Ransom v. Buston Date:, 2014 BCPC 233

Citation: Ransom v. Buston Date: 20140729 2014 BCPC 0233 File No: 67214 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PATRICIA RUBY RANSOM CLAIMANT AND: DARLA J. BUSTON and MICHAEL F. BUSTON DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Ms. Ransom

Appearing in person: Mr. and Ms. Buston Place of Hearing: Nanaimo , B.C. Dates of Hearing: November 18, 19, 2013, September 22, 2014 Date of Judgment: September 29, 2014 [ 1 ] Sometime prior to June, 2011, Mr. and Ms. Buston contracted to purchase a penthouse apartment in a condominium development to be constructed in Nanaimo. The unit was to comprise about 1200 square feet and the price was more than $500,000, making it one of the more expensive condominiums in Nanaimo. Mr. and Ms. Buston were not satisfied with a number of the interior details and finishes offered by the developer, Mr.

Nguyen, and so negotiated an arrangement with him, under which they would provide him with plans and specifications for the details and finishes which they wanted and he would complete the apartment in accordance with those plans and specifications. [ 2 ] Mr. and Ms. Buston retained Ms. Ransom to prepare the necessary plans and specifications. Ms. Ransom’s retainer was negotiated during the course of three meetings between Ms. Ransom and Ms. Buston in May and June, 2011. Mr. Buston attended the third meeting only. [ 3 ] Ms.

Ransom says that the particulars of her retainer are set out in a document which she prepared, entitled “Scope of Work”. It includes a narrative description of work to be performed by Ms. Ransom and her assistants, hourly rates to be paid for that work and an estimate of $12,000 to $16,000 for the work. At the foot of the last page is a space for the client’s signature, to indicate the client’s agreement to the terms of the document. However, the signature line is blank, and Ms. Ransom agrees that it was never signed by Mr. or Ms. Buston. She says that Ms.

Buston agreed orally to the terms of the document. [ 4 ] Ms. Buston agrees that the “Scope of Work” document was presented to her by Ms. Ransom, but denies that she agreed to the terms set out in it. She agrees that she retained Ms. Ransom to do design work for the condominium, and that she expected to pay Ms. Ransom for her work, but was unable to give any meaningful description of the work which she retained Ms. Ransom to do. Her memory of the meetings in May - June, 2011 was vague and contradictory. For example, she said that she and Mr. Buston understood that the total cost of Ms.

Ransom’s services would be of the order of $8000 - $10,000. I asked her whether she or Mr. Buston had discussed such figures with Ms. Ransom. At first, she said that she was sure that they would have. When I pressed her in relation to that answer, she said that she could not recall the conversation. Later in her evidence, she said that Mr. Buston told Ms. Ransom that he was not prepared to commit more than $8000 - $10,000 to the design project. [ 5 ] Ms.

Ransom says that she would never have accepted a retainer to perform the work for $8000 - $10,000 because it was clear to her that the job was too big to be done for that price. [ 6 ] Some indication of the scope of the work which Ms. Ransom was retained to perform is provided by the evidence of Ms. Hais, Mr. Nguyen’s project manager. She said that Mr. and Ms. Buston required a complete redesign of the interior of the apartment, including finishes, appliances, cabinetry, plumbing fixtures and electrical service. The last-mentioned item is illustrative.

The changes to the original plans and specifications required by Mr. and Ms. Buston mandated an upgrade from the originally-specified 100-ampere electrical system to a 200-ampere system. It is clear that Ms. Ransom’s retainer was not limited to cosmetic items. It was to completely redesign the interior of the apartment, omitting only the structural features integral to the building design. [ 7 ] Ms. Ransom’s assignment was rendered more difficult by the fact that the condominium building was under construction while Ms. Ransom was doing her work. Mr. Nguyen was critical of Ms.

Ransom for proceeding with the design before inspecting the completed unit and measuring the interior spaces as-built. Ms. Ransom concedes that it would have been preferable to wait until the structural elements of the unit were complete before preparing the drawings for the interior finishes. There are always small variances between the design and the implementation of the structural elements. Each of those variances requires a change to the plans for the interior finishes so that things like cabinets will fit properly. In the course of her work, Ms.

Ransom had to make a number of changes to her plans to accommodate such variances. Those changes took time, for which she invoiced Mr. and Ms. Buston. The problem in this case was that: a. the arrangement between Mr. Nguyen, on the one hand, and Mr. and Ms. Buston, on the other, required Ms. Ransom to deliver her plans and specifications to Mr. Nguyen by May 1, 2012; and b. the structural elements of the apartment were not complete until April, 2012. As a consequence, Ms.

Ransom had no option but to prepare drafts of the plans and specifications before the apartment was complete, and to amend them thereafter. [ 8 ] The first two questions in this case are: a. whether there was a concluded agreement between Ms. Ransom, on the one hand, and Mr. and Ms. Buston on the other; and b. if so, what were the terms of that agreement? In addressing those questions, the law does not consider the subjective intentions of the parties. Rather, the law considers whether an objective bystander, listening to the conversations between Ms. Ransom and Ms.

Buston in May – June, 2011, would have concluded that the two of them had reached agreement on the terms of Ms. Ransom’s retainer and had agreed to go forward on those terms. In order to reach a conclusion on those questions, it would be necessary for me to determine, with some confidence and certainty, what was said by Ms. Ransom and by Ms. Buston. That is not possible in this case because neither Ms. Ransom nor Ms. Buston has a complete or accurate

recollection of what was said. In view of the passage of time, that is not surprising. Part of the difficulty arises from a difference in thepersonalities of Ms. Ransom and Ms. Buston. Ms. Ransom is a linear thinker. Ms. Buston is a conceptual thinker. I think it likely that,throughout their professional relationship, what one said was often not what the other one heard. The critical questions are what wasactually said and how an objective observer would have understood those words. The first of those questions cannot be answeredbecause neither Ms. Ransom nor Ms.

Buston has a reliable recollection on the subject. [9] I cannot conclude that a contract was made unless I can determine, with some certainty, what the terms of the contract were. There would be no difficulty in making that determination if Mr. or Ms. Buston had signed the “Scope of Work” document. However,the absence of a signature, and the frailties of recollection, in this case preclude such a determination. [10] However, that does not dispose of Ms. Ransom’s claim. Ms. Buston concedes that she retained Ms. Ransom to perform thedesign work, that she expected to pay Ms.

Ransom for the work and that valuable work was performed. In those circumstances, the lawimplies an obligation to pay a reasonable fee for the services rendered: Stevens & Fiske Construction Ltd vs Johnson (1973) (NS SC), 9 NSR (2d) 608; Bruce Baird Construction Ltd vs Guiges (1988) 34 CLR 192. [11] The question, therefore is what would be a reasonable fee for the services which Ms. Ransom performed. [12] It is clear that both Ms. Ransom and Ms. Buston contemplated that the fee would be based on an hourly rate, and that bothconsidered the hourly rates set out in the “Scope of Work” document to be reasonable.

The question of a reasonable fee thereforedevolves into a question of whether the hours billed were reasonable. [13] Mr. Nguyen said that he suspected Ms. Ransom of performing unnecessary work to augment her fee, but he conceded that hehad no knowledge of the communications between Ms. Ransom and Ms. Buston, nor of the reasons for the changes from one iteration ofthe plans and specifications to the next. Mr. Nguyen was neither an impartial nor a dispassionate witness. He said candidly that heregretted his agreement to allow Mr. and Ms.

Buston to do their own interior design, and that he would not agree to a similar requestfrom another purchaser in future. He was clearly frustrated by the whole process, and clearly dislikes Ms. Ransom. He asserted that Ms.Ransom ought to have delayed preparation of the plans until the structural elements of the apartment were complete, giving no regard tothe fact that his deadline of May 1, 2012 for delivery of the plans rendered that course of action impracticable. [14] I asked Ms. Buston to identify specific examples of work performed and invoiced by Ms. Ransom which Ms.

Buston woulddescribe as unnecessary or duplicative. She was able to provide none. Ms. Ransom said that all of the hours billed were required by thescope of the work and by changes demanded by Ms. Buston. [15] Ms. Buston also complained that the design and specifications prepared by Ms. Ransom were defective. Evidence to supportthat complaint was provided only in relation to the lighting in the living and dining areas. Ms. Buston complains that the lights installedwere too dim. She called as her witness Mr. Mazzai, the lighting contractor. Mr.

Mazzai did not say that there was anything wrong withthe lighting design or specifications. He said that he met with Ms. Buston and with McLaren Electric, the chosen supplier of lightingfixtures, and that they decided to use fixtures different from, and less expensive than, those specified by Ms. Ransom. He was not asked:(

i) whether he agrees with Ms. Buston that the fixtures, as installed, were inadequate; nor (ii) if so, whether he attributes the inadequacyto the fixtures or to Ms. Ransom’s design. Ms. Buston’s other complaints about the design face a similar difficulty - they are entirelyunsupported by evidence. [16] By the end of March, 2012, Mr. & Ms. Buston had paid a total of $9600 to Ms. Ransom on account of design fees. Thestructural elements of the building were incomplete.

Final drawings for the interior finishing of the apartment could not be completeduntil the structural elements were finished, because as-built measurements were necessary for the final drawings. Much design workremained to be done. Mr. & Ms. Buston intimated to Ms. Ransom that they considered that they had already paid more than enough forthe design work. Prudently, Ms. Ransom completed the remaining work but declined to hand over the completed drawings until her billwas paid. As a result, there were several months’ delay before the final drawings were delivered to Mr. & Ms. Buston. [17] Ms.

Ransom claims $9233 for design services rendered after the end of March, 2012. That claim is supported by her evidence,and there is no evidentiary basis upon which I could conclude that it was an unreasonable fee. That claim is therefore allowed. She alsoclaims interest at the rate of 15% per annum, being the rate stated in the “Scope of Work” document. I have concluded that there was nocontract between the parties, with the result that the purported term respecting interest on overdue accounts is unenforceable.

However,interest at the statutory rate is payable pursuant to the Court Order Interest Act RSBC 1996, c 79. [18] Mr. & Ms. Buston counterclaim for three items: a. an invoice from R.W. Wall Custom Contracting for $1878.24; b. “Mazzai Electric: $5000” c. mortgage payments for the months of October - December, 2012; No witness was called from R.W. Wall Custom Contracting. There was no evidence to connect the invoice in question to any deficiencyin Ms. Ransom’s work. There was no evidence to support the $5000 figure attributed to Mazzai Electric. As noted above, Mr.

Mazzaidid not say that there was anything wrong with Ms. Ransom’s work. The claim in relation to mortgage payments is founded upon Ms.Ransom’s refusal to provide the final drawings until her invoice had been paid. In the circumstances, that refusal was reasonable andjustified. If it had been unreasonable or unjustifiable, the measure of compensation payable would not be the mortgage payments on thecondominium (which Mr. & Ms. Buston were obliged to make in any event), but rather the cost of the alternate accommodationsoccupied by Mr. & Ms Buston during the 3-month delay. There was no evidence of that cost.

If Mr. & Ms. Buston continued to occupytheir former home during that three-month period, the cost to them may well have been zero. [19] The counterclaim is dismissed.

[ 20 ] In the result, Ms. Ransom will have judgment for $9233.20, plus court order interest at the Registrar’s rate from June 1, 2012 to September 29, 2014 and filing fees of $156. September 29, 2014 _______________________________ T. Gouge, PCJ