GM Garage Doors Inc. v. Galloway and Galloway, 2018 BCPC 132

Citation: GM Garage Doors Inc. v. Galloway and Galloway 2018 BCPC 132 Date: 20180601 File No: 22950 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GM GARAGE DOORS INC CLAIMANT AND: DAVE GALLOWAY AND ERIN GALLOWAY DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. I. SOLOMON Appearing for the Claimant: M. Grinhute Counsel for the Defendants: M. L. Sagert Place of Hearing: Abbotsford , B.C.

Date of Hearing: May 28, 2018 Date of Judgment: June 1, 2018 [ 1 ] The claimant is an incorporated company engaged in the business of supplying and installing garage doors. The defendants are homeowners who contracted with the claimant for the supply and installation of aluminum garage doors with poly-carbonate frosted glass panels. [ 2 ] On September 8, 2016 the claimant delivered and installed the garage doors as ordered by the defendants. At the completion of the job the defendants gave the claimant a cheque for $7875 which represented payment in full.

The following morning that cheque was cancelled and led to the claimant filing a claim for the unpaid doors and installation. [ 3 ] In their reply to the claim the defendants say that the garage doors as installed were defective in that the claimant failed to remove some white plastic film from the panels and there were scratches “all over”. The defendants counterclaim for the cost of removing the garage doors and returning them to the claimant. [ 4 ] The trial was heard on May 28, 2018. [ 5 ] Mr.

Grinhute is the president and operating mind of the corporate claimant and represented the corporation on this hearing. He testified on behalf of the corporation. [ 6 ] Both David and Erin Galloway testified regarding the contract and installation of the garage doors. The defendants also called an employee of Mr. Galloway, Adam Gryba, to explain his involvement in the delivery or return of the garage doors and related equipment to the claimant. [ 7 ] Mr. Galloway found the claimant through a craigslist advertisement. He contacted Mr. Grinhute and arranged for Mr.

Grinhute to attend his residence with some samples of garage doors. Both parties agree that Mr. Grinhute suggested that the defendants deal with a local supplier as the claimant’s business was operated out of Vancouver. However, Mr. Galloway insisted that he wanted to deal with the claimant. [ 8 ] Mr. Grinhute attended the defendants’ residence on Sunday morning September 4, 2016. The residence was occupied by the defendants but in the midst of a significant home renovation. [ 9 ] Mr. Grinhute recommended waiting to install the garage doors until after the renovation was completed, however, Mr.

Galloway insisted that it be done as soon as possible. They agreed on delivery and installation for September 8, 2016. [ 10 ] One issue of contention between the parties is whether the protective plastic on the doors would be left on or removed at the time of installation. Mr. Grinhute says that they agreed for it to remain on to avoid damage during the completion of the home renovation. Mr. Galloway says that he expected the doors to be installed with all plastic removed and cleaned in a complete manner. [ 11 ] The agreement between the parties was confirmed by way of a text message.

The text message says that the claimant will supply and install two full view aluminum / polycarbonate frosted glass, black framed 9 x 7’, high weather seal, high lift to 8 feet to wall mount, with three remote openers and one keyless. The total cost is $7500 cash or plus 5% GST if paid by cheque. [ 12 ] The doors were delivered and installed by the claimant on September 8, 2016. The installers included Mr. Grinhute and two of his employees. Mr. Galloway was present at various times during the day and he was paying attention to the job being done.

At one point he requested an electrical item that was installed off-center be straightened out and the claimant did so. Ms. Galloway was present the entirety of the day but she was mostly occupied with two young children. [ 13 ] In the late afternoon Mr. Galloway attended at the residence and directed the claimant to remove the protective film that was on the doors. Mr. Grinhute was reluctant to do so as he believed that it was not part of their agreement, however, he complied with the request. Mr. Galloway also handed Mr.

Grinhute a bottle of windex and insisted that the glass panels be cleaned prior to completing the job. Mr. Galloway asked his wife to pay the claimant once the job had been completed. The claimant completed the job and Ms. Galloway signed a cheque payable to the claimant for payment in full. [ 14 ] Later the same day Mr. Galloway called Mr. Grinhute to discuss his unhappiness with the state of the garage doors on the side facing the interior of the garage.

There is no issue with respect to how the garage doors appeared from the exterior. [ 15 ] The tenor of the conversation between the parties that evening is in dispute. Mr. Grinhute describes Mr. Galloway as angry and abusive. Mr. Galloway says he was calm and attempting to reason with Mr. Grinhute. Both parties agree that Mr. Galloway was expressing his unhappiness about the state of the garage doors as viewed from the interior of the garage. Mr. Grinhute says that he offered to send out his technicians the following week to look at it but Mr. Galloway was demanding that they attend the following day. Mr.

Galloway denies any such offer was made by Mr. Grinhute to attend at his residence to deal with the issue. During the conversation Mr. Galloway threatened to cancel the payment cheque. [ 16 ] On September 9, 2016 at 7:38 AM the claimant emailed Mr. Galloway. In the email the claimant acknowledges the complaint being made regarding the protective plastic not being fully removed and offered a 5% discount with three options. These included that Mr. Galloway hire someone locally to remove the plastic, seal the windows with a glue that provides weather protection, or leave it as is. Mr.

Grinhute added that if the cheque was cancelled that will end their relationship and this will become a legal and collection matter. [ 17 ] At 8:03 that morning Mr. Galloway responded. In this email he complained as follows: “there is a white protective film in between the two pieces of plexiglass and was not removed completely on about 80% of the panels during installation. There are also several scratches on the plexiglass that represent that these have been damaged during installation or in the factory… I have called the bank and put stop payment on the cheque this morning.

You can come pick up a new cheque for 50% of the value. After the doors have

been replaced or fixed the balance will be paid.” [ 18 ] The claimant issued an invoice to “Advance Material” dated September 8, 2016 in the amount of $7875 for the supply and installation of the garage doors. Advance Material is a business owned by Mr. Galloway. The claimant then issued an invoice to the named defendants on September 11, 2016 for $7927.50.

An amount of $50 was added to the invoice for the cost of the cancelled cheque. [ 19 ] On September 23, 2016 the claimant filed the notice of claim herein claiming $7927.50 plus filing and service fees. [ 20 ] On October 21, 2016 the claimant obtained a garnishing order before judgment in the amount of $8123.50 plus $181 (the cost of the attachment proceedings) for a total of $8304.50. The defendants’ bank forwarded the garnished amount in full to the court by letter dated October 28, 2016.

The court file receipt indicates it was paid into court on November 8, 2016. [ 21 ] By email dated October 21, 2016 at 10:51 a.m. Mr. Galloway advised the claimant that due to his unwillingness to solve the quality control issues and damage done during the installation of the doors, he was left with no option but to return the doors. On the same day Adam Gryba, an employee of Mr. Galloway’s business, delivered the dismantled garage doors and related apparatus to the front lawn of Mr. Grinhute’s personal residence which is the registered and records office of the claimant.

The claimant’s invoice included that address as well as a warehouse address. Mr. Gryba took a photograph of the items on the claimant’s lawn and it is marked as an exhibit on this hearing. [ 22 ] Mr. Grinhute acknowledged that the photo depicts garage doors and apparatus deposited on his lawn but says he never received it. He postulated a theory that Mr. Gryba deposited the doors and then removed them or that someone stole them from his front lawn before he returned home. I find Mr.

Grinhute’s evidence on this point not believable, however, it does not have an impact on the decision I have reached in this dispute. Perhaps Mr. Grinhute did not want to discuss or address the issue of what residual value or benefit he might have obtained from the used garage doors and system. However, there is no evidence before the court that the used garage doors or system could be reused or had any value. [ 23 ] Mr. Galloway’s complaint that the protective plastic was not completely removed from some of the inside polycarbonate panels is well founded.

The photographs at Tab 7 of Exhibit 3 depict this plastic. However, I accept Mr. Grinhute’s uncontradicted evidence that this remaining plastic could have been easily removed with an exacto knife or hidden with a protective sealant. I find the claimant’s offer of a 5% reduction of the account was a reasonable resolution of the issue. It made little sense for the claimant or his employees to return to remove the plastic due to the distance involved and the minor nature of the matter. [ 24 ] I am not satisfied on a balance of probabilities that Mr.

Galloway’s complaint of a significant scratch or scratches has been proved. Mr. Galloway did not describe the scratches in any detailed way, or explain how they might have detracted from the quality of the garage doors. Mr. Galloway took some photographs of one or both doors on a rainy day from the inside of the garage. Due to the rain and fog on the doors the court cannot independently confirm that the specific scratch alleged on page 3 of the photographs is a scratch or some other type of blemish of less significance. [ 25 ] Ms.

Galloway testified but she was not asked about her observations of the garage doors. Also, a garage door company was hired by the defendants to remove and replace the garage doors installed by the claimant, and no representative of that company was called to provide independent observations of the garage doors. It is rather surprising to me that no independent lay or expert evidence was called by the defendants to describe the alleged damage, the cost of repair, or whether it was repairable. [ 26 ] In

summary, the claimant was contracted by the defendant homeowners to supply and install garage doors. He did so on September 8, 2016. At all material times the garage doors functioned properly. The claimant was remiss in not properly removing all of the protective plastic from the interior side of the door panels. The claimant offered a 5% discount of the price to address the issue. The defendants have not proved that the garage doors or panels were defective or not suitable for its purpose.

I find that the defendants were in breach of the contract by cancelling the cheque to the claimant and refusing to pay the outstanding account. [ 27 ] The defendants’ counterclaim is dismissed. I find that by delivering and leaving the garage doors and related apparatus at the claimant’s registered and records office, the defendants abandoned these items and the claimant is not responsible for any cost incurred by the defendants in making the delivery.

Moreover, I am not satisfied on the evidence that there was any salvage or resale value for these used items. [ 28 ] The claimant’s claim is allowed against the defendants jointly and severally in the amount of $7500 less the 5% discount plus GST of 5%. This amounts to $7125 plus $356.25 GST for a total of $7481.25. Added to this amount will be pre-judgment interest from September 9, 2016 to the date of judgment to be calculated by the Registrar. The claimant is also entitled to costs of $156 for the filing fee, $181 for the attachment proceedings, and service fees of $240.

I have disallowed the process servers travel fees of $225 from North Vancouver to Abbotsford. [ 29 ] Accordingly the claimant will have judgment against the defendants in the amount of $8058.25 plus the pre-judgment interest amount as indicated above. The court further orders that this judgment be paid out of court to the claimant and the balance, if any, paid out to the defendants. J. I. Solomon Provincial Court Judge