A-Class Construction & Drywall Ltd. v. Kids Zone Child Care Centre Ltd., 2021 BCPC 279

Citation: A-Class Construction & Drywall Ltd. v. Kids Zone Child Care Centre Ltd. 2021 BCPC 279 Date: 20211021 File No: C-85378 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: A-CLASS CONSTRUCTION & DRYWALL LTD. CLAIMANT AND: KIDS ZONE CHILD CARE CENTRE LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Appearing for the Claimant: Gurcharan Gill (Representative) Appearing for the Defendant: Balvinder Saroya (Representative) Place of Hearing: Surrey , B.C. Dates of Hearing: January 28-29, 2021; June 16-17, 2021 Date of Judgment: October 21, 2021

INTRODUCTION [ 1 ] In or around March 2019, the parties entered into an oral contract (the “Contract”), pursuant to which the Claimant was to carry out certain renovation work (the “Delta Project”) at the Defendant’s leased premises, a trailer (the “Premises”), at 1115 51A Street, Delta, British Columbia (the “Delta Property”). [ 2 ] Pursuant to the Contract, the Claimant was to provide materials and labour for a fixed price. The Claimant says, at the Defendant’s request, it also provided materials and labour for certain extra work, described in more detail below (the “Ramp Repair”).

The Defendant says the Ramp Repair was part of the scope of the Contract. [ 3 ] The parties disagree on the scope and terms of the Contract. [ 4 ] The Defendant made a partial payment to the Claimant. [ 5 ] The Claimant brings this action in debt against the Defendant for $11,906.70, being the unpaid balance of the Contract price and the price of the Ramp Repair. The Claimant also claims interest pursuant to the Court Order Interest Act , [ RSBC 1996]

Chapter 79 , certain costs, including interpreter’s costs, and such further and other relief, as this court may deem just and reasonable. [ 6 ] Although the Claimant’s Notice of Claim included claims for the work Swaich Electrical Ltd. (“Swaich”) and Best VS Plumbing and Heating Ltd. (“Best VS Plumbing”) did on the Delta Project, these claims, for $4,462.50 and $1,297.32 respectively, were struck from the Notice of Claim during the pre-trial process. These two contractors were determined to have contracted directly with the Defendant, and were to be paid directly by the Defendant.

However, the Claimant indicated that it paid Best VS Plumbing, even though it was not obligated to do so, and that Swaich was bringing an action against the Defendant for its payment. [ 7 ] The Defendant submits that it does not owe any monies to the Claimant, because it alleges that the Ramp Repair and the interior and exterior painting were part of the scope of the Contract, and the Claimant refused to do the painting, thereby breaching the Contract.

It asks that the Claimant’s claim be dismissed. [ 8 ] Furthermore, the Defendant alleges that the Claimant did not complete the Delta Project on time, causing the Defendant three months’ loss of profits.

Although the Defendant initially filed a counterclaim for $34,500 (comprising $30,000 loss of profits and $4,500 to complete certain work that the Claimant allegedly left incomplete), during the trial, it revised this amount to $32,947.44 (comprising $31,650 loss of profits and $1,297.44 to complete certain work that the Claimant allegedly left incomplete). [ 9 ] The Claimant disputes the Defendant’s counterclaim. It submits that it did not cause any delay or leave any work incomplete. ISSUES [ 10 ] The issues to be determined in this case are as follows: 1 .

What were the scope and terms of the Contract, including whether the Ramp Repair was part of the scope of the Contract? 2 . Who breached the Contract: the Defendant or the Claimant? 3 . If the Defendant breached the Contract, what amount remains owing to the Claimant? 4. If the Claimant breached the Contract, did the Defendant suffer any loss arising from such breach? THE LAW [ 11 ] The parties did not refer me to any law. [ 12 ] For purposes of analysis, I will refer to some case law that discusses the legal principles relevant to the issues in this case.

Burden of Proof [ 13 ] In civil cases, there is only one standard of proof, and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not, that an alleged event occurred: F.H. v. McDougall , 2008 SCC 53 , at para. 49 . [ 14 ] In the case before me, the Claimant must prove its claim, and the Defendant must prove its counterclaim, on a balance of probabilities. Contract Principles [ 15 ] The court in Le Soleil Hotel & Suites Ltd. v.

Le Soleil Management Inc. , 2009 BCSC 1303 , provided a comprehensive discussion of several fundamental principles of contract law. I will set out those principles relevant to the issues before me and apply them to the facts I find. Liability [321] Courts strive to uphold contractual obligations solemnly and freely undertaken. They do not, however, impose them upon parties who have not reached agreement on all essential terms:… [322] For parties to be bound in a contractual relationship there must be a manifest meeting of the minds.

They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms:…

[323] These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof. The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form :… Intention to Create Legal Relations [324] The test for determining the intention to create legal relations is objective. It is explained by G.H.L.

Fridman in The Law of Contract , 5th ed. (Toronto: Thomson Carswell, 2006) as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is not concerned with the parties’ intentions but with their manifested intentions.

It is not whether or not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. [325] The objective test serves the main purpose of contract law: to protect reasonable expectations created by promises.

Accordingly, “the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an enquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee”:… [326] If the parties have reduced the alleged agreement to writing, the starting point for analysis is the wording of the document itself.

The words used should be given their plain, literal and ordinary meaning, unless absurdity would result, and the contract should be construed in context and as a whole:… [327] If the parties’ intent is not clear from the words of a written agreement, extrinsic evidence may be considered to assist in interpreting the arrangement or to explain, without contradicting, the language of the contract. As a last resort, the principle of contra proferentem may be applied to construe an ambiguity against the contract’s drafter if the non-drafting party had no meaningful opportunity to negotiate its terms:… [328] The

interpretation of oral contracts turns on the same essential principles:…If the alleged agreement has not been reduced to writing, the Court must consider what the parties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound :…The genesis and aim of the transaction is an aspect of the relevant context for consideration:…The credibility of witnesses will be particularly important and differing versions of events will increase the difficulty of establishing that an enforceable bargain was made:… [332] If agreement on all essential terms is established, on occasion the law will permit certain terms to be implied to give business efficacy to the bargain:…For example, in…a case involving an agreement to lease, the Court implied terms such as the dates for payment of rent.

A term should not be implied, however, unless it is necessary:…In addition, no term should be implied where it would have the effect of rewriting the bargain or contradicting its other terms:… [334] In order to determine whether a binding contract was created the Court may consider both the parties’ conduct leading up to and following conclusion of the alleged agreement… Certainty of Terms [339] The Court cannot enforce an apparent bargain if its terms are unclear:…This is so because it cannot be said that the parties came to a meeting of the minds where the terms of the alleged agreement are vague, ambiguous or incomplete: Klemke , supra .

As Viscount Maughm explained in G. Scammell & Nephew Ltd. v. Ouston , [1941] A.C. 251 (H.L.) : In order to constitute a valid contract the parties must so express themselves that their meaning can be determined with a reasonable degree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had the same intention; in other words, the consensus ad idem would be a matter of mere conjecture. Costs [ 16 ] The relevant legislative provisions with respect to costs are as follows: Small Claims Act , [ RSBC 1996]

Chapter 430 (the “ Act ”): Costs 19

(1) The Provincial Court may determine, in accordance with the rules, the amount of costs that are payable by one party in a proceeding under this Act or the rules to another party in the proceeding or it may direct a registrar of the court to determine the amount.

(3) If the rules provide for a reasonable fee, charge or other expense, the Provincial Court or a registrar of the court may determine what amount is reasonable. Small Claims Rules , B.C. Reg. 261/93 (the “ Rules ”): Rule 20 – Fees and Expenses Successful party to receive filing and service fees

(2) An unsuccessful party must pay to the successful party the following expenses, unless a judge or registrar orders otherwise:

(

a) any fees the party paid for filing any documents; (

b) reasonable amounts the party paid for serving any documents; (

c) any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. Determination of expenses

(3) A judge may determine the amount of the expenses that are payable under subrule (2) or refer the matter to the registrar. A judge may order a penalty

(5) A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. Compensation for unnecessary expenses

(6) A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. BACKGROUND [ 17 ] The Claimant is a corporation incorporated under the laws of British Columbia. It has been in the construction business in the Lower Mainland for over 30 years. [ 18 ] Mr. Gurcharan Gill is the owner/operator of the Claimant’s construction business. He is an elderly person. He has limited facility in the English language, and required the assistance of an interpreter during the trial. [ 19 ] Mr. Gill and three other people, including Mr.

Gurjeet Singh Kaur, who testified on behalf of the Claimant, worked on the Delta Project. [ 20 ] The Defendant is a corporation incorporated under the laws of British Columbia. It is in the business of operating childcare centres in the Lower Mainland. [ 21 ] Mr. Balvinder S. Saroya and his wife Mrs. Baljinder K. Saroya are the directors and principals of the Defendant. Mr. Saroya attends to the administration of the Defendant’s business, whereas Mrs. Saroya attends to the day-to-day operations of the Defendant’s childcare centre in Delta. [ 22 ] Mr. and Mrs.

Saroya , in conjunction with other individuals (collectively, the “Kids Zone Principals”), operate other childcare centres in the City of Surrey. [ 23 ] In 2016 , the Kids Zone Principals hired the Claimant to do some renovation work for one of their childcare centres (the “2016 Project”). [ 24 ] In or around January 2019, the Kids Zone Principals again hired the Claimant to do some renovation work on their childcare centre at 9444 120 Street, Surrey, BC (the “Surrey Project”). [ 25 ] The Kids Zone Principals and the Claimant entered into oral contracts for each of the 2016 and Surrey Projects.

The Claimant completed these projects without any issues, and was paid in full for its work. [ 26 ] The Claimant was paid $12,971.70, including goods and services tax (“GST”), for the Surrey Project . The Surrey Project involved a base price of $10,000 and $2,354 for some extra work. [ 27 ] The Claimant was hired a third time by Mr. Saroya to work on the Delta Project, which is the subject of this litigation. [ 28 ] Synod Church Diocese of New West, known as St. David’s Anglican Church (the “Church”), is the owner of the Delta Property. DISCUSSION The Evidence [ 29 ] Mr. Gill and Mr.

Kaur testified on behalf of the Claimant. Only Mr. Saroya testified on behalf of the Defendant. Various documents were entered into evidence. [ 30 ] I wish to point out at the outset that due to Mr. Gill’s and, to some extent, Mr. Saroya’s, lack of fluency in the English language, their direct quotes I have referred to in my discussion contain grammatical and punctuation errors. I have not attempted to note the errors each time, except where necessary for the context. Credibility of Witnesses [ 31 ] Credibility is central in this case, as there were stark contradictions between the evidence of Mr. Gill and Mr.

Saroya. [ 32 ] The law regarding credibility assessment is set out in Bradshaw v. Stenner , 2010 BCSC 1398 (aff’d. 2012 BCCA 296), at paras. 186 and 187:

[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.); Faryna 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 [Faryna] 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. [33] I will use this approach in assessing the credibility of the witnesses. [34] I found the Claimant’s witnesses to be sincere and forthright. In particular, I found Mr. Gill to be an extremely sincere, forthright,and thoughtful witness. His evidence was coherent, internally consistent with his own evidence, and externally consistent with thedocumentary evidence. He told his version of events to the best of his recollection and ability.

He did not exaggerate or embellish hisevidence. [35] Mr. Gill said he has been in the construction business for more than 30 years; he has always conducted his business in an honestmanner; he has never had any issues in the past with his clients; and this is the first time he is encountering problems with a client,namely, the Defendant, and in particular Mr. Saroya. He said he has no animus towards Mr. Saroya, he treated Mr. Saroya like a son, andhe fully helped Mr. Saroya from the day Mr. Saroya started his childcare business. He is perplexed as to why Mr.

Saroya is twisting theevents that occurred during the Delta Project and treating Mr. Gill with such disrespect, including abruptly ceasing communications withhim and hurling threats against him. [36] I have no hesitation in accepting the evidence of the Claimant’s witnesses. [37] However, I cannot say the same of Mr. Saroya. I found Mr. Saroya to be manipulative and evasive. While he constantly castblame on Mr. Gill for not knowing the exact dates of when certain conversations and events took place, Mr. Saroya’s recollection ofdates and events were even worse. At least with Mr.

Gill’s evidence, there is other corroborating evidence, including that of Mr. Kaurand the documents that lend credence to his evidence. [38] On key issues, Mr. Saroya’s testimony was directly contradictory to that of Mr. Gill. Mr. Saroya vigorously argued that hisversion of events be believed, without any reliable documentary or other evidence. As I will discuss later, I am not persuaded by Mr.Saroya’s arguments as to the veracity of his evidence. [39] There were numerous internal and external inconsistencies in Mr. Saroya’s evidence.

There were concerns with thedocumentation he submitted on behalf of the Defendant. [40] Mr. Gill raised concerns about Mr. Saroya possibly fabricating some of the Defendant’s other contractors’ invoices, as theyappear to be altered. [41] I will address these concerns in my discussion. Where there were inconsistencies between Mr. Gill’s and Mr. Saroya’s evidence,I prefer to accept Mr. Gill’s evidence.

What were the scope and terms of the Contract, including whether the Ramp Repair was part of the scope of the Contract? [42] The parties do not dispute that they entered into an oral contract, or that it is a valid and enforceable contract. However, theydisagree on the precise scope and terms of the Contract. [43] The Claimant described the original scope of the Contract as follows: 1. Wood frame supply and labour; 2. Drywall supply and labour; 3. 6 doors, lock supply and installation; 4. Two glass windows installation; 5. Plumbing two washrooms, one kitchen sink and hot water tank (20 gallons); and 6.

Interior painting. [44] The Claimant says the original scope included interior painting, but later it was removed, as the Defendant hired another painterto do both the interior and exterior painting. It says the original scope never included Swaich’s electrical work, Best VS Plumbing’s

plumbing work, Artistic Kitchens Ltd.’s cabinetry work, or the Ramp Repair. However, the Defendant says the scope of the Contract included the interior and exterior painting, all plumbing, electrical and cabinetry work, and the Ramp Repair. [ 45 ] Regarding the essential terms of the Contract, the Claimant says the price was $18,000 plus GST for the original scope, but it was later reduced by $3,000 to $15,000 plus GST when the Defendant decided to hire another painter to do both the interior and exterior painting. The Ramp Repair was separate and its price was $3,482.58 plus GST.

The Defendant, on the other hand, says the total price it agreed to for its version of the scope of the Contract was $15,000. [ 46 ] Regarding payment of the Contract price, the parties had a mutual understanding that the Claimant would be paid one-half of the agreed to price after one-half of the agreed to work was completed, and the balance would be paid after all of the work was completed. [ 47 ] Regarding the completion date, the Claimant says there was no discussion or agreement between the parties regarding any specific date by which the Claimant had to complete its work.

However, the Defendant says the Claimant was supposed to complete its work by April 30, 2019, but that it did not. Evidence and My Findings Formation of the Contract [ 48 ] Mr. Gill testified that, on or about March 15, 2019, Mr. Saroya contacted him and asked the Claimant to work on the Delta Project. Mr. Saroya and Mr. Gill met at the Premises. Mr. Saroya showed Mr. Gill the renovation plans and Mr. Gill took measurements. [ 49 ] In estimating the cost of the Delta Project, Mr.

Gill made some handwritten notes and calculations (the “Handwritten Quotation”), similar to what he did for each of the 2016 and Surrey Projects. [ 50 ] Mr. Gill said this is how he normally costs his projects. He generally gives an oral quotation and then at the end of the project renders an invoice. That is what he did for each of the 2016, Surrey, and Delta Projects. The Kids Zone Principals did not have any concerns with the way Mr. Gill conducted the 2016 and Surrey Projects. Mr.

Saroya also did not raise any concerns about any formal paperwork regarding the Delta Project until this litigation commenced. [ 51 ] The Handwritten Quotation sets out the date “March 17, 2019” as the date when Mr. Gill made his notes and calculations. It also sets out the time “8 pm” and the price “18,000 + GST.” [ 52 ] Mr. Gill testified that on March 17, 2019, at about 8:00 p.m., Mr. Saroya phoned Mr. Gill, at which time Mr. Gill provided to Mr. Saroya a quotation of $18,000 plus 5% GST for the Delta Project, which included $3,000 for the interior painting.

This price did not include costing for any exterior painting, as the exterior of the Premises required metallic spray painting, and the Claimant was not equipped to do metallic spray painting. [ 53 ] Mr. Gill said Mr. Saroya accepted the $18,000 price and told Mr. Gill that he would drop off the keys to the Premises, which he did on March 25, 2019. [ 54 ] Mr.

Gill said, similar to how the Claimant was paid for the 2016 and Surrey Projects, the parties had a mutual understanding that the Claimant would be paid one-half of the agreed to price after one-half of the agreed to work was completed, and the balance would be paid after all of the work was completed. There was no discussion of any specific completion date. However, Mr. Gill told Mr. Saroya that the Delta Project would take a minimum of two months, and Mr. Saroya was agreeable to that. [ 55 ] Mr.

Gill said the projects that the Claimant contracts for generally take two to three months to complete from the date the necessary permits are obtained. He said, in this case, he received the building permit on March 29, 2019. This is consistent with Mr. Saroya’s text message to Mr.

Gill, dated March 29, 2019, 9:58 a.m., which reads: I am going to delta and will paste the BP [building permit] number on the front door. . . . [ 56 ] The Claimant purchased materials and started work on March 29, 2019. [ 57 ] For work the Claimant was not equipped, qualified or certified to do, it referred other contractors to the Defendant to do those portions of the work, such as electrical, plumbing, exterior painting, and cabinetry. [ 58 ] Mr. Saroya testified that Mr.

Gill spoke with him on the telephone on March 21, 2019, and gave a verbal quote of $15,000 for the Delta Project, including the interior and exterior painting , the electrical, plumbing, and cabinetry work, and the Ramp Repair. Under cross-examination, he said, between March 1 and 15, 2019, he briefed Mr. Gill about the scope of the Delta Project on the job site, after which Mr. Gill gave him a verbal quote. [ 59 ] I will first discuss whether the exterior painting was part of the scope of the Contract. Exterior Painting [ 60 ] Mr. Gill said a few days before April 17, 2019, Mr. Saroya asked Mr.

Gill to get an estimate for the exterior painting. [ 61 ] On April 17 , 2019, at 1:48 p.m., Mr. Saroya sent the following text message to Mr. Gill: Fence deal done Please look for painter otherwise I can speak to the painter who did painting at Scott road Let me know by evening

[ 62 ] Since the Claimant was not equipped to do metallic spray painting, Mr. Gill contacted another painting company , Innovative Enterprises, and told Mr. Saroya that he had a referral for the exterior painting. [ 63 ] On April 21, 2019, at 1:51 p.m., Mr. Saroya sent the following text message to Mr. Gill: I will [send] the colour shades tomorrow as the paint store Sherwin William[s] at Scott is close[d] today [ 64 ] On April 22, 2019, at 10 :37 a.m., Mr. Saroya sent a text message to Mr. Gill detailing the colour schemes for the interior and exterior painting. [ 65 ] Mr.

Gill testified that sometime after April 22, 2019, a representative from Innovative Enterprises attended at the job site to discuss the scope of the exterior painting and give an estimate. Mr. Gill said he had that person talk to Mr. Saroya on the phone directly. That person gave an estimate of $4,000 plus GST for the exterior painting. [ 66 ] The Defendant vehemently argued that the interior and exterior painting were part of the scope of the Contract, and that is why Mr. Saroya sent the details of the colour schemes for the interior and exterior painting to Mr. Gill.

I reject this argument, as the evidence does not support it. [ 67 ] If the exterior painting were also part of the scope of the Contract, why would Mr. Saroya write to Mr. Gill on April 17, 2019, and say? Please look for painter otherwise I can speak to the painter who did painting at Scott road [ 68 ] When this question was put to Mr. Saroya, he said: At that time my intention . . . [was] to make . . . things faster. I suggested [to Mr. Gill] that maybe I can talk to [the painter]. But the intention was that [Mr. Gill] will be paying to that painter. [ 69 ] When asked whether Mr. Saroya expressed to Mr.

Gill his intention that the Claimant would have to pay for that painter, without specifically answering the question, Mr. Saroya said between April 17 and 21, 2019, Mr. Gill told him that he had found a painter, and that is why he went to the paint shop to get the paint shades. He said, “if I was looking for the painter then why should I send him the colour shades?” [ 70 ] Mr. Gill clarified that he needed the paint shades to explain to the painter the scope of the exterior painting, so that the painter could give the estimate that Mr. Saroya wanted. He said Mr. Saroya clearly knew that when he asked Mr.

Gill to “look for a painter,” he was referring to the exterior painting, because Mr. Gill had told him earlier that the Claimant was not equipped to do metallic spray painting. [ 71 ] I note that Mr. Saroya heavily relied on, and used, Mr. Gill’s knowledge, experience, and resources to secure referrals for other trades, manage other trades, and deal with permits, inspections, and other issues relating to the Delta Project. [ 72 ] Mr. Gill said that he was more than generous in acting as almost a “general contractor” for the Delta Project, even though the Claimant was not paid for any such services. Mr.

Saroya admitted that, for the most part, he communicated only with Mr. Gill regarding the various trades while the Claimant was working on the Delta Project. In this respect, there are text messages in evidence wherein Mr. Saroya asks – more accurately “demands” – Mr. Gill to manage other trades working on the Delta Project. [ 73 ] I also note that Mr. Saroya appears to have abused Mr. Gill’s willingness to assist Mr. Saroya. [ 74 ] I find that Mr. Saroya sent the colour schemes for the interior and exterior painting to Mr.

Gill, not because the Claimant was responsible for both under the Contract, but because the Claimant was responsible for the interior painting (according to the parties’ initial agreement), and Mr. Gill was expected to secure and manage the painter for the exterior painting. [ 75 ] I find that the Defendant clearly knew that the Claimant was not responsible for the exterior painting, and that is why Mr. Saroya asked Mr. Gill to “look” for a painter and to get an estimate for the exterior painting. [ 76 ] I find that the exterior painting was not part of the scope of the Contract. Discount re Painting [ 77 ] Mr.

Gill said Mr. Saroya was not happy with the Innovative Enterprises’ estimate for the exterior painting. He said between April 22 and 25, 2019, Mr. Saroya decided to hire another contractor to do both the interior and exterior painting. [ 78 ] Mr. Gill said between April 18 and 25, 2019, the Defendant had lost the keys to the Premises, and Mr. Saroya called the people at the Church to open the door for the Claimants’ workers a few times. During this period, the Claimant’s workers did less work inside the Premises, as they did not have proper access, but they carried on with their work outside the Premises.

While the Claimant’s workers were working on the ramp outside the Premises, Mr. Saroya came to the job site and discussed the painting with Mr. Gill. [ 79 ] Mr. Gill said he and Mr. Saroya stood by his truck outside the Premises when Mr. Saroya told Mr. Gill that he found another contractor who could do the painting for a cheaper price if that contractor were to do both the interior and exterior painting. Mr. Gill said he agreed, took out the Handwritten Quotation, crossed out the amount “3,000” in front of Mr.

Saroya, and told him that he would give a discount of $3,000, so that the revised Contract price, excluding the interior painting, would be $15,000 plus GST. [ 80 ] Mr. Gill said Mr. Saroya saw the Handwritten Quotation on that day, although Mr. Saroya denied seeing it until it was produced during the litigation process.

[ 81 ] Mr. Kaur also confirmed that he and his two co-workers saw, and heard, Mr. Gill and Mr. Saroya on the job site discussing the paint job. He said Mr. Saroya initiated the conversation about getting another painter, and Mr. Gill agreed with Mr. Saroya’s request. Mr. Kaur said Mr. Gill later told him that they would not be doing the interior painting, as Mr. Saroya had decided to have another painter do both the interior and exterior painting. [ 82 ] Neither Mr. Gill nor Mr. Kaur could positively state on which date this conversation took place. Mr. Saroya denied that this conversation took place at all.

He denied that the Claimant gave a $3,000 discount and reduced the price to $15,000. [ 83 ] Mr. Saroya’s evidence in this respect was that on April 25 or 26, 2019, he met Mr. Gill at the job site, at which time Mr. Gill asked him for another key for the “painter,” and asked to have the outside of the Premises power washed so that the “painter” could start work. [ 84 ] On April 25, 2019, at 1:52 p.m., Mr. Saroya sent the following text message to Mr.

Gill: I left 1 key at Top Quality [P]izza 9540 Scott [R]oad [S]urrey Please take it after 4:30 pm or I am coming tomorrow than [ sic ] I can put the key on the meter Let me know which option you prefer [ 85 ] In response, Mr. Gill texted “I’ll pick it up from pizza shop.” [ 86 ] In light of these text messages, I find that the conversation between Mr. Saroya and Mr. Gill regarding the paint job took place on April 25, 2019. [ 87 ] Mr. Saroya seemed to suggest that the “painter” that Mr. Gill was referring to in their conversation on April 25, 2019 was the Claimant’s painter, whereas I find that Mr.

Gill was referring to the Defendant’s painter that Mr. Saroya said was going to do all of the painting. This was an example of Mr. Saroya embellishing his evidence. There were many more examples, some of which I will refer to later. [ 88 ] Mr. Saroya said between May 1 and 3, 2019, Mr. Gill asked for payment, and the Defendant issued a cheque to the Claimant on May 3, 2019 for $7,500, being one-half of the $15,000. He said after receiving this cheque, sometime between May 3 and 10, 2019, Mr. Gill told Mr. Saroya that the Claimant would not do the painting because it could not find a painter.

This is hardly believable, as Mr. Saroya earlier testified that Mr. Gill told him that Mr. Gill had found a painter, and that is why he sent Mr. Gill the colour schemes. [ 89 ] Under cross-examination, Mr. Saroya added more colour to his evidence. He said: May 3 rd , . . .when you [referring to Mr. Gill] got the cheque, . . . you told me that you will not do the painting. And I said I was very annoyed because painting delayed the work and now I have to look for another painter because you refused to do the painting. . . .

I’m not a tradesman, it is hard for me to look for a painter. [ 90 ] It is interesting that Mr. Saroya says that he is not a “tradesman” and it is hard for him to look for a painter, whereas in his April 17, 2019 text message to Mr. Gill, he says, “[p]lease look for painter otherwise I can speak to the painter who did painting at Scott road.” [ 91 ] Mr. Gill categorically denied that he told Mr. Saroya that the Claimant would not do the interior painting. [ 92 ] There is not a shred of evidence as to why the Claimant would have refused to do the interior painting. Mr.

Gill testified that the Claimant had its own painting business and had workers ready to do the interior painting. The Claimant was honest in informing the Defendant that it was not equipped to do the exterior painting, but was willing to assist the Defendant in finding a referral. When Mr.

Saroya said that the Defendant could get the painting done cheaper if another painter could do both the interior and exterior painting, the Claimant was co-operative in accommodating the Defendant’s request and reducing the Contract price to $15,000, rather than insisting on the original price of $18,000. [ 93 ] I note that the amount “3,000” is crossed out on the Handwritten Quotation, consistent with Mr. Gill’s evidence. [ 94 ] The Handwritten Quotation contains Mr. Gill’s notes and calculations, which I find were made contemporaneously when Mr. Gill gave the original quote and the $3,000 discount to Mr.

Saroya. I find this document reliable, as that is how Mr. Gill operated. A similar handwritten quotation that Mr. Gill made for the Surrey Project is also in evidence. The Kids Zone Principals, including Mr. Saroya, had no issues with that. Furthermore, this was the third time Mr. Saroya was involved in hiring the Claimant. I doubt that Mr. Saroya would have done that if he did not trust or agree with how Mr.

Gill operated. [ 95 ] In light of all of this evidence, I find that, on April 25, 2019, the parties agreed that the Claimant would not do the interior painting, but would give a discount of $3,000, thereby reducing the Contract price to $15,000. [ 96 ] In the end, the Defendant hired Soft Touch Painting (“Soft Touch”) to do the interior and exterior painting. The Soft Touch invoice is dated June 9, 2019 and shows a total price of $7,875, including GST. [ 97 ] Mr. Saroya testified that sometime between May 3 and 10, 2019, he met with Mr.

Gill on the job site, and told him that he had hired a painter and that the Defendant would deduct the painter’s cost from the $15,000 Contract price, and that Mr. Gill agreed. Mr. Gill denied any such discussion. He said Mr. Saroya did not consult with him about hiring Soft Touch, and he never agreed to deduct the Soft Touch price from the Contract price. [ 98 ] When asked whether Mr. Saroya gave the Soft Touch invoice to the Claimant, Mr. Saroya admitted that he did not. He only gave it in December 2019, during the pre-trial document disclosure process.

[ 99 ] However, Mr. Saroya said between June 1 and 13, 2019, he met with Mr. Gill once on the job site, and told him that the Soft Touch price was $7,875, and that Mr. Gill was fine with that. This evidence is troubling, as Mr. Saroya also said Mr. Gill never came to the job site in June 2019. Then, under cross-examination, Mr. Saroya said he met with Mr. Gill on the job site once or twice between June 1 and 13, 2019. [ 100 ] There is also discrepancy in the parties’ evidence as to when and how many workers from Soft Touch did the painting. Mr. Saroya was evasive.

In his evidence in chief, he said Soft Touch did the painting from May 11, 2019 to the first week of June 2019, and that the Defendant paid $4,000 to Soft Touch on May 17, 2019, and the balance of $3,875 on June 10, 2019. Later in his evidence, he said he saw three workers from Soft Touch who did the painting from May 10 to 30, 2019, and then contradicted himself and said he saw two workers. When Mr. Gill told Mr. Saroya that the Claimant’s workers told him that only one person from Soft Touch was on the site working, Mr. Saroya said, “I have no idea.” [ 101 ] I reject Mr.

Saroya’s evidence in this respect, as it is inconsistent and unreliable. [ 102 ] I find that there was no agreement between the parties to offset the Soft Touch price against the unpaid balance of the Contract price. It appears that the Defendant unilaterally decided that it would offset the Soft Touch price against the unpaid balance of the Contract price. [ 103 ] I will next discuss whether the Ramp Repair was part of the scope of the Contract, as the Defendant alleges. Ramp Repair [ 104 ] Mr. Gill said that on April 2, 2019, when Mr.

Saroya showed him around the job site, they discussed in detail everything that needed to be repaired outside the Premises, as the ramp, stairs, and other structures were dilapidated. Mr. Gill told Mr. Saroya that the labour would be charged on an hourly basis. He said Mr. Saroya told him to charge $40 per hour for the Ramp Repair, but Mr. Gill only charged $30 per hour, which was the rate the Claimant charged for the Surrey Project. [ 105 ] Similar to the handwritten notes and calculations Mr.

Gill made in giving the original quote, he made handwritten notes and calculations regarding the Ramp Repair, which are included on page 2 of the Handwritten Quotation. Mr. Gill said he followed the same process when he was asked to do extra work on the Surrey Project. He reiterated that the Kids Zone Principals (including Mr. Saroya) had no issues with how he dealt with the extra work. [ 106 ] The Claimant’s Invoice #0016-19, dated May 30, 2019, for the Delta Project (the “Invoice”) describes the pricing of the Ramp Repair as follows: 1. Materials (lumber) $ 562.58 2.

Made frame under stairs and installed plywood 870.00 3. Two vents installed in washroom 180.00 4. Floor installed in two washrooms (materials and labour) 400.00 5. Ramp 2x6 wood change, post and made new door 930.00 6. Outside materials 300.00 7. Made frame for hot water tank 240.00 Total $3,482.58 [ 107 ] To do the Ramp Repair, the Claimant ordered treated lumber on April 2 or 3, 2019, which arrived on April 4, 2019. Mr. Gill said Mr. Saroya was fully aware of all of this. [ 108 ] Consistent with Mr. Gill’s evidence, Mr. Kaur testified that he was present when Mr. Saroya asked the Claimant to do the Ramp Repair.

Mr. Kaur described in detail the repair work he and his two co-workers did outside the Premises, which included repairing the ramp and stairs, building a custom ramp gate, fencing, and installing plywood along the side of the building. He said the structures that were there had rotting wood and unsafe gaps. For the safety of the children attending the childcare centre, Mr. Saroya asked that this work be done. [ 109 ] Mr. Kaur said that Mr.

Saroya would visit the job site frequently, and was fully aware of the work he and his co-workers were doing, and, at times, he would give them instructions as to what to do, although he mainly dealt with Mr. Gill. [ 110 ] The photographs in evidence show the work the Claimant did outside the Premises. [ 111 ] Other than Mr.

Saroya saying that the Ramp Repair was part of the scope of the Contract and included within the $15,000 price, there is no other evidence to support the Defendant’s contention that the Ramp Repair was part of the scope of the Contract and included within the $15,000 price. [ 112 ] However, Mr. Gill’s and Mr. Kaur’s evidence, and the Handwritten Quotation, which I have found to be a contemporaneous document, all indicate that the Defendant requested the Ramp Repair after the original quote was given and the original work had commenced in March 2019.

The Defendant does not deny that the Ramp Repair was done. [ 113 ] I find that the Ramp Repair was not part of the scope of the Contract, and the price of the Ramp Repair was in addition to the revised Contract price of $15,000, and not included in it. [ 114 ] I will next discuss whether the scope of the Contract included Swaich’s electrical work and Best VS Plumbing’s plumbing work, as the Defendant alleges. Electrical and Plumbing Work

[ 115 ] Mr. Gill testified that the Claimant was not qualified to do the electrical or the plumbing work that Swaich and Best VS Plumbing did on the Delta Project. He said, he only referred these contractors to the Defendant, and the Defendant was to pay them directly for their services. He said there was never any agreement between the parties that the Contract price would include the price of these two contractors, as the Defendant alleges. [ 116 ] The Defendant was adamant that the $15,000 Contract price included the price of these two contractors. Mr. Saroya said he never asked Mr.

Gill to hire an electrician, and that it was the Claimant’s job to do the electrical work as well. This is hardly believable, as Mr. Saroya knows from working with the Claimant on previous projects that the Claimant is not qualified and does not do electrical work, and on the Surrey Project, the Kids Zone Principals hired and paid $18,000 to another electrical contractor for the electrical work. [ 117 ] Mr. Saroya said he only saw Swaich’s invoice for the first time when he received the Claimant’s Trial Statement. I note that the Claimant’s Trial Statement was filed in court on January 16, 2020, and Mr.

Saroya said he only received documents from the Claimant on January 22, 2020. [ 118 ] Clearly, Mr. Saroya’s assertions are inconsistent with his own statement in the following message to Mr. Gill, wherein he confirms the Defendant’s intention to pay Swaich (it appears that this message was sent on June 10, 2019): Please ask the electrician to make the heating panels workable before we make payment to him . Now the daycare has security alarm. Let me know when he is going so I can disarm it. (My emphasis.) [ 119 ] Even if I accept Mr.

Saroya’s evidence that he did not have Swaich’s actual invoice in hand, the evidence indicates that he was clearly aware that the Defendant owed monies to Swaich for its services before this litigation began on August 1, 2019. [ 120 ] Mr. Gill said that in spite of the Claimant’s repeated efforts, the Defendant refused to pay these two contractors. That is why it included their invoices in its claim in this action, but as I noted earlier, the court severed them during the pre-trial process.

In spite of that, the Defendant continued to maintain, during the trial, that the price of these two contractors were included in the Contract price of $15,000. [ 121 ] Based on the evidence before me, I find that Swaich’s electrical work and Best VS Plumbing’s plumbing work were not part of the scope of the Contract, and their prices were not included in the Contract price of $15,000. [ 122 ] I will now turn to the other essential terms of the Contract.

Price [ 123 ] As I have already discussed, I have found the original price of $18,000 was reduced to $15,000 after the $3,000 discount for the Claimant agreeing not to do the interior painting, and that the Ramp Repair price of $3,482.58 was in addition to the revised Contract price of $15,000. [ 124 ] Therefore, I find that the total price of the work that the parties agreed to was $18,482.58.

With 5% GST of $924.12 on $18,482.58, the total price payable by the Defendant to the Claimant was $19,406.70, of which $7,500 were paid, leaving a balance of $11,906.70. [ 125 ] The Defendant made various futile arguments as to why the Claimant’s claim should fail, including the argument that the Claimant did not provide a proper invoice in a timely manner. [ 126 ] Mr. Saroya made a big issue of the fact that the email he received from Mr. Gill on June 23, 2019, attaching an incomplete invoice for the work the Claimant did, was fatal to the Claimant’s claim.

He also claimed that because there was no line item on the Invoice or the Claimant’s timeline (set out below) showing the $3,000 discount for the painting, no such discount was provided. [ 127 ] I note that the incomplete invoice attached to Mr. Gill’s June 23, 2019 email contains the correct amount of the GST of $924.12, although the amount ($18,482.58) on which that GST was calculated is not shown. It should have shown the correct amount of the total price of $18,482.58. It is not clear what happened when Mr. Gill sent this invoice. I can only assume there was some technical glitch when Mr.

Gill generated that invoice. [ 128 ] Mr. Gill said even though he sent the Invoice to Mr. Saroya in June 2019, throughout the course of the Delta Project, he kept Mr. Saroya informed of what work was being done and the costs involved. He said that was how he conducted the 2016 and Surrey Projects, and there were no issues. [ 129 ] Regarding the timeline, Mr. Gill said that he sought the assistance of the Claimant’s accountant to prepare it, and it was probably an oversight that some items were missed. [ 130 ] As I have already alluded to, Mr.

Gill has challenges with the English language, and he testified that he is not technologically savvy. He said that is why he mainly communicates verbally, rather than in writing, including by text or email. The evidence indicates that Mr. Gill has been operating the Claimant in an informal manner for more than three decades, presumably mainly verbally, without any issues. [ 131 ] I am of the view that nothing turns on these clerical/administrative errors.

I agree that a proper invoice detailing the original price, the discount and the revised price, issued in a timely manner would have helped, but that does not negate the fact that the parties agreed to those terms, and the Claimant did the work it was contracted to do. Therefore, the Claimant is entitled to be paid for the work it did. It would be unjust to allow form to trump substance. Completion Date

Date Description of Events Mar. 17, 2019 Quotation given to Defendant Mar. 25, 2019 Keys dropped off by Defendant Mar. 29, 2019 Lumber purchased; Defendant picked up City permit Apr. 11, 2019 Plumbing and rough-in passed by inspector Apr. 16, 2019 Electrical pass Apr. 17, 2019 Discussion with Defendant regarding painting Apr. 18, 2019 Drywall installed Apr. 18 to 25, 2019 Defendant lost keys – [work done outside, but not inside] Apr. 25, 2019 Doors installed Apr. 26, 2019 Replaced doors installed earlier Apr. 30, 2019 Picked up and installed door moulding/casing May 1, 2019 Information regarding cabinets sent to Defendant May 2, 2019 Defendant got vanity and counter installed by another contractor May 3, 2019 Plumbing job done; Defendant paid $7,500 May 22, 2019 Electrical permit closed May 3 to June 10, 2019 No communication from Defendant [ 132 ] Mr.

Saroya testified that he told Mr. Gill that he wanted the Claimant to finish all of the work by April 30, 2019. Mr. Saroya pointed to the following text message to Mr. Gill, dated May 3, 2019, wherein he said: . . . As discussed my full work will be complete by next week otherwise . . . there will be very big penalty for the delay as I am paying rent there and work was supposed to be finished in the last month but I will be happy even [if] its done by next week. . . . And please let uncle Ranjit Singh to finish the outside repair . . . [ 133 ] Mr.

Gill’s evidence was that there was never any discussion between the parties about a particular completion date or any penalty for any delay. Mr. Gill told Mr. Saroya that the Delta Project would take a minimum of two months. [ 134 ] Mr. Gill said Mr. Saroya’s assertion that the work was to be completed by April 30, 2019 – hardly a month after the Claimant started its work on March 29, 2019 – is completely unreasonable. He said Mr. Saroya is knowledgeable about how the construction process works , including how long permits and inspections can take, as Mr.

Saroya has been involved in a number of construction projects. He said the Surrey Project took close to a year to complete. [ 135 ] I accept Mr. Gill’s evidence that he told Mr. Saroya that the Delta Project would take a minimum of two months. This is consistent with the Claimant requesting payment of approximately one-half of the agreed to price on or about May 1, 2019, which is approximately one month after the Claimant began its work on March 29, 2019. [ 136 ] This is also consistent with the parties’ understanding that one-half of the Contract price was to be paid after one-half of the work was done.

I note that, according to Mr. Saroya’s evidence, the painting alone, that Soft Touch did, took about three to four weeks (from about May 11, 2019 to the first week of June 2019) to complete. [ 137 ] Therefore, I reject the Defendant’s assertion that the parties agreed to a completion date of April 30, 2019. [ 138 ] Furthermore , other than Mr. Saroya’s passing reference to a “big penalty,” there is no evidence to indicate that the parties agreed to a specific penalty for any delay. [ 139 ] I find that there was no agreement between the parties about a specific completion date or a penalty for any delay.

Who breached the Contract: the Defendant or the Claimant? [ 140 ] The Defendant argued that the Claimant breached the Contract by refusing to do the painting and not completing its work by April 30, 2019, thereby causing delay in the Defendant’s ability to start the childcare centre at the Delta Property. [ 141 ] The Claimant, of course, denies that it breached the Contract in any respect. [ 142 ] I have already found that the exterior painting was not part of the scope of the Contract, and the Claimant did not refuse to do the interior painting, but rather accommodated the Defendant’s request to have another contractor do both the interior and exterior painting.

Therefore, there was no breach by the Claimant regarding the painting. [ 143 ] I will now discuss the Defendant’s delay allegation. [ 144 ] The Claimant submitted the following timeline of how its work on the Delta Project progressed: [ 145 ] Mr. Gill said even though the City of Delta issued a building permit for the Delta Project effective November 26, 2018, the Defendant did not engage the Claimant until the end of March 2019, almost four months later, and that the Claimant cannot be held responsible for that. In response, Mr.

Saroya said the four-month delay was due to him being busy with other projects. [ 146 ] Mr. Gill said the Claimant completed the majority of its work within 25 days. The framing, plumbing, drywall and doors were done by the first week of May 2019, consistent with Mr. Kaur’s evidence that he worked from March 29, 2019 to the first week of May 2019. The electrical work was not the Claimant’s responsibility. [ 147 ] Mr. Gill pointed out that City inspections depend on the City’s schedule, which sometimes causes delay.

[ 148 ] On or about April 11, 2019, the plumbing and rough-in inspections were passed. [ 149 ] The Technical Safety BC electrical inspection was requested on April 11, 2019, and the permit status was closed on May 22, 2019. [ 150 ] Mr. Gill said after the plumbing work was done on May 3, 2019, the Claimant worked on the door panels on May 24, 2019. The only remaining job was to install the doorknobs (which Mr. Gill referred to as locks) because the painter was working on the job site. After the painting was completed, Mr. Saroya called Mr. Gill to install the doorknobs because Mr.

Saroya had scheduled an inspection, and the final inspection would not pass without the doorknobs being installed. [ 151 ] Mr. Gill said he purchased seven lock and key sets on June 1, 2019, at a cost of $100.80 and installed them the same day. However, Mr. Saroya said Mr. Gill never installed them. First , he said Mr. Gill brought them, but did not install them at the Premises, but later he contradicted himself and said he did not like the knobs that Mr. Gill had brought, so he “replaced” them “personally” in August 2019.

The cost of the replaced knobs, $94.66, is included in the Defendant’s counterclaim. [ 152 ] During cross-examination, Mr. Saroya added more colour to his evidence regarding these knobs. He said the six doors the Claimant installed only had holes, with no knobs, and that is why he went to Home Depot and bought five knobs for $94.66 and brought one from home, and installed them personally, as “it was an easy job.” Mr. Saroya said Mr. Gill did not come back to the Premises to install the knobs because the alarm was on, and Mr. Gill never contacted him to disarm the alarm. He insisted that Mr.

Gill never came back to the Premises in June 2019. As I noted above, Mr. Saroya contradicted himself on this latter point as well – he said, he met with Mr. Gill on the job site once or twice between June 1 and 13, 2019. [ 153 ] When Mr. Gill questioned Mr. Saroya about whether he talked to Mr. Gill about the knobs, Mr. Saroya was evasive, and he repeatedly said, “I don’t remember.” [ 154 ] Mr. Gill explained that the knobs he bought and installed were good for at least seven to 10 years, and there was no need for Mr. Saroya to have replaced them. He said Mr.

Saroya was working on other construction projects at that time, and he probably used those knobs in those projects. [ 155 ] Mr. Gill said, “I don’t understand why [Mr. Saroya] is lying so much.” [ 156 ] Mr. Gill expressed deep dismay at Mr. Saroya’s extreme manipulation and pettiness over a $100 item. I cannot agree more! I also note that there is no evidence to indicate that the Defendant returned to the Claimant the knobs that Mr. Saroya claims he did not like. On top of keeping the knobs the Claimant purchased, the Defendant is attempting to recover the cost of the second set of knobs from the Claimant.

This is highly disturbing. [ 157 ] The evidence indicates that all of the required inspections passed by the third or fourth week of May 2019, and the Defendant received its business license from the City of Delta effective June 17, 2019, and its operating license from the Fraser Health Authority effective June 28, 2019. [ 158 ] The Claimant pointed out that the Defendant did not disclose to it the licensing documentation during the pre-trial process. After repeated questioning, Mr.

Saroya reluctantly admitted that the Defendant was permitted to operate its business on the Premises, at the latest by June 28, 2019. [ 159 ] In my view, in assessing whether or not the Claimant caused any delay, the date that the Defendant was in a position to commence operating its business should not be the determining factor, because there could have been any number of reasons why the Defendant may not have been in a position to do so. Possible reasons could include delays in the Defendant applying for the requisite licenses and delays in the relevant authorities issuing such licenses.

The Claimant cannot be responsible for such delays. [ 160 ] The more relevant factors in assessing whether or not the Claimant caused any delay are, when the Claimant substantially completed the work it was contracted to do, when those aspects of its work requiring municipal or such other inspections passed, and when the occupancy permit issued. [ 161 ] The evidence indicates that substantial completion of the Delta Project was achieved by May 22, 2019 .

All of the Claimant’s work and the required inspections were completed and passed by the end of May 2019, or at the latest by June 1, 2019 when the doorknobs were installed. [ 162 ] Although the Defendant was deceptive in not disclosing to the Claimant during the pre-trial document exchange process as to when the occupancy permit for the Premises issued, during cross-examination, after probing questioning, Mr. Saroya reluctantly admitted that the occupancy permit issued in the first week of June 2019. [ 163 ] The Claimant completed its work, consistent with what Mr. Gill told Mr.

Saroya, that the Claimant would require a minimum of two months to complete the Delta Project. Also consistent with the payment terms the parties were operating under, Mr. Gill requested the first payment in or around May 1, 2019, approximately one month after the work had begun. [ 164 ] The Claimant drew parallels between the Surrey Project and the Delta Project in terms of the scope, timeline, and cost to demonstrate what it did on the Delta Project was completely reasonable and on target. [ 165 ] It is not necessary to discuss the detailed questions Mr. Gill put to Mr. Saroya regarding the Surrey Project.

While I agree that what the Claimant did on the Delta Project was more than reasonable and on target, I acknowledge Mr. Saroya’s explanation that there were unique challenges with the electrical work on the Surrey Project, and that contributed to the length of that project. However, I do note that Mr. Saroya was, without fail, evasive in answering many of the questions put to him regarding the Surrey Project. [ 166 ] In the end, I am satisfied that the Claimant did not cause any delay in completing its work on the Delta Project. Therefore, I find

that the Claimant did not breach the Contract due to any delay. [ 167 ] Since the Claimant fulfilled its obligations under the Contract, and the Ramp Repair, but the Defendant failed to pay the balance owing to the Claimant, I find that the Defendant breached the Contract. If the Defendant breached the Contract, what amount remains owing to the Claimant? [ 168 ] As I have discussed above, the balance owing by the Defendant to the Claimant is $11,906.70.

If the Claimant breached the Contract, did the Defendant suffer any loss arising from such breach? [ 169 ] In light of my finding that the Claimant did not breach the Contract in any respect, the Defendant could not have suffered any loss arising from any breach of the Contract by the Claimant. [ 170 ] However, I will briefly address the Defendant’s counterclaim, if only to show the Defendant’s unreasonableness and audacity in making such a baseless and frivolous claim. [ 171 ] The Defendant’s counterclaim, as filed, has two components: (1) $30,000 for loss of profits; and (2) $4,500 for costs incurred to complete the Claimant’s incomplete work.

Loss of profits [ 172 ] The Defendant claims that because the Claimant did not complete its work by April 30, 2019, the Defendant suffered a loss of revenue for three months, namely, May, June and July 2019. It submits that its projected revenue per month was $40,000 and its profit per month was $10,000. It is on this basis that it claims loss of profits of $30,000. [ 173 ] When Mr. Gill questioned Mr. Saroya as to why the Defendant was claiming a loss for three months , when the occupancy permit for the Premises issued the first week of June 2019, Mr.

Saroya said: The finishing date we agreed at the beginning in March was 30 th April 2019. So, according to me, you didn’t finish the job, so I claimed for May. June I did because at that time I . . . blame you to . . . delay my work. . . . I got the licence the 20 th June, and July I could not work because in daycare . . . the admissions start from July – every month – first week of every month. So I lost July because the work was delayed and I lost July month also.

That’s why I did from May, June, and July. [ 174 ] This response clearly shows the Defendant’s unreasonable and greedy attempt at saddling its cost of delay in commencing its business onto the Claimant without any basis. Also aggravating is the fact that the loss claimed is based on revenues and profits from a different period of high functioning months, namely, September, October and November 2019. Even these figures could not be verified, as the Defendant did not submit any properly prepared financial statements for consideration. [ 175 ] Mr.

Saroya referred to the Defendant’s bank statements for September, October and November 2019 (which were partly redacted) and a statement showing some personal withdrawals from the Defendant’s bank account. He tried to explain the rudimentary and unacceptable method of how he arrived at the estimated loss of profits of $31,650 (even though the Defendant’s counterclaim states $30,000).

In any event, this was not an actual loss the Defendant suffered for the months of May, June and July 2019, as the Defendant claims. [ 176 ] The Claimant argued that the Defendant was perpetrating a fraud by making such a baseless and inflated claim. [ 177 ] For the reasons I have discussed, I find the Defendant’s claim for loss of profits baseless and frivolous.

Other construction costs [ 178 ] The Defendant’s counterclaim also includes a claim for $4,500, which the Defendant allegedly spent to complete work the Claimant apparently left incomplete. [ 179 ] However , it turns out that the extent of this claim was inaccurate.

During the trial, the Defendant withdrew the bulk of this claim, namely $3,202.56, which related to materials the Defendant purchased for other projects (completely unrelated to the Delta Project, and some purchased well after the Claimant completed its work on the Delta Project), leaving a balance of $1,297.44. [ 180 ] The Claimant took issue with this balance as well. The majority of this balance relates to two invoices :

(1) Artistic Kitchens Ltd., dated May 6, 2019, for $699.30, to install vanity and three base sinks for the washroom; and

(2) Home Depot, dated May 3, 2019, for $464.78, for a bar sink vanity and drain for the washroom. [ 181 ] Mr. Gill testified that similar to the electrician and the plumber, he only referred a cabinetry contractor to the Defendant, and that the purchase and installation of the cabinets and counters was not part of the scope of the Contract. He said the Claimant was to install only the sink and the toilets. [ 182 ] However, Mr. Saroya testified that the purchase and installation of the cabinets and counters were also part of the scope of the Contract, and included in the $15,000 price.

He said because the Defendant was in a rush to open its business, and the Claimant did not complete its work by April 30, 2019, Mr. Saroya ordered the cabinets (two for the washrooms and one for the kitchen) on May 1 or 2, 2019 from Artistic Kitchens, and they installed them on May 3, 2019. Mr. Saroya said he told Mr. Gill on May 1, 2019 that he would deduct this expense from the $15,000 price. [ 183 ] Mr. Gill completely denied that any such conversation took place and that the Claimant never agreed to any such deduction. Mr. Gill questioned how it is possible to have all the cabinets made overnight.

He also questioned the authenticity of the Artistic Kitchens’

invoice, as the address on the invoice was blocked out, similar to the alteration on the Soft Touch invoice. [ 184 ] All of this only highlights the questionable veracity and reliability of Mr. Saroya’s evidence, and the Defendant’s unfounded and inflated claims. [ 185 ] Even if some of these expenses were legitimate, they could easily be offset against the many expenses that the Claimant incurred, for which, it says, it has not made a claim against the Defendant. Mr. Gill referred to a number of items, including the following: (

a) replacement of the doors from full glass panels to half glass panels at a cost of about $1,125 (even though Mr. Gill said the full glass doors were what was discussed with, and agreed to by, Mr. Saroya, but he later changed his mind and wanted doors similar to those installed at the Surrey Project); (

b) at Mr. Saroya’s insistence, installation of a 40-gallon water tank at a higher cost, even though only a 20-gallon water tank was agreed to as part of the Contract; (

c) provision of laminate flooring materials at a discounted rate of $100, even though it cost $150; (

d) the cost of three outside sensor lights; (

e) the cost of the materials to build the outside gate, which was custom-built by the Claimant’s workers; and (

f) the cost of Mr. Gill’s time for managing all the trades who worked on the Delta Project. [ 186 ] As I said, in light of my finding that the Claimant did not breach the Contract in any respect, the Defendant could not have suffered any loss arising from any breach of the Contract by the Claimant. [ 187 ] Therefore , I would dismiss the Defendant’s counterclaim. Costs Costs under Rule 20(2) [ 188 ] Since the Claimant is fully successful in its claim, according to Rule 20(2), it is entitled to recover its filing fees of $156, service fees of $20, and corporate search fee of $33. [ 189 ] The Claimant also asked for reimbursement of its interpreter’s fees. [ 190 ] Rule 20(2)(

c) provides that the unsuccessful party must pay to the successful party any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. [ 191 ] In this case, the interpreter’s fees the Claimant incurred to assist Mr. Gill, no doubt, directly relate to the conduct of the trial, as the Claimant could not have otherwise presented its case. [ 192 ] In Sahara Trucking v.

Abbotsford Truck and Trailer , 2012 BCPC 246 (“ Sahara ”) , the court in determining whether interpreter’s fees should be allowed said, at paras. 36 to 38: [36] The Claimant required the services of an interpreter and he seeks to recover the interpreter’s cost from the Defendant. Counsel did not provide any authority for requiring an unsuccessful party to pay this cost but I have reviewed the law on this point. The BC Court of Appeal commented on this generally in Gradek v.

Daimler Chrysler Canada Financial Services Inc 2011 BCCA 136 , where Madam Justice Prowse stated at para. [18]: I am in general agreement... that the object of the small claims procedures set out in the Small Claims Act , R.S.B.C. 1996, c. 430 and Rules , B.C. Reg. 261/93 is "to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court".

I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result. [37] In Paul’s Restaurant v. Dunn [1996] BCJ No. 114 (BCSC) , Mr. Justice Joyce (then a Master in the Supreme Court) discusses at paragraphs 12 and 13 when it is appropriate for interpreter’s fees to be included in an order for costs.

He writes: In this case the question is... whether the unsuccessful party is bound to recompense the successful party in respect of those fees. The answer to that question depends on whether or not it was "necessary or proper" for the successful party to incur them... It may be that even without s.14 of the Charter a party who is deaf or who does not understand English and who employs the assistance of an interpreter in civil proceedings incurs a proper disbursement.

But with the force of the Charter which gives a litigant who does not understand or speak the language in which the proceedings are conducted or who is deaf the fundamental right to have the assistance of an interpreter I think it is impossible to say that the cost of employing the interpreter is not a proper disbursement. Further, I consider that the Charter right is not limited to the assistance of an interpreter for the purpose of testifying in court.

Section 14 of the Charter is not limited by its words to the assistance of an interpreter only for testifying and in my view it is broader than that. [38] Rule 20 (2) (

c) of the Small Claims Rules requires that an unsuccessful [party] must pay to the successful party such reasonable charges that directly relate to the conduct of the proceeding. On the authorities I have referred to, interpreter’s fees for a person who does not understand the language in which proceedings are conducted [are] a reasonable expense and I find that they are allowable costs within the meaning of Rule 20 (2) (c). [ 193 ] Based on the authorities referenced above, I find that the Claimant’s interpreter’s fees are a reasonable expense and they are

allowable under Rule 20(2)(c). Therefore, the Claimant will be entitled to recover $2,864.40, calculated as follows: $682/day (Exhibit 1, p. 29) x 4 days of trial + 5% GST. Penalty under Rule 20(5) [194] Many cases have dealt with the penalty under Rule 20(5). [195] In discussing Rule 20(5), the court in Roome v. Rajput et al., 2013 BCPC 231, said at para. 62: [62] In High Country Outfitters Inc. v. Pitt Meadows (City) (2012), 71 C.E.L.R. (3d) 190 (Prov. Ct.), I described the test for granting anapplication for a Rule 20(5) penalty in this way: “The jurisdiction to order such penalties is exercised sparingly.

As the Rule itself states, it is reserved for those cases where a losingparty has proceeded to trial with "no reasonable basis for success". As to policy, Rule 20(5) is intended to discourage unreasonable litigants from putting other litigants to the expense and inconvenience ofgoing to trial where the dictates of reason urge the abandonment of claims or defences that are manifestly non-maintainable.

An ancillarypurpose for the Rule is that of preserving court resources for the adjudication of those disputes in which the positions taken by bothparties have some apparent merit and which justify the invocation of the costly and time-consuming trial process. In those cases where penalties have been awarded, reference is often made to shocking or reprehensible conduct on the part of the losingparty, or to oblique and improper motives having been a factor in the losing party's persistence in prosecuting a manifestly non-maintainable claim or asserting a plainly non-meritorious defence: see, for example, Lindner v.

Billick, [2007] B.C.J. No. 1000 (Prov.Ct.), Braithwaite v. Duncan Swim Club, 2008 BCPC 68 , 2008 BCPC 68 and Teal-Jones Group v. Tyner, [2011] B.C.J. No.2303 (Prov. Ct.) ...” (at paras. 99-101) [196] In Molison v.

Niedermayer, 2015 BCPC 118 , 2015 BCPC 0118 (“Molison”), the court imposed the maximum penaltyunder Rule 20(5), after being satisfied that the defendant filed his counterclaim and proceeded to trial with no reasonable basis forsuccess, and the defendant’s conduct had many “aggravating factors.” Molison involved a construction contract dispute, with a numberof factual similarities to the case before me. [197] In the case before me, I am of the view that, under Rule 20(5), the maximum penalty of 10% of the amount of the Defendant’scounterclaim should be imposed against the Defendant for the following reasons. [198] First of all, to come within the ambit of Rule 20(5), the Defendant must have made a reply and/or a counterclaim and “proceededthrough trial with no reasonable basis for success.” [199] As I have already discussed at length, there was no merit to any of the Defendant’s arguments, either in support of its allegationthat the Claimant breached the Contract, or in its defence that it owes no monies to the Claimant under the Contract or for the RampRepair.

Its counterclaim, in my view, was a complete farce. How can the Defendant lose revenue or profits, when it did not evencommence operations (through no fault of the Claimant) during the months it claims it suffered a loss? Then, to quantify the alleged losswith revenues and profits from a different period of high functioning months is completely inappropriate. Even those figures could not beverified, as no properly prepared financial statements were submitted for consideration. [200] Given the parties’ relationship (in which Mr. Saroya seemed to be exploitive of Mr.

Gill), it is not unreasonable to infer that theDefendant filed a baseless counterclaim for $34,500, close to the upper limit of this court’s monetary jurisdiction, in all likelihood, purelyto intimidate the Claimant into settling the claim on the Defendant’s terms.

The evidence indicates that the Defendant was fiercelymotivated to recover the Soft Touch expense of $7,875 that it incurred, at any cost. [201] Based on the strength of the Claimant’s claim, when the Claimant refused to settle, the Defendant proceeded to trial, knowing fullwell, that its defence to the original claim, and its counterclaim, were baseless and frivolous. [202] Furthermore, there were innumerable instances of highly petty, unreasonable, and reprehensible conduct on the part of theDefendant, and its principal, Mr. Saroya, towards the Claimant, and its principal, Mr.

Gill, some of which I have already discussed. I willadd a few more to that list. By no means are the incidences I reference here exhaustive. They are as follows: (

a) When questioning Mr. Gill, Mr. Saroya said, “there is no mention of asking for payment” in Mr. Gill’s email of June 23, 2019attaching the Claimant’s Invoice. This could hardly be a basis for Mr. Saroya to ignore the Invoice. He knows that the Claimant did the work. (

b) In arguing that the Ramp Repair was included in the $15,000 price, Mr. Saroya said: In my text message on 3rd May 2019 [to Mr. Gill], I said, “please do the outside repair.” [Mr. Gill] did not reply to it at all. It means thattime, the extra job he’s putting on his invoice was actual in – in the original quote he give me. Mr. Saroya’s argument makes no sense. Just because Mr. Gill did not respond to this text message, does not mean that there was anagreement between the parties that the Ramp Repair was included in the original quote. The evidence does not support Mr. Saroya’sinterpretation or argument on this point. (

c) Regarding the Ramp Repair, Mr. Saroya also accused Mr. Gill of “creating the extra job billing” because the Defendant refused topay any more monies after the first $7,500 payment.

This accusation is completely unsubstantiated, as the evidence indicates otherwise. (

d) Referring to Mr. Gill’s evidence about the meeting with the Innovative Enterprises painter, who came to the job site to give an estimate for the exterior painting, Mr. Saroya said: First, one time [Mr. Gill] admitted that he arranged a meeting with the painter at the site, the second time he said . . . on the site he just made the person to phone me. Mr. Gill did not tell the date on which it happened, but he referred somewhere around 26 th , 27 th , April 2019. . . . I totally disagree with the statement because in the timeline submitted to the court by Mr.

Gill . . . he said between 17 April 2019 to 24 April 2019, no work was done at the job site. So nobody was there then how things can happen like this? This is a complete mischaracterization of Mr. Gill’s evidence. Mr. Gill never referred to the dates April 26 or 27, 2019 as the date when the Innovative Enterprises painter came to the site to give an estimate. With respect to the notation in the timeline, as I have already discussed, Mr. Gill explained that between April 18 and 25, 2019, less work was done inside the Premises due to limited access, but work continued to be done outside the Premises.

This is a classic example of how Mr. Saroya, without reservation, manipulated the evidence to reinforce his version of events, in support of the Defendant’s position. Another example is the Defendant’s timeline, entered as Exhibit 5. It contains many embellishments, and inconsistencies with the evidence I heard. (

e) On the one hand, Mr. Saroya claimed not to know much about construction because he said he was “not in the trades,” but, on the other hand, he said the electrician’s job was very small, and blamed Mr. Gill, alleging that Mr. Gill hired Swaich to increase the Claimant’s billing. He said that the whole job, referring to the Delta Project, was “only a two-week job.” He also said it was a “small renovation” job. These assertions are far from what the evidence indicates. (

f) Mr. Saroya also attempted to minimize the work the Claimant did. He repeatedly questioned the Claimant’s witnesses about the square footage of the Premises that they worked on, and the minute details of the work they did. He argued that their work only involved 300 square feet, whereas the Claimant’s witnesses testified that according to the renovation plans the Defendant provided to the Claimant, the area they worked on was about 1,872 square feet. Mr. Saroya had to be admonished on a number of occasions to not waste time on unimportant details.

The square footage and the construction details of the work done inside the Premises were not critical, as the parties were operating under a fixed price contract. As I noted before, only the price of the Ramp Repair was based on an hourly rate. (

g) Mr. Saroya literally chastised Mr. Gill for pursuing payment of the Claimant’s Invoice and Swaich’s invoice. On July 1, 2019, at 4:33 p.m., Mr. Gill sent a text message to Mr. Saroya: Bhaji electrician called me again and again he wants his payment, your [ sic ] not answering my phone, please call me. Are you in town or out of town? To which, Mr. Saroya responded on July 4, 2019, at 8:50 am, by text: As discussed you are already being paid for the work you have done but [you are] still bothering me by phoning me and sending text messages.

Please stop doing this and also you and or your agents should not come to any of my properties and if it is done then it will be considered as a threat and trespassing and according[ly] police will be informed. If you have any concerns then please consider taking legal remedies. After this message, your phone number will be blocked and if you try to call from some other number then I will consider it as threatening. (

h) To portray himself in a positive light, Mr. Saroya suggested that he disclosed all relevant documents, including the preceding July 4, 2019 text message to Mr. Gill, wherein he made certain threats. He said, “I know . . . July message will go against me or can go against me, but with full honesty I have disclosed that message.”

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