Stump dba Mainland Fencing v. Strata Plan NWS611, 2023 BCPC 145

Citation: Stump dba Mainland Fencing v. Strata Plan NWS611 2023 BCPC 145 Date: 20230619 File No: C-19155 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RUSSELL PATRICK WILLIAM STUMP DOING BUSINESS AS MAINLAND FENCING CLAIMANT AND: STRATA PLAN NWS611 DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing on his own behalf: R. Stump Appearing for the Defendant: G. Graham, Strata President and K. Gough, Strata Council Member Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: May 23, 24, 2023 Date of Judgment: June 19, 2023 Introduction

[ 1 ] This is a claim by Russell Patrick William Stump, who carries on business as Mainland Fencing, against Strata Plan NWS611, concerning a contract for the replacement of fencing at 2957 Oxford Street, Port Coquitlam, B.C. Mr.

Stump seeks payment of $10,700, which is the unpaid balance of the amount owed under the contract, plus interest and court fees. [ 2 ] Strata Plan NWS611 opposes the claim and counterclaims for damages totalling $35,000 for a refund of the amount paid to the Claimant ($27,085.27), compensation for a damaged tree ($5,000) and compensation to the owners for their time spent dealing with this litigation ($2,914.73).

The Parties [ 3 ] When this action commenced, the Notice of Claim was filed under the name “Mainland Fencing.” Mainland Fencing is an unincorporated entity and cannot bring a legal action: Chefs Secret Service Inc. v. Greyell , 2021 BCPC 42 at para. 8 .

The parties were before me on May 22, 2023, and I made an order amending the Notice of Claim to state that the Claimant was Russell Patrick William Stump, carrying on business as Mainland Fencing. [ 4 ] Strata Property Act s. 163 allows for a claim against a strata corporation as a representative of the owners concerning any matter dealing with the common property. The Claimant brought this action against Strata Plan NWS611 and I presume that he has claimed against the correct legal entity. The Reply and Counterclaim filed by Strata Plan NWS611 did not raise this as an issue.

The Property [ 5 ] The strata property complex at 2957 Oxford Street, Port Coquitlam, B.C. (the “Property”) is comprised of three buildings that surround on three sides a common parking area. There are two buildings of six units each opposite each other. I will refer to these as the “North Building” and the “South Building”. In between the North and South Buildings is a building with four units. I will refer to this as the “West Building”. [ 6 ] The units are row townhouses sharing common walls with their neighbours. The backs of each unit have a fenced yard.

The yards of adjoining units are divided by a shared fence. What were the Contract Terms? [ 7 ] In March 2021, Mr. Stump was contacted by John Gough on behalf of Strata Plan NWS611 to request a quote for the replacement of a fence at the Property. [ 8 ] According to Mr. Stump, the written contract was executed on June 1, 2021 (the “Contract”) by Beatrice Obetoh, then the president of the Strata Corporation, and Mr. Stump. At the time, the Strata Council members included Ms. Obetoh, Geoff Graham and Kim Gough. Mr.

Graham is now the president of the Strata Corporation. [ 9 ] The terms of the Contract included the following, which I have repeated below without any correction for grammar or spelling: Work to be performed New fence stained on site before installed. Old fencing removed. Digging out new holes for post 2 feet deep as pre code New fence installed. Type of fence 6 foot solid fence. Deliverable Service We here at mainland fencing are friendly and clean up at the end of each day we take one hour to clean up all garbage from demo and from installation.

We use screws and not nails as nails bend too easily as where screw must break. All work performed will be of highest of quality and not quantity. Friendly customer service. Demo and clean up done by us. One year warranty on labour. We try not to leave yards open if we have too it will only be for the one night. Products we use • Treated lumber for posts and kickboards • #1 grade Cedar for the fence • Fence gate hardware

• Stain with 5-years warranty • Screws • Cement for posts [ 10 ] The project start date was to be June 14, 2021, and the Contract stated that the work would be done in six weeks. [ 11 ] The Contract price was $35,700. The Contract said the first payment amount was $15,000 due on approval. The second payment amount was $10,000 due after the first

section was installed. The last payment amount was $10,700 due upon completion. [ 12 ] The parties executed a change order dated October 16, 2021. The cost for that was $2,085.27, which was paid on October 19, 2021. [ 13 ] There are no other written changes to the Contract. [ 14 ] The Contract lacks any term requiring amendments to the Contract to be in writing. What Happened? [ 15 ] The first payment of $15,000 was received on June 5, 2021, a few days after the Contract was approved. [ 16 ] The project did not start on June 14, 2021, as planned. On that day, Mr.

Stump met with Strata Council members to review each unit at the Property. Mr. Stump said one of the units had a shed that needed to be moved to gain access to the fence. As the Contract required the replacement fence to be stained, Mr. Stump left colour samples for the Council to consider. [ 17 ] On June 15, 2021, Mr. Stump had lumber dropped off at the Property. [ 18 ] On June 21, 2021, the Strata Council selected a stain colour. [ 19 ] In addition to Mr. Stump, there were two other workers. The work started on June 24, 2021, with the staining of the new wood.

This occurred during the first week of work. [ 20 ] Starting the second week, the workers progressed unit by unit by removing the old fence and installing the replacement fence. As they did so, any objects blocking access to the fence had to be moved, such as barbeques or the shed. [ 21 ] The North Building was completed on July 23, 2021. Mr. Stump requested the next payment. The Defendant asked that they first meet, and that meeting occurred on July 27, 2021. Mr. Graham, Ms. Gough and Ms. Obetoh were present at the meeting.

The parties discussed a change in the appearance of the gates and gaps that were present in the vertical fence panels. [ 22 ] Mr. Stump said they had just gone through a heat wave and the fence panels had shrunk. Mr. Stump was instructed to adjust the fence panels to close the gaps. This was done by inserting a further panel into the fencing. [ 23 ] Mr. Stump cautioned the Defendant that if it rained, the panels may expand and warp the fence. Nevertheless, he was instructed to proceed. Mr.

Stump said that later when it did rain, there was some warping of the fence and he had to return to make repairs. [ 24 ] On July 31, 2021, Ms. Gough emailed Mr. Stump with a list of deficiencies. Mr. Stump said the deficiencies were repaired over the next two weeks. [ 25 ] The parties had a further meeting in August 2021 and the deficiency repairs were approved. Mr. Stump was then told to proceed with work on the West Building. The second payment of $10,000 was made at that time. [ 26 ] The work on the West Building started on approximately August 7 or 8, 2021.

An issue arose about the removal of some of the old fence posts which were attached to an adjacent parking garage. Mr. Stump said he was concerned that the removal of these fence posts may cause damage to the parking garage. He met with Mr. Graham and the decision was made not to remove the old post. [ 27 ] On August 18, 2021, the Claimant was close to finishing work on the West Building when Mr. Graham sent a text message to Mr. Stump to stop the fence removal work on the last two units until they could meet. Mr.

Graham was out of town at the time and they arranged to meet on August 21, 2021. [ 28 ] On August 21, 2021, Mr. Graham and Mr. Stump met. Mr. Graham wanted to speed up the project and asked Mr. Stump to leave in place the posts in the last two units of the West Building. Mr. Stump agreed to this. [ 29 ] On August 24, 2021, Mr. Stump went to work on the last unit of the West Building when he saw a notice posted on the fence for him to stop work. The notice was from Ms. Obetoh who asked that Mr. Stump call her. Mr. Stump did and a meeting was set up for that evening. Ms. Obetoh and Ms.

Gough were present at the meeting. Ms. Obetoh expressed concerns about leaving the old posts in place, and it was agreed that Mr. Stump would now replace the remaining old fence posts in Building 2. [ 30 ] Over the next three days, the work on the West Building progressed. [ 31 ] The last unit of the West Building belonged to Ms. Gough and her husband John Gough. An incident occurred between one of Mr. Stump’s workers and Mr. Gough such that the worker was told to leave the Property. There was no evidence of the nature of the incident. Mr.

Stump said he had to reassign another worker to the site and that the new worker was not available until the following week.

[ 32 ] The work resumed in September 2021 and the fence work on the West Building was completed. [ 33 ] A further meeting was held on September 14, 2021. In attendance were Mr. Stump, Ms. Obetoh, Ms. Gough and Mr. Gough. They reviewed the second fence for deficiencies. One gate was still missing as it had not yet been delivered. The parties also agreed to have a third-party inspector view the fence work for deficiencies after it was completed. [ 34 ] There was an issue with one tree that was on the property line between Mr. and Ms. Gough’s unit and their neighbour. Mr.

Stump had the tree pulled back so that the new fence could be constructed between the two units. Afterwards, the tree was leaning on the new fence. They discussed moving the fence but that meant placing a post over a concrete slab which may have required cutting into the slab. A decision was made to leave the tree and the fence as is. [ 35 ] Sometime later, a notch was found cut into the same tree so that it was no longer touching the fence. There is no evidence as to who may have cut the notch in the tree. Mr. Graham expressed concern that the notch may eventually kill the tree, requiring its replacement.

However, there is no evidence that the tree was injured by the notch or that it would eventually die and require replacement. Mr. Stump denies that he or any of his workers cut the notch in the tree. [ 36 ] On September 17, 2021, Ms. Obetoh emailed Mr. Stump to confirm he could proceed with the work on the South Building before dealing with the deficiencies in the other buildings. Mr. Stump resumed work on September 18, 2021. [ 37 ] On October 16, 2021, the parties executed a change order for additional fence work. The cost for that was $2,085.27, which was paid on October 19, 2021.

At this stage, the total paid by Strata Plan NWS611 to Mr. Stump was $27,085.27. [ 38 ] Mr. Stump testified that the fence work was completed by October 23, 2021, except for some staining. He asked for payment of the balance but was told this had to wait for the deficiency report. [ 39 ] On October 25, 2021, Mr. Stump met with Ms. Obetoh and Ms. Gough. Mr. Stump was told that the Defendant was still looking for a third-party inspector. [ 40 ] On November 3, 2021, Mr. Stump sent a text to Ms. Obetoh to ask to meet to discuss the inspection and final payment. Ms.

Obetoh said she was not available to meet that week. [ 41 ] On November 10, 2021, Mr. Stump met with Ms. Gough and Mr. Graham. Mr. Stump was presented with a deficiency report prepared by Bryan Reed of One Call Home Repairs. I will discuss this report in greater detail later in my Reasons. [ 42 ] On November 11, 2021, Mr. Stump had another meeting with Ms. Obetoh and Ms. Gough. Ms. Obetoh insisted on repairs to the deficiencies. Mr. Stump disputed that some of the matters referred to in the One Call Home Repairs report were deficiencies.

The Defendant took the position that they would not make any further payment until the deficiencies were dealt with. [ 43 ] Mr. Stump said he had presented three proposals to address the deficiencies, with the last one sent on November 30, 2021. There was no response to this proposal. [ 44 ] On December 3, 2021, the Claimant filed a Builder’s Lien against the Property. [ 45 ] On December 4, 2021, Ms. Obetoh emailed Mr. Stump to say: “Your detailed plan is still not as detailed as we require, but we are willing to proceed and correct those issues as we go.” Mr.

Stump asked for a time when he could start the repair work and said he knew of only one gate that was not opening properly. [ 46 ] On December 6, 2021, Ms. Obetoh responded: We will not continue to repeat ourselves over whether what you have to do is completing the unfinished fencing job or deficiencies. We all know and agree the job is NOT COMPLETE, we need you to complete the fencing job to industry standard… [ 47 ] On December 9, 2021, and then again on December 15, 2021, Mr. Stump emailed Ms.

Obetoh requesting a date for when he could start the repair of the deficiencies. [ 48 ] On January 9, 2022, a Special General Meeting of the strata property owners was held, where the owners voted unanimously to terminate the Contract with the Claimant. [ 49 ] On January 10, 2022, Mr. Obetoh emailed Mr. Stump, attaching a letter of the same date. The letter stated as follows: Effective immediately, the Owners of the units at 2957 Oxford Street, Port Coquitlam have voted to terminate the contract between Mainland Fencing and the Strata Owners of Kimmel Court, 2957 Oxford Street.

The breach is repudiatory, and the contract is terminated. The contract is breached by: 1) Failure to complete the contract within the timeline provided in the contract; 2) Incomplete and substandard quality of the fences and gates as described in our previous report provided to you by One Call Home Repairs; 3) Failure to dig out new holes for posts two (2) feet deep as per code; 4) Failure to deliver friendly and/or professional customer service, including verbal and physical threats and harassments to owners at the above noted property.

[ 50 ] On January 20, 2022, Mr. Stump filed his Notice of Claim. Time to Complete Contract [ 51 ] The evidence is clear the parties were prepared to and did adjust the time expected for the completion of the project. This was shown by the instances where Strata Plan NWS611 asked the Claimant to delay work so that the construction could be reviewed.

Strata Plan NWS611 also required time for decisions to be made by the Strata Council and the owners. [ 52 ] Despite the timeline set out in the Contract, I am satisfied that the parties, by their discussions and conduct, agreed that there was no longer a firm deadline for the completion of the work. As there was no requirement for changes to be in writing, this was a permitted amendment to the Contract. [ 53 ] I find that the parties amended the Contract such that the work no longer had to be completed within six weeks.

Absent a time for completion, there is then an implied term of the Contract that it be completed within a reasonable time: Young Boy Drywall v. Housemaster Construction , 2020 BCPC 14 at para. 35 Was the Contract Performed by the Claimant? [ 54 ] Mr. Stump takes the position that the Contract was completed. [ 55 ] Strata Plan NWS611 disagrees and refers to the One Call Home Repairs report which suggested that the fence was only 60% complete. I do not accept this suggestion.

Perhaps if a large number of the fence panels or posts had not been installed, this suggestion might carry some weight but that was not the case. [ 56 ] From the description of the work and the pictures put into evidence, it was evident that fences had been installed in the yards of all three buildings. In the circumstances, I am satisfied that the work was substantially completed. In arriving at this conclusion I have not considered any deficiencies in the quality of the work, which is the subject of the Counterclaim. [ 57 ] The Contract required the last payment of $10,700 upon completion.

I turn now to consider if the circumstances excused Strata Plan NWS611 from making this payment. Is the Defendant Excused From Paying the Balance Due Under the Contract? [ 58 ] The BC Supreme Court stated in the decision Cartoon v. Natterjack Animation , 2002 BCSC 1763 : [48] It is trite law that not every breach of contract gives the aggrieved party the right to treat the contractual relationship as at an end. A party may only treat the contract as repudiated where a breach goes “to the root of the contract.” In Hong Kong Fir Shipping Co. v.

Kawasaki Kisen Kaisha Ltd. , [1962] 2 Q.B. 26 (CA) at 66, Lord Diplock stated: The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings. [ 59 ] It is not every breach of contract that entitles a party to treat a contract as over and to excuse any further contractual obligations, such as payment.

There must be a fundamental breach of contract. Put another way, has Strata Plan NWS611 been deprived of substantially the whole benefit that was to be given to Strata Plan NWS611 under the Contract? [ 60 ] In my view, the Contract was for the replacement of a fence and that replacement did occur. I am not satisfied that Strata Plan NWS611 has been deprived of substantially the whole benefit intended under the Contract. As such, I find that there has not been a fundamental breach of the Contract.

Therefore, Strata Plan NWS611 has not been excused from the obligation to pay the final instalment due of $10,700. [ 61 ] That is not the end of the matter though. Strata Plan NWS611 may still be entitled to compensation for damages if the Claimant breached the Contract. As such, I now turn to consider the Counterclaim. The Counterclaim of Strata Plan NWS611 [ 62 ] The Counterclaim reads as follows: The independent 3 rd party inspector found so many flaws that the whole fence will need to be taken down and reconstructed. Mainland Fencing killed a mature tree in one yard by cutting a notch in it.

An arborist came to the site and confirmed it needs to be removed. Mainland took excessive time on the project. Contract was for 6 week duration. Fence still not complete after 8 months. [ 63 ] The breakdown of the Counterclaim was as follows: a. Refund amount paid to date so the Strata can hire a new contractor to replace the fence $27,085.27 b. Remove and replace damaged mature tree $5,000 c. Compensation to Owners $2,914.73 [ 64 ] Before I consider the Counterclaim, I must first determine if the Claimant breached the Contract. If there is a breach, then I must determine what damages are owed by the Claimant.

Did the Claimant Breach the Contract? [ 65 ] Strata Plan NWS611 submitted two reports in support of the Counterclaim, one by One Call Home Repairs and the other by Joseph Hogge. [ 66 ] The One Call Home Repairs report was prepared by Bryan Reed. The report stated that Mr. Reed has “over 35 years’ experience in the industry.” No other information was provided to describe Mr. Reed’s qualifications to give expert opinion evidence as required by Small Claims Rule 10(5). [ 67 ] Ms. Gough said that her husband referred Mr. Reed to the strata council to prepare the report and that her husband and Mr.

Reed are colleagues. The business known as One Call Home Repairs works under a larger business entity called High Mark, which also employs Ms. Gough’s husband. Because Mr. Reed did not testify at trial, I cannot be certain of his independence and whether he gave an unbiased opinion. [ 68 ] The nature of expert evidence is to provide an opinion to the Court that is objective and independent. Partisan evidence is not acceptable. Furthermore, the person giving opinion evidence must be qualified as an expert capable of providing that opinion. [ 69 ] Due to the lack of information about Mr.

Reed’s qualifications and his connections to a resident of the Property, I will not accept this report as expert opinion evidence of the quality of the construction work. However, I will consider the report as a record of Mr. Reed’s observations. [ 70 ] The report of Joseph Hogge, dated August 27, 2022, was obtained by the Defendant because it recognized that Mr. Reed of One Call Home Repairs may not be considered an independent third party. [ 71 ] Mr. Hogge’s report stated he is a journeyman/carpenter. Beyond that, I have no information about his qualifications.

His business name and address were not even supplied. [ 72 ] There is insufficient evidence about Mr. Hogge’s qualifications to allow me to accept his report as expert evidence. I will still consider the report as a record of Mr. Hogge’s observations. The report included photographs of the Property and provided a quote for the cost of the total replacement of the fence. [ 73 ] Strata Plan NWS611 alleged that there was a breach of contract concerning the quality of the wood used. A term of the Contract required the use of “#1 grade Cedar for the fence”.

Strata Plan NWS611 argued that inferior-grade wood was used in the construction of the fence. The Defendant cited Mr. Stump’s receipts for wood purchases that included references to “#2 & BTR.” Mr. Graham said this indicated that a lower quality of wood was purchased. Mr. Stump said that this was how the wood was described in the receipt and that it referred to #2-grade wood or better. Mr.

Stump said he went through the wood at the time of purchase to ensure only #1-grade wood was selected. [ 74 ] The reference in the receipt to “#2 & BTR” does seem to refer to #2-grade wood and better. [ 75 ] As there is no evidence from an accepted expert who has examined the wood to determine its grade or quality, Strata Plan NWS611 has not proven on the balance of probabilities that the Claimant used substandard quality wood. [ 76 ] In my review of the evidence, there were still multiple deficiencies in the work. Mr. Stump acknowledged such in his deficiency reports sent to Strata Plan NWS611. Mr.

Stump argued though that he should have been allowed to return to the Property to rectify the deficiencies. [ 77 ] The evidence of the deficiencies included the following: a. Some parts of the fence still required staining. b. Some gates were not working. c. Parts of the fence were sagging or warped. d. Thirty-one fence posts were starting to rot. e. There were gaps between the fence boards. [ 78 ] Based on the evidence of the deficiencies, much of which has been acknowledged by Mr. Stump, I find that the Claimant has breached the Contract. The work was not of the “highest quality” as referred to in the Contract.

What is the Measure of Damages? [ 79 ] Strata Plan NWS611 has not provided an estimate for the repair of the fence. [ 80 ] The report from Mr. Hogge suggested that the cost for the total replacement of the fence would be $57,000. [ 81 ] Strata Plan NWS611 also submitted an estimate for a total fence replacement from WestCoast Land/Coquitlam Fence Builders dated June 10, 2022, for $57,500 plus GST of $2,875, a total of $60,375. [ 82 ] An email from Smart CedarWorks dated December 6, 2021, suggested certain repair work but did not provide a cost estimate.

This email referred to repairs as opposed to a total replacement. A later email from Smart CedarWorks referred to “standards expressed to the contractor” but there is no evidence of what those standards were, or whether they were for repair or improvement of the fencing.

[83] The quotes for a total fence replacement, ranging from $57,000 to $57,500 plus GST, seem excessive when compared to theClaimant’s price of $35,700.

No evidence was provided to explain the cost difference. [84] The report of One Call Home Repairs stated under the heading “Recommendations” that: “Most of the issues are minor, thoughthere is quite a few deficiencies that will need more that (sic) a quick repair.” The report then concluded that: “There needs to besignificant repairs done to give a certificate of completion.” The description of the issues being minor, yet requiring significant repairs,appears contradictory. [85] Neither the One Call Home Repairs report nor the Smart CedarWorks email call for a total fence replacement.

I have also notbeen provided with proper expert evidence to suggest total replacement is required. [86] I find that Strata Plan NWS611 has not shown on the balance of probabilities that the fence must be removed and replaced. Myassessment of the measure of the damages is based only on the repair of the fence. [87] I turn now to discuss the claims as described in the Counterclaim of Strata Plan NWS611. Those claims were: a. Refund amount paid to date so the Strata can hire a new contractor to replace the fence $27,085.27 b. Remove and replace damaged mature tree $5,000 c.

Compensation to Owners $2,914.73 [88] A refund can be sought if the contract provides for such. That was not the case here. [89] In some situations, the performance of a contract can be “frustrated”. That is a legal term which refers to an event that makes theperformance of an agreement impossible: Gingras v. Wijnhorst, 2021 BCPC 4 at para. 41. That is also not the case here. [90] I find that there is no legal basis for Strata Plan NWS611 to claim a refund. [91] Regarding the claim for the damaged tree, there is no evidence of who may have cut the notch in the tree. Mr.

Graham expressedconcern that the notch may eventually kill the tree, requiring its replacement. However, there is no evidence that the tree was injured bythe notch or that it would eventually die and require replacement. [92] Mr. Stump denied that he or any of his workers cut the notch in the tree. [93] Although it seems likely that the tree notch was cut to allow for the fence installation, there is no evidence that the tree washarmed or that it will eventually die and require replacement.

Absent such evidence, I will not award damages for the removal andreplacement of the tree. [94] The claim for compensation to the owners concerns the time and effort spent by the owners in responding to this claim. TheSmall Claims Rules do not permit such claims, which are equivalent to court costs that are awarded to a successful party in BC SupremeCourt actions. This claim is denied. [95] The true nature of the Counterclaim is for damages for breach of contract.

In such a claim, the measure of damages is the amountrequired to put Strata Plan NWS611 in the position it would have been if the Contract had been performed according to its terms:Keneric Tractor Sales Ltd. v. Langille, [1987] 2 SCR 440, at para. 29. [96] Damages are not awarded for any “betterment,” which means putting Strata Plan NWS611 into a better position than it wasentitled to under the Contract. [97] Subject to any claims regarding Mr.

Stump’s right to make repairs and the possible failure of the Defendant to mitigate its losses,Strata Plan NWS611 is entitled to damages for breach of contract. [98] The lack of evidence about repair costs makes it difficult to assess the damages and in such a case, the Court can only give itsbest estimate: Penvidic Contracting Co. Ltd. v.

International Nickel Co. of Canada Ltd., (SCC), [1976] 1 S.C.R. 267 at p.279-80. [99] In the decision Quick Pass Master Tutorial School Ltd. v Zhao, 2022 BCSC 1846, the Court said: [96] The fact that damages are difficult to assess does not mean that the court should relieve the wrongdoer of the necessity to paythem: Penvidic Contracting Co. Ltd. v. International Nickel Co. of Canada, (SCC), [1976] 1 S.C.R. 267 at 289. In somecases, the best that can be achieved is a rough estimate as to the amount of damages that have been suffered: Nickel v. Takhar, 2020BCSC 1462at para. 62.

The court can and should draw inferences from the evidence as to the probable extent of the loss and determinethe quantum of the loss as best it can. [100] I have concluded that the appropriate amount of compensation for the costs of repairs is $18,750. I arrived at this amount afterconsidering the evidence as a whole, and in particular the following:

a) The original contract price was $37,500.

b) The quotes for a total fence replacement ranged between $57,000 to $57,500 plus GST.

c) The costs for repairs will be less than the costs to replace the fence.

d) The extent of the deficiencies, including the need to replace 31 rotting fence posts, means that extensive work will be required.

e) The amount of $18,750 is half the original contract price and should be appropriate compensation for the costs of repairs. Did the Claimant have a Right to Fix Deficiencies? [ 101 ] The Claimant says it had a contractual right to make repairs to the fence. The Claimant also says that Strata Plan NWS611 failed to mitigate its losses by refusing to allow the Claimant to make repairs. [ 102 ] Where there is a breach of contract, the innocent party must take reasonable steps to mitigate or lessen its losses.

In certain circumstances, that may include allowing the other party to make repairs. [ 103 ] I refer to my decision in Canadian Quality Stucco Ltd. v. Pangli , 2022 BCPC 126 , where I discuss a contractor’s right to make repairs: [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 to correct 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. [ 104 ] From the evidence, it is clear the owners of the Property had lost faith in the Claimant’s ability to carry out the repair work. There was a lengthy delay in carrying out the work although a large portion of that is attributable to Strata Plan NWS611.

Nevertheless, given the extent of the deficiencies and the time it took to carry out the work, it would be unreasonable to expect Strata Plan NWS611 to allow the Claimant to return to the Property to make repairs. I find the Claimant lost the right to make repairs and that the Defendant did not fail to mitigate its losses by having the Claimant make repairs. Decision [ 105 ] The Defendant, Strata Plan NWS611, is indebted to the Claimant for the sum of $10,700. The Claimant is indebted to the Defendant for the sum of $18,750.

These sums will be set off against each other, and the Claimant will be liable to pay the difference of $8,050, plus court fees. [ 106 ] I order the Claimant, Russell Patrick William Stump carrying on business as Mainland Fencing, pay the Defendant, Strata Plan NWS611, the sum of $8,050, plus the Counterclaim filing fee of $156 and the Reply filing fee of $50. [ 107 ] A party may wish to make submissions regarding payment of expenses, fees or a penalty pursuant to the Small Claims Rules.

This includes any claim where a formal Offer to Settle has been made under Small Claims Rule 10.1. [ 108 ] If that is the case, then the applicant party must file written submissions with the Registry addressed to my attention within 21 days after the date these Reasons for Judgment are released, with a copy of the filed submissions sent forthwith to the other party. Within 35 days after these Reasons for Judgment are released, the responding party may file with the Registry address to my attention a response to the claim, with a copy delivered to the other party.

If a response is not received within this time, then I will assume that the responding party will not be making a response. I will in due course issue a further written decision to the parties. Terms of Order [ 109 ] My order is as follows; Russell Patrick William Stump carrying on business as Mainland Fencing shall pay Strata Plan NWS611 the sum of $8,050, plus filing fees of $206.

Should either party wish to submit a claim for payment of further reasonable charges, expenses or a penalty relating to the conduct of these proceedings pursuant to Small Claims Rule 20, or for payment of a penalty pursuant to Small Claims Rule 10.1, they shall within 21 days of the date of this decision:

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

b) Provide a copy of those submissions to the other party.

If the other party wishes to set out their position about the claim for reasonable charges, expenses, or any penalty, then that party must file written submissions with the Court no later than 35 days of the date of this decision, with a copy provided to the first party. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia