Fitzpatrick v. Generation Electric Date:, 2014 BCPC 369

Citation: Fitzpatrick v. Generation Electric Date: 20140422 2014 BCPC 0369 File No: 3360 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BARRY FITZPATRICK CLAIMANT AND: RYAN SHIVELY dba GENERATION ELECTRIC DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON

Appearing on their own behalf: B. Fitzpatrick Counsel for the Defendant: R. Shively Place of Hearing: Burns Lake , B.C. Date of Hearing: March 25 and April 9, 2014 Date of Judgment: April 22, 2014 Background [ 1 ] Mr. Fitzpatrick filed a claim in Small Claims July 5 th , 2013. He claimed damages for fraudulent installation, damage to a wire during installation, and charging more than the quote. [ 2 ] The damages claimed were $1,000 for the fraud, $20,000 for risk to property and family from defective installation, $750 for billing more than the quoted cost and $500 to repair the deficient work.

The claim also includes, a company search of $11.60, filing fees of $156 and service fees of $15 for a total of $22,432.60. [ 3 ] The defense was a denial of all aspects of the claim and a statement that the bill was paid in full. Evidence [ 4 ] Mr. Fitzpatrick testified that he hired Mr. Shively in February or March 2013 to wire a building he was constructing to use for welding. As is typical in the working world, there was no written contract, only the oral contract. [ 5 ] Mr. Fitzpatrick testified that he had been quoted by Mr.

Shively that the job would take a day but the final bill was for 20 hours at $75/hour labour plus materials. He fairly conceded in his own evidence that he accepted that the bill would be more that one day because of inspections, obtaining permits, travel time, and other preparatory work that Mr. Shively had to do. [ 6 ] Mr. Fitzpatrick testified that the main problem was a defective welder plug-in that was installed. He produced a photograph of the plug which was marked as Exhibit 1. He also produced the plug itself, which was marked as Exhibit 2.

He pointed out that the crack on the ground stand-off made it loose and thus there was a risk that when the plug was used that the ground and positive circuits could come into contact and cause arcing and/or a short in the electrical system. [ 7 ] That problem was discovered by an inspector named Steve (last name unknown). That the plug was not “up to code” was confirmed by the BC Safety Authority inspector Roger Cook (Tab E of Exhibit 3.) [ 8 ] Mr. Fitzpatrick testified that after the defect was found by “Steve” he phoned Mr. Shively three times to complain.

The third time he was told not to phone again and thereafter he filed his claim. [ 9 ] Mr. Fitzpatrick testified that he spent some time in contacting the manufacturer of the plug although that occurred after Mr. Shively had hired another electrician to replace the defective plug. Mr. Fitzpatrick confirmed that the defective plug had been replaced at Mr. Shively’s expense. [ 10 ] Mr. Fitzpatrick testified that the “Fraud” was the use of 4 strand wire (8-3) instead of 3 strand wire (8-2) unnecessarily increasing the costs. He explained that the $20,000 claim was to get Mr.

Shively’s attention as he didn’t expect to be awarded that amount. He explained that the labour claim was because it was higher than the one day quoted although it was not unreasonable. Finally, he explained that the mitigation costs of $500 were if it had been necessary for him to hire someone to replace the plug. [ 11 ] In cross-examination he admitted that the first two of the three phone calls by him to Mr. Shively were about the “job itself” and the third call was with reference to the plug. [ 12 ] Mr. Fitzpatrick indicated that the repairs were done by the other electrician hired by Mr.

Shively in November after the claim was started. As well, he admitted that Mr. Shively had offered to fix the problem with the welder plug but that Mr. Fitzpatrick refused to have him back on his property. [ 13 ] In cross-examination, Mr. Fitzpatrick indicated that there had been two lights and a security camera installed by himself that were not approved by the BC Safety Authority Inspector because there were no on-off switches. [ 14 ] Mr.

Shively testified as the work he had done at the site, in obtaining the permits and the repeated visits that were caused by waiting for other work to be done such as installation of the roof. He did so to explain the 20 hours labour charged was actually less that the hours put in. He further added that he had not charged mileage for the 24 kilometers one way out to the work site. [ 15 ] Mr. Shively then went through a number of documents contained in Exhibit 3. Tab A was a copy of the invoice and all the materials used.

He noted that the 4 strand wire he used at $6.97/m is likely cheaper than the 3 strand wire suggested by Mr. Fitzpatrick as there is less demand for it. [ 16 ] Mr. Shively explained that the notation of payment on the bill in tab 1 was a temporary form of receipt as part of the payment was in cash and part by cheque. He explained that Tab B of Exhibit 3 was another bill showing paid in full. [ 17 ] Mr. Shively then went through each item of the notice of claim which was at Tab C of Exhibit 3.

He indicated that the 20 hours charged was less than the actual hours charged and that the amounts charged for materials was less than local hardware stores.

[ 18 ] Mr. Shively referred to Tab D of Exhibit 3 to show a comparison between what he charged for material and what Home Hardware charged. While most of his charges were less there were three items cheaper at Home Hardware. However, he added that his total charge for comparable material was $477.73 less. [ 19 ] Although it was not referred to by Mr. Fitzpatrick in his evidence in chief, Mr. Shively explained the damaged wire referred to in the Notice of Claim. He testified that he had put a staple into the wire in the ceiling. Mr. Fitzpatrick had found it, and had asked to have it fixed.

He had done so by checking it two different ways and taping it with white tape. He noted that the staple was into the sheathing of the wire and there was no problem caused by the staple. [ 20 ] Mr. Shively testified that although it had been agreed at a settlement conference that he could attend with the Safety Inspector and an agent of Mr. Fitzpatrick, he was not allowed to do so and had not been allowed onto the property since he rendered his bill. [ 21 ] Tab E of Exhibit 3 was a copy of the inspection report of Mr. Cook.

He admitted that it said that the welder plug was not up to code but pointed out that the report stated all contractor work was completed to code. He added that because the 8-3 wire he used is rated 45 amps and he was intending to install a 40 amp breaker (which was also done by the electrician he hired) that even if the plug had been used it would have just thrown the breaker and not been dangerous. As well he said that the cover of the welder plug is also designed to insulate the wiring inside so there was no risk if the plug was used. [ 22 ] Mr.

Shively testified that Tab F of Exhibit 3 was the bill from the electrician he hired to complete the repairs. [ 23 ] Mr. Shively testified that Tab G of Exhibit 3 was a list of the costs he had incurred because of this law-suit by Mr. Fitzpatrick. Law [ 24 ] This is a civil law-suit and the onus is on Mr. Fitzpatrick as the claimant to prove the claim on the balance of probabilities. That is to say to prove that it is more likely than not. If the claim is proven, then as claimant he must prove what damages he suffered. Analysis [ 25 ] While Mr.

Shively mentioned that the damage to the plug could have occurred after he finished his work, he did by his actions and during the trial take responsibility to have the defective plug fixed. He indicated that he “warranted” his work. Accordingly, the court is satisfied that it has been proven that the plug installed by Mr. Shively was defective. [ 26 ] Normally, the claim of “fraud” with damages of $1,000 would have referred to the charge for the twenty hours of work being more than the quote for one day. However, Mr. Fitzpatrick made a separate claim for the extra hours billed in the amount of $750. Mr.

Fitzpatrick fairly admitted at the trial that there were more than one day’s hours incurred by Mr. Shively. There was a suggestion by Mr. Fitzpatrick that the use of the heavier gauge wire 8-3 instead of 8-2 was unnecessary and therefore a “fraudulent” expense. However, as Mr. Shively testified the better wire for the welder circuit was actually cheaper. Accordingly, there is no evidence of any “fraud” or misrepresentation by Mr. Shively and the claim is dismissed. [ 27 ] Concerning the claim for $20,000 for risk of harm to family or property from the defective plug, Mr.

Fitzpatrick testified that he made that claim to get Mr. Shively’s attention. Mr. Shively stated that he felt it was a bullying tactic. Risk alone is not something that can be sued for although it would justify mitigation costs to remove the risk. Once the court finds liability against the defendant, the claimant must then prove actual damages. There were no damages from the work of Mr. Shively in general or the defective plug in particular. Therefore, that claim is dismissed. [ 28 ] Concerning the claim for $750 for the “overcharging, as per paragraph 26 above, the court is satisfied that Mr.

Shively did not overbill and that claim is dismissed. [ 29 ] Concerning the claim for $500 to fix the defective plug, at the time the claim was filed there was a need either for Mr. Shively to remedy the problem or for Mr. Fitzpatrick to mitigate his damages by having someone else fix it. In November 2013, Mr. Shively hired another electrician who did fix the problem. Accordingly, Mr. Fitzpatrick had no expenses in replacing the defective plug. Therefore, that claim is dismissed. Costs [ 30 ] Small Claims Rule 20 deals with costs.

Subsection 2 reads that “An unsuccessful party must pay to the successful party the following expenses, unless a judge orders otherwise:

a) any fees the party paid for filing any documents;

b) reasonable amounts the party paid for serving any documents;

c) any other reasonable charges or expenses that the judge considers directly relate to the conduct of the proceedings. [ 31 ] As the successful party Mr. Shively is entitled to his filing fees and document service fees. These are only the filing fees of $50.00. In Tab G of Exhibit 3, Mr. Shively also claimed a bill for legal advice and lost days of work. Cases such as Faulkner v Sellars (1998) 9 C.C.L.I. (3d) 247 clearly hold that legal expenses are not recoverable.

Costs for loss of income are recoverable in long and complet ely unnecessary trials but only in the clearest of cases ( Johnston V Morris 2004 BCPC 511 ). While in the portion of the claim concerning the risk to family and property damages were non-existent, at the time the claim was filed the claim for costs of mitigation and overbilling were arguable. Similarly, while the use of the allegation “fraud” was incorrect, the issue on whether the wire installed was unnecessary was still an open question. Sadly, had Mr.

Fitzpatrick learned that the 8-3 wire was actually cheaper and better suited before the trial it might had shortened the matter. In addition, both parties had a number of court appearances before the trial was held. Therefore, the court will not allow costs to Mr. Shively for lost time.

[ 32 ] Subsection 5 of Small Claims Rule 20 reads, “A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. These costs should only be ordered “where it must have been obvious to the claimant that his or her claim was bound to fail and it could not be taken seriously, or where he or she alleged fraud and could not prove it. ( Phillon v Jeeves [1994] B.C.J. #2063). [ 33 ] The court is satisfied that Mr.

Fitzpatrick believed that he had valid claims for the “fraud”, overbilling and costs of mitigation. Not being a lawyer, he should not be expected to know the subtleties of the use of the word fraud rather than misrepresentation or that beyond liability that he must also prove damages concerning his “risk” claim. However, from his admission that he fixed on the amount of $20,000 for the damages because he wanted to get Mr.

Shively’s attention, it is clear to the court that he knew that at least a portion of that claim was excessive, if not frivolous. [ 34 ] Accordingly, the court will impose a penalty under Rule 20(5). What is not clear is how much of Mr. Fitzpatrick’s $20,000 claim he knew was excessive. The court has discretion to determine the percentage penalty up to a maximum of 10% of the 20,000. As Mr. Fitzpatrick by inflating his claim already penalized himself by inflating the filing fees that he must absorb, the court fixes the penalty at 1%.

That results in a recoverable penalty of $200. [ 35 ] Therefore, the court orders that Mr. Fitzpatrick shall pay costs to Mr. Shively in the amount of 250 dollars. ________________________________ W. F. M. Jackson Provincial Court Judge