Koby’s Plant Maintenance Ltd. et al v. Reddekop et al. Date:, 2017 BCPC 244

Citation: Koby’s Plant Maintenance Ltd. et al v. Reddekop et al. Date: 20170802 2017 BCPC 244 File No: 41186 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: KOBY'S PLANT MAINTENANCE LTD. and DENJI KOBAYASHI CLAIMANTS AND: JAKE REDDEKOP, ANITA REDDEKOP and BCAC ADJUSTING LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing for the Claimants: Mr. Denji Kobayashi Appearing on their own behalf: Mr. Jake Reddekop and Ms. Anita Reddekop Place of Hearing: Kamloops , B.C.

Dates of Hearing: May 9, 2017 and July 13, 2017 Date of Judgment: August 2, 2017 [ 1 ] This is an application by Anita Reddekop to strike the claim based on the passage of the limitation period. In her view, the

[ 1 ] This is an application by Anita Reddekop to strike the claim based on the passage of the limitation period. In her view, the limitation period should have begun running on June 5, 2014 because that was when the contract in issue was signed by the parties. BC Adjusting Ltd. supports her application. [ 2 ] The contract was for some repair work to the landscaping at the Redekopp home. It appears a contract was awarded to the Claimant either by Intact Insurance Company or its adjuster, BCAC Adjusting Ltd. Ms.

Reddekop proposes to add Intact Insurance Company if the application to dismiss the claim is unsuccessful. [ 3 ] According to Ms. Reddekop, the contract was complete and all materials were removed on August 14, 2014. However, there were some repairs attended to as late as September 2, 2014. That repair work was with respect to some stairs that had been damaged by the Claimant and was no part of the brick work that had been under the scope of the contract. Ms.

Reddekop maintains that the last work done under contract according to the Claimant’s documents was September 2, 2014. [ 4 ] While final payment was made on July 30, 2014, the Redekopps held back $8,000 until the stair work would be completed. This was paid finally to the Claimant on October 20, 2014. This late payment was only because the Claimant did not attend to the stair repairs for two months. Other than the $8,000 holdback, the Redekopps had no

part in the billing or payment of the contract. [ 5 ] The notice of claim was filed against all Defendants on September 9, 2016. It does not state any of the particulars of the contract. [ 6 ] Mr. Kobayashi claims that the work done after the project completion was supplemental work agreed by the parties, and that he was not aware until December 5, 2014 that the Claimant would not be paid. He claimed that the Claimant was on the site in October 2014 and is therefore well within the limitation period for commencing this claim. [ 7 ] Mr.

Kobayashi identified the extra work as relating to the stair structure which had to be fixed not because of the work that the Claimant did but because of the insured damage that had to be repaired. [ 8 ] Mr. Kobayashi testified that the Defendants agreed to change the stairs and put on an anti-slip surface as well as railings. The last payment to the Claimant was on September 15, 2014.

However, the foreman and owners of the company continued to go out to the property well into October to fix those stairs. [ 9 ] The Defendant, BCAC Adjusting Ltd., has not brought its own application to dismiss this claim based on the limitation period but supports the Reddekops. There is, in addition, another party missing which Ms. Reddekop proposes to add as a Third Party if this application is not successful.

That party, Intact Insurance Company was the insurer. [ 10 ] The essential issues with respect to the limitation period here are when the limitation period commences; whether the work done into September or even October constituted deficiencies, repairs for inadequate work, or a supplemental agreement; whether the work was authorized and by whom; and who was liable for payment for that work. [ 11 ] Ordinarily, an application to dismiss a claim on the basis of an expired limitation period is ideally suited to pre-trial applications.

In such cases, however, there should be an essential agreement with respect to the potential triggers. It will only be on a fulsome examination of the evidence on the substantive issues at trial that a judge can determine in this case whether or not the work done after July 2014 was deficiencies, supplemental work, repairs or otherwise.

In such cases where all of the evidence at trial needs to be heard in order to determine the limitation issue, it is not suitable for a pre-trial application. [ 12 ] Rather than dismissing the Reddekops’ application to dismiss this claim on the basis of an expired limitation period, I am adjourning it to the trial and incorporating it into the Reddekops’ defence. Costs of the application will be for the trial judge to determine. [ 13 ] Having done so, I grant the application by the Reddekops to add Intact Insurance Company as a Third Party.

The Reddekops will have until August 31 st to file the Third Party notice. Once the Third Party notice is filed, this matter will be directed to a pre-trial conference. Although the Third Party is not yet added, I am told it has been kept apprised of this matter. The pre-trial conference judge is not precluded, however, from directing that a settlement conference be set if appropriate. _______________________ S.D. Frame Provincial Court Judge