unprotected sidewalk to the workers present at the Residence. They placed 2 x 4 boards down the centre of the sidewalk to protect the fresh concrete from the pelting rain. Neither Josh Goyer nor Robin Hayer were present at the Residence at the time. [ 35 ] In the spring of 2020, after the snow and ice had retreated, Deanna Unger and Steven Unger observed pervasive damage to the concrete structures.

Large areas of the driveway spalled, crumbled, and peeled away. As the winter turned into spring and then summer, the flaking increased. When Steven Unger tapped the concrete, it seemed hollow, without volume underneath. He could easily pop off the top of the concrete slab with his thumb. COMMUNICATION BETWEEN THE PARTIES [ 36 ] During the currency of the construction of the Residence and thereafter, Deanna Unger communicated with Robin Hayer principally through text messaging and occasionally through email. Deanna Unger’s cell phone number was: [omitted for publication]. It remained unchanged since 2008.

Robin Hayer’s cell phone number was: [omitted for publication]. Deanna Unger placed into evidence text messages she exchanged with Robin Hayer between August 12, 2019 and September 9, 2021: see Exhibit 4.

[ 37 ] Deanna Unger also communicated by email with various representatives of Aviva and its agent NHWG between June 29, 2020 and December 4, 2020: Exhibits 4, 9 and 10. Neither Aviva nor NHWG are parties to these proceedings as named defendants or third parties. No person from Aviva or NHWG testified in these proceedings. [ 38 ] In the summer of 2021, Robin Hayer directed the Claimants to communicate directly with his new concrete subcontractor Ken Thomas, owner of Thomas Concrete Finishing Ltd., concerning the concrete structures.

Whereas Deanna Unger assumed the task of communicating with Robin Hayer, Aviva and NHWG, Steven Unger undertook the task of communicating with Ken Thomas.

Steven Unger placed into evidence his text messages with Ken Thomas exchanged between June 16, 2021 and August 24, 2021 (Exhibit 15), as well as a recording of a telephone conversation he had with Ken Thomas in August 2021: Exhibit 1. [ 39 ] Robin Hayer adduced no written communiques that the Defendants exchanged with the Claimants or their subcontractors. [ 40 ] In a nutshell, the Claimants say the spring thaw of 2020 revealed extensive defects to the concrete structures.

Deanna Unger notified Robin Hayer in writing of these defects and provided him with a video recording of the defective and disintegrating concrete structures. For the next year and one-half, Robin Hayer continued to reassure the Claimants he would rectify the defects. He has yet to do so. THE HPA POLICY [ 41 ] The HPA Policy covered the materials and labour with respect to the concrete structures from November 29, 2019 to November 29, 2020.

Notwithstanding s. 15 of the HPA , and Deanna Unger’s repeated attempts to obtain the HPA Policy from Robin Hayer, NHWG and Aviva, the Claimants never received a copy of the HPA Policy before December 10, 2020: Exhibit 12. By this time, the one-year limitation period on the concrete structures had expired. Aviva refused the Claimant’s claim under the HPA Policy with respect to concrete structures: Exhibit 9. On December 4, 2020, Aviva Claims Adjuster Austin Chuck-Yin advised the Claimants their Notice of Claim under the HPA Policy was rejected for having been submitted one day too late.

Six or so days later, the Claimants received their HPA Policy. [ 42 ] Mr. Chuck-Yin indicates a copy of his December 4, 2020 letter was sent to Hayer R. Construction via email at robin@hayerconstructionfirm.com . APPENDIX [ 43 ] I have transcribed and appended to these Reasons for Judgment the text messages and emails exchanged between the parties to the extent they were placed before the court. These included: (

a) text messages exchanged between Deanna Unger and Robin Hayer: Exhibit 4; (

b) emails exchanged between Deanna Unger and representatives of Aviva/NHWG: Exhibits 5, 10, 12; (

c) text messages exchanged between Steven Unger and Ken Thomas, the Defendant’s concrete finishing subcontractor: Exhibit 15. For narrative’s sake, I have reproduced these written communiques in chronological order. The Defendants have never contested the authenticity or admissibility of any of these written communiques. CONSULTATIONS [ 44 ] The Claimants sought out a number of persons with expertise in pouring and finishing concrete. Although the Claimants say both the driveway and sidewalk were defective, their foremost concern was the driveway.

Steven Unger testified that on June 16, 2021, he contacted Ken Thomas at Robin Hayer’s direction: Exhibit 15. Steven Unger arranged for Ken Thomas to attend at the Residence. Ken Thomas is or was the concrete finishing subcontractor who worked for Hayer R. Construction since 2021. Steven Unger understood that Ken Thomas was not the contractor who poured the concrete structures for Hayer R. Construction. The contractor who poured the concrete structures on October 19, 2019, was Josh Goyer. [ 45 ] Steven Unger estimates Ken Thomas was present and inspecting the driveway for 20 to 30 minutes on June 7, 2021.

Steven Unger observed Ken Thomas looking and touching the driveway. Steven Unger testified, “he walked around on it and kicked it a bit, seen that it was crumbling.” [ 46 ] Ken Thomas again attended at the Residence on August 9, 2021. Steven Unger says Ken Thomas confirmed the damage to the concrete structures was the result of the concrete freezing and unable to cure. As a result, it lost its strength. Ken Thomas also pointed out to Steven Unger the driveway had no expansion cuts or stress cuts.

Ken Thomas told Steven Unger, “it looked to him like someone poured the driveway and then just walked away . . . never finished it.” [ 47 ] Steven Unger understood from his communications and meeting with Ken Thomas that the damage to the concrete structures was beyond repair. Ken Thomas advised Robin Hayer of his views in this regard. Ken Thomas told Steven Unger in a text message he did not think a patch would hold. In his recorded telephone conversation with Steven Unger about remediating the Claimant’s driveway, Ken Thomas said, “Robin hasn’t texted me back since I told him to rip it out”: Exhibit 1.

Ken Thomas did not appear as a witness in these proceedings. [ 48 ] Deanna Unger sent a text message to Robin Hayer on August 9, 2021, after Ken Thomas’ assessment of the driveway. She advised Robin Hayer that in Ken Thomas’ view, the driveway was impossible to patch because the concrete froze and the entire surface was crumbling away: Exhibit 4. Robin Hayer did not respond to Deanna Unger’s August 9, 2021 text message.

Deanna Unger sent Robin Hayer another text on August 10, 2021, reiterating Ken Thomas’ views that the driveway needed “to be ripped out and a new one poured as the concrete is not fixable.” Robin Hayer responded on August 31, 2021, with a text message advising Deanna Unger he was referring the issue to the “warranty tech as it’s more complex than simple warrantable items.” [ 49 ] The Claimants obtained an estimate from Bill Pajimopolos, who attended at the Residence at the end of August 2021.

On September 4, 2021, Bill Pajimopolos offered the opinion the driveway could not be repaired and had to be “ripped out” and “redone”. He provided the Claimants a quote of $25,300 plus 5% GST in the amount of $1,265, for a total of $26,565: Exhibit 16. This includes the removal of the broom-finished concrete, disposal of the derelict material, and installation of a new driveway. He states the quoted price

is for 2021. He expects that in 2022 the price will increase by 15 to 20 percent as the price of materials increases. [ 50 ] On September 9, 2021, Andy Lakey from Brock White attended at the Residence to assess the driveway. Andy Lakey sent the Claimants an email (Exhibit 6) stating: Good day Steve and Deanna. After my visit to you[r] place to look at your driveway I spoke with the manufacturers of our patching products about your situation (the flaking). My concern with the driveway as I saw it is that any patching compound would likely just delaminate due to the existing surface flaking as it is.

I wouldn’t be confident a patch would be the right way to go. Andy Lakey [ 51 ] In sum, the Claimants say that Ken Thomas of Thomas Concrete Finishing Ltd., Andy Lakey of Brock White, Glen Compo of All-Star Concrete Ltd., and Bill Pajimopolos, all say the driveway requires replacement. [ 52 ] Robin Hayer says that Kayle Thomas, also of Thomas Concrete Finishing Ltd., supports the Defendants’ contention the driveway can be repaired. I note that Kayle Thomas’ quote was obtained after the Claimants filed their Notice of Claim in these proceedings. It is for “Repair on driveway surface”.

The quote does not opine on whether the driveway ought to be repaired or replaced. THE PROCEDURAL HISTORY [ 53 ] The Claimants made exhaustive attempts to have the Defendants assess and remediate the concrete structures – principally their driveway. Deanna Unger estimates she texted Robin Hayer 30 times over an 18-month period: see Exhibit 4.

The Claimants also made many attempts to have experts opine on what could be done to remediate the concrete structures: see Exhibits 1, 2, 6, 15, and 16. [ 54 ] On September 29, 2021, 22 months after they took possession of the Residence, the Claimants filed the Notice of Claim seeking damages in the amount of $28,000 plus expenses for the defective concrete structures. This document was filed in the Court Electronic Information System (“CEIS”) as document 1. [ 55 ] On November 1, 2021, the Claimants filed an Application for a Default Judgment (CEIS 5). The Defendant Hayer R.

Construction filed a Reply on November 21, 2021 (CEIS 6), and an Amended Reply on January 26, 2022 (CEIS 8). The Application for a Default Order came before Judge Nadon for hearing on January 28, 2023. On that date, the Claimants appeared in person, and Mr. Van Delft appeared on behalf of the corporate defendant Hayer R. Construction. Judge Nadon dismissed the Claimant’s Application for default judgment against all three Defendants. Mr. Van Delft advised the Claimants they could serve all of the Defendants through his office.

The Defendants have not sought an order dismissing the claim against the personal Defendants, Robin Hayer or Roop Hayer. [ 56 ] On April 4, 2023, this matter came before Judge Thomas for a Settlement Conference. Deanna Unger and Steven Unger appeared on behalf of the Claimants. Robin Hayer appeared on behalf of the Defendants. The matter did not settle. Judge Thomas referred this matter to the Judicial Case Manager to

schedule a four-day trial, and a pre-trial conference 90 days in advance of the trial. Judge Thomas also ordered the parties to exchange will-say statements and witness lists prior to the pre-trial conference. [ 57 ] The Defendants do not deny the concrete structures are defective, but say they are covered by the HPA Policy and ought to be repaired pursuant to that policy. In its Amended Reply, Hayer R.

Construction asserts “the cost of any repair or replacement is not the responsibility of the defendant, rather it is to be covered by the new home warranty policy”. [ 58 ] Rule 5 of the Small Claims Rules, BC Reg 261/93 , permits a defendant who has filed a reply to make a third-party claim against another person the defendant contends should pay all or part of the claim. The Defendants in this case did not name as a third party the concrete provider (Rolling Mix Concrete), or the concrete finishing subcontractor (Goyer Concrete).

Given the Defendants are represented by legal counsel, I assume their decision not to name any supplier or subcontractor as a third party in this litigation was strategic. In other words, it was not an oversight. [ 59 ] The Defendants’ position that the warranty provider is responsible for the cost of remediating the cement structures is difficult to reconcile with the warranty provider’s statutory subrogation rights against the builder. Aviva is entitled to recover the amount of any claim paid to the homeowner for an insured loss: HPA Policy ; HPA Regulation , s. 9 . At trial, Robin Hayer acknowledged Hayer R.

Construction was responsible for remediating any defects under the HPA Policy . Robin Hayer also testified that had the warranty provider been involved, the subcontractor may have been held responsible for the cost of remediation. He understands the subcontractors have their own insurance they can draw upon if their work is proved defective. This does not clarify why, in these proceedings, the Defendants did not file a third-party claim against the subcontractor who installed the concrete structures.

EXPERT EVIDENCE AT TRIAL [ 60 ] The courts typically require expert evidence when assessing the quality of a professional's work unless it is of a non-technical nature: Zettl v. Roger Garside Construction Ltd. , 2016 BCSC 2307 , para. 127 . [ 61 ] Ultimately, there was only one person who attended at trial and was qualified to give an expert opinion evidence in these proceedings. [ 62 ] Glen Compo viewed and assessed the concrete structures in October 2021 and on December 4, 2021. He expressed the view the concrete structures needed to be replaced and could not be repaired.

His estimate for the cost of their replacement is marked as Exhibit 2. [ 63 ] The Claimants asked the court to qualify Glen Compo as an expert witness in the area of concrete finishing. This is the first time

Glen Compo has been presented to the court in this capacity. Glen Compo is the sole owner and operator of All-Star Concrete Limited (“All-Star Concrete”), which is in the business of concrete finishing. All-Star Concrete Limited has been operational for five years. During the busy summer months, All-Star Concrete has a team of five employees. It undertakes all manner of outdoor concrete features, such as driveways, sidewalks, patios, decks, slabs, basic slabs, garage slabs, fencing. [ 64 ] Glen Compo began working in the construction industry in Alberta in 1997. He began constructing foundations for residences.

After ten years working in the industry in Alberta, Glen Compo moved to Prince George. He worked for Rock-Tech Concrete just shy of five years. When Rock-Tech closed its doors, Glen Compo opened his own concrete business. Over the years he had worked with numerous people having extensive experience and training in finishing concrete, be it functional or decorative, including driveways and sidewalks. His focus was on outdoor concrete projects in residential construction. [ 65 ] Glen Compo estimates he undertakes 150 concrete projects each year, or approximately 1,000 in the last ten years.

He does not mix the concrete, which in Prince George is generally done by Rolling Mix Concrete or Prince George Ready Mix Concrete. He installs and finishes the concrete structures. [ 66 ] All of Glen Compo’s concrete projects have been within a 100-kilometre radius of Prince George. His busy season for outside concrete projects is from May 1 to October 15. He says that when the weather is cold, concrete has to be properly tarped and/or heated. Frost and cold weather are “not good for concrete”. [ 67 ] Mr. Van Delft did not cross-examine Glen Compo in the qualification voir dire .

I was satisfied that Glen Compo had the experience and training necessary to provide opinion evidence to the court on placing and finishing outside concrete structures, including driveways and walkways. I qualified him without objection as an expert witness entitled to give opinion evidence in that area. All the evidence on the qualification voir dire was admitted by consent into the trial proper. [ 68 ] Glen Compo testified that concrete is mixed with water. As it cures, the water dissipates into the air or through the ground. It takes 28 days for a four-inch concrete driveway to cure 100%.

If the concrete freezes before concrete has time to cure, the surface layer will flake off. [ 69 ] Glen Compo testified that if the outside temperature falls and remains below zero and freshly-poured concrete is not warmed up, it will usually freeze and has no opportunity to “cure”. If the concrete has been poured for several days before the weather turns, then it has a structural base to withstand the cold.

He estimates after seven days, a four-inch concrete driveway will be 75% cured. [ 70 ] Glen Compo said that if concrete was poured on October 31 and the outside temperature fluctuated to below zero, he would have covered the concrete with an insulated blanket. [ 71 ] Glen Compo viewed the Claimant’s driveway at [omitted for publication] “a couple of times” in the summer of 2020. He opined that it was flaked in many areas. [ 72 ] Glen Compo testified that when constructing a driveway, he inserts an expansion cut for every 100 square feet of concrete.

Expansion cuts are inserted so that if the concrete does crack, it will do so along the expansion cuts. This is particularly important in the north where there are cycles of freezing and thawing. These expansion cuts ought to be inserted within 72 hours of pouring the concrete for the driveway. Glen Compo did not see any expansion or stress cuts on the concrete structures. [ 73 ] Glen Compo opined that 90% of the surface of the Claimants’ concrete driveway is flaking off to an approximate depth of ¼ of an inch. He cannot say with absolute certainty the concrete froze, or if it was simply a bad batch of concrete.

He is unable to say whether the visible surface cracks are structural. He is of the view that both the concrete structures should be replaced because of the pervasiveness of the flaking. Although there were some “nice pieces”, Glen Compo did not see any concrete worth salvaging. [ 74 ] The Claimants tendered into evidence at trial a copy of a video and photographs of the concrete structures as Exhibit 1. [ 75 ] Glen Compo estimated the cost of removing and replacing the concrete structures was $16,091.04. He says the concrete would have to be cut in sections, removed, and replaced with fresh concrete.

Glen Compo’s 2021 estimate for the repairs was entered into evidence at trial as Exhibit 2. It states: Looking at the concrete driveway at the address on the quote, the concrete froze prior to completely curing, on which it is now flaking off in chunks. There is no chance of putting a skin coat on to try to fix the surface. The concrete driveway as well as the sidewalk need to be ripped out and redone. Talking to the home owner the driveway was poured late in the season and which it should of been covered with an insulated blanket. We will rip out the old concrete hauling it away.

We will haul in road crush to set grade if needed. We will then compact and re frame the driveway and sidewalk We will place rebar at 18" on centre using 10MM rebar We will pour and finish the concrete with a BROOM finish. The following day we will return to strip our form boards and clean up any mess. Any questions don't hesitate to give us a call To book your concrete work with us click the APPROVE button as well as give us a call to

schedule you in We require a deposit of 50 percent of the quote at the start of the job

[76] Glen Compo did not engage in any discussions with the Claimants about the HPA warranty program. [77] Glen Compo agreed with the proposition that had the flaking driveway been dealt with sooner rather than later, the damagewould not be as extensive as it is now. HEARSAY EVIDENCE [78] Both the Claimants and the Defendants adduced hearsay evidence at trial. Hearsay evidence is an out-of-court statement tenderedfor the truth of its contents. It is presumptively inadmissible. In R. v.

Baldree, 2013 SCC 35, Justice Fish explains the rationale for thisexclusionary rule: [31] In short, hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of thedeclarant’s assertion. Apart from the inability of the trier of fact to assess the declarant’s demeanour in making the assertion, courts andcommentators have identified four specific concerns. They relate to the declarant’s perception, memory, narration, andsincerity: Khelawon, at para. 2; R. v.

Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 159. [32] First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, therelevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionallymisleading manner; and finally, the declarant may have knowingly made a false assertion.

The opportunity to fully probe these potentialsources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original.] [79] There are many common-law exceptions to the rule against hearsay evidence, some of which are relevant in this case: (

a) astatement of an opposing party: R. v. Terrico, 2005 BCCA 361 ; (

b) business record: Evidence Act, R.S.B.C. 1996, c. 124,s. 42(2); McGarry v. Co-operators Life Insurance Co., 2011 BCCA 214 ; (

c) the statement is part of the narrative tocontextualize the evidence: R. v. F.(J.E.), (ONCA). Hearsay is also admissible under the principled exception to thehearsay rule if it is necessary and reliable: R. v. Khelawon, 2006 SCC 57, para. 2. [80]

Section 16 of the Small Claims Act, R.S.B.C. 1996, c. 430, gives the court discretion to admit hearsay evidence it finds credibleand trustworthy. It states: Evidence 16

(1) The Provincial Court may admit as evidence in a proceeding under this Act or the rules any oral or written testimony, record orother thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, recordor other thing is not admissible as evidence in any other court under the laws of evidence.

(2) The Provincial Court may not admit as evidence in a proceeding under this Act or the rules anything that is privileged under the lawsof evidence. [81] In Trejo v. Pro-Align Heavy Suspensions Ltd., 2023 BCSC 929 , Justice Riley cites with approval the Provincial Courtdecision of Stone v. Insurance Corporation of B.C., 2008 BCPC 382. Justice Riley states at para. 47 of Trejo that he found Judge T.S.Wood’s comments in Stone “helpful in delineating the contours of admissibility under s. 16 of the Small Claims Act.” From Trejo andStone, I glean that: a.

Section 16 of the Small Claims Act reflects a relaxed approach to the rules of evidence that is employed in the Provincial Court. b.

Section 16 confers jurisdiction on judges of this Court to take a liberal and flexible approach to the rules of evidence in propercircumstances. [82] At issue in Stone was the admissibility of a statement made by a person who was not a party to the litigation, which was directlycontrary to the claimant’s position that she was the one driving a vehicle when it was involved in a collision.

In refusing to admit thehearsay evidence in the circumstances of that case, Judge Woods reasoned as follows: [27] It is true that s. 16 of the Small Claims Act allows for a more informal approach to be taken with respect to evidentiary matters thanis taken in the Supreme Court and other courts. That is a legislated requirement that this court understands and respects, but it does not goso far in my view as to open the door to hearsay evidence for which a non-compelling case has been made for necessity, and for whichthe evidence of reliability is not particularly striking.

Section 16 does not require that I relax the rules of evidence so far as to permitevidence of dubious necessity, somewhat questionable reliability, in circumstances where, as Mr. McDonald says in his argument, theprejudice to Ms. Stone would be very great indeed. [83] In this case, Steven Unger has provided hearsay evidence as to his discussions with Ken Thomas about patching the driveway.Although Ken Thomas initially agreed to Steven Unger’s August 24, 2021 request to provide a written quote for the removal andreplacement of the driveway, he never did provide the quote. Ken Thomas did not testify at trial.

Thomas Concrete Finishing Ltd. is asubcontractor for Hayer R. Construction, who has or had an ongoing business relationship with the Defendants. Ken Thomas’ reluctanceto enter into the fray of this litigation is understandable. Nevertheless, to satisfy the necessity requirement, the witness must be trulyunavailable to testify at trial, either in person or by telecommunication. A mere reluctance to testify does not constitutenecessity: 9725440 Canada Inc. v.

Vijayakumar, 2023 ONCA 466 , para. 39. [84] Steven Unger’s evidence as to what Ken Thomas told him is corroborated by the text messages entered into evidence withoutobjection from the Defendants: Exhibit 15. This hearsay evidence is also corroborated by Steven Unger’s own recording of a telephoneconversation he had with Ken Thomas in August 2021, which was played to the court and marked Exhibit 1 at trial.

[85] I find Steven Unger’s hearsay evidence with respect to what Ken Thomas told him about the condition of the driveway issufficiently credible and reliable to be admissible under s. 16 of the Small Claims Act. Its weight is attenuated by the fact Ken Thomasdid not attend at trial to be cross-examined on this evidence. Moreover, as he was not qualified by the court as an expert witness, KenThomas’ opinion on causation and remedy is of limited value. I do accept, however, that Ken Thomas’ views as expressed to theClaimants did not contradict those of Glen Compo, who was qualified as an expert witness.

I also accept as true that Ken Thomas toldRobin Hayer the Claimants’ driveway had to be “ripped out” and replaced. [86] Roop Hayer is a named defendant in these proceedings who has never appeared before the court in this matter, including at trial.The court was provided no explanation for Roop Hayer’s failure to participate in these proceedings. It is entirely unclear to me the extentto which Hayer R. Construction or Robin Hayer are relying on Roop Hayer’s views on remediating the concrete structures.

I have noway to assess the veracity of any evidence Roop Hayer may have with respect to this matter. [87] I pause to note that typically estimates from the various concrete finishers as to the cost of remediation does not require the courtto qualify that contractor as an expert witness. ASSESSING RELIABILITY AND CREDIBILITY [88] As the trial judge, I am required to assess the credibility and reliability of the witnesses who testify evidence at trial. AsO’Halloran J.A. states in Faryna v.

Chorney, (BCCA), “The law does not clothe the trial Judge with a divine insightinto the hearts and minds of the witnesses.” Rather: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. . . . [89] In Bradshaw v.

Stenner, 2010 BCSC 1398, para. 186, aff’d 2012 BCCA 296, leave to appeal refused, [2012] SCCA No. 392,Justice Dillon, after citing Faryna, endorsed a three-step methodology for assessment of credibility: [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followedby an analysis of whether the witness’ story is inherently believable. Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence.

The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” [citations omitted.] I have found this approach useful. [90] As the trial judge, I can believe some, all, or none of a witness’ evidence and attach different weights to different parts of theirevidence: Bridgewater Tile Ltd. v.

Copa Development Corporation, 2022 BCSC 310 , para. 140, citing Han v. Yan, 2018 BCSC1450, and R. v. R.(D.), . [91] In this case, many of the relevant facts are uncontested. Most of the parties’ communications with Robin Hayer and third partieswith respect to the defective concrete structures were in writing: Exhibits 1-17; Appendix. ASSESSING THE CREDIBILITY AND RELIABILITY OF THE CLAIMANTS [92] I find the Claimants to be credible witnesses on whose evidence I can rely. For the most part, their evidence is corroborated bythe exhibits they placed before the court.

For the most part, their evidence was not challenged by the Defendants. The notable exceptionwas the July 23, 2020 meeting which I have discussed below. [93] The Claimants were forthright and fair in describing their dealings with Robin Hayer. They say that throughout the constructionof the Residence, they found Robin Hayer honest and helpful. It was because of this prior positive working relationship that theClaimants were patient with and respectful of Robin Hayer’s efforts to address the defective concrete structures. I gather he hadaddressed other deficiencies to the Claimants’ satisfaction: Exhibit 8.

The Claimants were understandably taken aback in August of 2021,when, despite Ken Thomas’ expressed views to the contrary, Robin Hayer determined the driveway was to be patched rather thanreplaced. ASSESSING THE CREDIBILITY AND RELIABILITY OF ROBIN HAYER [94] I found Robin Hayer’s evidence troubling. At times it was contradictory, vague, or confusing. I attribute some of thecontradictions to the fact Robin Hayer simply agreed to his counsel’s leading questions in direct examination, which suggested answersthat did not accord with Robin Hayer’s actual experience.

I attribute Robin Hayer’s vagueness, in part, to the inexplicable absence ofcorroborating defence documents. I understand Robin Hayer communicated with his clients and subcontractors and warranty providersby either text messages or emails or both; yet, the only exhibits the Defendants tendered at trial were Exhibits “A” and 17. [95] I surmise Robin Hayer’s confusion arises in part from the fact he was the spokesperson for the Defendants, but not necessarilythe decision maker. He presented as someone who was sent to court to defend a course of action he did not chart.

ROBIN HAYER’S PERSONAL ASSESSMENT OF CONCRETE STRUCTURES [96] Robin Hayer says he believed the Claimants’ driveway was properly poured, placed, finished, and covered by Goyer Concrete,because Josh Goyer “followed similar business practices that he’s done for every other pour.” This is an example of Robin Hayerdefaulting to yes in response to his counsel’s leading questions. Robin Hayer’s belief in this regard is impossible to reconcile with hisevidence that he has never set foot on the Claimants’ driveway. Whatever his belief may have been on October 31, 2019 when the

concrete structures were installed, by the spring of 2020, Robin Hayer was well aware the Claimants considered them defective. Robin Hayer’s written communication with the Claimants, his subcontractors, and the warranty providers, acknowledge the Claimants’ concerns about the concrete structures. [ 97 ] Robin Hayer testified that in the past 30 years, he has never experienced problems similar to that which occurred with the Claimants’ driveway.

Robin Hayer’s evidence was contradicted by text messages he sent to Deanna Unger on July 27, 2020, albeit misdirected, indicating that at this same time there were other homeowners experiencing problems with their driveways: see Exhibit 4. Robin Hayer made no effort to explain these contrary messages. ROBIN HAYER’S JULY 23, 2020 MEETING BETWEEN THE CLAIMANTS [ 98 ] One area of conflict between the parties is a meeting the Claimants say they had with Robin Hayer at their residence on July 23, 2020.

This meeting occurred after Robin Hayer sent Deanna Unger a text message (at 17:07:31) asking her if he could come by in 10 minutes to view with her the concrete structures. Deanna Unger agreed: see Exhibit 4. Deanna Unger says that both she and Steven Unger were present. She testified: A . . . We just talked outside of our house. We did not go in. We were standing right near the pin pad of our garage door. . . . A We viewed the driveway, talked about the driveway, about the spalling, about the chipping away and viewing what you’ve seen on these pictures, and what was attractive. . . .

A With Robin clearly stating, “This is not fixable, in the north, in Prince George.” Q And how long was that meeting? A I would have guessed 10 or 15 minutes. Not very long. Q And both of you were present at that time? A Both of us were present the entire time. Q And that’s your recollection of what you said? A Yes. Q Do you recall anything further from that meeting? Okay. A I don’t remember . . . anymore beyond that. [ 99 ] Robin Hayer denies coming to the Residence to view the concrete structures on July 23, 2020, or any time. He offers no any explanation as to why he did not do so.

There are no further text messages from Robin Hayer to Deanna Unger on or around July 23, 2020, advising her that he changed his plans to attend at the Residence. Similarly, there are no messages from Deanna Unger to Robin Hayer inquiring as to his whereabouts. ROBIN HAYER’S COMMUNICATION WITH THE WARRANTY TECHNICIAN [ 100 ] Robin Hayer has suggested he received information from the warranty provider and/or Roop Hayer confirming the concrete structures could be patched as opposed to replaced.

According to Steven Unger’s August 19, 2021 text message to Ken Thomas, Roop Hayer had attended at the Residence the previous day, August 18, 2021. Steven Unger was alerted to Roop Hayer’s presence by the Claimants’ surveillance system. I understand they did not interact. I accept as entirely possible that Roop Hayer told Robin Hayer that he viewed the driveway and concluded it could be patched. Conversely, I do not believe Aviva’s warranty technician Kelly Ringrose personally assessed the concrete structures and determined they could be patched.

I have set out below my reasons for rejecting this proposition. [ 101 ] I am not convinced Robin Hayer was deliberately trying to deceive the court, but I do find his evidence in this regard utterly confusing. Robin Hayer presented as a contractor well-versed in the practical application of the HPA and the HPA Policy. Yet, he claims that in August 2021, he asked the warranty provider’s technician to opine on a deficiency subject of a stale-dated claim.

I accept the possibility that in August of 2021, Robin Hayer was not as knowledgeable as he now is about the HPA Policy practices and procedures. [ 102 ] Applying the test in Faryna and the relevant Bradshaw factors, I find that Robin Hayer did attend at the Residence on July 23, 2020, and met with Deanna Unger and Steven Unger to assess the problems with the concrete structures. I believe that on this occasion, Robin Hayer told her the driveway was “not fixable, in the north, in Prince George”. This accords with his text message to Deanna Unger on October 16, 2020, wherein Robin Hayer states: . . .

I suggest we wait Until spring and get the work done then so that we don't have any further issues. This will also allow rolling mix to see how another winter goes if it gets more problematic or is contained to the areas noted. Either way it’ll be a priority to finish [ 103 ] In his cross-examination, Robin Hayer testified that Steven Unger and Ken Thomas communicated without his knowledge and that was the reason he, Robin Hayer, “didn’t get to finalize the last step of the process” of remediating the driveway.

Robin Hayer’s evidence is contradicted by his own text messages to Deanna Unger in May 2021, wherein he says he will have Ken Thomas connect with the Claimants. Later, in June 2021, Robin Hayer provides the Claimants with Ken Thomas’ cellular phone number and instructed

them to text Ken Thomas directly: Exhibit 4. LEGAL FRAMEWORK Liability in Contract [104] The Claimants and the Defendant Hayer R. Construction entered into a building contract for the construction of a single detachedcustom-built home which included a front driveway with a broom finish and a concrete sidewalk: Exhibit 14. [105] The Contract did not make any express warranties as to materials or workmanship. However, Term 1 of

Schedule B of theContract states: Purchaser is aware of the fact that Hayer R.

Construction Firm Inc. will be constructing a custom Hayer Construction Firm Design.Changes will be made within the limits of the building code and all house construction will maintain the same standard of building andquality as PURCHASER viewed at [omitted for publication]. [106] In the absence of any statutory warranty or any express term in a contract which specifies the manner in which work is to be done,there is an “implied term that the work shall be done in a good and workmanlike manner, that the workmen employed on the work willpossess the ordinary skill of those exercising the particular trade, and the materials will be of good quality and reasonably fit for thepurpose for which they are used”: Immanuel Goldsmith and Thomas G.

Heintzman in Goldsmith on Canadian Building Contracts, 5thed. vol. 1 (Toronto, Ont.: Thomson Reuters, 2017) at p. 4-59. Also see: Belfor (Canada) Inc. v. Drescher, 2021 BCSC 2403 ,para. 18, citing London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 1338; Double Dutch Construction Inc. v. Colwell, 2012NBQB 317 , at para. 25, citing Raynard and Raynaud v. O’Blenis and Barton, (NBCA); Strata Plan NW2294 (Owners) v.

Oak Tree Construction Inc., (BC CA), para. 4. [107] In Goldsmith, the learned authors go on to state at p. 7-32: The contractor commits a breach of contract if it performs work which does not meet the requirements of the express terms andspecifications of the contract. The contractor will also breach the contract if it does not meet the terms implied into a contract . . . thecontractor may be in breach of an implied warranty in a building contract if it does not perform the contract in a workmanlike manner, orsupplies materials not fit for use or does not proceed with due diligence.

The contractor may also be in breach of an implied warranty inthe contract that the work will be reasonably fit for the owner’s use, but his warranty only arises if the owner relies on the contractor’sskill and judgment. [108] In Strata Plan NW 2294 (at para. 6), the BC Court of Appeal held that warranties implied by the operation of law cannot beexcluded from a building contract except by clear contractual terms. There are no such exclusionary contractual terms in the Contractbetween the parties: Exhibit 14. [109] In this case, the Claimants say the work or materials supplied by Hayer R.

Construction for the installation of the concretestructures was defective. “Whether work or materials supplied, is defective or not is, in each case, a question of fact depending on theconstructions of the particular specifications where there are any, and on expert evidence as to what is reasonable where there are none”:McCrea v. Fournier, 2017 BCPC 30 , citing Goldsmith, at para. 80. The Claimants bear the burden of proving the deficienciesin performance and materials on a balance of probabilities: D. Karrasch Construction Ltd. v.

Telosky, 2010 BCSC 423, at para. 5. [110] The Claimants have no privity of contract with the subcontractors: Goldsmith, p. 12-11. This means there is no contractualrelationship, rights, or obligations between the Claimants and the concrete-finishing subcontractor. The Claimants cannot sue or be suedunder Hayer R. Construction’s contract with Goyer Concrete. As the general contractor, Hayer R. Construction is firstly responsible tothe homeowner with whom he contracts. Hayer R. Construction may then have a claim against the subcontractor who performed thedefective work.

Thus, a general contractor who was not personally at fault could nonetheless be responsible to the owner fora subcontractor’s substandard work: Macdonald v. Sorenson, 2021 BCPC 36 , at para. 170, citing Hudson’s Building andEngineering Contracts (11th Ed.) Sweet and Maxwell para. 13.010. Liability in tort [111] Persons involved in a building contract who owe a duty of care to the homeowner may be liable in tort: Goldsmith, 7§2. Thesetorts may include negligence, fraud, dishonesty, or inducing breach of contract.

Those potentially liable in tort include the generalcontractor, its principals and subcontractors. [112] As the general contractor, Hayer R. Construction can be liable concurrently in contract and tort unless the contract clearly andexpressly limits or excludes liability in tort. Negligence is a species of tort claim: BG Checo International Ltd. v. British Columbia Hydroand Power Authority, (SCC). In this case, the Contract is silent on the issue of liability for defects. Specifically, theContract does not limit or exclude or even mention tort liability. Hence, in addition to its claims against Hayer R.

Construction in contractfor breach of its implied warranty, the Claimants can also claim in negligence for failing to exercise reasonable care, skill, andcompetence in constructing their Residence: Aspen Enterprises Ltd. v. Quiding, 2008 BCSC 1870, citing Strata Plan NW 2294. [113] As against the builder, the overall approach to both liability and compensatory damages are likely the same under contract andtort. However, contractual liability is limited to the specific contracting parties, other than in circumstances involving piercing thecorporate veil, as discussed below.

Liability of the personal defendants [114] The Claimants have not articulated their cause of action against the individual Defendants Roop Hayer and Robin Hayer. It isunclear if the Claimants are asking the court to “pierce the corporate veil” to find Roop Hayer and Robin Hayer personally responsiblefor the liabilities and obligations of Hayer R. Construction, or if they are concurrently liable in tort. These are different legal concepts:

Swanby v. Tru-Square Homes Ltd., 2023 ABCA 224, at para. 36. [115] In The Owners, Strata Plan KAS 3410 v. Meritage Lofts Inc., 2022 BCCA 109 (“Meritage Lofts”), Justice Dickson forthe BC Court of Appeal held at para. 27 (citations omitted): [27] . . . a company is an independent entity with legal personality separate from its owners and principals: . . . While companiesnecessarily act through human agents, corporate owners and principals are not personally liable for the tortious conduct of a companymerely by virtue of their status as owners and principals: . . .

On the contrary, the corporate veil is rarely pierced and corporate ownersand principals are rarely found liable for actions ostensibly carried out under a corporate name in the absence of findings of fraud, deceit,dishonesty or want of authority.

Although findings of liability are always fact-specific, corporate owners, principals and employees areprotected from personal liability when acting within the course of their employment unless “it can be shown that their actions arethemselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained oftheir own”: . . . [Emphasis in original.] [116] Although Hayer R.

Construction could be held concurrently liable to the Claimants in contract and in tort, this does not permit thecourt to impose the corporate tortious liability on Roop Hayer or Robin Hayer. Before the court can find against Robin Hayer and RoopHayer personally, the Claimants would have to prove these Defendants owed them a duty of care separate and apart from that owed byHayer R. Construction.

In Meritage Lofts, Justice Dickson states [citations omitted]: [28] In other words, while companies and their owners, principals and employees have separate legal personalities, the rule that personsare responsible for their own tortious conduct applies even when they are acting bona fide within the course of employment in pursuit ofcorporate purposes and the company is vicariously liable for their actions: . . . this general principle does not concern the prospect ofpiercing the corporate veil.

Rather, it is concerned with personal causes of action in tort that are independent of corporate liability: . . . anemployee of a company that breaches a contract will not be held personally liable for the tort of inducing breach of contract or any otherclaim that amounts to a disguised attempt to make a non-party liable on a contract: . . . [Emphasis in original.] [117] On the evidence before me, I cannot find that either Roop Hayer or Robin Hayer was pursuing a personal interest beyond theinterests of Hayer R. Construction.

Again in Meritage Lofts, the appellate court held [citation omitted]: [29] Importantly, in order to establish an independent cause of action against a corporate owner, principal or employee, material factssufficient to support a personal tort claim apart from any corporate liability must be specifically pleaded. This requirement aims tomitigate the risk of personal claims being brought against such individuals “in circumstances which give the appearance of the desire fordiscovery or leverage in the litigation process”: . . . [118] Unlike the circumstances in Winnipeg Condominium Corporation No. 36 v.

Bird Construction Co., (SCC), thedefects complained of in this case do not pose a real and substantial threat to person or property, and involve the recovery of the cost ofremoving the danger. In 1688782 Ontario Inc. v.

Maple Leaf Foods Inc., 2020 SCC 35 (“Maple Leaf Foods”), Justices Brownand Martin, for the majority, distinguished between potential tort liability for causing dangerous and non-dangerous defects, andcommented that claims for the latter “are better channelled through the law of contract, which is the typical vehicle for allocating riskswhere the only complaint is of defective quality”: Meritage Lofts Inc., at para. 41. [119] The Claimants have not asserted facts or adduced evidence which would justify holding Roop Hayer personally liable forremediation of the concrete structures.

Despite his non-participation in these proceedings, I would dismiss the claim against Roop Hayerin his personal capacity. [120] With respect to the personal liability of Robin Hayer, the Claimants submit: Mr. Hayer knew he was responsible for the costs of fixing the driveway and knowingly chose to make false promises, as it was obviousthat I trusted him. Mr. Hayer was made aware of the expired and denied warranty claim and chose to extend our warranty as he statesthat he is still working with a warranty tech company, 8 months after being notified of my expired warranty. We believe that Mr.

Hayerintentionally pushed us past our warranty expiry date, so that he would not be financially responsible and no longer be liable for thedisintegrating concrete driveway. [121] What the Claimants allege may be characterized as the tort of deceit, also referred to as “civil fraud” or “false representation”.

Tosucceed in an action in tort for dishonesty, the Claimants have to prove the following essential elements on a balance or probabilities: a. the defendant made a representation or statement of fact that was false; b. the defendant knew the representation was false or was reckless as to its truth or falsity; c. the defendant made the false representation with the intention the claimants would act upon it; d. the claimants relied on the false representation, in other words, the defendant’s misrepresentation caused (i.e., induced) the claimantsto act; and e. the claimants’ reliance on the representation caused/resulted in a loss.

See: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, para. 21, Hryniak v. Mauldin, 2014 SCC 7, at para. 87; Dhillon v.Dhillon, 2006 BCCA 524 , para. 77; Ultracuts v. Magicuts, 2023 MBCA 71.

[122] With respect to the first criteria, the impugned statement must be one of fact. It cannot be an opinion, or an estimate, or aprediction of future events, or a promise. In Ultracuts, para. 53, Beard J.A. for the appellate court states: [53] Generally speaking, “[o]pinions, predictions as to future events and promises are all statements that, as far as their explicit contentis concerned, are neither true nor false” (Burns at

section 7.18). [123] I understand the impugned statement is in Robin Hayer’s text message sent to Deanna Unger on December 8, 2020: “No need tobe concerned about driveway. I'm extending that into next year as I advised.” Essentially, this is a future promise and therefore does notsatisfy the criteria the statement or representation is one of fact. [124] Robin Hayer’s text message was sent on December 8, 2020, three or four days after Aviva notified the Claimants their warrantyclaim under the HPA Policy was denied. In that letter, Aviva explicitly stated that pursuant to s. 23(1)(

b) of the Insurance Act, theClaimants had two years (i.e., to December 8, 2022) to commence an action against Aviva. The Claimants did not sue Aviva, optinginstead to sue the Defendants, which is their prerogative. It cannot be said the Claimants relinquished their right to pursue Aviva as aresult of Robin Hayer’s future promise to fix their driveway. [125] The Claimants must prove Robin Hayer’s representations are objectively false from the perspective of a reasonable recipient ofthat communication in all of the circumstances of the Claimants: Ultracuts at para. 56.

The Defendants bear no burden to prove RobinHayer’s representations are true: Ultracuts at para. 57. Although Robin Hayer’s promise did not come to fruition, I cannot find it wasfalse at the time it was made. Hence, it is not sufficient to ground a tort claim of dishonesty. Issue #1: Are the Defendants individually or collectively liable to the Claimants for the defective concrete structures installed in theResidence? [126] On the evidence before me, I am satisfied the concrete structures were defective.

I find that within months of it being poured, thedriveway spalled, chipped, flaked, and cracked in a pervasive manner. The sidewalk is also cracked and pitted. This finding is evidencedby: (

a) the Claimants’ testimony of their own observations; (

b) photographs and videos entered into evidence at trial: Exhibit 1; (

c) theexpert evidence of Glen Compo, and Exhibit 2; (

d) the text messages Deanna Unger exchanged with Robin Hayer: Exhibit 4; (

e) the textmessages Steven Unger exchanged with Ken Thomas: Exhibit 15; (

f) the correspondence from Andy Lakey of Brock White: Exhibit 6;(

g) Bill Pajimopolos’ quote dated September 4, 2021; and (

h) Kayle Thomas’ quote for repairs dated January 22, 2022, and appended tothe Defendants’ Amended Reply filed January 26, 2022; and (

i) Robin Hayer’s admissions to the Claimants on July 23, 2020, that thedriveway was not fixable. [127] The defective concrete structures are a breach of the implied term of the Contract, that the labour, materials and design, supplied,used, or arranged by Hayer R. Construction, are free from defects. I acknowledge it is possible the defects to the concrete structures mayhave been due to an inferior batch of the concrete, but I find it more probable they were due to a lack of care and skill of the sub-tradeshired to pour and finish the concrete structures. Hayer R.

Construction’s failure to comply with the implied warranty constitutes a breachof the Contract with the Claimants. [128] I find the Claimants have established on a balance of probabilities that the Defendant Hayer R. Construction Firm Inc. hasbreached its Contract and implied warranty of materials and workmanship with respect to the concrete structures installed at theResidence. [129] Robin Hayer testified he had never viewed, assessed, nor inspected the concrete structures. He indicated his father Roop Hayermay have done so in the summer of 2021.

The Claimants testified they were present at the worksite from 3:30 to 9:00 p.m. on the day theconcrete structures were poured and finished. They observed “two kids” working; they never observed Robin Hayer nor Josh Goyerattend at the Residence during their watch. A few days later, Steven Unger had to ask the workers on site to protect the newly-pouredsidewalk from pelting rains. I find on a balance of probabilities that Hayer R. Construction was negligent in its duties to oversee andinspect the work of its subcontractors responsible for pouring and finishing the cement structures. In Edwards v.

Parkinson’s HeatingLtd., 2018 BCSC 593 , Chief Justice Hinkson states at para 47: [47] I accept that the standard of care of a contractor is a general one and may not require expert opinion evidence respecting thestandard of care on certain aspects of his or her work where the nature of the negligence is patent and obvious, see, for example: Burbankv. R.T.B., 2007 BCCA 215 at para. 72. Cited with approval in Sheoran v. Interior Health Authority, 2023 BCCA 318 , para. 74. [130] I am satisfied the Claimants have made out the elements of negligence in this case. Specifically, I find: (

i) Hayer R. Constructionowed the Claimants a duty of care to ensure the concrete structures were poured and finished in a proper and workmanlike manner byskilled trades; (ii) that Hayer R. Construction should have observed the standard of care of a competent and careful general contractor tofulfil its duty of care; (iii) that Hayer R. Construction breached its duty of care by failing to fulfil or observe that standard of care. In myview, it is apparent based on common experience that obvious precautions that Hayer R.

Construction did not competently oversee andmonitor the work of the concrete finishing subcontractors; (iv) that Hayer R. Construction’s breach of its duty to the Claimants withrespect to the work of the concrete-finishing subcontractors caused damage or loss to the Claimants; (

v) that such damage was not tooremote a consequence of the breach so as to render Hayer R. Construction not liable for its occurrence. [131] I am satisfied on the evidence that there is nothing the Claimants did to cause or contribute to the untimely and unacceptabledisintegration of the concrete structures. Issue #2: What is the scope of the deficiencies to the concrete structures? [132] The Defendants assert the damage to the concrete structures “is cosmetic in nature”.

They say the letter from John Milani datedDecember 16, 2021, which is attached to the Defendants’ Amended Reply, was “evidence that confirmed the strength and integrity of theconcrete used”. John Milani’s letter confirms the concrete that was ordered and delivered to the Residence was Rolling Mix’s “32MPA

mix”, which is the standard mix for “driveways, sidewalks and outside slabs required by the building code that all contractors practice”:Exhibits “A” and 7. This statement is not in itself ironclad confirmation as to the strength and integrity of the concrete used to create theconcrete structures. Glen Compo testified the problems with the concrete structures may have been the result of the concrete freezing, buthe could not say so with “absolute certainty”. He conceded in cross-examination that the concrete may have been “a bad batch”.

In GlenCompo’s experience, however, a bad batch of concrete results in spider-web cracking. He said, “it looks like a windshield that got a rockthrown at it”. Frozen concrete, on the other hand, results in the top layer popping off, causing pervasive flaking. The latter is thecondition he observed in the concrete structures at the Claimants’ Residence. [133] I find the Claimants have established on a balance of probabilities that the defects to the concrete structures arose because thework or the materials or both were deficient.

The Claimants bargained for a brand new driveway and walkway to access their brand newhome. They did not bargain for concrete structures that were pitted, flaked, spalled, crumbled, cracked, and then patched. [134] Having considered the totality of the evidence placed before me with respect to this issue, I find the concrete structures are sodefective, they need to be removed and replaced.

Issue #3: Were the Claimants required to make a claim under the Homeowner’s Protection Act Policy? [135] The Defendants submit the HPA Policy “became a central issue of delay in this case”, giving rise to a “series ofmiscommunications delaying an assessment and potential repair” of the defects to the concrete structures. [136] There is no mention in the Contract between the parties to homeowner protection insurance generally, or to the HPA or itsregulations specifically. Hayer R.

Construction contracted to build the Claimants a residence to the same standard of build and quality asthe residence the Claimants viewed at [omitted for publication]. There is no suggestion the driveway and sidewalk of [omitted forpublication] were defective. Still, it is uncontested that the Residence was subject to a warranty covering defects in its constructionpursuant to the HPA and its regulations. [137] Nowhere in the Contract or the HPA or its regulations does it require the homeowner to pursue a claim under a HPA Policy beforecalling upon the builder to remedy a defect.

Specifically, there is nothing in the HPA comparable to s. 127 of the Workers CompensationAct, R.S.B.C. 2019, c. 1, which creates a statutory bar to workers’ claims against their employers. [138]

Section 8 of the

Interpretation Act, RSBC 1996, c 238, provides that, “Every enactment must be construed as being remedial, andmust be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects.” If the legislativeintent of the HPA was to erode or displace a homeowner’s common-law right to seek damages against the builder for breach of contractin court proceedings, then the language of the statute must be clear and unambiguous. [139] There is also a general principle in assessing damages against double recovery. This suggests the Claimants could seek to recovertheir losses from the insurer under the HPA Policy (Aviva), or from the builder (Hayer R. Construction).

Except in circumstances that donot apply in this case, the Claimants cannot recover from both entities. [140] The Defendants say the Claimants had a duty to mitigate their damages which they failed to do. “Mitigation” is action taken bythe Claimants which eliminates or reduces their loss anticipated as a result of the wrongful action of the Defendants so that an anticipatedloss, in whole or in part, is never in fact incurred. [141] Because the Claimants failed to file a claim under their HPA Policy within one year of taking possession of the Residence, thewarranty provider denied their claim.

The Defendants submit that had the Claimants filed their claim for the defective driveway withinthe time limitation set out in the HPA Policy, then Hayer R. Construction would have been able to manage the remedial work moreefficiently and reduce its liability. [142] The Defendants’ argument requires an analysis of the HPA and its regulations. [143] The purpose of the HPA as set out in s. 2 is to (

a) strengthen consumer protection for buyers of new homes; (

b) improve thequality of residential construction; (

c) support research and education respecting residential construction in BC; and (

d) establish aprogram for financial assistance to eligible homeowners for reconstruction: HPA, s. 2(2). [144] In Zhang v. Cute-Go Novelty Inc., 2016 BCCA 451 , Savage J.A. for the unanimous BC Court of Appeal explains thepolicy interests of the HPA at para. 18: [18] The public policy interests at play are, as the title of the [HPA] suggests, the protection of homeowners. The [HPA] sets out aregime for the licensing of residential homebuilders supplemented by an insurance scheme. The policy interest is to ensure a standard forconstruction of residential homes.

The danger of poorly built residential homes is obvious. [145] I am mindful that as a species of remedial consumer-protection legislation, the HPA should be interpreted liberally and broadly infavour of the consumer. It is clear the legislature intended to provide added protection to the purchasers of newly-constructed homes. InCoglon v.

Ergas, 2009 BCSC 1170 , Justice Griffin, as she then was, discusses the genesis of the HPA: [171] In its earliest form, the HPA was a direct response to the report of the Barrett Commission, a commission under the provincialNDP government tasked with investigating the issue of “leaky condos” in the lower mainland during the 1990s.

In introducing the bill onfirst reading, the Honourable Jenny Kwan stated, “This legislation is about rebuilding: rebuilding defective buildings, rebuilding thelives of leaky-condo owners and rebuilding trust in the residential construction sector.” (British Columbia, LegislativeAssembly, Hansard, 4 (13 July 1998) at 10381). [146] From the HPA, the HPA Regulation, and the evidence before this Court, I glean the HPA claims’ process ought to have unfoldedas follows:

a. The British Columbia Housing Management Commission (“BC Housing”) licenced Hayer R. Construction as a residential builder authorized to construct “new homes”, which is defined in the HPA :

Part 5; b. No person can build or sell a “new home” unless it is covered by new home warranty insurance with respect “defects”: HPA , s. 22 ; c. “Home warranty insurance” is “a contract of insurance covering defects in the construction of a new home or renovation, and consequential losses or costs incurred by the owner”: HPA , s.1 ; Insurance Act , RSBC 2012, c 1, s. 141(1) ; d. The home warranty insurance must include the statutorily prescribed conditions: Insurance Act , s. 141 (2) ; HPA Regulation , s. 7 and

Schedule 2; e. A "defect" means any design or construction that is contrary to the British Columbia Building Code , or that requires repair or replacement due to the negligence of a residential builder or person for whom the residential builder is responsible at law: HPA Regulation , s. 1; f. From and after November 29, 2019, the Claimants were the “owner” of the Residence: HPA , s. 1 ; g. At all relevant time, Aviva, as represented by its agent NHWG, was the warranty provider for the Residence; h. A warranty provider must, as soon as reasonably possible after the commencement date for the home warranty insurance, provide an owner with a

schedule of the expiry dates for coverages under the home warranty insurance as applicable to the dwelling unit: HPA Regulation , s. 15 ; i. Within a reasonable time after the discovery of a defect and before the expiry of the applicable home warranty insurance coverage, an owner must give to the warranty provider and the residential builder written notice in reasonable detail that provides particulars of any specific defects covered by the home warranty insurance: HPA Regulation , s. 16 ; j. The minimum standard of coverage for materials and labour with respect to the concrete structures is 12 months: HPA , s. 22 ; HPA Regulation , s. 8 and

Schedule 3; k. The Claimants’ home warranty insurance for the concrete structures commenced on November 29, 2019, and expired on November 29, 2020; l. A warranty provider must handle a Notice of Claim from an owner, the warranty provider must comply with s. 8 and

Schedule 3 of the HPA Regulation , which includes timeliness; m. If the homeowner and builder cannot agree on a remedy to an alleged defect, the warranty provider appoints a technician to assess the defect. The technical assessor will include in the report a quote from a third party on the cost of repairing the defect; n. The warranty provider gives the residential builder 30 days to

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