Parker v. Robinson Date:, 2014 BCPC 237

Citation: Parker v. Robinson Date: 20141006 2014 BCPC 0237 File No: C21352 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHERRIE PARKER CLAIMANT AND: MARTYN ROBINSON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Ms. Parker Appearing in person: Mr. Robinson Place of Hearing: Port Alberni , B.C. Dates of Hearing: April 1, 2, August 27, 2014 Date of Judgment: October 6, 2014

[1] In January, 2010, Ms. Parker retained Mr. Robinson to replace the perimeter drain tiles at her home in Port Alberni, BritishColumbia. The existing drainage system had failed, causing water to enter her basement. Mr. Robinson completed the work in August,2010. In the autumn of 2010, Ms. Parker again observed water entering her basement. She made enquiries, and was advised that: (

i) Mr.Robinson`s work was deficient because he had not installed the replacement drain pipes below the level of the floor slab; and (ii) thatdeficiency was the cause of the problem observed in the autumn of 2010. She retained another contractor to: (

i) remove the drain pipesinstalled by Mr. Robinson; and (ii) install new drain pipes. That work was done in June, 2012, at a cost of $13,496.98. The results havebeen satisfactory. [2] During the trial, I raised a question as to whether Ms. Parker’s claim might have been extinguished by the Limitation Act RSBC1996, c. 266 before that statute was repealed and replaced by the Limitation Act SBC 2012, c. 13. However, I have concluded that thelimitation period established by the former statute in cases of this kind was six years, rather than two years, with the result that theformer statute did not extinguish Ms.

Parker’s claim: Armstrong vs West Vancouver 2003 BCCA 73. [3] There was no written contract between Ms. Parker and Mr. Robinson. She simply retained Mr. Robinson to do the work,without any discussion of detailed terms of contract. In those circumstances, the law implies a term that the work will be performed withreasonable care and skill. In the case of a building contract, the minimum requisite standard of care and skill is determined by theapplicable building code.

Put another way, it is an implied term of such a contract that the standard of workmanship is to meet or exceedthe requirements of the applicable building code: G. Ford Homes Ltd. vs Draft Masonry (York) Co. Ltd. (1983) (ON CA), 1 DLR (4th) 262; 43 OR (2d) 401; Window & Door Centre Inc. vs Pine Lake Properties Ltd. 2014 ONSC 1844; [2014] OJ #1364;terNeuzen vs Korn (SCC), [1995] 3 SCR 674 @ paragraph 81. [4] In common with most municipalities in British Columbia, the City of Port Alberni requires drainage systems to conform to theCanada Building Code.

The applicable provision of the Canada Building Code is: Drain tile or pipe shall be laid on undisturbed or well-compacted soil so that the top of the pipe is below the bottom of the floor slab. [5] Mr. Wong (an engineering technician employed by the City of Port Alberni), Mr. Versteeg, senior and Mr. Versteeg, junior(the contractors retained by Ms. Parker to replace the drain pipes installed by Mr. Robinson) all testified that, in more than one place, thetop of the drain pipe installed by Mr. Robinson was above the top of the floor slab.

In at least one place, the bottom of the drain pipewas above the top of the floor slab. I accept that evidence. It necessarily follows that the drain pipe was not installed in conformity withthe contract. [6] Mr. Robinson says that it is not the practice in Port Alberni to comply strictly with the Canada Building Code, and that, whenreplacing existing drain pipes in Port Alberni, it is sufficient if the top of the pipe is below the top of the floor slab. I do not accept thatassertion because: (

i) that is not what the Canada Building Code says; and (ii) it is not consistent with the evidence of Mr. Wong. Theproposition was not put to Mr. Wong when he gave evidence, but it is apparent from the rest of his evidence that he is aware of no suchpractice as was asserted by Mr. Robinson. [7] Mr. Robinson says that it is not possible to ensure compliance with the Canada Building Code when replacing existing drainpipes, because, when replacing old drain pipes, one digs a trench around the outside of the perimeter wall down to find the existing pipe.

The perimeter wall typically sits on a footing below the level of the floor slab, with the result that the floor slab is not visible from thetrench and one cannot determine the level of the bottom of the floor slab. He asserts that, for that reason, it is not the common practiceto comply with the Canada Building Code when replacing existing drain pipes. He says that the practice is to dig down to the level ofthe old pipes, remove them, and install new ones at the same level. I do not accept Mr. Robinson’s evidence for the following reasons: a. Using surveying equipment, Mr.

Wong was able to determine the relative elevations of: (

i) the top of the floor slab; and (ii) thetop of the drain pipes installed by Mr. Robinson. He provided precise measurements of those elevations in his evidence. In some places,the top of the drain pipe was above the top of the floor slab. If Mr. Wong could do it for the drain pipes installed by Mr. Robinson, asimilarly-qualified technician could have done it for the existing drain pipes which Mr. Robinson was retained to replace. b. Without the use of surveying equipment, Mr. Versteeg, senior and junior, the two contractors retained by Ms.

Parker to repair Mr.Robinson’s work, were able to observe that, in some places, the bottom of the drain pipe installed by Mr. Robinson was above the top ofthe floor slab. The fact was obvious to the naked eye. c. The level of the top of the floor slab, relative to the top of the foundation wall, would have been simple to establish, using anordinary tape measure. One would simply measure the height from the top of the foundation wall to the top of the floor slab inside thebuilding, then replicate that measurement in the trench outside the foundation wall. Mr.

Robinson knew that floor slabs are typically 3 to3 ½ inches thick. Prudence would dictate that one dig the trench 6 inches or so below the measured level of the top of the floor slab. d. The Canada Building Code expresses no exception for replacements of existing drain pipes, and no such exception can, in myview, be implied. [8] Mr. Versteeg, senior and Mr. Versteeg, junior testified that the water penetration observed by Ms. Parker in the autumn of 2010was caused by the fact that the drain pipe was installed above the bottom of the floor slab.

Were it necessary for me to decide that issue,I would accept that evidence. However, for the reasons given below, I think it unnecessary to consider the point. [9] The basic principle is that the measure of damages for breach of contract is a sum of money sufficient to place the innocentparty in the position which she would have occupied if the contract had been performed according to its terms: B.G. Checo Ltd. vs BritishColumbia Hydro & Power Authority (SCC), [1993] 1 SCR 12 @ paragraph 12. In this case, that could be done only byawarding Ms.

Parker the cost (which she has incurred) to dig up the faulty drainage system installed by Mr Robinson and to replace it

with one which conforms to the Canada Building Code. [10] However, the basic principle is subject to some qualifications and exceptions in the case of construction contracts. Theauthorities are difficult to reconcile, but, in my opinion, support the following statements of principle: a.

The measure of damages is the cost of repairing or replacing the defective work unless the cost of repair or replacement would be “...grossly and unfairly out of proportion ...” to the benefit which the property owner would derive from repair or replacement: Jacobs &Young Inc. vs Kent (1921) 129 NE 889, quoted with approval in NuWest Homes Ltd. vs Thunderbird Petroleum Ltd. (1975) (AB CA), 59 DLR (3d) 292. b.

"Where a builder is in breach of his obligations under a building contract, the owner is entitled to damages measured by the cost ofmaking good defects and omissions, unless that cost is unreasonably high in relation to the value to be gained by its expenditure.

Injudging the reasonableness of the owner's decision to rectify defects in such a case, the Court should not be overcritical, since thenecessity of making the decision is occasioned by the builder's own breach of contract": Carleton Condominium Corporation vs MintoConstruction Ltd. [2001] OJ # 5124; 15 CLR (3d) 23 @ paragraph 301 {affirmed at [2004] OJ # 597; 31 CLR (3d) 1}. c. The principles stated in “a” and “b” have no application “... where the owner does not intend to, or cannot rectify or complete thedefective work, or where he would be acting unreasonably or oppressively in doing so ...”.

In such cases, the measure of damages is thediminution in value of the property, and the plaintiff’s case fails if no evidence of diminution in value is tendered: McGarry et al vsRichards, Ackroyd & Gall Ltd. (BC SC), [1954] 2 DLR 367; Strata Corp. NW 1714 vs Winkler [1987] BCJ #2340; (BC CA), 20 BCLR (2d) 16. [11] None of the qualifications or exceptions described in paragraph 10 apply in this case. In deciding to dig up and replace thefaulty system installed by Mr. Robinson, Ms. Parker acted on the advice of Mr. Versteeg, senior, and it was perfectly reasonable for herto do so.

She is therefore entitled to judgment for the sum of $13,496.98, together with court order interest at the Registrar’s rate fromJuly 1, 2012 to October 6, 2014. October 6, 2014 _____________________________T. Gouge, PCJ