Darbyshire v. Fisher Peak Renovations & Construction Ltd., 2023 BCPC 217

Citation: Darbyshire v. Fisher Peak Renovations & Construction Ltd. 2023 BCPC 217 Date: 20231012 File No: 30415 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: ELAINE DARBYSHIRE CLAIMANT AND: FISHER PEAK RENOVATIONS & CONSTRUCTION LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: T. G. Colgur Counsel for the Defendant: R. W. Sheppard and C. Anguiano Solis Place of Hearing: Cranbrook , B.C. Date of Hearing: September 12, 2023 Date of Judgment: October 12, 2023

Introduction [ 1 ] The Claimant Elaine Darbyshire hired the Defendant Fisher Peak Renovations & Construction Ltd. to do extensive renovations to her home in Cranbrook. She claims that the work was not completed within a reasonable time, and that some of the work was defective. She also alleges that her contract with the Defendant was for a fixed price and that she has already paid the Claimant the full amount of the contract price. She is claiming against the Defendant for the cost of completing the renovations. [ 2 ] The Defendant denies these claims.

More specifically, it says that the contract was not a fixed price contract and that the reason it has cost the Claimant more to finish the work at the price quoted in its estimate was because of a number of extras that the Claimant added (and for which she agreed to pay).

It also alleges that the reason the work was not completed as soon as anticipated was because of the COVID-19 pandemic and because orders issued by WorkSafe BC prevented the Defendant from completing the work as quickly as it had hoped. [ 3 ] The Defendant says that the contractor who completed the work for the Claimant did so in violation of the law, and that he ignored the WorkSafe BC orders to cease working. The Defendant also acknowledges that some of its work was not completed properly, but that the Claimant did not provide a reasonable opportunity for it to rectify these deficiencies.

The Defendant says that it is not liable to the Claimant for anything and that, to the contrary, the Claimant still owes the Defendant for unbilled work, but that it has elected not to counterclaim for these amounts. [ 4 ] At the trial of this matter a total of four witnesses testified: the Claimant, the contractor she hired to complete the renovations to her home, the principal officer of the Defendant, and the Defendant’s former employee who performed the work at the Defendant’s home.

At the conclusion of hearing the evidence, the parties agreed that, rather than scheduling a continuation date for argument, they would file written argument and would have an additional week to file any written rebuttal. The time for filing those arguments has now expired. Following is a

summary of the evidence heard, a

summary of the applicable law, and the reasons for making the order that will follow.

Summary of Evidence [ 5 ] At all times material to this Claim, the Claimant lived in a home in the southwest part of Cranbrook. (She has since sold the home). The home had a garage that extended farther than the front of the home, and the Claimant decided that she wanted to renovate the home, to expand the front almost up to where the entrance to the garage was. She also wanted a gazebo-style room at the front of the house. The Claimant hired a designer to draw up a design plan for the renovations.

Plans were prepared with measurements for the proposed finished product. [ 6 ] The Claimant knew of the Defendant from having once lived in the same community as the Defendant’s principal officer Dustin Willoughby. She contacted Mr. Willoughby and provided him with the design plans for the proposed renovation. Mr. Willoughby testified that although these were not engineered drawings, he had no concerns regarding them. Based on his review of the drawings, he provided the Claimant with a

summary of the work he proposed to do and an estimated cost. [ 7 ] The first estimate prepared by the Defendant for the Claimant described work that the Defendant was willing to do. It included work on the home’s foundation, the demolition of a portion of the existing home that was required, some framing and insulation work and finishing work to the interior and exterior of the home. It also allowed for the hiring of certain sub-trades for electrical, heating, air flow, excavation and finishing, as well as for inspections and clean-up.

The price of the first estimate was $99,878, plus G.S.T. of $4,993.90 for a total of $104,871.90. [ 8 ] This estimate promised that the work would meet or exceed the standards set out in the BC Building Code. It stated that any additional work outside of the work specified in the estimate would be billed out at an additional rate of $55 per hour. A final paragraph included the following: “This estimate is based on the work detailed above and will be changed accordingly for any work removed or added. THIS IS NOT A FIXED QUOTE.” (Capitalization appeared in the original document.) [ 9 ] The Claimant and Mr.

Willoughby had further discussions, and a second estimate was provided to the Claimant based on those discussions. This second estimate was similar to the first, but it also contained some additional work for the removal of the existing siding on the remainder of the house and the installation of new siding.

This increased the total cost of what the document describes as the “estimated price for all work listed above including labour, materials, certified sub-trades, permit reports and applicable taxes” to $119,788 plus G.S.T. of $5,989.40 for a total of $125,777.40. [ 10 ] There was some discussion about whether or not the Claimant had ever signed the second estimate, but whether or not she did, it is clear from the evidence that the Claimant agreed to authorize the work to proceed, doing so by her conduct, including her payment of invoices subsequently submitted by the Defendant and also from the fact that she now alleges a breach of this agreement, which she understands to be a fixed price contract. [ 11 ] The Claimant paid a deposit of $44,000 to the Defendant and work on the renovations began sometime in September of 2019.

The Defendant assigned supervision of the work to his foreman, Mr. Allen, a carpenter with over 30 years of experience. Mr. Allen worked on the renovations and he testified that the Claimant seemed happy with the progress on the job. He testified that two inspections were performed on the work for the foundation, framing and insulation, and that to his knowledge, the work passed inspection. [ 12 ] On December 4, 2019, the Defendant submitted its first invoice to the Claimant for the sum of $55,572.85. The Claimant’s deposit was applied against this bill and she promptly paid the balance of $14,456.49. Mr.

Willoughby testified that three of the items listed on this invoice concerned extra work that was not shown on the design drawings, nor contained in the estimate. The invoice does not itemize these things as extras. The total amount charged for these three items is $5,781.75.

[ 13 ] A second invoice was submitted to the Claimant on January 28, 2020 for the sum of $47,274.63. Mr. Willoughby testified that “nothing major” on this invoice constituted extra charges from his estimate. The Claimant also paid this invoice. By this time she had paid a total of $102,947.48. [ 14 ] On March 10, 2020, Mr. Willoughby sent the Claimant an email in which he outlined for her what he considered to be additional work to what was in the original estimate.

In the email he told her that he “just wanted to send an email making sure we communicate and are both on the same page as to what has been added since the very original pricing.” The extra work identified in this email included the following: • Cutting in door to underneath addition • Adding rock to the bottom front of the house • Fixing the rot found on the back of the house • Adding a “T & G” ceiling • Building a bench, with drawers • Removing tile from the entry • Work on the flooring entry [ 15 ] In her testimony, the Claimant appeared to take some issue with whether or not some of these were in fact extra charges.

She testified that she paid for the additional rock, and she complains that drawers were installed in the bench incorrectly. Despite producing some of the email that passed between herself and Mr. Willoughby, it does not appear that the Claimant sent any written communication disputing these items at the time. [ 16 ] On March 17, 2020, the outbreak of the corona virus pandemic (COVID-19) led to the Provincial Health Officer issuing a notice under s. 52(2) of the Public Health Act.

Neither party provided a copy of that notice, although the Defendant did file a subsequent order dated December 16, 2020, one that required employers to review COVID-19 safety plans to ensure their compliance with WorkSafe BC requirements and to ensure that their workers carried out daily health checks. The order also required employers to encourage their employees to work from home. [ 17 ] What happened next is where the parties have a significant difference of opinion.

The Defendant did not return to the jobsite, and the Claimant wanted her renovation project finished, so she hired another contractor to finish it. The Claimant took the position that the Defendant had abandoned the job. The Defendant says that it was unable to complete the job at that time because of the pandemic and because the Provincial Health Officer had issued an order preventing it from sending its employees back to work. [ 18 ] The divergence in these positions is understandable to some extent.

It is accepted by everyone that from the middle of March of 2020 and for the ensuing months, the pandemic had most persons working from home where they could do so, and ceasing work if working from home was not feasible. What is unclear is why the Defendant did not clearly state this in his written communications to the Claimant. There is disagreement on how often the two sides communicated during this time and what may have been said. The Claimant says that she did not hear from the Defendant at all, while Mr. Willoughby states that he had frequent contact with the Claimant.

The only objective evidence on this point is in the email exchanged between these parties at the time. [ 19 ] In an email communication tendered in evidence on this matter by the Claimant, Mr. Willoughby writes to the Claimant on June 9, 2020. In this email he tells the Claimant that he “hasn’t forgotten about” her and tells her that her job “is on my to-do list” but adds that his delay is because he is “absolutely pinned at work” and is also having some personal family issues to address.

Noticeably absent from this email is the Defendant’s explanation that he is unable to continue the work because of a WorkSafe BC order. [ 20 ] Later that month, on June 16, 2020, Mr. Willoughby once again emails the Claimant to tell her that he “should FINALLY have some time next week” to continue work on her home. In this email he makes his first reference to the pandemic stating that “COVID is not fun at all,” and telling the Claimant that the pandemic has hampered him because of his employees not showing up for work.

He does not state that he is unable to continue work because of a provincial order. [ 21 ] In the same email, Mr. Willoughby tells the Claimant that he is “pretty free next week” to get together with her and meet to discuss the completion of the job, but subsequent email suggests that no such meeting takes place. The Claimant made a note that Mr. Willoughby called her several weeks later on August 4, 2020. In an email the same day, he tells the Claimant that he “will be there this afternoon my dear.

Don’t want you to think I forgot about you.” In another email sent two days later he tells her that he has her work scheduled “for the last week in August.” Mr. Willoughby sent the Claimant another email on September 21, 2020 telling her that he was “supposed to get the siding” later that week. [ 22 ] Over two weeks later On October 7, 2020, Mr. Willoughby sent the Claimant another email telling her that he was “going to pop by sometime tomorrow.” It appears from a subsequent email dated October 13, 2020 that the siding had still not been received. This is followed by subsequent email from Mr.

Willoughby dated October 14 and 16, November 17, 19 and 24, and December 7, 2020 containing still more promises that he will visit the Claimant to complete her work. In the email of November 24, he references a recent WorkSafe BC order, in which he writes: “I can’t let anyone at work now if they have a runny nose or a sore throat or can be fined from WorkSafe BC and this all came out on Friday so last two days have been getting action plans in place as well as notices on every door and masking the guys etc. etc.” [ 23 ] In the last email of December 7, 2020, Mr.

Willoughby tells the Claimant that he “wanted to pop by and explain” the delays “face to face.” He tells her that the delay is due to the Home Depot ordering the wrong siding and because of delays in the production of

siding due to the pandemic. He tells her that he is going to order the siding from another supplier. [ 24 ] A review of the email correspondence makes it understandable why the Claimant would have difficulty in believing anything that Mr. Willoughby told her and why she would lose trust in him. From the number of times he promised to meet with her to discuss completion of this project, or that he was coming to get work done, only to break those promises, leads one to sympathize with the Claimant for the manner in which she was treated by the Defendant. This also casts some doubt on Mr.

Willoughby’s credibility as well. While it sounds reasonable that supply of siding material would be adversely affected because of the pandemic, it was highly disingenuous for the Defendant to string the Claimant along from June to December of 2020 to cause her to believe that her project would be completed shortly, rather than to be up front with her and advise her of the true state of affairs. If, as the Defendant claims, it was prevented from attending to this job because of the WorkSafe BC order, there does not appear to have been any effort made to clearly communicate this to the Claimant.

From some of the things that Mr. Willoughby says in his email, it also appears that the WorkSafe BC order did not prevent the Defendant from returning to this job, but rather that limited manpower prevented the Defendant from make the Claimant’s job a priority. If this was the case, the Defendant should have been up front with the Claimant and told her that. [ 25 ] The Claimant hired another carpenter, Mr. Bernie Bryzgorni, to finish her renovations. He was able to complete the work to the Claimant’s satisfaction, while maintaining reasonable precautions to address concerns arising from the pandemic.

He worked alone, and installed plastic sheeting. In his evidence, he identified eighteen deficiencies in the Defendant’s work that he had to address. In cross- examination he acknowledged that some of this work was not included in the scope of work set out in the Defendant’s final estimate. This included the construction of some stairs, the building of a low slope roof and the installation of a hand rail around the deck. It was also acknowledged that some of the work he did was work that the Defendant would have done at or near the end of the project.

He charged his time out at a rate of $65 per hour and he was paid $23,935.43 by the Claimant for the work he did. Unfortunately, there was no evidence of any precise breakdown of what portion of the work he did was not included in the Defendant’s estimate, and what was. Position of the Parties [ 26 ] Counsel for the Claimant acknowledges that the Defendant delivered a signed agreement to the Claimant. In his written submission, counsel addresses portions of the agreement which it says the Defendant is in breach of.

Specifically, the agreement states that the Defendant “stands by our excellence in workmanship and superior product for a fair price” and later states that its work “will adhere to, if not surpass the BC Building Code 2015”. Counsel argues that it is self-evident from the list of work completed by Mr. Bryzgorni that the Defendant was in breach of these portions of the contract. He attributes all of the work performed by Mr. Bryzgorni as being required to remedy deficient work performed by the Defendant, and claims the full amount of Mr.

Bryzgorni’s bill as the amount that the Claimant should receive judgement for. [ 27 ] Counsel for the Defendant argues that this was clearly not a fixed price contract and further states that the Defendant has performed sufficient work to justify what it has billed the Claimant. In fact, he argues, the Defendant has performed more work than it has billed for and has generously agreed to write off any further amount owing to it by the Claimant, and therefore asks that the claim be dismissed.

He argues that although the Claimant has paid the full amount set out in the revised estimate, the cost of the renovation ultimately exceeded the estimated amount because of extra work that the Claimant requested. [ 28 ] Counsel further argues that the lack of progress on this renovation after March of 2020 is understandable and excusable because of the pandemic. He also argues that the Claimant has not met the burden of proof of showing that the Claimant’s work was deficient in any way, or alternatively that the Claimant did not afford the Defendant a reasonable opportunity to correct those deficiencies.

He submits that the Claimant has not proven legitimate evidence of her damages and asks for the Claim to be dismissed. [ 29 ] The Defendant’s counsel is also asking for costs to be awarded to his client under Rule 20(5) of the Small Claims Rules. That sub-rule allows for additional costs to be awarded in the case of claims that proceed to trial with virtually no chance of success. Applicable Law [ 30 ] In their written submissions, counsel have raised a number of legal issues, including the burden of proof,

interpretation of contracts, breach of warranty, the duty to complete a contract within a reasonable time, providing an opportunity to remedy defects and the measure of damages. I will address the applicable law in these areas. 1. Burden of Proof [ 31 ] In a civil case, the burden of proof rests with the Claimant to prove her case on a balance of probabilities. The Supreme Court of Canada summarized the law in F. H. v. McDougall 2008 SCC 53 , at para. 49 : …in civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [ 32 ] Some leeway is afforded to trial judges in Small Claims cases by virtue of s. 2 of the Small Claims Act (the Act ) , which sets out the overriding purpose of the Act and Rules as being to allow litigants to have their claims resolved in a “just, speedy, inexpensive and simple manner.” Subsection (2) goes on to permit this Court to “make any order or give any direction it thinks necessary to achieve” that purpose.

Section 16 of the Act gives the Court the power to relax the rules of evidence and admit any “oral or written testimony, record or other thing that the court considers is credible or trustworthy and is relevant to the matter being heard,” even though such evidence might otherwise violate a rule of evidence. To some extent, these provisions of the Act allow for some “rough justice” where a claim cannot be calculated with precision, where fairness dictates that this is called for. However, they do not relieve a claimant of the burden of furnishing sufficient proof to satisfy the Court of the merits of a claim. 2.

Interpretation of Contracts [ 33 ] Contracts are to be interpreted according to the usual meaning of the words used in the contract, but also in the context of the

circumstances in which they are entered into. Counsel for the Defendant has cited the BC Court of Appeal decision of ParadigmHoldings Ltd. v. Ngan & Siu Investments Co.

Ltd., 2008 BCCA 172 at para. 17, where Tysoe J.A. summarized the law as follows: Where there is a written contract, the court must first interpret the words of the contract according to their ordinary and natural sense inthe context of the contract as a whole, in light of the factual matrix existing at the time the contract was entered into. [34] Before a binding contract can exist, the parties must agree on all essential terms and express themselves so that their meaning canbe determined with a reasonable degree of certainty.

But if the parties have left gaps in a contract to which they intend to be bound,courts should try to give effect to the contract. In Griffin v. Martens, (BC CA), Lambert J.A. wrote (at para. 4): It is not the function of the courts to set interim agreements aside for uncertainty because they contain a clause that is not preciselyexpressed. If such a clause has an ascertainable meaning, then the courts should strive to find it...

As long as an agreement is not beingconstructed by the court, to the surprise of the parties, or at least one of them, the courts should try to retain and give effect to theagreement that the parties have created for themselves. 3. Breach of Warranty [35] In the absence of an express agreement in relation to the manner in which the work is to be carried out, a contract to performwork carries with it an implied condition that the work shall be done in a good and workmanlike manner.

A number of decisions ofCanadian Courts have adopted the following statement of the law from Goldsmith on Canadian Building Contracts (Toronto: Carswell,1988): Work which does not meet the requirements of the specifications contained in the contract, or which, in the absence of suchspecifications, is not of a reasonable workmanlike quality, is not proper compliance with the contract and constitutes a breach.Furthermore, compliance by the contractor with the specifications will not be sufficient performance if the specifications were preparedby him and are deficient, even if they were approved by the owner.

Whether work, or material supplied, is defective or not is, in eachcase, a question of fact, depending on the construction of the particular specifications where there are any, and on expert evidence as towhat is reasonable where there are none. Where a contract, either expressly or by implication, contains a particular standard for the work to be done, an owner is not entitled toinsist on work of a higher quality.

For example, an owner who contracts for the construction of a bush road is not entitled to insist on astandard of construction applicable to a provincial highway. [36] The burden of proving a breach of that work performed is deficient is on the party making the allegation. In Absolute Industriesv.

Harris, 2014 BCSC 287, Abrioux J. wrote at para. 61: Insofar as the defendants’ claims regarding alleged deficiencies are concerned, they have the burden of proving, on a balance ofprobabilities, both that the plaintiff failed to perform its work as required under the Agreement in a good and workmanlike manner andthat they sustained damages as a result. 4. Completion within a Reasonable Time [37] Construction contracts involve various stages, numerous parties and countless variables. Delay can sometimes be consequential,and it can be often expected due to factors outside the control of either party.

Construction contracts often incorporate a variety of termscompelling the contractor to perform its duties in a timely fashion. Where the parties have no written contract of if there is nothingbeyond a written estimate and some discussion about when the job might be completed, the law implies a term that the work is to becompleted within a reasonable time. What is reasonable will depend on the circumstances of each case. [38] In Bhasin v.

Hrynew, 2014 SCC 71 the Supreme Court of Canada recognized that good faith contractual performance is a generalorganizing principle of Canadian common law, and that parties to a contract are under a duty to act honestly in the performance of theircontractual obligations. This in turn leads into the obligation of the parties to act reasonably in their dealings with one another. [39] The time for performance usually emerges, expressly or by implication, from the contract itself.

If the contract has no particulartime within which an obligation is to be performed, a court will decide what a “reasonable time” is based on a review of the contract andthe facts of the case. 5. Contractor’s Right to Remedy Defects [40] In Columbia Bitulithic Ltd. v. D.C.

Masonry Construction Ltd., (BC CA), the BC Court of Appeal held that“where the builder has substantially complied with the contract, that is, where all the work to be done has been done, but where it hasbeen done negligently or in an improper manner, the builder is entitled to recover with deductions necessary to complete the work asspecified in the contract.” [41] Counsel for the Defendant cites this Court’s decision in Lind v.

Storey, 2021 BCPC 2, as authority for the proposition that “acontractor has a right to return to a worksite and repair deficiencies.” With respect, I do not believe that the law is quite so firm on thispoint. In Lind, the trial judge relied on the Ontario Superior Court of Justice decision in Rocksolid v. Bertolissi 2013 ONSC 7343, whichin turn relied on the Nova Scotia Supreme Court decision in the case of Connolly v. Greater Homes Inc., 2011 NSSC 291.

In that case,the court stated at para. 48: …the governing legal principle is that wherever it is reasonable, a party has a positive obligation to afford to the party alleged to havecaused a deficiency an early opportunity to examine and to rectify it. That is consistent with general principles of mitigation. (Emphasisadded.) [42] A key word in that

summary of the law is “reasonable.” It must be reasonable for the claimant to give that opportunity to the

contractor. There may be cases where it is not reasonable to do so, such as where the claimant can objectively be said to feel threatenedor intimidated by the contractor, of if the contractor has repeatedly performed shoddy or unsatisfactory work, or where the contractor hasfailed to keep numerous promises to return to the jobsite.

In those cases it would not be reasonable to require a claimant to afford thecontractor an opportunity to remedy the defects. [43] The answer as to what is reasonable lies in the trial judge’s assessment of whether or not such a requirement comes under therequirement of the customer’s duty to mitigate.

In McGregor on Damages, 14th ed. at pp. 150 and 151 the author states: The first and most important rule is that the plaintiff must take all reasonable steps to mitigate the loss to him consequent upon thedefendant’s wrong and cannot recover damages for any such loss which he could thus have avoided but has failed, through unreasonableaction or inaction, to avoid. Put shortly, the plaintiff cannot recover for avoidable loss. 6. Measure of Damages [44] If a breach of a contract has been proven, the aggrieved party is entitled to damages.

A “breach” of contract means that one of theparties did something they should not have done, or failed to do something they were required to do under the terms of the agreement.Generally speaking, the remedy for such a breach is an award of monetary damages, unless such a remedy is inadequate. In the SupremeCourt of Canada decision of Keneric Tractor Sales Ltd. v.

Langille, (SCC), [1987] 2 SCR 440, the court stated this ruleat para. 29 as follows: The general rule for the assessment of damages for breach of contract is that the award should put the plaintiff in the position he wouldhave been in had the defendant fully performed his contractual obligations. Analysis [45] Applying the law to evidence of this case, it is clear that the estimate provided to and accepted by the Claimant was not a fixedprice contract. It is unclear how or why the Claimant formed this impression. The document itself emphasizes this, in capital letters, thatit is not a fixed price contract.

It also clearly sets out that any additional work not within that work described in the estimate itself, wouldbe considered to be extra work and would be billed out at a rate of $55 per hour. [46] The significance of this finding is that if the Defendant is found to be in breach of the agreement, the remedy is to put theClaimant in the same position as she would have been in if the Defendant had completed the work according to the contract. This doesnot mean that the Claimant would only have had to pay $125,777.40.

It means that she would have had to pay something close to thatamount, plus the cost of any extra work, billed at a rate of $55 per hour, along with the cost of any materials and sub-trades. [47] This immediately presents a problem, because it is unclear from the evidence precisely what the value of any unperformedadditional work on this project would be. It is clear from the evidence that there was additional work. Some of this was identified by theDefendant in Mr. Willoughby’s email of March 10, 2020.

In the months that ensued, the Claimant did not dispute or protect the assertionthat this was in fact additional work, outside of the scope of the estimate. [48] In his testimony, Mr. Bryzgorni acknowledged that some of the work that he did was either work that was not covered by thesecond estimate or work which the Defendant would have performed near the end of the job. In the former category, this included theconstruction of some stairs, the building of a low slope roof and the installation of a hand rail around the deck.

In the latter, it includedinstalling the soffit and fascia around the new deck, and the installation of a vinyl plank. [49] The evidence satisfies me that, despite the presence of the pandemic, the Defendant was in breach of its duty to complete thework within a reasonable time. I reach this conclusion from three pieces of the evidence:

a) The Order filed in evidence by the Defendant did not state that the Defendant was required to cease all work, as claimed by theDefendant. It simply required the Defendant have a safety plan in place for any further work that was performed.

b) The Defendant, in its email to the Claimant, did not state that it had shut down its operations. Its complaint was that employees werenot turning up for work, implying that it was in fact continuing to work on other jobs.

c) It was possible to continue to work on renovation projects such as the Claimant’s, as evidenced from the fact that Mr. Bryzgorni wasable to work on and complete the Claimant’s renovations safely. [50] The evidence also satisfies me that it would not have been reasonable to require the Claimant to give the Defendant theopportunity to remedy any defects on this project. The email shows that the Defendant had made repeated promises to complete the workon her project, but that these were never kept.

By this point, it would not be reasonable to expect that any new promises made by theDefendant to remedy any defects would be kept any more than previous promises were, and therefore it was not reasonable under thesecircumstances to require the Claimant to give the Defendant an opportunity to remedy any work that it had performed defectively. [51] The difficulty in this matter is in arriving at an amount of damages which would put the Claimant in the same position that shewould have been if the Defendant has completed the job in the same time period as Mr. Bryzgorni and without complaint.

Since asignificant portion of the work that she had paid for up to this time included work classified as extra work, she would not have had thejob finished for free. She would have gotten another invoice from the Defendant. Would it have been as much as the invoice she paid toMr. Bryzgorni? The evidence suggests not, since some of his invoice is for extra work not included in the scope of the original estimate. [52] The only thing that can be said for certain is that the Claimant should be entitled to recover some of Mr.

Bryzgorni’s bill becausethe Defendant had agreed to charge $55 per hour for its work, while Mr. Bryzgorni was billing out his work at $65 per hour. All that canbe concluded therefore is that the Claimant should be entitled to damages for the hours that Mr. Bryzgorni worked in completing thework on the estimate, less the same number of hours, at the rate that the Defendant was charging.

[ 53 ] The evidence satisfies me that some of the work done by Mr. Bryzgorni was work that should have been done by the Defendant at the lower rate. The Defendant’s breach raised the cost of completing the contract for the Claimant at a rate of $10 per hour. But not all of the hours concerned work covered by the agreement. The evidence does not break that down into precise hours. Neither party addressed this in their evidence. However from the evidence presented, I am at satisfied that it was at least 50% of the 315 hours that Mr. Bryzgorni worked.

Applying s. 2 of the Act , and the direction to resolve claims in a just manner, I am prepared to find that the measure of damages, using a reasonable estimate, and calculate that amount to be $1,575.00 (being 50% of the rate difference of $10 per hour for 315 hours.) The Claimant will have judgment in this amount. Costs [ 54 ] The Defendant submits that it has made an offer of settlement of $5,000, which is in excess of the judgment now awarded to the Claimant.

It asks for an order of costs pursuant to Rule 20(2) and (5) of the Small Claims Rules. (It should be noted that there are different rules which apply to an offer to settle made under Rule 10.1 of the Small Claims Rules, but neither party is claiming costs under that Rule.) [ 55 ] Rule 20(2) entitles the Defendant, as the successful party, to recover its filing and service fees, as well as certain other charges or expenses referred to under that sub-rule.

Rule 20(5) gives a Judge a discretion to award a successful party additional costs of up to 10% of the amount claimed if the claim proceeds to trial without any reasonable basis for success. Costs are awarded on this basis only in exceptional cases. [ 56 ] In A-Class Construction & Drywall Ltd. v. Kids Zone Child Care Centre Ltd., 2021 BCPC 279 , Judge Chettiar of this Court held that jurisdiction to order this penalty is exercised sparingly.

It is often awarded where a losing party has proceeded to trial with no reasonable basis for success, where the conduct of the losing party is shocking or reprehensible, or where the party has exhibited improper motives. I find that none of these apply in this case. The Claimant relied on the advice of counsel in proceeding with her claim and was at all times respectful of the proceedings. I do not find this case to be an appropriate one for the awarding of costs against the Claimant under Rule 20(5). [ 57 ] Under Rule 20(2)(

a) the Defendant will be awarded the cost of its filing fees, which can be deducted from the amount of the judgment the Claimant has been awarded. Order [ 58 ] For the foregoing reasons, the Claimant Elaine Darbyshire will be awarded judgment against the Defendant Fisher Peak Renovations & Construction Ltd. in the sum of $1,575.00. The Defendant may set off the cost of its filing fees against this sum. ________________________ The Honourable K. D. Skilnick Provincial Court Judge