Canadian Quality Stucco Ltd. v. Pangli, 2022 BCPC 126

Citation: Canadian Quality Stucco Ltd. v. Pangli 2022 BCPC 126 Date: 20220624 File No: C-18422 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Act, RSBC 1996, c 430 BETWEEN: CANADIAN QUALITY STUCCO LTD. CLAIMANT AND: SUNBIR KAUR BOPARAI SARABJEET PANGLI DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: J. Gill Appearing for the Defendants: S. Pangli Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: February 3 and 4, 2022 Date of Judgment: June 24, 2022

Introduction [ 1 ] Canadian Quality Stucco Ltd. (the “Claimant”) sues Mr. Sarabjeet Pangli and Ms. Sunbit Kaur Boparai (together the “Defendants”) for the balance due on an invoice for stuccowork done at a home located at 828 Crestwood Drive, Coquitlam B.C. [ 2 ] The Defendants, who are married, allege that the Claimant did the work negligently and the Defendants counterclaim for the costs of the repair work. Witnesses [ 3 ] The following persons testified on behalf of Canadian Quality Stucco Ltd. through a Punjabi interpreter:

a) Lakhvir Singh Dhaliwal, the owner of the Claimant.

b) Japtesh Singh Sidhu, an employee of the Claimant. [ 4 ] Sarabjeet Pangli testified on behalf of himself and Sunbir Kaur Boparai. The parties agreed that Ms. Boparai did not need to attend court because she did not have any involvement with the stuccowork. [ 5 ] The Defendants also called as a witness Jasbir Brink. The Evidence [ 6 ] The owner of Canadian Quality Stucco Ltd. is Lakhvir Singh Dhaliwal. The Claimant has been in operation for 12 years installing stucco. [ 7 ] The defendant, Ms. Sunbir Kaur Boparai, was the registered owner of the house being constructed at 828 Crestwood Drive, Coquitlam B.C. Mr.

Sarabjeet Pangli was overseeing the construction. He is a builder of residential homes, having constructed some 20 houses since 2011. The house at the centre of this dispute was to be the home of the Defendants. During the course of its construction, Mr. Pangli needed to have stucco applied to the exterior of the house. [ 8 ] Jasbir Brink is an acquaintance of both Mr. Dhaliwal and Mr. Pangli, and he referred Mr. Pangli to Mr. Dhaliwal for the stuccowork. [ 9 ] Before I describe the evidence.

I need to set out my understanding of the stucco process. [ 10 ] In order to prepare a wood surface for stuccowork, a waterproof layer is laid onto the wood. In this case, the Claimant used waterproof building paper. Next, a rainscreen is applied on top of the paper to allow for water drainage. Stucco is then applied in layers. The first layer is called a scratch coat. At times in the evidence, this layer was referred to as a “scratch code” but I believe this was in error.

A second layer of stucco is applied over the scratch coat and then the final exterior layer, which displays the exterior texture and stucco colouring. [ 11 ] Sometime in June or July 2018, Mr. Pangli met with Mr. Dhaliwal to discuss the stucco project. The circumstances of this meeting are in dispute and I will describe each parties’ version of how the agreement came to be. Lakhvir Singh Dhaliwal’s Evidence About the Written Contract [ 12 ] In July 2018, Mr. Dhaliwal met with Mr. Pangli to discuss the stucco contract. Mr. Dhaliwal was accompanied by an employee, Japtesh Singh Sidhu. Mr. Pangli and Mr.

Dhaliwal came to an agreement regarding the work. At Mr. Dhaliwal’s directions, Mr. Sidhu wrote out the contract terms. A portion of the contract read as follows: Price for acrylic stucco for 3 sides & front ready for stone Wrapping Tyvek paper 4000 Scaffold & Rain Screen 3000 Meshwire and Plaster Stop 6500 Scratch Coat 5,000 Final Coat of Cement 4000 Final Coat of Acrylic Paint Stucco 4000 26,500 CAD Extra for Front Ready For Stone (Scaffold, Meshwire, Rainscreen, Scratch Coat) 4000 CAD Note: Owner will pay for rainscreen Sub Total 30,500 CAD GST 1525 CAD Balance 32,025.00 [ 13 ] Mr.

Pangli made a first payment of $8,000 by a cheque dated August 8, 2018. [ 14 ] On October 10, 2018, Mr. Dhaliwal texted Mr. Pangli saying, “I need cheque today.”

[ 15 ] On October 10, 2018, the parties met to discuss the work. At that time, Mr. Pangli made a second payment of $7,360 by cheque dated October 10, 2018. This brought the total payments up to $15,360. [ 16 ] Mr. Pangli was dissatisfied with the quality of the work. Because of this, Mr. Pangli wrote additional terms onto the original contract document as follows: 1. Beside the pre-printed words “Security Deposit $,” Mr. Pangli wrote: 8000.00 + 7360.00 rest will be paid when job is done right. 2. At the bottom of the document, Mr.

Pangli wrote: *All Deficiencies shown by the owner will be fixed before final payment. *Owner has pointed out ruff surface (waves) around the house. Canadian Quality will fix that issue. 3. Under each parties’ signatures was written the date “Oct 10, 2018.” [ 17 ] The parties then signed the contract. Sarabjeet Pangli’s Evidence About the Written Contract [ 18 ] Mr. Pangli said he met with Mr. Dhaliwal in June 2018 to discuss the project and Mr. Dhaliwal provided a verbal quote for $26,500.

The evidence of Jasbir Brink is that he used the Claimant for stuccowork on three to four projects and there was never a written contract. [ 19 ] Mr. Pangli made the initial payment of $8,000 by cheque dated August 8, 2018. [ 20 ] Sometime in the fall of 2018, there was a dispute about the quality of the work. In October 2018, Mr. Dhaliwal requested a further payment. Mr. Pangli agreed to provide a second payment of $7,360 and Mr. Dhaliwal agreed to repair the deficiencies. [ 21 ] On October 10, 2018, Mr. Dhaliwal and Mr. Pangli met at the job site. Mr. Dhaliwal presented Mr. Pangli with a written contract. Mr.

Pangli said there were no names on the contract and Mr. Dhaliwal asked Mr. Pangli to write in the names. Mr. Pangli also inserted the additional terms I referred to above, specifically confirmation of the payments of $8,000 and $7,360, and for the Claimant to repair the deficiencies before final payment was due. [ 22 ] Mr. Pangli also agreed to pay another $4,000 for additional work. He said this decision was made after the initial verbal agreement, and so could not have been part of an original written agreement as alleged by Mr. Dhaliwal. [ 23 ] Mr. Dhaliwal and Mr.

Pangli then signed the contract, with each of them writing in the date of October 10, 2018, under their signatures. The Evidence Regarding the Construction Work [ 24 ] It is clear that there was an initial contract price of $26,500, and a further agreement for additional work at a cost of $4,000. This brought the contract price up to $30,500. [ 25 ] Mr. Pangli also agreed to pay for a higher quality rainscreen, called a Keene Dri Wall Rainscreen. Mr.

Pangli said he agreed to pay for the difference in price between the rainscreen that was part of the original quote and the higher priced Keene rainscreen only if it resulted in a better stucco finish. There is nothing in writing to confirm this was a term of the agreement between the parties. [ 26 ] The Claimant started the stuccowork in June or July 2018. [ 27 ] By late September 2018, Mr. Pangli expressed concern about the quality of the work. [ 28 ] On October 9, 2018, Mr. Dhaliwal texted Mr. Pangli to say: Hlo veer…yeah we can fix everything but we have to be a little patient.

The thing is I haven’t got money even fr the parts which I made ready for stone.. you will be fully satisfied with job.. deficiencies will be covered in stone Sorry covered in paint Nd u haven’t given me money even for

driwall rainscreen also [ 29 ] Mr. Pangli responded that he will give the money for the “scratch code” and the rainscreen. As I indicated earlier in my Reasons, I think “scratch code” is supposed to refer to the “scratch coat.” [ 30 ] There followed text messages between the parties in October and November 2018, and then in March and May 2019. [ 31 ] On May 15, 2019, Mr. Pangli sent Mr. Dhaliwal a text message giving the Claimant one week to finish the job or he would get someone else to finish it. [ 32 ] On May 19, 2019, Mr. Dhaliwal texted Mr. Pangli to say Mr. Pangli had not yet chosen the stucco colour. Mr.

Dhaliwal also said: Nd there will be extra 1000 dollar for finishing back posts in stucco [ 33 ] Mr. Pangli told Mr. Dhaliwal that he had already selected the colour. Mr. Pangli put into evidence a stucco colour sample that he signed and dated May 10, 2019. It was not clear when Mr. Pangli gave this signed sample to the Claimant. [ 34 ] Mr. Pangli did not respond to the text message about the additional $1,000 charge for covering the back posts in stucco. In his testimony, he denied agreeing to pay this charge. There is nothing in writing showing that Mr.

Pangli confirmed or disputed this charge. [ 35 ] On May 30, 2019, Mr. Pangli texted Mr. Dhaliwal to say: You didn’t show up!!! [ 36 ] On June 5, 2019, Mr. Dhaliwal texted Mr. Pangli to say: Hlo bro…u gave me only 8000 dollars till now for stucco..and price is 26500 CAD..our job is 85 percent complete. So u have to pay for paint at building supplies. The rest of the money u paid was for the front which was made ready for stone and the rainscreen which i bought for u..so a large amount of money is pending on your side. You can hold only 10 to. 15 percent of money.

Thanks [ 37 ] The text message does not refer to Mr. Pangli’s second payment of $7,360 made by cheque dated October 10, 2018, although there is an unexplained reference to the “rest of the money u paid…” [ 38 ] On June 14, 2019, Mr. Pangli texted Mr. Dhaliwal to say: I do not want you to enter my jobsite. You lie 24/7, you just told me that crown guy came looked at all the cracks and he is saying the paint will cover the cracks!!! We both agreed that you need to fix the cracks before you paint with the base code!!!

When I Spoke to the guy he said he didn’t even come to the jobsite and he doesn’t guarantee about the cracks. What was the point talking to about this

for days and then you want to cover everything with paint!!! What a waste of time dealing with you. [ 39 ] On July 9, 2019, Mr. Dhaliwal sent Mr. Pangli a text message to say Mr. Pangli had only paid $8,000, the contract price was $26,500 and the remaining amount owing was $18,500 plus GST. The written contract did not set out GST as an additional sum owing. Mr. Dhaliwal again referred to other money paid to him, stating: …rest of the money u gave me was for front parts made ready for stone by us and we bought rainscreen also [ 40 ] Mr.

Dhaliwal did not mention the second payment of $7,360 or the extra charge of $4,000. [ 41 ] In another message sent July 9, 2019, Mr. Dhaliwal told Mr. Pangli there was a further $1,200 owed for “stucco on posts on the back and the places on the corner where we installed extra stucco as u reduced stone work”. Mr. Dhaliwal said the amount owing was $21,025. [ 42 ] There is nothing in writing to show that Mr. Pangli confirmed or denied the obligation to pay the extra $1,200 charge. In his testimony, Mr. Pangli denied agreeing to this charge. [ 43 ] On September 19, 2019, Mr. Pangli texted Mr.

Dhaliwal to say: You called last week and said you will come by to fix the job on Wednesday Sept 18 . Once again you didn’t show up. I am not waiting for you anymore and getting someone else to fix your deficiencies. I am also sending you some pictures of the windows and soft that you didn’t cover when you did the stucco and And got stucco all over them [ 44 ] Mr.

Dhaliwal replied that day: Brother trims are datocut that’s why they are to be filled with cement and also these days are rainy and weather is not good that’s why we don’t come. also we covered all the windows and door with paper and tapes while doing stucco… [ 45 ] Mr. Pangli responded: You were supposed to come yesterday and it didn’t rain yesterday. Also if you had covered the doors and windows then how did this stucco got all over them!!!

[46] On November 6, 2019, Mr. Dhaliwal sent to Mr. Pangli by text an invoice issued by the Claimant to “Sarab” dated October 25,2019, totalling $38,325. This amount was arrived at using different prices for the six items listed in the written contract. The Claimant isnot seeking payment based on this invoice. [47] Mr. Pangli responded by text to Mr. Dhaliwal to say the painter cleaned the stucco paint from the soffits and window trims. Mr.Pangli reiterated that the Claimant had to repair the deficiencies first before payment was made. Mr.

Pangli acknowledged a threat by theClaimant to place a lien on the property. The message included the following comment: The only way you will get paid is if you fix your deficiencies and I am going to deduct the painter’s cost and damage to the mouldingcorners. I have given you enough time to fix the issues but you never showed up, now its winter and stucco can’t be redone at this time. [48] On November 19, 2019, the Claimant filed a Claim of Builder’s Lien against the property, claiming $24,025. On March 31,2020, the Defendants issued a Notice to Commence an Action to enforce the lien claim.

The Claimant did not pursue the lien claim. [49] The Claimant put into evidence a number of invoices issued by Crown Building Supplies for materials relating to the project,dated from June 5, 2018 to December 16, 2019. The first invoice suggests that the work began in approximately June 2018. The lastinvoice of December 16, 2019, suggests the Claimant stopped work sometime around December 16, 2019. The Claimant did not put intoevidence any work records or time sheets to show when they actually worked at the property. [50] Mr.

Dhaliwal testified that the Claimant would do any touch-up work after completion of the work. He also said the touch-upwork did not occur because the Defendants had not paid the full contract price. [51] In cross-examination, Mr. Dhaliwal agreed that the project required the application of fine texture stucco for the final coat.Invoice # IN120327 issued by Crown Building Supplies to the Claimant dated June 11, 2019, listed purchases of both Adex ElasticoatFine Regular and Adex Elasticoat Medium Regular.

Invoice # IN120851 issued by Crown Building Supplies to the Claimant dated June17, 2019, also listed purchases of both Adex Elasticoat Fine Regular and Adex Elasticoat Medium Regular. Mr. Dhaliwal suggested thestore invoices were incorrect and he denies using medium texture stucco. [52] Mr. Pangli testified that there were significant deficiencies and he referred to various pictures in support of his claim. Amongother things, Mr. Pangli alleged as follows: 1. The “mud stops” were not properly installed to protect the wood frame. 2.

A cement coating, to be applied as part of the stucco process, should have been slowly applied over three days, but was completed inone day. 3. “Flashing,” which I understand is a thin sheet of metal, should have been extended at least one inch past the building edges toprovide waterproofing. 4. Tyvek paper should have been installed under any torched-on material to provide waterproofing. 5. There is water damage to the wood as shown by changes in colour of the wood. 6. The value of the home has been reduced. [53] I asked Mr. Pangli if he had an expert evidence to support his claims about deficiencies. Mr.

Pangli only had the inspectionreport from Stinger Home Inspections, which I will discuss later. Mr. Pangli said he would leave the question of whether deficienciesexisted for me to decide. The Credibility and Reliability of the Witnesses [54] The evidence of Mr. Dhaliwal and Mr. Pangli differed and I must assess their credibility and reliability. [55] I refer to the leading decision of Faryna v.

Chorny, (BC CA), where the Court stated: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. [56] I also refer to the decision Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640, where the Court stated: [85] The principles that govern the assessment of the credibility of a witness are summarized in Bradshaw v.

Stenner, 2010 BCSC1398, aff'd 2012 BCCA 296, as follows:

[186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides... .The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally... .

Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time ( Farnya at para. 356). [Citations omitted] [ 57 ] For reasons that follow, I have concluded that I cannot rely on the evidence of Mr. Dhaliwal. [ 58 ] During cross-examination, Mr. Dhaliwal did not respond to many questions, even after I repeated the questions or re-phrased them. Taking into account any language difficulties, I found Mr. Dhaliwal was evasive when giving his answers. [ 59 ] Mr. Dhaliwal and Mr.

Pangli disagreed on how the written contract came into being. Mr. Dhaliwal said he had a written version of the contract from July 2018 that did not include any of the additions he claimed Mr. Pangli inserted on October 10, 2018. However, he never produced this version of the contract, submitting into evidence only the complete contract signed by the parties on October 10, 2018. I have doubts whether this shortened version of the contract exists. [ 60 ] Mr. Dhaliwal said the initial written agreement from July 2018 contained the term “Extra for front ready for stone” at a cost of $4,000.

It does not make sense to refer to an item as an extra unless that was a term agreed to after the initial agreement. [ 61 ] Mr. Dhaliwal said the Claimant only purchased and applied fine texture stucco coating to the home. Two Crown Building Supplies invoices show the purchase of both fine and medium texture stucco coating. Mr. Dhaliwal’s suggestion that Crown Building Supplies twice made an error in their invoices is neither likely nor convincing. [ 62 ] Taking into account the above, I do not find Mr.

Dhaliwal’s evidence to be credible. [ 63 ] The amount claimed by Canadian Quality Stucco Ltd. also fluctuated over time.

a) The original quoted price was $26,500 and there was a further agreed-upon charge of $4,000. This totalled $30,500 plus GST of $1,525, for a total of $32,025.

b) On August 8, 2018, Mr. Pangli paid $8,000.

c) On October 10, 2018, Mr. Pangli paid a further $7,360, bringing the total paid to $15,360.

d) On May 19, 2019, Mr. Dhaliwal texted Mr. Pangli to claim a further $1,000.

e) On June 5, 2019, Mr. Dhaliwal texted Mr. Pangli to say the amount owed was $26,500 and only $8,000 was paid.

f) On July 9, 2019, Mr. Dhaliwal texted Mr. Pangli to say the amount owed was $26,500, only $8,000 was paid, and Mr. Pangli owed a further $1,200.

g) On October 25, 2019, the Claimant issued an invoice to the Defendants for $38,325 based on amounts that differed from the written contract.

h) On November 19, 2019, the Claimant filed a Claim of Builder’s Lien for the sum of $24,025 due and owing as of October 25, 2019. This differed from the amount of the invoice issued on October 25, 2019.

i) On February 26, 2020, the Claimant filed a Notice of Claim seeking $24,025 based on a claim of $32,025 ($30,500 plus GST $1,525 = $32,025) less a payment of $8,000, leaving $24,025 due.

j) At trial, the Claimant submitted that the amount due was $22,182.62. The was based on the sum of $32,025 plus $3,417.62 for the rainscreen costs, $1,200 for work on posts, another $1,000 for extra work on stone posts, less payments of $8,000 and $7,360. [ 64 ] Given Mr. Dhaliwal’s own uncertainty about the amount claimed, I do not find his evidence to be reliable. [ 65 ] The evidence of Japtesh Singh Sidhu did not help to support Mr. Dhaliwal. Mr. Sidhu testified that the stucco job only took 2 ½ weeks to complete.

That made little sense given the invoices from Crown Building Supplies were dated from June 5, 2018 to December 16, 2019. [ 66 ] The evidence of Mr. Pangli did not have the degree of inconsistency found in Mr. Dhaliwal’s evidence, and overall I prefer his evidence. What Were the Contract Terms? [ 67 ] The original contract was the verbal agreement for stuccowork at a cost of $26,500 plus a further $4,000 for listed extras. [ 68 ] Mr. Dhaliwal said Mr. Pangli agreed to pay for the costs of a rainscreen at the cost of $3,417.62. Mr.

Pangli said he only agreed to pay for the difference in costs between the original rainscreen and the upgraded rainscreen, and only if the upgraded rainscreen resulted in a better finish. [ 69 ] The written contract makes two references to a rainscreen, with price amounts associated with both. This is consistent with Mr. Pangli’s evidence that he only agreed to pay for the cost difference between the original rainscreen and any upgraded version. I accept

Mr. Pangli’s evidence in this regard. [70] I do not accept that the purchase of the upgraded rainscreen was contingent on there being a better stucco finish. The writtencontract contains a typewritten clause that reads as follows: Acceptance This contract is approve & accepted. I understand there are no oral agreements or understanding between the parties on this agreementwritten terms, provisions plains (if any) specifications in this contract in the entire agreement between the parties, change in thisagreement shall be done by written changes order only and with the express.

Approval both parties change may incure additional change. [71] As badly worded as this clause was, it remains clear that any agreement making payment for the upgraded rainscreen contingenton a better stucco finish had to be in writing. As the written agreement failed to include such a term, the Defendants’ obligation to pay forthe rainscreen was not conditional. [72] Unfortunately, I received no evidence about the costs for the original rainscreen. The Crown Building Supplies invoices showpayments for Dri Wall Rainscreen Keene for $2,250 (June 5, 2018 invoice) and $750 (August 7, 2018 invoice).

This totals $3,000. Therewere added costs for staples. With taxes, the Claimant sought a total of $3,417.62. Since the claim is for the cost difference between theoriginal rainscreen and the Keene rainscreen, I will fix that amount at $1,500. [73] I turn to the claim for extra work for what Mr. Dhaliwal described as the posts ($1,200) and the stone posts ($1,000). Mr.Dhaliwal provided limited details of this work and almost no information on how these charges were calculated. The only writtenevidence about these claims came from two text messages sent by Mr.

Dhaliwal with no supporting documents or invoices to substantiatethe claims. Mr. Pangli denied any agreement to pay these costs. Given my concerns about the credibility and reliability of Mr.Dhaliwal’s evidence, I find that the Claimant has not met the burden of proving these claims on the balance of probability and I do notaccept them. [74] There is no dispute that Mr.

Pangli paid the sum of $8,000 and $7,360, a total of $15,360. [75] I arrive at the balance owing under the contract as follows: Original Contract Price $26,500Extras $4,000Rainscreen $1,500Paid ($15,360)Balance $16,640 Were Changes to the Agreement Binding on the Claimant? [76] The parties’ original agreement was made verbally in approximately June or July 2018. The written contract was entered into onOctober 10, 2018. Mr. Pangli wrote in additional terms requiring completion of deficiencies before final payment was due.

Were theseadditional terms to the agreement binding on the Claimant? [77] For a contract to be binding, the parties must exchange “consideration.” This refers to some right, interest, profit or benefitprovided to a party, or for the other party to give something up. [78] In the decision Rosas v. Toca, 2018 BCCA 191 , the Court stated at para. 183: …When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress,unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable.

A variation supported byvalid consideration may continue to be enforceable for that reason, but a lack of fresh consideration will no longer be determinative. [79] Mr. Dhaliwal agreed to the modification of the verbal agreement and to the terms set out in the written contract of October 10,2018, as shown by his signature to the written contract. The contract is binding on the Claimant despite the lack of new considerationfrom the Defendants.

Was Payment Postponed Until All Deficiencies Were Repaired? [80] Was the payment of the balance owing under the contract, being $16,640, only due after the Claimant repaired all deficiencies? [81] In order for a contract term to be enforceable, it must be certain. I refer to the decision Babich v. Babich, 2015 BCPC 175, where the court set out at paragraph 16 the elements of a contract.

One such element was described as follows: Certainty of the agreed terms: Before a binding contract can exist, the parties must agree on all essential terms and express themselves sothat their meaning can be determined with a reasonable degree of certainty. [82] The written contract states that the balance is payable “when job is done right.” [83] This condition is vague and unenforceable. There is no objective standard to determine “when the job is done right.” Mr.Dhaliwal felt the job was done right. Mr. Pangli disagreed.

There were clearly deficiencies as referred to in the report by Glenn Duxbury,which I will discuss later. Because that report came out some 2.5 years after the written contract was signed, it does not explain “whenthe job is done right.” [84] Another term of the contract stated:

*All Deficiencies shown by owner will be fixed before final payment. [ 85 ] The reference to deficiencies is again vague. There was no listing of the deficiencies in the written contract. The Duxbury report found that deficiencies existed but it cannot be used to define what the parties meant by “deficiencies” in the written contract.

I find that the contract term to fix unspecified deficiencies before final payment is too vague to be enforceable. [ 86 ] I conclude that the requirement for payment is not postponed until the Claimant has remedied all deficiencies. [ 87 ] I turn now to review the reports submitted by each party and to determine the admissibility of the reports into evidence. Review of Expert Reports [ 88 ] The rules of evidence in Small Claims Court proceedings are somewhat relaxed.

Section 16 of the Small Claims Act allows the court to admit as evidence any oral or written testimony, record or other thing so long as the court considers the evidence credible or trustworthy, and relevant. This is so even if that evidence is not admissible in another court under the laws of evidence. [ 89 ] Rule 10 of the Small Claims Rules deals with the giving of expert’s evidence. The purpose of expert evidence is to provide an opinion to the court on a matter that requires expertise.

Otherwise, opinion evidence is generally not admissible as evidence. [ 90 ] Under the Small Claims Rules , a person qualified as an expert in a particular area of knowledge may give expert opinion evidence on that specific subject. Rule 10(5) refers to the requirement to provide an expert’s statement of qualifications. [ 91 ] Both parties submitted written reports. The Claimant provided the report of Glenn Duxbury, dated May 17, 2021. The Defendants submitted the report of Stinger Home Inspections, prepared by Brejesh Davda following an inspection on July 7, 2020. [ 92 ] The report of Mr.

Duxbury is clearly admissible as evidence. The report attaches Mr. Duxbury’s Curriculum Vitae and satisfies the requirement for a statement of qualifications. I will discuss the contents of the report later in my decision. [ 93 ] The report of Stinger Home Inspections was written by “Brejesh Davda CPBC #62504.” “CPBC” likely refers to a licenced home inspector from Consumer Protection BC. The report also has a watermark referring to the International Association of Certified Home Inspectors - InterNACHI. However, there is no actual statement of qualifications. Mr.

Davda was not called as a witness to the trial and there is no evidence of his qualifications. [ 94 ] Although s. 16 of the Small Claims Act gives me the discretion to allow evidence I consider to be credible and relevant, the Rules clearly set out a higher standard in the case of expert evidence. As there is no confirmation of Mr. Davda’s qualifications to give expert evidence, I do not accept his report for the purposes of providing expert opinion evidence. I believe Mr. Pangli was aware of this concern. During his evidence, Mr.

Pangli said that he would leave it to me to assess whether deficiencies existed. [ 95 ] Notwithstanding my view that the Stinger Home Inspection report is not an expert opinion report, I will still refer to the report. As Mr. Davda is a certified home inspector, I accept his report as a written statement of an independent witness that sets out his observations. The Report of Stinger Home Inspections [ 96 ] The date of the inspection by Brejesh Davda of Stinger Home Inspections occurred on July 7, 2020. The “General

Summary” of the report sets out the following observations: During the inspection, there were multiple signs of uneven stucco walls, bumps, chips, rusted fastener stains, drips and edge gaps throughout the exterior walls. The stucco finish coat did not appear to be level and even throughout the majority of the surface plains which gives the home a bumpy appearance which also effects the overall appearance of the house and may depreciate the value of the house. I have attached some pictures on pg 31-32 that were taken at night with lights on to show the uneven surface more clearly.

The edge panel sections along the sides of the basement windows were all different sizes varying from 4.5”- 9” and did not cover the exterior wall water proofing and framing in areas which can lead to water egress and rot damage to the home. The stucco will require a certified contractor to further investigate for possible repairs which will include resurfacing the entire acrylic coating to properly match the existing finish. Conducting patch repairs will make the appearance worse. [ 97 ] The report

summary said the value of the house may have depreciated but I do not accept this statement as evidence since it is only speculation. In any event, the Defendants have not counterclaimed for a loss in value of the home. The Report of Glenn Duxbury [ 98 ] The Curriculum Vitae of Mr. Duxbury said he is a “professional Home & Building Consultant & Master Inspector.” He has over 30 years of experience documenting deficiencies and writing reports, and has provided expert evidence in past court proceedings. [ 99 ] Mr. Duxbury went to the house for a site visit on April 9, 2021. His report was printed on May 17, 2021.

Mr. Duxbury set out the questions asked of him and his responses as follows: Opinions What was the overall quality of the stucco application?

In my opinion, the quality of the stucco application I observed was average, at best, overall. [ 100 ] Mr. Duxbury also noted “some unprofessional issues” compared to other stucco finishes he has observed and said this “finish lacks quality.” In your further opinion, whether there are limitations pertaining to any, or such a stucco application? In my opinion & experience, there are indeed limitations regarding how smooth and free of surface imperfections a stucco exterior can exhibit.

A hand-troweled application such as this must be expected to include the same effects of interior plastering done by hand, as another example. My opinion is based on the fact I have observed normal non-uniformities & mainly localized surface imperfections, which seem to be typical, as seen elsewhere. No hand-applied application such as this can achieve a uniform finish as well as a factory finish installed uniformly. Concerns expressed regarding “bumps” visible, such are cosmetic, in fact and do not affect the stucco performance. [ 101 ] Mr.

Duxbury went on to say that viewing the stucco surface using artificial lighting, as was done for the Stinger Home Inspections report, was not an accepted standard for documenting surface defects. He said the recognized method is to view the surface under normal lighting conditions. [ 102 ] The next question asked of Mr. Duxbury was: Were there, in your opinion, any other observations and/or matters you consider necessary to address and opine on? [ 103 ] Mr. Duxbury said stucco is not meant as a complete water-barrier.

He continued: It is also my expert opinion, all the intersections between the stucco finish and door/window trims, electrical conduits shown on pages 6/7 of the Stinger report and the differential front elevation finish should have been designed to have an intentional 1/8 inch - 3/16 inch gap left, which would then receive an appropriate exterior sealant applied between the two materials. [ 104 ] Mr. Duxbury went on to say the lack of a flexible connection between different materials would guarantee cracking of the stucco. [ 105 ] Mr.

Duxbury disagreed with an opinion expressed in the Stinger Home Inspection report that vertical electrical conduits on the side walls should have been covered by stucco. Mr. Duxbury said the stucco should have been applied to the wall before the conduits were installed. [ 106 ] In review of the report, it was clear that Mr. Duxbury equated the performance of the stucco with waterproofing rather than appearance. Mr. Pangli’s evidence was that the appearance of the stucco was a primary concern for him.

Were There Deficiencies? [ 107 ] Both the reports of Glenn Duxbury and Stinger Home Inspection, as well as the photographs submitted by Mr. Pangli, confirm that deficiencies existed in the stuccowork. [ 108 ] The observations set out in the Stinger Home Inspection report included the following:

a) Uneven stucco walls

b) Bumps (stucco finish not level)

c) Chips

d) Rusted fastener stains drips

e) Edge gaps, exposed framing and gaps

f) Exterior pipes not covered in stucco [ 109 ] The observations set out in the Glenn Duxbury report included the following:

a) Lack of quality in the finish

b) Rough finishing of the stucco, particularly at transitions with wall projections.

c) Gaps were left showing.

d) Lack of stucco coverage leaving some substrate exposed

e) Some stucco lacking in apparent thickness to match the surface

f) Localized surface imperfections caused by hand application [ 110 ] There were disagreements between the report writers about whether the appearance of the stucco surface was deficient. The most

notable was about the use of artificial lighting by Stinger Home Inspections to identify waviness in the wall surfaces. Mr. Davda ofStinger Home Inspections was not qualified to give expert evidence about how to assess the quality of a stucco surface. Mr. Duxburysaid that stucco surfaces should only be assessed under normal lighting conditions. However, Mr. Duxbury went on to say theResidential Construction Performance Guide was silent on exterior stucco, and he did not cite any support for his view about how toexamine stucco surfaces.

I am left uncertain about how the quality of a stucco surface should be assessed. [111] Mr. Duxbury equated the performance of the stucco with waterproofing rather than appearance. I think this ignores theperspective of a homeowner who is also seeking a home with an appealing exterior. It seems to me that in any stucco contract, there is animplied term that the finished appearance of the stucco must be presentable from the perspective of a reasonable bystander.

Thedifficulty is in determining what is reasonably presentable. [112] Contract terms could specify a standard by which to assess the quality of a stucco surface. In this case, the contract terms werevague in saying the job is to be “done right” or that unnamed deficiencies are to be fixed. The contract refers to “ruff surface (waves)” butI am uncertain if this applies to “waves” that are shown under artificial lighting. [113] Mr.

Pangli drafted the terms of the written contract referring to deficiencies and he is responsible for the uncertainty of thewording. [114] Neither report described the home’s stucco texture as being a mix of fine and medium texture, even though Crown BuildingSupply invoices showed the Claimant purchased two different stucco textures. [115] Given the above, I am not satisfied on the balance of probabilities that the surface appearance of the stucco was a deficiency. [116] Regarding other deficiencies with the stucco, the Stinger Home Inspection report said that exterior pipes running along the wallsshould have been covered in stucco.

This was an opinion that I cannot accept because Mr. Davda was not qualified to give an expertopinion. The Duxbury report said the pipes should have been left away from the wall to allow the stucco to be applied to the wall.However, this was not an option available to the Claimant. The Claimant was presented with a wall with pipes attached. In thosecircumstances, I find that the Claimant should have applied stucco to cover the pipes fully since a partial covering was unsightly asshown in the photographs. [117] I turn now to discuss the remedy for the deficiencies.

Did the Claimant Have a Right to Repair Deficiencies? [118] Any party that has suffered losses because of another party’s actions or inaction has a duty to take reasonable steps to preventfurther harm or loss. This is known as a “duty to mitigate.” Canadian Quality Stucco says that the Defendants breached their duty tomitigate by preventing the Claimant from repairing the deficiencies, such that I should not allow any claims by the Defendants for repaircosts. [119] In the decision Jozsa v.

Charlwood-Sebazco, 2016 BCSC 78 , the court stated: [73] Even where an owner terminates a contract, the owner can still counterclaim for defective work: Keating on ConstructionContracts, at p. 293. However, the contractor has the right to remedy any defects in the work himself, and if he is deprived of that rightthe owner’s right of set off may be curtailed: Wiebe v. Braun, 2011 MBQB 157, at para. 32. As stated in Obad v. Ontario HousingCorp., [1981] O.J. No. 282, at paras. 47-48 (H. Ct.

J.): 47 With reference to the counterclaim or claim of set-off for damages arising from non-completion of the work, the effect of thedefendant, Ducharme, telling the plaintiff to “get off the job” was to revoke the plaintiff’s license to continue working there.Furthermore, in a practical way, engaging other persons to do the work of the plaintiff, effectively prevented the plaintiff fromcompleting his contract.

The defendant, Ducharme, having thus prevented completion cannot obtain damages for failure of the plaintiffto complete. 48 With respect to the claim for damages resting on expenditures to correct the plaintiff’s work, it would seem that, although thedefendant, Ducharme, is entitled to have a set-off for defective work, its obligation to mitigate its damages would require that it allow theplaintiff to continue, having in mind the reasonable probability that the plaintiff would correct its own work in order to obtain payment ofthe price.

On that basis the defendant, Ducharme, is not entitled to have damages based on its own costs of correction. Alternatively, theplaintiff was obliged to correct its defective work and the defendant, Ducharme, having prevented the plaintiff from fulfilling thatobligation, cannot have damages in the ordinary way based on its having undertaken itself to carry out such corrections. [120] In the decision Meszarics et al v.

Hart Modular Homes et al, 2020 BCPC 234, the court said: [114] At common law, where there are deficiencies in construction work, in the absence of a fundamental breach, the contractor isentitled to a reasonable opportunity to rectify the work. In C. S. Bachly Builders Ltd. v. Lajilo, (ONSC), the claimantsought to fully set off the amount she owed to the builder for alleged defects in restoration work to her residence. The deficiencies werenot so defective as to go to the root of the contract and the work have no value.

The builder offered to fix the deficiencies but thehomeowner refused him access and hired another builder. The trial judge found the homeowner had a duty to mitigate and provide thebuilder a reasonable opportunity to correct his work. Having refused the builder that opportunity, the homeowner was not entitled todamages based on her cost of correction. The trial judge awarded damages based on the builder’s cost of rectification. [121] In the decision Lind v. Storey, 2021 BCPC 2, the court stated: [83] There is nothing in writing specifying the manner in which Mr. Lind would perform the work.

Nevertheless there is an impliedwarranty in all contracts for work and labour that the work will be carried out in a good and workmanlike manner: McCrea v. Fournier,2017 BCPC 30 , citing p. 5-11 from Goldsmith on Canadian Building Contracts.

[84] In Lagrisola v. Mapa, 2018 BCPC 356 , Judge Chettiar cites the following passage from Halsbury's Laws of Canada,1st ed., vol. "Construction" (Markham: LexisNexis Canada, 2008) at HCU-52: There is an implied term in a construction contract that a contractor will perform its work diligently and in a good and workmanlikemanner. Absent agreement to the contrary, a contractor need not build to a standard of perfection, but only in a good and "workmanlike"fashion. The workmanship obligation requires care and skill in the physical execution of the specified work. [Citations omitted] [85] In A.A.A.

Aluminum Products Ltd. v. Grafos, 2015 BCSC 2128 , Mr. Justice Brown states: [20] The common law implies a warranty that construction contracts will be carried out in a reasonable and workmanlike manner . . . Thebuilder’s obligation also extends to making good on defects and deficiencies . . . [Citations omitted]. ….. [89] A contractor has the right to return to a worksite and repair deficiencies: see Meszarics et al v. Hart Modular Homes et al, 2020BCPC 234 , citing C.S. Bachly Builders Ltd. v. Lajilo, (ONSC), at para.114, Rocksolid v. Bertolissi, 2013ONSC 7343 , Don Pocock Construction Ltd. v.

Brady, [2004] O.J. No. 688, (ON SC) at para. 42; LongwellEnterprises Ltd. v. McGowan [(1989), 37 C.L.R. 13 (B.C. Co. Ct.) [90] In Connolly v. Greater Homes Inc., 2011 NSSC 291 at para. 48, the Court stated: . . . the governing legal principle is that wherever it is reasonable, a party has a positive obligation to afford to the party alleged to havecaused a deficiency an early opportunity to examine and to rectify it.

That is consistent with general principles of mitigation . . .[Citations omitted] [91] If an owner fails to provide the contractor with a reasonable opportunity to correct the deficiencies in its work, which do notconstitute a fundamental breach of the contract and where there is no urgency, the owner is not entitled to claim damages based on his orher cost to have the deficiencies repaired by a third party contractor: Rocksolid v.

Bertolissi, at para. 92. [122] In the decision Bridgewater Tile Ltd. v Copa Development Corporation, 2022 BCSC 310, the court said: [222] As for the obligation not to interfere with performance, the plaintiff analogizes its situation to that of the contractor in Jozsa v.Charlwood-Sebazco, 2016 BCSC 78. In Jozsa at para. 65, citing the decision Penvidic Contracting Co. v.

International Nickel Co. ofCanada, (SCC), [1976] 1 S.C.R. 267 at 276, Steeves J. confirmed that “[c]onstruction contracts contain an implied termthat the owner will not prevent the contractor from accessing the worksite”. [223] I agree with the plaintiff’s submission that the combination of Mr. Han’s outburst at Mr. Nowicki, the failure to inviteBridgewater back on site and the ultimate dismissal of grinding as a viable remediation technique constitute a breach of this obligation. [224] But the question remains as to whether the alleged deficiencies can ground a claim for a set-off.

It is a firmly establishedprinciple that, even where an owner breaches a construction contract, they can still counterclaim for defective work; that said, where thecontractor is prevented from remediating the alleged defects, this may adversely impact the owner’s set-off claim: Jozsa v. Charlwood-Sebazco, 2016 BCSC 78 at para. 73. [123] In the decision Centura Building Systems

(2013) Ltd. v 601 Main Partnership, 2022 BCSC 295, the court stated: [104] Citing RPC Construction Ltd. v. Zhiyi Zhou, 2017 ONSC 4044[RPC Construction], Centura argued that 601 Main lost its right toa set off for deficiencies by failing to provide Centura with the opportunity to correct the deficiencies. The defendants addressed thispoint before Centura changed its position on the validity of the termination of the Contract.

The defendants argued that even if 601 Mainwas not entitled to terminate the Contract, they were entitled to a set off for correcting deficiencies and their obligation to provideCentura with the opportunity to remedy deficiencies arose only where it was reasonable to do so. They relied on Jozsa v. Charlwood-Sebazco, 2016 BCSC 78. [105] I observe that in both RPC Construction and Jozsa, as well as the cases cited in Jozsa on this point (Wiebe v. Braun, 2011 MBQB157 and Obad (c.o.b. Rockwood Drywall) v. Ontario Housing Corp., [1981] O.J.

No. 282), the party seeking a set off for deficiencieswas found to have wrongly terminated the contract: RPC Construction at para. 74, Jozsa at para. 65, Wiebe at para14, and Obad at paras.22-23 and 31. [106] Whether the obligation to provide a contractor with an opportunity to correct deficiencies arises when the contract has beenvalidly terminated was not directly addressed by the parties.

Nevertheless, it is my view that the intention of the parties as reflected in theContract was that 601 Main would not be obliged to provide Centura with the opportunity to correct deficiencies upon terminationpursuant to GC 6.5.10. First, a termination of the Contract without notice is inconsistent with the trade contractor remaining on site tocorrect deficiencies because the Contract under which the deficiencies would be corrected has been validly terminated. More directly,upon termination under GC 6.5.10, the Owner has the express right to “engage another party to finish the Work”.

Finishing the workwould include correcting deficiencies existing at the time of the termination. This conclusion is consistent with GC 2.4.3 which, as notedabove, expressly gives 601 Main the right to a set off in relation to deficiencies subject only to the Construction Manager holding theopinion that it is not expedient for the contractor to remedy the deficiencies. Icon was the Construction Manager and the evidence of itssite superintendent, Mr.

Brezovski, leaves no doubt that by the time the Contract was terminated Icon had formed the opinion that it wasnot expedient to permit Centura to correct any deficiencies. [124] From these cases, I draw the following principles that apply to any claim or counterclaim against a contractor or builder: 1. There is a presumption in every construction contract that the contractor or builder is entitled to have a reasonable opportunity tocorrect any deficiencies.

2. This presumption may be rebutted based on the circumstances, including the following:

a) The contract expressly or by necessary implication does not give the contractor or builder the right to correct deficiencies;

b) The contract has been validly terminated such that the parties are released from their obligations under the contract;

c) The contractor or builder, has through its words, actions or inaction, elected not to correct the deficiencies;

d) The contractor or builder has fundamentally breached the contract; or

e) The circumstances are such that it would be unreasonable to permit the contractor or builder an opportunity to correct the deficiencies. One such circumstance is if the contractor or builder is unable or unwilling to correct the deficiencies within a reasonable time. 3. If a party with a claim against the contractor or builder improperly prevents the contractor or builder from correcting any deficiencies, then this may be a breach of that party’s duty to mitigate and adversely affect any claim by that party against the contractor or builder.

Did the Defendants Unreasonably Prevent the Claimant From Performing Repair Work? [ 125 ] I start with the presumption that there is an implied contractual term that Canadian Quality Stucco Ltd. had a right to repair any deficiencies. I turn now to consider whether the evidence rebuts this presumption. In other words, did the Defendants deny the Claimant the opportunity to correct the deficiencies? [ 126 ] The Claimant refers to the June 14, 2019 text where Mr. Pangli told Mr. Dhaliwal the Claimant was no longer welcome at the job site.

Despite this, subsequent text messages show there were further requests by Mr. Pangli for the Claimant to repair the deficiencies. On September 19, 2019, Mr. Dhaliwal said they did not attend the work site as planned because of the weather. On November 6, 2019, Mr. Pangli texted Mr.

Dhaliwal to say that the Claimant had to do repairs first before the Defendants would make payment. [ 127 ] The requests for repairs only stopped once Canadian Quality Stucco filed their Claim of Builder’s Lien on November 19, 2019. [ 128 ] The last of the Crown Building Supplies invoices is dated December 16, 2019, which is inconsistent with the Claimant’s submission they stopped working as of June 14, 2019. [ 129 ] I find that the Defendants did not prevent the Claimant from performing repair work.

The Claimant refused to return to the work site and elected not to correct the deficiencies. [ 130 ] I turn now to consider the counterclaim and the damages for the repair of the deficiencies. The Counterclaim [ 131 ] The Counterclaim is for the statutory maximum of $35,000 and is stated in the Defendants’ Reply and Counterclaim as follows: • Removing current stucco and redoing the new stucco $29,500 • Metal scaffolding $3,500 • Taking off and reinstalling downpipes and cleaning paint from door + windows $2,000 Removing Current Stucco and Redoing the New Stucco [ 132 ] Mr.

Pangli obtained three quotes for the stucco repair work. [ 133 ] Choice Stucco Ltd. provided the highest quote at $79,800. This included the removal of the existing stucco. As I was not satisfied that the stucco surface was deficient, removal of the stucco was not justified.

This solution is excessive in my view. [ 134 ] Gold Coast Stucco & Design Ltd. provided a quote of $58,900 for the following work: • Apply Polybase Over Existing Acrylic Stucco Walls for Levelling • Relocate Stucco Walls at Window-Well Sections • Reposition Stucco Stop at Left-rear Corner • Re-apply Acrylic Colour Finish texture • Supply & Install Scaffolding [ 135 ] Northwest Stucco Ltd. provided the lowest quote at $39,000 for the following work: • Repair will be done to 3 sections of the house only (left, right and back side) • Relocate stucco walls at window-well sections • Relocate stucco stop at left rear corner and rear deck

• Apply polybase for leveling where needed • Install missing flashing on fireplace vent • Re-apply acrylic colour finish texture • Supply and install scaffolding [ 136 ] The quote set out a payment

schedule as follows: • $13,000 due when the right side of the house was finished • $13,000 when the back side of the house was finished • $14,950 when the left side of the house was finished. [ 137 ] Mr. Pangli accepted the Northwest Stucco quote and to date has paid Northwest Stucco the first two payments totalling $26,000. Mr. Pangli intends to have the work completed and pay the balance owing of $14,950. [ 138 ] The Northwest Stucco quote did not involve removal of existing stucco but did include resurfacing the stucco.

Because I am not satisfied the surface quality of the stuccowork was deficient, I will not award compensation for resurfacing the stucco. Nevertheless, there were deficiencies in the stuccowork as recognized by Mr. Duxbury, and which was also evident in the various photographs. I will fix the amount of compensation for repair of the stucco at $10,000. Metal Scaffolding [ 139 ] Mr. Pangli testified that he paid $1,034.52 and a further $318.30, a total of $1,352.82, for the purchase of materials for the scaffolding constructed by the Claimant. Mr. Pangli said he purchased the materials at the request of Mr.

Dhaliwal with the understanding that Mr. Dhaliwal would reimburse Mr. Pangli. Mr. Dhaliwal denied that there was any such agreement. [ 140 ] The written contract refers to the following items: Scaffold & Rainscreen 3,000 Extra for Front Ready For Stone (Scaffold, Meshwire, Rainscreen, Scratch Coat) 4000 CAD [ 141 ] The contract does not say the scaffolding costs were just for its construction. Instead, the contract simply makes two references to “scaffold.” I find that a reasonable

interpretation of these contract terms required the Claimant to supply the materials and construct the scaffolding. The Claimant wrote this part of the contract. If the Claimant intended to charge only for the construction of the scaffolding, it should have stated so in the contract. [ 142 ] I find that the contract required the Claimant to construct the scaffolding using their own materials. As such, the Defendants will be compensated for the sum of $1,352.82. Taking Off and Reinstalling Downpipes and Cleaning Paint From Door + Windows [ 143 ] Mr.

Pangli submitted a quote from A & N Woodworking dated May 15, 2021 for $6,500 to replace window and door trims, soffits, and for taking down and reinstalling the downpipes. Mr. Pangli was able to do much of the work himself and only paid A & N Woodworking $2,000 for cleanup of stucco splatter and the partially covered downpipes. I accept that this was to rectify deficiencies and I find that this is a proper claim against the Claimant. [ 144 ] Mr.

Pangli also submitted a quote from Dominion Crown Mouldings dated May 19, 2021 for $2,434.60 for “Corner Quoins, CA2866 (12” x 12” x 2-1/2”)” plus additional charges for delivery and “touch-up mud.” Mr. Pangli said this was for replacement of moulding that the Claimant had covered in paint. [ 145 ] Mr. Pangli did not say why paint on the moulding, which was more likely coloured stucco, could not have been cleaned off. The evidence showed that cleaning off paint or stucco had occurred before. In a text message sent November 6, 2019, Mr. Pangli told Mr.

Dhaliwal the painter cleaned stucco paint from the soffits and window trim; although the window trims could not be cleaned properly. In another instance, during his evidence about the A & N Woodworking quote, Mr. Pangli said he did a cleanup of stucco splatter. These examples suggest that cleaning off paint or stucco was a possibility and likely a more reasonable alternative to replacing the moulding. In light of this, I fix the compensation at $1,000. Conclusion [ 146 ] The claim and counterclaim will be set-off against each other.

I summarize these amounts as follows: Amount Owing to Claimant $16,640 Less compensation for stucco repair ($10,000) Less costs for scaffolding materials ($1,352.82) Less costs for stucco splatter and downpipes ($2,000) Less costs for moulding ($1,000) [ 147 ] The result is that the Defendants will pay to the Claimant the sum of $2,287.18. In addition, the Claimant is entitled to its filing

fee of $156 and the service fee of $25, a total of $2,468.18. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia