Shiridokht v. Ilic, 2023 BCPC 81

Citation: Shiridokht v. Ilic 2023 BCPC 81 Date: 20230428 File No: C-18830 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MEHDI SHIRIDOKHT CLAIMANT AND: NEDA ILIC and NIKOLA ILIC DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing on his own behalf: M. Shiridokht Counsel for the Defendants: J. Skands Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: April 11 - 13, 2023 Date of Judgment: April 28, 2023

Introduction [ 1 ] Neda and Nikola Ilic are the owners of a home in Port Coquitlam, B.C. [ 2 ] In July 2020, the Ilics contacted Mehdi Shiridokht, who operates under the business name Ideal Remodeling Group, to do renovations to their home. [ 3 ] The Ilics allege that there were deficiencies in the work, and they bring a claim for damages for breach of contract or negligence.

Court History [ 4 ] This proceeding originated from a Notice of Claim filed by Mehdi Shiridokht against Neda and Nikola Ilic on March 23, 2021, seeking payment of a balance owed on the contract for renovation work at the Ilics’ home. [ 5 ] The Ilics filed a Reply and Counterclaim on April 1, 2021. They said Mr. Shiridokht did not complete the contract and there were several deficiencies. The Ilics counterclaimed as follows:

a) Amount claimed for reimbursement of payments to the Claimant for the deficient improvements - $22,963.50

b) Amount claimed to remedy Deficiencies, in addition to amount claimed for reimbursement of payments to Claimant - $11,229.05

c) Amount claimed for the broken sliding glass door - $807.45 [ 6 ] Mr. Shiridokht disputed the Counterclaim. [ 7 ] On April 27, 2021, Mr. Shiridokht filed a notice withdrawing his Notice of Claim. As a result, the only matter before me is the Counterclaim of the Ilics. The Evidence [ 8 ] I heard from the following witnesses:

a) Nikola Ilic

b) Chris Glasser of Glasser Brothers Construction

c) Neda Ilic

d) Mehdi Shiridokht [ 9 ] The following reports were tendered by the Ilics as expert evidence:

a) Report of David Fairbairn of Fairbairn Inspections Services Ltd. based on a property inspection made on December 8, 2020

b) Notes and Report of Min Park of P & B Engineering Ltd.

c) Report of Joseph Oh of Braun Geotechnical Ltd., dated April 1, 2021 The Evidence of Neda and Nikola Ilic [ 10 ] On July 14, 2020, Mr. Ilic sent an email to Ideal Remodeling Group asking for a quote for a 30’ x 20’ balcony. [ 11 ] On July 17, 2020, Mr. Shiridokht came to the Ilic home where they discussed the work to be done. [ 12 ] The Ilics wanted a second-floor deck to be built, and below the deck a storage room, patio and walkway. The parties discussed how the deck was to be attached to the home and the posts needed to support the deck. [ 13 ] On July 29, 2020, Mr. Shiridokht emailed an initial quote to Mr.

Ilic. There followed further discussions. This included an email from Mr. Shiridokht to Mr. Ilic to say the quote “includes materials and labour to applying torch-on and inistalling ( sic ) Schluter Ditra on new deck.” This was a reference to the method and product to be used to waterproof the deck. Another email sent by Mr. Shiridokht included a diagram showing the installation of the Schluter Ditra membrane underneath the deck tile. [ 14 ] On July 30, 2020, Mr. Ilic emailed Mr. Shiridokht to say they were comfortable with what was discussed and asked for a final quote. [ 15 ] On August 1, 2020, Mr.

Shiridokht came to the home a second time and met with Mr. and Ms. Ilic. [ 16 ] Mr. Ilic provided Mr. Shiridokht with a set of drawings for the project. The drawings were of a second-storey deck, with stairs leading to a lower patio. The drawing showed that the lower patio would be built using 24” pavers or square pieces of concrete. The drawing also showed the use of 4” x 6” treated wood bordering the pavers. [ 17 ] The Ilics asked Mr. Shiridokht about the need for a building permit. Mr. Shiridokht said a building permit and drawings were

required and this would take 2-3 weeks to obtain. The Ilics understood Mr. Shiridokht would be responsible for obtaining the necessary building permit. [ 18 ] On August 11, 2020, Mr. Shiridokht provided the Ilics with a formal quote dated August 5, 2020. It read as follows:

a) Concrete and grading (including pouring concrete and raise around the edge of existing concrete slab, and stairs landing) - $7,650

b) Building wood structure patio (similar to drawing) - $11,800

c) Tile work on top of the patio floor (including tile $6.15 per square foot) - $4,500

d) Waterproofing patio - $3,300

e) Modify and reinforce the the ( sic ) exterior wall (including New post and beam) - $3,700

f) Lower patio and path (24” pavers similar to drawing) - $4,800 [ 19 ] The total cost was $37,537.50 inclusive of GST. The quote also contained the following blurb: All Materials are included. Project start 17 th of August 2020.

Project time around 3 weeks. 80% of the payment should be receive before the project is done (20% of total deposit to start and 3 more payment to complete the payment) [ 20 ] The August 5, 2020 quote did not refer to torch-on waterproofing or who was responsible for obtaining the building permit. [ 21 ] The renovation work commenced on August 17, 2020. [ 22 ] After the construction started, Mr. Ilic noticed that a glass patio door was broken. According to Mr. Ilic, Mr. Shiridokht said that some “wood jumped” and broke the glass door. [ 23 ] Ms.

Ilic said after they learned that the glass patio door had been broken, the relationship with Mr. Shiridokht started to deteriorate. [ 24 ] During the second week of construction, Mr. Ilic noticed that the newly built stairs leading from the upper deck to the lower patio swung back and forth. [ 25 ] In his evidence, Mr. Ilic referred to “stair runners”, being the vertical surface of a flight of stairs that support the stair tread or the actual step. These are also referred to as “stringers.” Mr. Ilic said each stair runner was not from a single piece of wood. A picture of a stair runner taken by Mr.

Ilic confirmed this. Ms. Ilic also said the staircase was constructed from wood that was marked and had chips. [ 26 ] The parties argued about the construction of the stairs, and Mr. Shiridokht agreed he would replace the stairs. [ 27 ] The Ilics raised other issues about the renovation work with Mr. Shiridokht, as follows:

a) The lower patio was not excavated to a sufficient depth and was sloped toward the house, raising concern about water flowing toward the house.

b) The deck waterproofing was not by way of a torch-on material but a waterproof membrane called “RedGard.” The material was not applied to the edge of the deck. The Ilics allege that the use of RedGard on a deck was contrary to the B.C. Building Code .

c) The quote included a charge for the installation of new posts and beams to support the deck. However, new posts were not used and the Ilics objected to paying this cost. [ 28 ] The deck tiles were also an issue. The initial quote set out a cost of $4,500 for the supply and installation of the porcelain deck tiles. The Ilics told Mr. Shiridokht they wanted a tile from Julian Tile at a cost of $6.15 per square foot. Mr.

Shiridokht acknowledged this request in an email sent on August 8, 2020, stating “…I will bring it back to original estimate $4500, in final receipt.” The August 5, 2020 estimate included a charge of $4,500 for the supply and installation of the tiles. [ 29 ] Despite the fact the tiles were part of the final quote, there was uncertainty over who was to order the tiles. In addition, Mr. Shiridokht was required to start a new job on Monday, September 7, 2020, and so his time to complete this project was drawing to a close. [ 30 ] On September 3, 2020, Ms. Ilic emailed Mr.

Shiridokht to remind him to provide an updated invoice to include the “extras we’ve added on…” These were listed as follows:

a) Framing of the room below the deck (including window)

b) Concrete edge on the north side of the house (cutting and digging)

c) Eight additional pavers (discussed today)

[ 31 ] Ms. Ilic said she sent the email because Mr. Shiridokht would never provide a price for the items. Ms. Ilic also disputed that these items were extras even though the email referred to them as such. [ 32 ] As the deadline for completion of the project was quickly approaching, Ms. Ilic arranged for the purchase of the tiles. The purchase price was $4,142.44, with a delivery charge of $246.88. The tiles were delivered to the home on Thursday, September 3, 2020. Mr.

Shiridokht was to start the tiling on Friday and complete the work by Saturday. [ 33 ] On Friday, September 4, 2020, the parties had a heated discussion. Mr. Shiridokht presented the Ilics with an updated invoice dated September 3, 2020, for a new total of $41,191.50, based on a price of $39,230 plus GST of $1,961.50. This invoice listed three additional items as follows:

a) Extra additional framing below the deck (1300 [labour] + 300 material)

b) Extra additional [labour] and concrete slab edge (800 and 450 material)

c) Extra additional slab (4590 [labour] and 150$) [ 34 ] The Ilics were concerned about the quality of the work and whether the waterproofing was properly installed. Mr. Shiridokht wanted the next instalment payment. An argument followed. According to Mr. Ilic, Mr. Shiridokht “blew up” and said he would report the Ilics to the City of Port Coquitlam because there was no building permit. This came as a shock to the Ilics as they believed Mr. Shiridokht had obtained a building permit. Mr.

Shiridokht left the work site and only returned later that day to collect his tools and some materials. [ 35 ] Later that day, a City of Port Coquitlam building inspector named Tony Medic attended the home. Mr. Medic issued a stop work order due to the lack of a building permit. The Ilics allege that Mr. Shiridokht contacted the City of Port Coquitlam to report that the work was being done without a building permit. [ 36 ] From the time the work started on August 17, 2020, to September 4, 2020, neither party asked the other if a building permit had been obtained. [ 37 ] During the construction, Mr. and Ms.

Ilic paid Ideal Remodeling Group $22,963.50 by way of three payments of $7,654.50 as follows:

a) August 11, 2020 (cheque 11)

b) August 11, 2020 (cheque 45)

c) August 28, 2020 (cheque 47) [ 38 ] Ms. Ilic said the first cheque was for the initial deposit. She said they agreed to make payments of 20% every Friday for the duration of the project, and the next two cheques were for the first and second weeks of the project. [ 39 ] I am unclear how the amount of $7,654.50 was determined. The August 11, 2020 quote was for $35,750 plus GST of $1,787.50, for a total of $37,537.50. Twenty percent of this is $7,507.50. [ 40 ] The last two payments were not made. As Mr. Shiridokht withdrew his claim against the Ilics, I need not deal with whether the Ilics owed anything to Mr.

Shiridokht. [ 41 ] At some point, Mr. Shiridokht filed a Builders Lien claim against the property but that was never pursued. [ 42 ] After September 4, 2020, the Ilics undertook remediation work which is the subject of their claim for damages. I will discuss that work later in my reasons. The Evidence of Mehdi Shiridokht [ 43 ] Mr. Shiridokht confirmed being contacted by the Ilics to do the renovation work. [ 44 ] Mr. Shiridokht told the Ilics they needed a building permit because Mr. Ilic had planned to carry out some demolition work by exposing the wall where the deck was to connect to the home. Mr.

Shiridokht said it was the owners’ responsibility to obtain the building permit if demolition was required, but he was unsure if a permit was required for the construction work. Mr. Shiridokht denied being asked to obtain the building permit and maintained this was the owners’ responsibility. [ 45 ] Mr. Shiridokht also insisted that only the owner could obtain the building permit although I saw no evidence of this.

The Corporation of the City of Port Coquitlam Bylaw No. 3710 (A Bylaw relating to Building and Plumbing) ( the “ Building Bylaw ” ) was put into evidence and it makes no mention that only the owner can apply for a building permit. [ 46 ] There were no written communications between the parties discussing the building permit. [ 47 ] Mr. Shiridokht could not recall if he reported to the City of Port Coquitlam that the construction was being carried out without a building permit. [ 48 ] Neither party called a representative of the City of Port Coquitlam building permit department to testify. [ 49 ] Mr. Ilic gave Mr.

Shiridokht a drawing showing the intended appearance of the completed project. Mr. Shiridokht based the construction work on the drawing.

[50] That drawing showed a set of stairs leading from the deck to the lower patio. Mr. Shiridokht said the stairs were too long andneeded support posts, which were not part of the drawing. Mr. Shiridokht constructed temporary stairs with a final set to be built later.That final set of stairs was never constructed because Mr. Shiridokht left the work site. [51] Mr. Shiridokht provided the Ilics with a formal quote on August 11, 2020. The terms of that quote are set out earlier in myReasons. [52] The quote did not state how the waterproofing of the deck was to be done. This differed from Mr.

Shiridokht’s email of July 29,2020, which referred to the use of torch-on waterproofing. There is no indication Mr. Shiridokht told the Ilics that the method ofwaterproofing would be changed. [53] The Ilics submitted into evidence a geotechnical report. Mr. Shiridokht said it was the owners’ responsibility to determine if ageotechnical report was required and if so, to obtain that report. He denied any responsibility for ensuring that the soil conditions wereappropriate for the construction, or to warn the owners of the need for the report. [54] Mr.

Shiridokht was questioned extensively about sec. 9.26 of the British Columbia Building Code 2018 (the “Building Code”).He confirmed that his work was carried out in compliance with the Building Bylaw and the Building Code, and he denied that the workwas performed negligently. Assessment of Credibility [55] As the evidence of the parties differed, I must consider the credibility of the witnesses. The principles for doing so are describedin the decision Bradshaw v.

Stenner, 2010 BCSC 1398, wherein Madam Justice Dillion said: 186 Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve 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 andcross-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 (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Farnya at para. 356). 187 It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followedby an analysis of whether the witness' story is inherently believable.

Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions" (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB QB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [56] The Ilics presented their evidence in a straightforward manner, which evidence was consistent with each other. I am mindful thatthe Ilics would certainly have discussed their evidence with each other before trial which is to be expected. [57] Mr. Shiridokht’s evidence was more problematic because he was evasive at times. On several occasions, I had to direct him toanswer the question posed to him. It was also apparent English was not Mr. Shiridokht’s first language.

He seemed to have someproblems understanding questions, and this may have affected how he answered questions. [58] I am mindful that on its own, a witness’ demeanour is a poor reason to reject that witness’ evidence. I refer to the decisionFaryna v.

Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. 171 (B.C.C.A.), where the Court stated at pages356 and 357: If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness is caughtin a clumsy lie. [59] Aside from his demeanour, I have specific concerns about Mr. Shiridokht’s evidence. [60] I refer to Mr. Shiridokht’s evidence about the stairs. He testified that he built temporary stairs with the intention to replace themwith permanent stairs. I found it made little sense to incur the expense of labour and materials for a set of temporary steps. Noexplanation was given for the need for temporary stairs. There was also no time left at the end of the project to rebuild the stairs. I do notfind Mr.

Shiridokht’s evidence about the temporary stairs to be credible. [61] I also reject Mr. Shiridokht’s evidence that he could not remember calling the City of Port Coquitlam to report the lack of abuilding permit. The timing of the building inspector’s attendance at the home coincided with the parties’ dispute and Mr. Shiridokhtleaving the job site. Mr. Shiridokht also pursued other collection efforts including filing a Builder’s Lien and commencing the Small

Claims action. Calling the City is consistent with Mr. Shiridokht’s response to not being paid. Mr. Shiridokht’s uncertainty over whether he called the City was also one of the few matters he could not recall in his evidence. [ 62 ] I do not find Mr. Shiridokht’s denial credible. I am satisfied on the balance of probabilities that Mr. Shiridokht knew the construction was being carried out without a building permit and he reported this to the City of Port Coquitlam. [ 63 ] Given my concerns about credibility, I prefer the evidence of Mr. and Ms. Ilic to that of Mr. Shiridokht. What Can Be Claimed? [ 64 ] The Reply and Counterclaim filed on April 1, 2021, set out the following claims:

a) Amount claimed for reimbursement of payments to the Claimant for the deficient improvements - $22,963.50

b) Amount claimed to remedy Deficiencies, in addition to amount claimed for reimbursement of payments to Claimant - $11,229.05

c) Amount claimed for the broken sliding glass door - $807.45 [ 65 ] Mr. Shiridokht conceded responsibility for the broken glass door and the replacement cost of $807.45. [ 66 ] The question is whether the Ilics are limited to a maximum claim of $11,229.05, as set out in the Counterclaim. The Counterclaim itself has never been amended. [ 67 ] The Trial Statement submitted by the Ilics on January 18, 2023, set out their claim in detail. I summarize their claims, which are inclusive of GST:

a) Refund of the total paid to Claimant $27,352.82 (including costs of tiles)

b) Tri Cities Glass Station - replacement sliding glass door $801.15

c) Building Permit cost - $585.50

d) Fairbairn Inspection Services - deck inspection cost $418.95

e) P & B Engineering Ltd. - structural inspection cost $1,260

f) Braun Geotechnical Ltd. - inspection cost $1,155

g) Glasser Brothers Construction - repair costs $22,581.92

h) Aces Vinyl Decking Inc. - waterproofing $7,278.60 [ 68 ] These are the same claims as detailed at trial. [ 69 ] In the decision Burke v. Draegestein , 2009 BCPC 319 , this Court refused to allow the claimant to seek damages above that set out in the Notice of Claim. In doing so, the Court noted that the claimant had 13 months to bring to the attention of the defendant an additional claim for punitive damages. [ 70 ] I referred to Burke v. Draegestein in my decision White v.

Burton , 2022 BCPC 264 , where I said in para. 74: …A defendant is entitled to know the amount of the claim being sought, which is to be set out in the pleadings… [ 71 ] At trial, Mr. Shiridokht did not take issue with the Ilics claiming amounts above that set out in the Counterclaim. The details of the Ilics’ claims were set out in the Trial Statement filed and delivered to Mr. Shiridokht approximately three months before the trial. Unlike the situation in Burke v. Draegestein , Mr. Shiridokht did have notice of the particulars of the claims well before the trial.

The Ilics’ failure to amend the Counterclaim did not prejudice Mr. Shiridokht. I am satisfied that the Ilics can advance the claims set out in their Trial Statement. Claim For a Refund [ 72 ] I understood from counsel for the Ilics that the claim for a refund was not being pursued. [ 73 ] Even if that were not the case, a claim for a refund will only succeed in certain situations. This includes where the contract was induced by a misrepresentation, there was a fundamental breach, or the performance of the contract was “frustrated”.

Frustration is a legal term and refers to events that make the performance of an agreement impossible, impractical or fundamentally different from what the parties expected: Gingras v. Wijnhorst , 2021 BCPC 4 at para. 41 . [ 74 ] There was no evidence of any situations entitling the Ilics to a refund. This action is really about a claim for damages for breach of contract.

City of Port Coquitlam Building Requirements [ 75 ] On September 22, 2020, the Ilics made an application to the City of Port Coquitlam for a building permit. [ 76 ] The City responded by letter dated November 24, 2020, setting out its requirements, which included the following:

a) A structured registered professional is required to submit structural plans and construction details.

b) Provide the standards and specifications for the waterproof deck membrane.

c) Construction is to comply with the 2018 Building Code . [ 77 ] A further memo from the City of Port Coquitlam dated February 11, 2021, said, among other things, that a registered engineer and a geotechnical engineer may be required to submit reports. [ 78 ] The memo also said that “damp proofing” had to conform to sec. 9.13.1 of the Building Code . [ 79 ] To determine the required work, the Claimants obtained the opinions of experts who have submitted reports, which I will now discuss.

The Report of Fairbairn Inspection Services Ltd. [ 80 ] The Claimants obtained a report from Dave Fairbairn of Fairbairn Inspections Services Ltd. (the “Fairbairn Report”). Mr. Fairbairn’s inspection was carried out on December 8, 2020. [ 81 ] Mr. Fairbairn is a certified home inspector and a licensed power engineer, with his primary experience in residential home inspections and new construction deficiencies. [ 82 ] Mr. Fairbairn said his report was not intended to determine compliance with the Building Code . [ 83 ] Mr. Fairbairn’s conclusions included the following:

a) The joist hangers were installed with coated deck screws and not the required nails. As a result, the deck was not structurally sound and was considered unsafe.

b) A beam tie plate was installed using screws instead of the required nails.

c) Several hangers were installed incorrectly using deck screws and many of the hangers were bent and twisted.

d) A rim joist was installed using screws. This was inadequate and structurally unsound.

e) The Ditra waterproofing was not installed to the edge of the surface and will cause tile cracking later. Mr. Fairbairn said it was “unknown how well [RedGard] will perform in our climate.”

f) The stair stringers were built using two pieces of wood rather than a continuous piece. This would likely require mid-span support or a doubling of the stringers. The Report and Notes of Min Park of P & B Engineering Ltd. [ 84 ] Mr. Min Park of P & B Engineering Ltd. is a structural engineer retained by the Ilics as required by the City of Port Coquitlam. His notes, which I will refer to as the “P & B Engineering Report”, state that he examined the “structural capacity of structural components of the building, including anchorage and seismic restraint.” [ 85 ] Mr.

Park had Braun Engineering, a geotechnical engineering firm, review the soil-bearing capacity. Mr. Park concluded that the deck footings had to be re-designed due to “inadequate soil bearing capacity & frost depth.” The existing concrete curb was inadequate and “new strip footings have been added with 15M dowel bars.” The stairs were removed due to inadequate framing and new stairs were built. The Report of Joseph Oh of Braun Geotechnical Ltd. [ 86 ] Joseph Oh of Braun Geotechnical Ltd. reviewed the “subgrade for a building addition and a deck.” Mr.

Oh also reviewed the subgrade for the pedestal for seven posts for the deck. The pedestals were the concrete base upon which the posts sat. I understand that “subgrade” is a reference to the surface material. [ 87 ] Mr. Oh found the subgrades to be suitable for the pedestals. The Repair Work [ 88 ] Based on the reports, the Ilics retained Glasser Brothers Construction to carry out repair work. [ 89 ] I heard evidence from Chis Glasser of Glasser Brothers Construction. Mr. Glasser has been a framing contractor for 15 years. [ 90 ] Mr.

Glasser attended the home and was provided with the various experts’ reports. [ 91 ] On June 16, 2021, Mr. Glasser emailed Mr. Ilic to provide a list of the required repair work, as follows: – Temporary support deck in order to form and pour new footings and columns – Digging new trench for strip form. – Digging holes for forming 7 new columns

– Removal of 7 existing concrete columns that were poured at an inadequate depth as per the engineers comments – Forming up new strip form under existing concrete wall due to inadequate pour depth and no footing poured – Removal of out of level wood posts and re-installed on new concrete columns – Removal of existing concrete pad due to improper placement – Forming up new pad that fit the design plan of the deck – Installation of all seismic components as per engineers note (Kwik bolts, post caps, straps, hangers, knee braces) – Removal of all existing fascia.

Fascia installed did not drop low enough to hide soffit – Installation of new fascia to standard framing requirements – Temporary supporting deck for removal of existing 2x6 wall due to no gasket being installed under bottom plates to create barrierbetween concrete – Installation of additional 2x8s around perimeter of deck as per structural drawings – Blocking installed under existing exterior wall as per engineers notes – Dropping entire deck down to provide proper 2% slope as per plan.

Existing slope was .5% slope. – Removal of all concrete board and schluter system installed incorrectly on top of existing ply – Removal of existing ½” ply used for subfloor. (Typical minimum subfloor installation is 5/8” ply) – Removal of existing stairs (stairs installed were out of level, improperly placed, not built to industry standard) – Installation of new stairs that suit design of deck [92] Mr. Glasser confirmed carrying out the listed work. His invoice for the work totalled $22,581.92, which was paid by the Ilics. Analysis [93] Mr.

Shiridokht acknowledged that his work must comply with the standards set by the Building Code. [94] I find that the agreement between the parties had an implied term that the construction work would be performed with reasonablecare and skill, and at a minimum comply with the Building Code. [95] I refer to the decision Parker v. Robinson, 2014 BCPC 237, where Judge Gouge stated: [3] There was no written contract between Ms. Parker and Mr. Robinson. She simply retained Mr. Robinson to do the work, withoutany discussion of detailed terms of contract.

In those circumstances, the law implies a term that the work will be performed withreasonable care and skill. In the case of a building contract, the minimum requisite standard of care and skill is determined by theapplicable building code. Put another way, it is an implied term of such a contract that the standard of workmanship is to meet or exceedthe requirements of the applicable building code: G. Ford Homes Ltd. vs Draft Masonry (York) Co.

Ltd. (1983) (ON CA), 1 DLR (4th) 262; 43 OR (2d) 401; Window & Door Centre Inc. vs Pine Lake Properties Ltd. 2014 ONSC 1844 ; [2014] OJ#1364; terNeuzen vs Korn (SCC), [1995] 3 SCR 674 @ paragraph 81. [96] This same principle is set out in such decisions as G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., (ONCA), and Out West Windows v. Tilley, 2014 BCPC 296 at para. 17. [97] The question turns to whether the work of Mr. Shiridokht was carried out with reasonable care and skill, and at a minimumcomplied with the Building Code. For the reasons set out below, I am satisfied Mr.

Shiridokht failed to carry out much of his work withreasonable care and skill and he was in breach of his contract with the Ilics. [98] The Fairbairn Report and the P & B Engineering Report make clear that the deck constructed by Mr. Shiridokht was notstructurally sound and required replacement. Mr. Shiridokht is liable for the costs of the deck replacement. [99] The P & B Engineering Report confirmed that the deck footings and the stairs required replacement due to inadequateconstruction. Mr.

Shiridokht is liable for these costs. [100] The Fairbairn Report said that throughout the construction, deck screws were used rather than the required nails, and varioushangers were not installed correctly. These deficiencies required correction and Mr. Shiridokht is liable for this. [101] Mr. Glasser said the installed fascia did not drop low enough to hide the soffits, and this was not aesthetically pleasing. Thisdiffers from a requirement to perform work with reasonable care and skill. Where work is required to have a specific appearance, thatrequirement needs to be stated in the contract.

I will not award compensation for the fascia work. [102] Mr. Glasser said additional work was required due to the lack of gaskets to create a barrier with the concrete. Mr. Shiridokht saidhe used a spray sealant instead of gaskets but when asked for the name of the product used, he could not recall. He was also unsure if thespray sealant was approved under the Building Code. I am not satisfied that any spray sealant was used. Even if it had been, there is no

evidence that the use of such a spray was approved under the Building Code . Mr. Shiridokht will be liable for these costs. [ 103 ] Mr. Glasser’s work included the removal of all concrete board and the “schluter system installed incorrectly on top of existing ply.” This referred to Ms.

Shiridokht’s application of the RedGard Waterproofing and Crack Membrane to the plywood surface of the deck, which was then covered with a further membrane called Ditra. [ 104 ] The Fairbairn Report said the following about the waterproofing: The deck waterproof surface consists of red guard ( sic ) mastic, with Ditra board on top. 1. The Ditra has not been installed all the way to the edge of the surface. This will cause tile cracking later. 2. The waterproofing would have been better accomplished using hop-mopped tar or modified bitumen membrane.

It is unknown how well red guard will perform in our climate. [ 105 ] Mr. Ilic referred to a product specification sheet about RedGard Waterproofing and Crack Prevention Membrane. This sheet stated that suitable substrates include exterior plywood and decks. The sheet also referred to certain industry standards from the American National Standards Institute and the American National Standards for the Installation of Ceramic Tile. [ 106 ] Mr. Ilic directed me to sec. 9.26 of the British Columbia Building Code 2018 , which dealt with roofing.

I was told that the deck would fall under the definition of a “roof” as that term was defined in sec. 9.26.1.1 of the Building Code . This

section has a listing of acceptable roofing materials and the Ilics suggested that RedGard is not an approved roofing material. [ 107 ] I did not have the benefit of evidence from a building inspector from the City of Port Coquitlam who could testify whether RedGard was an approved product. The Fairbairn Report set out concerns about the product but nothing more. [ 108 ] Mr. Ilic introduced into evidence copies of emails he had with Leonard Odum of Custom Building Products, the distributor for RedGard. [ 109 ] On February 1, 2021, Mr. Odlum stated: RedGard can be used over exterior concrete.

Custom does not recommend or warranty RedGard as waterproofing over any type of wood/plywood exterior decks. [ 110 ] Mr. Ilic then provided Mr. Odum with a description of the deck construction. Mr. Odlum responded as follows: Properly tied into flashings and proper sealant it may work. Custom Building Product will not warranty the installation with RedGard designated to be the primary waterproofing membrane over wood framed construction. [ 111 ] Mr. Shiridokht testified that he has used RedGard on other projects.

However, that is not evidence the product is appropriate for use on uncovered decks. [ 112 ] The Ilics have not provided clear evidence that the use of RedGard does not comply with the BC Building Code . Custom Building Products will not guarantee the use of the product on the deck but that is an issue relating to their warranty and not the Building Code . I am not satisfied on the balance of probabilities that Mr. Shiridokht breached the contract by using RedGard to waterproof the deck. [ 113 ] What is of concern though is that Mr. Shiridokht did not apply RedGard or the Ditra waterproofing to the entire deck.

It seems to me that if waterproofing is to be effective, the entire surface should be covered. I find that a failure to do so is a breach of the requirement to perform work with reasonable care and skill. [ 114 ] Glasser Brothers Construction also removed the existing ½” plywood used for the deck. Mr. Glasser said the typical minimum subfloor installation is 5/8” ply. Mr. Shiridokht contradicted this suggestion, and submitted into evidence a printout from the Canadian Roofing Contractors Association website which had this statement: For low slope roofing (e.g.

BUR), plywood must be minimum 12.7 mm (1/2”) thick unless mechanically attached rigid insulation is installed prior to the roofing membrane… [ 115 ] Neither the Fairbairn Report nor the P & B Engineering Report expressed any concern over the ½” plywood. [ 116 ] I am not satisfied on the balance of probabilities that construction using ½” plywood was a breach of contract.

Assessment of Damages [ 117 ] Damages for breach of contract are assessed based on what is required to place the Ilics into the position they would have been if the contract had been properly performed according to its terms. [ 118 ] To deal with the requirements of the City of Port Coquitlam, I am satisfied that the reports from P & B Engineering Ltd., Braun Geotechnical Ltd. and Fairbairn Inspection Services were a necessary and reasonable expenditure. Mr. Shiridokht will need to reimburse the Ilics for these costs:

a) P & B Engineering Ltd $1,260

b) Braun Geotechnical Ltd. $1,155

c) Fairbairn Inspection Services $418.95

[ 119 ] The Ilics claim reimbursement for an invoice issued by Aces Vinyl Decking Inc. for $7,278.60 for vinyl flooring on the deck. I was not told why the Ilics chose to use vinyl flooring given they had purchased tiles for $4,142.44. Mr. Shiridokht is not liable for any betterment of the property, which appears to be the case here: Laichkwiltach Enterprises Ltd. v. F/V Pacific Faith (Ship) , 2009 BCCA 157 at para. 35 . This claim is dismissed. [ 120 ] There is no dispute that Mr. Shiridokht is responsible for the broken patio door.

The replacement door was purchased from Tri Cities Glass Station for $801.15, and Mr. Shiridokht is liable for this. [ 121 ] The Glasser Brothers Construction invoice was for $22,581.92. Mr. Shiridokht is not liable for the costs of fascia work, the removal of RedGard or the replacement of the ½” plywood. However, I do need to take into consideration that RedGard was not applied fully on the deck. Mr.

Shiridokht is also responsible for the costs of the other work performed by Glasser Brothers Construction. [ 122 ] As I have no breakdown of the individual costs of the work done, I will set the amount payable to reimburse for the construction work at $15,000. [ 123 ] I have considered the Ilics’ claim for reimbursement of the $585.50 cost of the building permit. Had Mr. Shiridokht obtained the building permit as he was required to under the contract, the Ilics would certainly have been charged for this cost.

The building permit fee had to be eventually paid by the Ilics, whether on the original construction or the repairs. This is not a loss caused by Mr. Shiridokht’s breach of contract and so this claim is denied. [ 124 ] The total award of damages is $18,635.10. In addition, Mr. Shiridokht will reimburse the Ilics for the Counterclaim filing fee of $156. [ 125 ] The Ilics may also be entitled to any other reasonable charges and expenses relating to the conduct of these proceedings pursuant to Small Claims Rule 20(2)(c).

Within 30 days of the date of this decision, the Ilics may submit any claims for such charges and expenses, along with supporting documentation, to the Registrar for approval. At the same time, the Ilics are to provide a copy of those submissions to Mr. Shiridokht. If Mr.

Shiridokht wishes to set out his position about the additional claim for reasonable charges and expenses, then he must file written submissions with the Court no later than 45 days after the date of this decision, with a copy provided to the Ilics or their legal counsel. [ 126 ] The Registry may of course refer any submissions to me for decision if required.

Summary [ 127 ] I order as follows: Mehdi Shiridokht will pay Neda Ilic and Nikola Ilic the sum of $18,635.10, plus $156 for reimbursement of the filing fee for the Counterclaim. Should Neda Ilic and Nikola Ilic wish to submit a claim for payment of reasonable charges and expenses relating to the conduct of these proceedings pursuant to Small Claims Rule 20(2)(c), they shall within 30 days of the date of this decision:

a) Submit their claim along with any supporting documentation to the Registrar of this Court for approval, and

b) Provide a copy of those submissions to Mehdi Shiridokht. If Mehdi Shiridokht wishes to set out his position about the claim for reasonable charges and expenses, then he must file written submissions with the Court no later than 45 days after the date of this decision, with a copy provided to the Ilics or their legal counsel. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia