Aslan Electrical v. Muir, 2019 BCPC 144

Citation: Aslan Electrical v. Muir 2019 BCPC 144 Date: 20190628 File No: 52081 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS BETWEEN: ASLAN ELECTRICAL, PLUMBING, GASFITTING, REFRIGERATION & SHEETMETAL SERVICES LTD CLAIMANT AND: ALLAN MUIR DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GUILD Appearing for the Claimant: M. Williamson Appearing for the Defendant: J. Muir Place of Hearing: Vernon, B.C. Dates of Hearing: June 4, 5, 2019 Date of Judgment: June 28, 2019 A Corrigendum was released by the Court on September 24, 2020.

The corrections have been made to the text and the Corrigendum is appended to this document. Introduction [ 1 ] Allan Muir (“Muir”) is an elderly gentleman who has some cognitive impairment that apparently is increasing; therefore, his daughter represented him at trial. That deficit was not immediately apparent at the time of the events giving rise to this matter. He lived on a rural property near Armstrong, BC. The oil furnace used to heat his residence stopped working. He called Aslan Electrical, Plumbing, Gas Fitting, Refrigeration & Sheet Metal Services Ltd. (“Aslan”) to fix his furnace.

On February 8, 2018, an employee of Aslan went out to do so. Despite numerous attempts on different days and 26 hours of billed time, his furnace persistently did not work. He objected to paying Aslan because they did not fix his furnace. [ 2 ] Muir’s family became aware of these problems and tried to resolve the issues with Aslan. They paid one of Aslan’s invoices. Aslan refused to go back and fix the furnace until all of their accounts were paid in full. Eventually his family called another company, Ray’s Burner Service, to fix the furnace. Mr.

Brown came out the day he was called, March 21, 2018, and repaired the furnace in an hour and a half. [ 3 ] This matter first proceeded through the Civil Resolution Tribunal. Aslan filed a Notice of Objection pursuant to the Civil

Resolution Tribunal Act , SBC 2012, c 25 , (“ CRT Act ”), leading to the trial before me. [ 4 ] A claimant must prove their case on a balance of probabilities. In this case Aslan must establish that pursuant to a contract, it is entitled to the amount set out in an invoice they sent to the defendant, plus interest. Muir, in his counter-claim, must show that he is not liable to pay for the work and materials he paid for in the first invoice pursuant to the contract. Furnace Work [ 5 ] Aslan’s first witness was Mr. Cobb, an employee of Aslan. He tried to tell the truth but had poor recall.

He made many errors, perhaps no surprise given that about a year had elapsed between the events and the trial. He had prepared various documents when he did his work. He did not say he could not recall without looking at those documents, but gave testimony as to facts. Even in chief, his testimony changed after looking at documents as to what work he had done and when he did it. [ 6 ] On Feb 8, 2018, Mr. Cobb went out to Muir’s rural residence in response to the initial request by Muir. The complaint as noted on the work order was “oil furnace keeps having to press reset”.

An Aslan employee put that in the work order. The evidence of Mrs. D. Muir, Muir’s former spouse, was that Muir complained that his furnace was not working. He obviously had also conveyed that to try to make it work he had to keep on pressing the reset button. His furnace was not working and he wanted a professional to determine the problem and then proceed to repair it. [ 7 ] Mr. Cobb and Mr. Williamson, Aslan’s President, likened furnace work to work done on a car. It is generally known that if there is a problem with a car, the first thing a mechanic does is a diagnosis to find out the cause of the problem.

What usually happens is that the problems are identified, an estimate of the cost of repair is made and given to the customer, the customer decides what work should be done and authorizes that work. It may be that work is recommended but not essential, but it is up to the customer to decide if the recommended work should be done. That is very different from bringing in a car for a service. A service is regular maintenance work that requires no diagnosis. [ 8 ] A diagnosis was the essence of Muir’s request and the unwritten contract formed with Aslan when Mr.

Cobb arrived at Muir’s residence to fix his furnace on February 8. Muir called Aslan to fix his furnace, his intention to contract. Aslan spent money going to his residence and Muir accepted Aslan’s employee to do the work. That was execution of Muir’s intent. There was an expectation that Aslan would be paid under that agreement. Implied terms were that Aslan’s employee was professionally qualified to do the work, that the furnace would be properly assessed, the cause(

s) of the malfunction identified and then repaired. Muir’s furnace would then work. No other work was authorised. [ 9 ] Mr. Cobb testified that all he did that day was service Muir’s oil furnace in accordance with a document headed “Oil Furnace Service Sheet”, a checklist for servicing a furnace used by Aslan [1] . Although he testified he used it as a baseline for future calls, there is no evidence he ever referred to it on later visits.

There are no other markings on it made after the initial call for other work that could be done, although it appears he did some of that work on other days to try to fix the furnace. He did not testify he performed any diagnosis of the furnace that day. It appears he assumed a service was all that was required or sought. Muir had not requested a service of his furnace. That was not a term of the contract. [ 10 ] The “Work Authorization Form” [2] dated February 13, 2018, the date of Aslan’s second visit, supports a finding that no diagnosis was done on February 8.

That form states a customer gives their “consent to diagnostic, repair and construction services necessary to perform the work as presented to Aslan services.” Mr. Cobb, by filling out that form that day, shows he did a diagnosis that day. Since Mr. Williamson submitted that the form is used for all work done by Aslan, I have no doubt Mr. Cobb had such a form on February 8, but did not see the need to use it. [ 11 ] Mr. Cobb checked “Oil the burner motor” on the furnace service sheet. He also checked the speed of the motor and noted it was 1725 r.p.m.

It is not clear whether he tested the speed before or after he oiled it, but at that point the speed was appropriate. Mr. Cobb only tested to see if the motor worked, not whether it would continue to run correctly. Mr. Brown testified that the speed might initially be fine, but would change after the motor had warmed up. [ 12 ] Mr. Cobb testified he listened to see if the burner motor bearings were noisy and said they were not. There is an entry “Check blower bearings (bushings)”. That was not done. Checking the burner bearings, if that is something different, is not on the form. Mr.

Cobb testified that on the first day he also changed a high voltage transformer. However, after looking at work orders, he then said that was on the second visit. Given the problems Mr. Cobb had with recalling events accurately and in particular the dates on which he did certain work, I am not satisfied he checked the burner’s bearings on February 8. [ 13 ] Servicing the furnace before doing any diagnosis of the problem likely obscured the real issue. Oiling the burner motor lubricated it. Even if he did listen for noisy bearings, that may have been after he oiled them.

It would be no surprise they were not noisy. If it was not running properly, lubrication would allow it to get up to and maintain the requisite speed for some time - at least the time it ran when Mr. Cobb tested it. The February 8 service resulted in Mr. Cobb spending many hours unsuccessfully trying to find out the real cause of the furnace malfunction. [ 14 ] It is not clear how long the oiled burner motor ran properly after Mr. Cobb’s February 8 test. Mr. Cobb testified he understood that the furnace would run for a couple of days then quit.

In cross-examination he agreed he did not know how long it had not been working. Mrs. D. Muir testified Muir told her it had never worked properly or at all until after Mr. Brown repaired it. I accept her evidence and Muir’s, even though it is hearsay. [ 15 ] The furnace either did not work at all or worked intermittently at best, resulting in the February 13 callout. In effect, Aslan’s visit on February 8 did not fulfil the contract: Aslan did not diagnose the problem and fix it.

Muir’s signature on the work order was an acknowledgment of responsibility to pay for the work, provided that it was part of the contract. He relied on Mr. Cobb’s implied, if not express, assurance that it was. Since there was no diagnosis on February 8 and the service obscured the problem, making an accurate diagnosis more difficult, Aslan breached that contract and Muir does not have to pay for the unauthorised service work done by Mr. Cobb on a contractual basis because that work was not part of the contract.

[ 16 ] Mr. Cobb re-attended Muir’s residence on February 13 for the same complaint as on February 8 – the furnace was not working. For the first time, Mr. Cobb did some diagnostic work. That is why he had the Work Authorization Form with him and filled it out. Although Mr. Cobb testified that Muir signed work orders, he did not testify that Muir signed that form. Apart from that evidentiary gap, even if he did sign, it is just as likely he did so when he signed the work order – after the work was finished in case a callback was needed.

There is no evidence to support Aslan’s submission that the form was signed before any work was ever done. [ 17 ] As a result of Mr. Cobb’s tests on February 13, he replaced the faulty high voltage transformer and broken thermostat in the residence. That diagnosis could and should have been done on February 8. A second callout was not required. It is likely that the burner motor lubrication on February 8 was still effective because the furnace had not been working since then. After the parts were replaced, the initial brief test runs of the furnace showed that the furnace ran.

What it did not do is show that it ran properly. There was no evidence that Mr. Cobb tested the speed of the burner motor again on February 13, nor that he checked the bearings. [ 18 ] From a contractual perspective, on February 13 Aslan partly fulfilled the February 8 contract to diagnose and fix the furnace problems. As noted, their initial service obscured the problems. Although the oiled motor ran properly, there is no evidence how long it did so. The tests were brief.

Despite the work done on February 13, the furnace still did not work properly, leading Muir to call Aslan back with the same complaint as on February 8. Muir should not be liable to pay Aslan for work that came about from their initial mistake. [ 19 ] The starting point for diagnosis of the main problem with the oil furnace appears to lie with the ignition control module. The original part was mechanical, requiring only three wires. Mr. Cobb replaced it on his third visit on February 16 with an electronic module that had 7-8 wires, only three of which were connected to the furnace.

He relied on a diagnostic tool, referred to as an interface unit, and the information it gave to try to determine what might be the problem with the furnace. If the module was not fit for or designed to work with the oil furnace, then the diagnostic tool for that module would be unreliable and the work done unnecessary. The only direct evidence regarding whether the electronic module installed by Mr. Cobb was suitable for Muir’s furnace came from Mr. Brown. [ 20 ] Mr. Brown has worked for 45 years repairing oil furnaces and obtained his certification as a Journeyman Oil Burner Mechanic in 1988.

That certification was in Exhibit 2. Although Mr. Williamson testified that Aslan was qualified to repair oil furnaces, that does not mean Mr. Cobb was, despite his 10 years of experience. There was no evidence as to what qualification Mr. Cobb or Aslan had. Mr. Brown was not called as an expert witness and I do not treat his evidence as such. His evidence is relevant in that what he did are acts of a person certified to do the work. He is the professional Muir wanted from the outset. [ 21 ] There was no direct testimony from any of Aslan’s witnesses that the module Mr.

Cobb installed was suitable for Muir’s oil furnace. Mr. Cobb only testified that Sinclair no longer stocked that module so he used a Sinclair-supplied electronic one. I understood from his testimony that Aslan obtained parts from Sinclair. Since Sinclair did not stock that part, Mr. Cobb used a non-stock part. He did not try to find the stock part anywhere else. Mr. Williamson testified that at times a second repair attendance might be required because parts had to be ordered (and presumably received). Aslan could and did order parts from time to time.

Referring back to the car repair analogy, it is generally known parts might have to be ordered. [ 22 ] Mr. Brown testified that he had tried the control module installed by Mr. Cobb on older furnaces such as Muir’s but that it was the wrong part for that application. He testified the result was a control trying to do a job it was not designed to do. He installed a new “stock” relay because the control that Mr. Cobb had installed was malfunctioning. I find that Mr. Cobb’s and Mr.

Brown’s reference to “stock” refers to the standard or original part for that furnace and that the witnesses used various words to describe the same device. It is clear that the stock part was readily available because Mr. Brown had a new one with him. It was not necessary for the work as presented to Aslan to install a non-stock part. Mr. Cobb could have ordered a stock part, although not from Sinclair. [ 23 ] I find that Mr. Cobb installed the wrong part on Muir’s oil furnace, which in turn led him to do unnecessary work. After Mr.

Brown installed the stock module, he was immediately able to determine that the main problem was a worn burner motor. Had Mr. Cobb diagnosed the furnace on February 8 before doing any service work and installed the stock control at the outset, then he might have come to the same conclusion Mr. Brown readily did and repaired the main problem - the worn burner motor. Scope of Work Performed by Aslan [ 24 ] Aslan relied on the Work Authorization Form for at least part of its claim, arguing it is a contract. As noted, there is no proof Muir signed it nor that it was signed before any work was done on February 13.

It does not cover any work done that date: the original contract governs. [ 25 ] Mr. Cobb testified that he checked the same wiring more than once, repeated other work he had previously done and replaced some wiring because it was easier than testing it. No reason was given for that extra work, other than he could not figure out what the problem was, including through using the new module he installed and the interface diagnostic tool. Mr. Williamson testified that Mr. Cobb was “very meticulous” and that he would replace “anything that is sketchy or remotely not up to snuff”. That also shows that Mr.

Cobb did work not “necessary to perform the work as presented to Aslan” in accordance with the Work Authorization Form. Even if the form was a contract, the work done was not in accordance with it. In addition, the Work Authorization Form contains a statement that a customer need not pay for work covered by a warranty. It is arguable that the subsequent work was covered by the warranty. [ 26 ] Most importantly, Muir would only be liable for work done pursuant to that contract.

That was “diagnostic, repair and construction services necessary to perform the work as presented to Aslan services.” The form refers to a customer being responsible for labour, parts, materials and time used in performing the work. As noted, the work as presented to Aslan was diagnosis of the main problem – the faulty burner motor – and repairing it. On February 16, Mr. Cobb installed the wrong ignition control module, then did all sorts of work based on it and replaced items that he did not show were not working. That was not necessary labour, parts, materials or time.

Aslan has not shown they are entitled to any payment for any work done on February 16. [ 27 ] In

summary, the work as presented to Aslan on February 8 was to determine why the oil furnace was not working and repair that problem. That was the contract. Other matters, such as a service that might be recommended or replacing parts that were not in perfect condition, were not necessary and not part of any contract. Aslan did not fulfil the contract.

Towing Charges [ 28 ] Evidence in this trial established that it was snowing regularly and reasonably heavily throughout the time that Aslan went to Muir’s residence. It was evident that Muir’s residence was a rural property. Mr. Cobb testified that on his first visit, in the middle of winter, he did not carry or use any tire chains. He got stuck and his vehicle was towed by Eagle Rock Towing (“Eagle Rock”). He used chains on his subsequent visits and had no problems. Aslan did not bill Muir for that tow in its invoice for February 8 work [3] .

It only appeared on the second invoice for services from February 13 and on. [ 29 ] There is no indication as to when the invoices were actually prepared but it makes sense that the second invoice [4] was prepared after the first invoice. Eagle Rock’s invoice was printed on February 9 and it shows their services were completed at 5:13 p.m. on February 8. Mr. Cobb’s work order for that date shows that he was out until 6:30 p.m. That means Aslan’s office did not process the results of his work until at least the next day.

I find Aslan would have had Eagle Rock’s invoice by the time they invoiced Muir for the work done on February 8. Aslan chose not to include that at the time. Their inclusion of it at a later date was an attempt to have Muir pay for services not agreed to by Muir, nor covered by any contract. Mr. Cobb needed his van towed because he failed to take reasonable steps by not using chains, or having any to use. [ 30 ] On February 23, another Aslan employee went to Muir’s residence for the ongoing furnace malfunction. That employee got stuck and Protow and Care Towing (“Protow”) came the next day to tow out the van.

On Protow’s invoice [5] , in handwriting, is “PO Muir”, indicating that an Aslan employee wrote on that invoice that Muir would be responsible for it. There is no such notation on Eagle Rock’s invoice. That is further evidence that Aslan never considered Muir responsible for Eagle Rock’s services. [ 31 ] Aslan argues that the Eagle Rock tow charge is compensable because of the Work Authorization Form; but that form was not filled out until February 13. Obviously, Aslan cannot rely on that later document as evidence of Muir’s agreement to pay for towing on February 8.

It was negligent or deceitful to have tried to bill Muir for it and disingenuous to argue he was responsible for paying it. There is absolutely no basis for that claim. [ 32 ] Aslan argues that once that document has been signed, the customer is responsible for all expenses related to any actions taken for the purpose of doing any work. That would mean that a customer would be liable for Aslan’s negligence or other people’s actions.

For example, if another vehicle hit an Aslan vehicle and disabled it or delayed it en route to do work, or if an Aslan vehicle got stuck because of negligent actions of its employees, the customer would be responsible for all of that time and/or towing charges even though they were entirely not at fault. That cannot be so. [ 33 ] For ease of reference I set out again what is in the Work Authorization Form. It states a customer gives their “consent to diagnostic, repair and construction services necessary to perform the work as presented to Aslan services.

This may include cutting open walls, ceilings or floors, as necessary.” The form refers to customer responsibility for labour, parts, materials and time used in performing the work. Nowhere in that form does it say that the customer is responsible for towing charges. Contrary to Mr. Williamson’s testimony and Aslan’s argument, that form contains no suggestion that a customer would be responsible for towing charges. [ 34 ] On February 23, 2018, Mr. Madiggan, Aslan’s employee, went to Muir’s residence because the furnace was still not working.

He testified that he put chains on his van and made it three quarters of the way up Muir’s driveway before he got stuck. Muir then drove his car to meet him and Muir’s car got stuck. Mr. Madiggan asked Muir if he wanted him to look at the furnace or push Muir’s car. Muir apparently asked Mr. Maddigan to push his car. There is no evidence that pushing Muir’s car was something Muir thought he would have to pay for. In winter, people often help others push or free their stuck vehicle. Nobody expects payment. Mr. Madiggan testified he only took a cursory look at the furnace.

He did not do anything necessary for the “work as presented to Aslan”. [ 35 ] That is confirmed by the transcript of the telephone call that date between Mr. Williamson and Mr. Madiggan and Muir [6] . Mr. Williamson told Mr. Madiggan that he would be driving to Muir’s residence to get him. Mr. Madiggan passed the phone to Muir. Mr. Williamson did not discuss with Muir or even suggest that Muir might be responsible for anyone coming to pick up Mr. Madiggan. Mr. Madiggan was prepared to walk to Muir’s residence to work on the furnace.

That is implicit in his offer to Muir of looking at the furnace or pushing the car. There is no evidence that driving the van to the residence was necessary to perform the work. Mr. Cobb had walked with tools and parts he needed on February 8 and worked on the furnace, showing that could be done. There is no evidence that having another driver attend was necessary for Aslan to do the work on Muir’s furnace. Document A-7, Exhibit 1, is a worksheet apparently filled out by a Mr. Colbert for driving to pick up Mr. Madiggan. Aslan billed Muir for Mr. Colbert’s time.

That is another disingenuous attempt by Aslan to have Muir pay for work that he never agreed to and for which he was never responsible. [ 36 ] Mr. Williamson was asked twice in cross-examination if there was any evidence in the telephone call he had with Muir on February 23, 2018, that indicated Muir had agreed to pay for towing. His answers were nonresponsive and argumentative. They detract from his credibility. There is no evidence of any agreement by Muir to pay for towing that day or any other day. Muir did agree to pay for his driveway to be cleared and for the people doing the work to give him a bill.

Aslan arranged for Protow to do that work. That company did not send the account to Muir, but to Aslan. Muir is responsible for what he agreed to. The charge for clearing the road was $255 plus GST, a total of $267.75. There is nothing else on that account or in the evidence that suggests Muir would be responsible for any of the other charges. He is not. Interest [ 37 ] Aslan claims interest at a particular rate. The basis of that claim was not argued nor the subject of testimony. The claim appears to be based on what is set out on its invoices and in the Work Authorization Form.

There is no evidence whatsoever that Muir agreed to pay any interest on February 8. Interest was not charged on the first invoice, paid on March 16, 2018. The invoices state that payment is due on receipt. There is no evidence as to when Muir received each invoice, although Mrs. D. Muir testified that she had received them from Muir by March 8, 2018. [ 38 ] The Work Authorization Form states there is a $2.00 monthly minimum service charge and a 1½ % per month service charge. The invoice states that interest is charged at 1½ % per month on past due accounts.

It then states “$2.00 minimum monthly service charge.” It is not clear what the service charge is for. Aslan has made a claim for interest, not service charges. The only evidence of Muir

agreeing to any charge is in the Work Authorization Form. It does not refer to interest. The invoices are not a contract or agreement to pay interest. Aslan has not shown that any interest is due, other than pursuant to the Court Order Interest Act , RSBC 1996, c 79 . Conclusion [ 39 ] Aslan is entirely unsuccessful in its claim. Muir is successful in his claim that he did not have to pay for any work done on February 8 under the contract. Notwithstanding Aslan’s failure to show that they are entitled to payment pursuant to any contract and failure to argue that they should be paid on any other basis, Mr.

Cobb’s undisputed and un-contradicted testimony was that the furnace needed servicing and the high voltage transformer and interior thermostat needed replacing. Aslan should be paid for that work and those parts on a quantum merit basis. Mr. Cobb’s testimony was that the photo eye issue flowed from his use of the interface diagnostic tool. He had cleaned it as part of the service. Aslan has not shown it was necessary. [ 40 ] On the invoice [7] , Aslan is entitled to the costs of the high-voltage transformer and thermostat.

There would be some labour required for that work and the service of the furnace and travel time. Aslan did not provide a breakdown of labour costs. It took Mr. Brown 30 minutes to diagnose the problem and an hour to do his work. He travelled from Vernon, as did Aslan workers. Google maps indicates that Mr. Brown’s office is about one minute away from Aslan’s office. Travel time was included in his account. The total amount of time billed was 2¼ hours, so travel time was 45 minutes. He was honest and forthright in his testimony. I accept his time as accurate. [ 41 ] On Aslan’s February 8 work order, Mr.

Cobb billed a total of 4½ hours. Had he performed a diagnosis initially as he should have, Aslan employees would not have had to travel there the next day or any subsequent date. Given the work accomplished by Mr. Brown in 1½ hours, the fact that Mr. Cobb repeated some work and did unnecessary work, the time used by Mr. Cobb on February 8 includes travel time and the time required to install the high-voltage transformer and thermostat. Accordingly, I do not award any further labour or travel.

Muir has paid for all of that time and the furnace service. [ 42 ] Muir is responsible for the cost of the two parts noted above plus GST, a total of $235.42, and the driveway clearing cost of $267.75, for a total of $503.17, plus Court Order Interest. I direct the Registrar to calculate the amount, pursuant to Rule 20 of the Small Claims Rules . [ 43 ] Deducted from that amount, by way of set-off, will be Muir’s fees and costs of defending Aslan’s claim and making his counterclaim, pursuant to Rule 20(2)(

c) of the Small Claims Rules , which I also refer to the registrar. [ 44 ] I will hear submissions as to any consequences of this matter having proceeded through the Civil Resolution Tribunal and Aslan being unsuccessful in this Court. The Civil Resolution Tribunal decision may be disclosed pursuant to s. 56.4 of the CRT Act . A penalty may be ordered pursuant to Rules 10.1 and 20 (5) of the Small Claims Rules . ______________________ The Honourable Judge J.

Guild Provincial Court of British Columbia [1] Document A-15, Exhibit 1 [2] Document A-1, Exhibit 1 [3] Document A-9, Exhibit 1 [4] Document A-10, Exhibit 1 [5] Document A-12, page 1, Exhibit 1 [6] Tab 4, Exhibit 2 [7] A-10, Exhibit 1 CORRIGENDUM - Released September 24, 2020 In the Reasons for Judgment dated June 28, 2019, the following changes have been made: [1] Paragraph 36 should read: [36] Mr. Williamson was asked twice in cross-examination if there was any evidence in the telephone call he had with Muir on February 23, 2018, that indicated Muir had agreed to pay for towing.

His answers were nonresponsive and argumentative. They detract from his credibility. There is no evidence of any agreement by Muir to pay for towing that day or any other day. Muir did agree to pay for his driveway to be cleared and for the people doing the work to give him a bill. Aslan arranged for Protow to do that work. That company did not send the account to Muir, but to Aslan. Muir is responsible for what he agreed to. The charge for clearing the road was $255 plus GST, a total of $267.75. There is nothing else on that account or in the evidence that suggests Muir would be responsible for any of the

other charges. He is not. [2] Paragraph 42 should read: [42] Muir is responsible for the cost of the two parts noted above plus GST, a total of $235.42, and the driveway clearing cost of $267.75, for a total of $503.17, plus Court Order Interest. I direct the Registrar to calculate the amount, pursuant to Rule 20 of the Small Claims Rules . _________________________ The Honourable Judge J. Guild Provincial Court of British Columbia