Dyck v. McConaghy et al., 2018 BCPC 175

Citation: Dyck v. McConaghy et al. 2018 BCPC 175 Date: 20180705 File No: 23158 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: ALLAN WAYNE DYCK (Abbylane Home Renovations) CLAIMANT AND: RYAN DONOVAN McCONAGHY and RICHARD McCONAGHY DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I. SOLOMON Appearing on his own behalf: Allan Wayne Dyck Appearing on their own behalf: Ryan Donovan McConaghy and Richard McConaghy Place of Hearing: Abbotsford , B.C.

Date of Hearing: June 29, 2018 Date of Judgment: July 5, 2018 [ 1 ] The claimant contractor claims for the balance of the contract price owing from the defendants for home renovation services rendered in the amount of $1010 plus filing fees of $100. There is no service fee claimed by the claimant. The total contract price was $18,070 plus GST adjusted down during the project to $16320 plus $816 GST.

The defendants paid all of the account except for a balance of $1010. [ 2 ] The defendants submit that they were justified in withholding the balance owing due to deficiencies in the work that the claimant refused to repair. The defendants’ counterclaim for $1010 plus filing fees of $126 to address the deficiencies. At trial they

submit that the cost to repair the deficiencies is closer to $3900 based on estimates subsequently obtained. [ 3 ] In the reply and counterclaim the deficiencies claimed are the following: cracked drywall; drywalls on corners not completed; a light (fixture) placement blocks a closet door opening; roughed in plumbing not covered; and smoke detector placement where TV is to mount on the wall obstructed the view. [ 4 ] The defendants further say that the claimant refused to correct these deficiencies and wrongly claimed they were the defendants’ responsibilities. [ 5 ] The claimant says he offered to address the issues but was not allowed back into the defendants’ house to assess and address any deficiencies that might exist.

The claimant submits that the drywalling was completed according to the contract. More specifically, the claimant says that “drywall corners” are not something drywallers ever do for bifold doors; the bifold door openings were completed as requested, which was drywall ready for trim on the doors; and the light placement was installed as directed and approved by the defendants. [ 6 ] The parties were unrepresented on this trial. They conducted themselves in a very professional, respectful and organized fashion. Each side prepared an exhibit book and these were filed as Exhibits 1 and 2.

The claimant and defendants gave evidence along with the wife of Richard McConaghy. Richard and Ryan McConaghy are father and son respectively. Although both defendants signed the contract with the claimant, Richard had greater involvement except for a two week period in February 2017 when he was busy with his employment. [ 7 ] At the commencement of the trial the defendants clarified the issues and alleged deficiencies in the renovation as follows:

a) Three hallway light fixtures need to be replaced with inverted pot lights for the doors to fully open. Two hallway doors cannot open without hitting the light fixtures as depicted in photos 11, 12, 13 and 20 in Exhibit 1.

This defect is the fault of the claimant for two reasons: the claimant should have calculated the placement of the ceiling holes for the fixtures in relation to the size of the doors that he provided, and if properly calculated, the holes could have been positioned 1 inch further away from the doors to avoid this problem; and, when reviewing and “approving” the light fixtures purchased by the defendants, the claimant should have been alerted to the potential issue, and advise the defendants to choose a different fixture such as inverted pot lights.

b) Three bi-polar door openings need to be finished with trim as the drywall corners were not finished. The defendants expected the corners to be finished so the doors could be hung without being finished with trim. This applies to three closets. The estimated cost to purchase the trim, paint and install the closet doors is $900.

c) The basement ceiling needs to be re-textured as there are lines going through it. In one spot tape is visible. The estimate for repair work is $1300 to apply a heavier texture to try to hide these deficiencies.

d) There is a chip in the bathtub that became visible after first use that was likely caused by some heavy object falling on it at some point in delivery or installation. The defendants believe it must have been covered up and only revealed with first use. The estimated cost of enamel repair is $200.

e) Three plumbing related clean out covers were left exposed. The estimated cost to make and install the covers is $280. Evidence of Mr. Dyck [ 8 ] He has over 20 years of experience in construction and renovation work. He resides in the same subdivision as the defendants. The contract in question was signed by the parties on October 31, 2016 and the work was completed in February 2017. [ 9 ] He has completed 10 basement renovations in this subdivision. The difference with this job is that Richard McConaghy acted as the general contractor to save money. Richard is able to do some of the finishing work himself.

The contract sets out specific jobs for the claimant including framing, plumbing, dry-walling, electrical and supply of the doors that had been chosen by the defendants. It was Richard who did the drawings, dealt with city hall and pulled the necessary permits. [ 10 ] He addressed the issues raised as follows: • Three hallway lights need to be replaced with inverted pot lights for the doors to fully open. Two hallway doors cannot open without hitting the light fixture as depicted in photos 11, 12, 13 and 20 in Exhibit 1. He is not responsible for this problem.

He was only contracted to supply the doors and install the lighting. The defendants chose the doors and the lighting. He had the lighting installed where directed. He and the electrician followed instructions. He was never asked to approve or not approve the lighting fixtures. Lower profile fixtures could be purchased that might maybe only require the doors to be cut a half inch. • Three bi-polar door openings need to be finished with trim as the drywall corners were not finished. The defendant Ryan McConaghy was asked how he wanted the closets finished prior to the drywallers attending.

He opted for finishing them with trim and as such the corners were not finished. This is confirmed by text messages found in Exhibit 2. • The basement ceiling needs to be re-textured as there are lines going through it. In one spot tape is visible. He has not been allowed back into the house to assess whether this is a drywalling issue or an issue that could be related to a joist crack that was repaired under warranty during the period of the renovation but prior to the drywalling.

His drywallers are highly qualified and they would repair the job if it is their deficiency. • There is a chip in the bathtub that became visible after first use that was likely caused by some heavy object falling on it at

some point in delivery or installation. When he finished the job there was no chip in the tub. This issue was brought up 6 to 12 months after the installation. He installed it himself and there was no chip in the tub when he completed the job. • Three plumbing related clean out covers were left exposed. The estimated cost to make and install the covers is $280. This plumbing cover issue was brought up six months after the job was done. It was never discussed and not part of the contract. It is a finishing issue and as such, not his responsibility under the contract.

Evidence of the Defendants [ 11 ] The evidence of the defendants and Ms. McConaghy elaborated on Richard McConaghy’s willsay found in the two typed pages found at the beginning of Exhibit 1 which I admitted into evidence subject to elaboration and cross-examination. The evidence canvassed the issues as set out above. Analysis [ 12 ] I agree with the claimant as evidenced by the contract of October 31, 2016 that he was hired to do specific jobs and to be responsible for any subcontractors he hired to complete those jobs such as drywalling and electrical work.

He was not hired a “general contractor” to oversee the entire renovation. He was not responsible for drawings, permits, or finishing. The defendants assumed those responsibilities. [ 13 ] Unfortunately, as sometimes happens in these situations, each party made certain assumptions about the work that was to be done or not done that were not openly discussed until it was too late. With this in mind I will address each issue raised by the defendants.

Hallway light fixtures blocking doors from fully opening [ 14 ] I agree with the claimant that as the “general contractor”, the defendants were responsible for the placement of the light fixtures and ensuring that the doors they chose and for which they were responsible for hanging would be suitable. The drawings for the renovation should have addressed this issue and the defendants were responsible for the drawings. When shown the lighting fixtures prior to installation the Claimant could not have known that they were unsuitable for the intended placement relative to the doors.

Drywall corners not finished for the closets [ 15 ] As indicated above, the claimant sought instructions from Ryan McConaghy by text message regarding the closets. The following exchange occurred on February 7, 2017: Claimant: “One more thing. Are you putting trim around your closets or do you want them like the smaller bedroom closets. Let me know.” Def: “Yes we would be. Is that more money to your price” Claimant: “No. It’s just more cost for trim and more work for you guys.

The trim is not in our contract.” Def: “We can deal with that not an issue”. [ 16 ] Ryan McConaghy testified that he did not understand that by agreeing to put trim around the closets that the corners were not going to be finished. The claimant says that there is no need to finish the corners with drywall if you intend to finish the corners with trim. He thought he was being clear to Mr. McConaghy by referencing the smaller bedroom closet. There was also disagreement in the evidence as to whether there was an in person discussion of the issue.

The claimant says there was one and the differences were pointed out, but Mr. McConaghy denies any such in person discussion. [ 17 ] Based on this evidence, I am not satisfied that the drywall job was deficient. I accept the claimant’s evidence that there is no need for finished drywall corners if closets are being finished with trim, and the expressed intention of the defendants was to finish the closets with trim. Unfortunately, the defendant Ryan McConaghy might not have realized the implications of his instructions to the claimant.

It was Richard McConaghy who had the renovation experience but had to be absent from the project for a couple of weeks due to his employment and placed Ryan in charge. Richard gave specific instructions to the claimant to deal with his son, Ryan, in his absence and the claimant did so. The basement ceiling [ 18 ] The defendants must prove the claimed deficiency on a balance of probabilities. They gave evidence that there are visible lines through it and in one spot the tape is visible. This spot is below the joist that was cracked and needed to be repaired.

This repair work was done prior to the ceiling being textured, however, it does not eliminate a connection between the two issues. This is one of those situations where I would have been assisted with some independent expert evidence. However, I appreciate when dealing with an estimated repair cost of $1300, the cost of an expert report and attendance in court would be prohibitive. The estimates to re-texture the ceiling obtained by the defendants are not evidence of a deficiency.

Accordingly, I am not satisfied on the evidence that the ceiling was textured in a deficient manner. [ 19 ] I would add that the Claimant has offered to attend at the defendants’ residence with his drywaller to assess the situation and if satisfied that it is a drywalling issue, the drywaller will repair it without additional charge. The defendants might want to consider that offer. Bathtub chip

[ 20 ] The claimant says he installed the bathtub and did not notice any defect in the bathtub. I accept his evidence that he did not notice any defect. The contract says he is responsible for supplying and installing the tub. I also accept the defendants’ evidence that after first use the chip became apparent and the cost of repair is approximately $200. This amount will be deducted from the amount owing on the contract. Exposed Cleanout Covers [ 21 ] I appreciate the defendants surprise at the exposed cleanout covers. However, I accept the Claimant’s evidence that this is a finishing issue.

As such, the claimant is not responsible for the cost to install covers. Result [ 22 ] Accordingly, I find that the claimant is entitled to judgment against the defendants jointly and severally in the amount of $810, plus pre-judgment interest to be calculated by the Registrar from March 1, 2017 to the date of judgment, plus $100 in filing fees. The defendants’ counterclaim is dismissed. J.I. Solomon Provincial Court Judge