Havens v. Progrus Constructors, 2022 BCPC 119

Citation: Havens v. Progrus Constructors 2022 BCPC 119 Date: 20220616 File Nos. 30808; 30378; 30377; 30807;30276;30370 Registry: Sparwood IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DEREK HAVENS o/a STARBRIGHT ROOFING & SIDING and PRAIRIE SKY CONSTRUCTION LTD. CLAIMANT AND: PROGRUS CONSTRUCTORS INC. and PROVINCIAL RENTAL HOUSING CORPORATION DEFENDANTS CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.E. DOERKSEN Appearing on his own behalf: D. Havens Counsel for the Defendant: A. Armstrong Place of Hearing: Cranbrook, B.C.

Date of Hearing: October 21, 2021 and May 4, 2022 Date of Judgment: June 16, 2022 A Corrigendum was released by the Court on June 20, 2022. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [1] The claimant, Derek Havens o/a Starbright Roofing and Siding (the “claimant” or “Havens”) has filed six claims against thedefendants Progrus Constructors Inc (“Progrus”) and Provincial Rental Housing Corporation (“PRHC”) concerning a single constructionproject called “Sasko Manor” (the “project”). [2] It is not in dispute that the claimant provided services and material to the project. [3] PRHC is the owner of the property for the project and Progrus is the prime contractor of the project. Progrus engaged theservices of Prairie Sky Construction Ltd (“Prairie Sky”) as a subcontractor.

Prairie Sky contracted with the claimant as a sub-trade.Progrus and Prairie Sky have a written contract concerning the project. There is no written contract between the claimant and Progrus. [4] The first four claims show Prairie Sky as a co-claimant. The first claim was filed November 12, 2020, the second on January 5,2021 and two claims filed on January 8, 2021.

Prairie Sky withdrew its claims against the defendant on February 22, 2021. [5] After a settlement conference conducted on June 16, 2021 on the four claims then before the court, the claimant filed two moreclaims against the defendant on August 6, 2021. [6] Three of the claims seek more than the $35,000 small claims limit and the claimant has abandoned any amount over the limit onthese claims.

The total amount of all six claims (without excess abandonment) is over $250,000. [7] This is an application by the defendants Progrus and PRHC to dismiss the six claims; or in the alternative, the claims should beconsolidated and either the claimant must abandon any amount over the statutory limit of $35,000, or the consolidated claims must besent to the Supreme Court of British Columbia as required by Rule 7.1 of the Small Claims Rules. [8] At the initial hearing of this application on October 21, 2021, the claimant agreed that it had no contract or claim against PRHCand the claims against that defendant were dismissed. [9] Pursuant to Rule 7(14)(

j) this court granted the claimant an adjournment to provide further information about what he believedconstituted the contract he had with Progrus. The claimant provided a 137-page affidavit (filed in claim #30370 on January 25, 2022)consisting of emails, texts and third party statements and invoices about this matter. [10] Thus, this decision only concerns Progrus’s application to dismiss the six claims against it.

Defendant’s Submissions [11] Progrus submits that the claims disclose no reasonable cause of action as there is no written contract between the parties. [12] Progrus entered into a “primary” written contract with the British Columbia Housing Management Commission (“BC Housing”)to work on the buildings owned by PRHC. BC Housing has never been a party to any of the claims. In construction terms, Progrus wouldbe identified as the primary or prime contractor. [13] Progrus entered into a written “subcontract” with Prairie Sky to provide material and labour to complete the project.

In order forPrairie Sky to complete its contract with Progrus it hired or contracted with other companies or tradespeople. These contracts are calledsub-subcontracts. The claimant is a subcontractor to Prairie Sky. It is unknown if Prairie Sky and the claimant have a written contractbetween them. [14] Construction projects, such as this one, are also regulated by the Builders Lien Act, S.B.C. 1997 c. 45. The Builders Lien Actprovides a process to ensure subcontractors and tradespeople are paid for services and materials provided on a project.

Apparently, theclaimant did not make use of the provisions of the Builders Lien Act in this case. In any event, the Builders Lien Act is outside of thejurisdiction of this court. [15] The claimant can still pursue a civil claim for breach of contract. However, Progrus submits that there is no contract, written orotherwise, between it and the claimant. In Jurik v.

Fontile’s Counterpoint Kitchen Systems Inc., 2011 BCSC 233 , 2011B.C.S.C. 233 at paragraphs 39 and 40 the court finds “for a contract to be enforceable there must be agreement on the subject matter, thetimeline for completion and the price.” A written contract would usually establish these three elements. [16] Progrus points out that in the claimant’s 137 page affidavit there is no material that discloses any discussion or agreementbetween Progrus and the claimant concerning the three required elements.

One proof of this is that the claimant has not submitted oneinvoice to Progrus for payment. [17] Progrus has filed several affidavits in this matter setting out the contractual relationship between itself and Prairie Sky.

There arenumerous communications between Progrus and the claimant wherein the claimant appears to be speaking on behalf of Prairie Sky.There is correspondence between Progrus and Prairie Sky wherein Progrus clarifies that it only has a contract with Prairie Sky and thatcommunications by the claimant should be through Prairie Sky, not to Progrus directly. [18] The affidavit of Dion Silversides, the project manager for Progrus, filed April 21, 2022 sets out examples of the claimant actingon behalf of Prairie Sky: a. Exhibit “H” – in an email to Mr.

Silversides dated September 25, 2020 the claimant begins with: “I am writing to confirm on behalfof prairie sky…” b. Exhibit “I” – in an email dated October 14, 2020 to Mr. Silversides and to Joel Weaver (the owner of Prairie Sky) from both PrairieSky and the claimant, the email refers to the terms of “our contract”. The “contract” can only be the subcontract between Progrus andPrairie Sky.

c. Exhibit “K” – in an email dated October 23, 2020 from the claimant and Joel Weaver to Mr. Silversides the email references specific terms of “the contract”. In a subsequent email Mr. Silversides asks Mr. Weaver if the claimant is acting on behalf of Prairie Sky. Mr. Weaver replies that the claimant is acting on behalf of Prairie Sky. d.

Exhibit “L” – in a letter dated November 15, 2020 from Progrus to Prairie Sky, Progrus specifically asks Prairie Sky to instruct the claimant to send any correspondence to Progrus through Prairie Sky and not directly to Progrus. [ 19 ] Further, Progrus submits if this court finds that there is reasonable grounds for the claims, the claims should be consolidated as there is no evidence that there were six separate contracts. The claimant is attempting to claim a greater amount than is statutorily permitted by splitting his case into smaller segments.

Claimant’s submissions [ 20 ] The claimant submits that the 137 pages of materials he has provided show that there is a contractual relationship between him and Progrus. The claimant states that Progrus “ regularly requested myself to meetings. Contacted and requested direct orders from my suppliers on my accounts fully circumventing Prairie Sky. It was an agreed to understanding from the outset that I would bill and be reimbursed for the work and materials I supplied” . [ 21 ] Further the claimant states: “… soon after the first month on the job noticed my bills were not being paid.

I promptly started sending demand letters through emails, and their response would be the money is coming we just need more time ”. There are no such letters or emails in the claimant’s affidavit that Progrus made such promises. [ 22 ] The 137 pages of materials does not reveal any bills or invoices submitted to Progrus. Instead, just as found in Mr. Silversides affidavit, the claimant sent emails to Progrus on behalf of himself and Prairie Sky (or Joel Weaver). These emails are dated on or between November 8, 2020 and November 11, 2020.

Again, any reference to a “contract” is clearly the subcontract between Progrus and Prairie Sky. [ 23 ] Despite the lack of email communications or other documentation setting out any contract between the claimant and Progrus the claimant asserts that there were six separate oral contracts. In support of this the claimant provided in his materials a letter from Shaun Palmer of Challenger Building Supplies (Exhibit #7) wherein Mr. Palmer states that he “personally had engaging conversations with Mr.

Silversides about quoting materials on the claimant’s account and that many of these materials were purchased and delivered to the project”. [ 24 ] Mr. Silversides disputes this and attests that any materials provided to the project by Challenger Building Supplies was done at the request of Prairie Sky. Again, no invoice or bill was submitted to Progrus by the claimant on this account. [ 25 ] The claimant provides invoices from Tri-US Exteriors Ltd (Exhibit #6 of the claimant’s affidavit) and Canpro Contracting Inc (Exhibit #4) wherein the claimant has been billed for material used at the project.

Again, no invoice or bill was submitted to Progrus by the claimant on this account. Analysis [ 26 ] Pursuant to Rule 7(14)(

i) this court has the jurisdiction to dismiss a claim if it is without reasonable grounds, discloses no triable issue, or is frivolous or an abuse of the court’s process. [ 27 ] The obvious point of this rule is that claims without a reasonable basis should not take up valuable court time and defendants should not have to expend time and costs on claims that have no chance of success. There is no general right that a claimant gets to “have his day in court” merely by a bare assertion with nothing more to support a claim.

Decision [ 28 ] I will deal with the first three Notice of Claims together. [ 29 ] Notice of Claim #30276. This claim states: We were advised to do extra work on a B.C. Housing project beyond our initial scope of work. We complied and provided a quote. Progrus advised they were sending off a change order and we proceeded with the work after receiving confirmation. We completed the said work and billed on our September end bill. 30 days past due we initiated contact stating Progrus and B.C. Housing were in breach of contract of both federal and provincial guidelines for paying subcontractors.

As of today’s date, the amount is still overdue by more than 60 days. Mediation as per our contract was declined and thus we are filing for complete compensation within our statute of limitations. [underline emphasis added] [ 30 ] Notice of Claim # 30370. This claim states: Billing on separate occasions money has been removed unlawfully in regards to the contract for extras. The contract needs to have change orders agreed upon by both parties. Progrus continues to remove back charging fees without agreement in accordance with our contract . [underline emphasis added] [ 31 ] Notice of Claim #30377.

This claim states: Progrus Constructors failed to pay costs associated for holding up our progress on Sasko Manor. We have spent more than 60 days extra on this job because of B.C. Housing and Progrus Constructors holding us up. Our costs associated with this first bill far exceed the $50,000.00 allowable for this claim. This is only the first bill for holdup for the months of November/December 2020. The contract allows for and we have given Notice of Holdup in accordance with our contract . [underline emphasis added]

[ 32 ] These first three claims were filed with Prairie Sky as a co-claimant. The claim refers to “our contract” and “the contract” and is clearly a reference to the subcontract between Progrus and Prairie Sky. The allegation cannot be interpreted to mean that there is a contract between Progrus and the claimant Haven. The claim does not refer to any other contract.

Prairie Sky has withdrawn their claim in this matter and it appears likely that Haven filed this claim on Prairie Sky’s behalf. [ 33 ] For reasons that are only known to the claimant (and perhaps Prairie Sky) the claimant’s advocacy on behalf of Prairie Sky does not create a contractual relationship with Progrus. There is no cause of action against Progrus by Haven in these claims. These claims, and for other reasons that will follow below, are dismissed. [ 34 ] Notice of Claim #30378.

This claim states: Progrus Constructors failed to pay for a separate contract they asked us to bid on and change from the original scope of work. This change was brought to their attention prior to starting our job. It was agreed that it was a significant change to our original scope of work . After several months of request for pricing, Progrus simply told us to perform the work and to seek compensation afterwards through remediation.

This process has already been declined on other issues so we seek the courts mediation to get paid for this extra work. [underline emphasis added] [ 35 ] This claim was also filed with Prairie Sky as a co-claimant. This claim refers to a “separate contract” and “an original scope of work”. The claimant does not clarify that this separate contract is an oral contract or not. The claimant does not provide the “original scope of work” or the “bid” that was allegedly submitted.

It may have been possible to find that there was a contract if this material was provided. [ 36 ] Havens is suggesting that the contracts with Progrus were oral contracts. This stretches all credulity. Having reviewed the 137- page affidavit supplied by the claimant there is nothing to support a finding that there was an oral agreement outside of any written contract.

It is not possible that the original scope of work was not in writing and the bid process was not in writing, and then an intricate oral contract was entered into by the parties; or that the original scope of work and the bid process was in writing but the contract was oral. [ 37 ] This project was not a small endeavour such as a residential deck or a small renovation that could be done on a handshake.

A construction project such as this is full of very detailed design specifications, timelines and other details that render the idea of an oral contract in this situation impossible to fathom. [ 38 ] Again, Haven probably began this claim on behalf of Prairie Sky believing that by advocating for Prairie Sky he would be helping himself. However, there is no reasonable grounds to find that there was an unwritten contract formulated between Progrus and the claimant.

This claim is dismissed. [ 39 ] I will deal with the last two claims together. [ 40 ] Notice of Claim #30807 states: On or about December 2020, Progrus Constructors settled with their contractor knowing there were unpaid invoices left owing. When asked when I would be paid, they responded they had no contract with me. According to the subcontractor ac[t] , if they benefitted from labour and materials I purchased, they are ultimately responsible for making sure all subcontractors are paid in full.

Although I was not part of a written agreement, Progrus regularly requested I furnish materials and labour on this job. [underline emphasis added] [ 41 ] Notice of Claim #30808 states: On or about December 2020, I made bills as a subcontractor that remain unpaid until today August of 2021. Progrus Constructors paid out Prairie Sky Construction but failed to ensure I was paid for the materials I purchased for the project. This materials bill has been left unpaid although every other contractor has been paid and since disappeared.

Progrus Constructors had directly requested throughout the project that I furnish materials, and I would be fully reimbursed, which I was not. I state this claim as a subcontractor under the Subcontractors Legislation and request payment in full for any and all materials bills that have been left unpaid.

The 2 parties in question benefitted from the materials purchased and the project was the beneficiary of a materially upgraded renovation Progrus knew there was monies owing and settled with the contractor that was supposed to pay me . [underline emphasis added] [ 42 ] These last two claims provide no explanation as to how these claims are in addition to the four previous claims. These two claims simply reformulate the allegations already set out in the first four claims.

In addition, these claims make it clear that there was no contractual relationship (written or oral) between the claimant and Progrus. [ 43 ] What is clear is that the claimant alleges that his contractor, being Prairie Sky, did not pay him. Why the claimant has not made a claim against Prairie Sky is a mystery, but the answer to that question is not necessary to determine this matter before the court. [ 44 ] These last two claims refer to “subcontractors legislation” and a “subcontractor act”. There is no such named legislation in this province.

The only legislation this court is aware of that touches on subcontractor’s rights is the Builders Lien Act . However, as stated above, the Builders Lien Act is not within the jurisdiction of this court. Only the Supreme Court of British Columbia has jurisdiction in this area. [ 45 ] As there is no contractual relationship between the claimant and Progrus and the claim pertains to the Builders Lien Act over which this court has no jurisdiction, these two claims are without a reasonable basis in contract and without a triable cause for lack of jurisdiction. These two claims are dismissed.

In The Alternative [ 46 ] If this court has erred with respect to the claimant having a reasonable cause then there is the issue of the claimant “splitting” his

case to come under the statutory limitations of the Small Claims Act . [ 47 ] I am instructed by the case of Kids Only Market v. Chan [1993] (QL) B.C.J. 2728. In this case the claimant landlord filed two claims after its tenant abandoned the property. One claim was in contract for the debt created by the breach of the lease, and the other claim was for damages. Individually each claim was with merit but the combined claims exceeded the statutory limit of the Small Claims Act .

As there was only one transaction (being the abandonment of the property by the tenant), the landlord could not split its case and defeat the purpose of the statutory limitation. The court combined the two claims into one and limited the landlord’s claim to the financial limit of the legislation. [ 48 ] In the matter before this court there is nothing in any of the materials provided by the claimant that there are six (or five, four, three or two) separate contracts entered into with Progrus. There is only one project, there is only one contractor that the claimant is working for (or with), being Prairie Sky.

The claimant’s own Notice of Claims only ever refer to one contract. [ 49 ] Further, the best evidence the claimant has been able to put forward is bills he has received from suppliers for materials he purchased for the project. Obviously, when working on a project a contractor or subcontractor or tradesperson may acquire material from several sources to work on the project. This is not evidence that there are separate contracts with Progrus.

To find otherwise would create legal uncertainty around construction projects of any size. [ 50 ] Thus, if this court has erred that there is no reasonable grounds for the claims, this court would combine all claims and limit the claimant to the maximum claim permitted by the legislation. Alternatively, this court would combine all of the claims and refer the matter to the Supreme Court of British Columbia as per Rule 7.1. [ 51 ] Although it was not raised, it is worth addressing a claim based on “unjust enrichment”.

Although there can be a reasonable basis for unjust enrichment when there is no contractual relationship between the parties, this is not the case here. First, the claimant has a contract with Prairie Sky and the relationship of the various parties is clearly defined. Second, Progrus has not been unjustly enriched when it has paid Prairie Sky for the material and labour provided by Prairie Sky (and its subcontractors) in accordance with Progrus’ contract with Prairie Sky.

Progrus is not getting something for nothing. [ 52 ] If the claimant has not been paid by Prairie Sky that is an issue between them, not Progrus. There may be some logical reason why the claimant has not commenced a claim against Prairie Sky, but Progrus cannot be liable for the default of Prairie Sky. As stated above, if Progrus is at fault because it did not comply with the provisions of the Builders Lien Act that is a matter for the Supreme Court of British Columbia. One Final Note [ 53 ] This matter is not a “small claim”.

The Small Claims Act attempts to assist lay litigants seek financial redress without hiring a lawyer as the cost of a lawyer may exceed the award claimed. The Claimant alleges that there are hundreds of thousands of dollars at stake in his six claims. Why the claimant commenced these actions without legal assistance is most unfortunate for the claimant. However, this court cannot help him merely because he has suffered a loss when the claims are without reasonable grounds or outside the jurisdiction of this court. _________________________________ The Honourable Judge L.E.

Doerksen Provincial Court of British Columbia CORRIGENDUM - Released June 20, 2022 In the Reasons for Judgment dated June 16, 2022, the following changes have been made: [ 54 ] The cover page stated Mr. Galbraith appeared as counsel on behalf of the Defendant when it should state that Mr. Adrian Armstrong appeared as counsel on behalf of the Defendant. [ 55 ] The cover page should state that the matter was heard on October 21, 2021 and May 4, 2022. _______________________________ The Honourable Judge L.E. Doerksen Provincial Court of British Columbia