Globe Agro v. Wizriber Date:, 2017 BCPC 109

Citation: Globe Agro v. Wizriber Date: 20170310 2017 BCPC 109 File No: C22380, C22390 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File C22380 BETWEEN: GLOBE ARGO GROUP TRADE INC. CLAIMANT AND: KEREN WIZ, also know as KEREN WIZRIBER DEFENDANT AND File C22390 BETWEEN: KEREN WIZ, also known as KEREN WIZRIBER CLAIMANT AND: GLOBE ARGO GROUP TRADE INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. J. BROWN

Appearing on behalf of Globe Argo Group Trade Inc.: Ozgur Demirbas, a company representative Appearing in Person: Keren wiz aka keren Wizriber Place of Hearing: Abbotsford, B.C. Dates of Hearing: October 28, December 7, 2016, March 10, 2017 Date of Judgment: March 10, 2017 [ 1 ] THE COURT : These are my reasons for judgment. Introduction [ 2 ] Under file 22380, the claimant, Globe Agro Group Trade Inc., is suing Keren Wizriber for the sum of $9,246 plus court fees plus interest in relation to Globe Agro's installation of flooring in Ms. Wizriber's daycare facility. [ 3 ] Under a separate file, 22390, Ms.

Wizriber is suing Globe Agro for costs and losses associated with what she claims was a very poor flooring installation. Her claim totals $3,985 plus court fees. Evidence The Globe Agro case Ozgur Demirbas [ 4 ] Mr. Demirbas is the president of Globe Agro, a flooring company. He presented email exchanges his company had with Ms. Wizriber in March and April of 2015, wherein the company quoted $4,870 plus tax to install vinyl planking in Ms. Wizriber's daycare in her basement in Mission, B.C. [ 5 ] Mr. Demirbas said the quote did not include levelling and the removal and disposal of old carpet.

He was aware he could only do the work on weekends due to the daycare. When Mr. Demirbas began the work on April 18th and 19th, 2015, he removed the carpet and discovered that the cement floor was horribly uneven. He said he explained to Ms. Wizriber that if she wanted a perfect job, he would need more time and it would be outside her budget. Mr. Demirbas said that Ms. Wizriber ultimately agreed verbally to pay $500 more for chipping and $200 more for levelling. [ 6 ] Mr. Demirbas installed vinyl planking and baseboard in one big daycare room and two bedrooms. He said Ms.

Wizriber agreed that a transition piece would be required around the main door and in a few other areas. According to Mr. Demirbas, Ms. Wizriber seemed happy with his work up to the point of Sunday night, April 19th, 2015. He had more work to do regarding the unfinished transitions and was planning to return the next day. [ 7 ] Mr. Demirbas says that Ms. Wizriber did not respond to requests to finish the work until her email of April 22nd, 2015, wherein she says there are problems with the floor and she is seeking a professional opinion. Mr. Demirbas sent her a warranty thereafter. Ms.

Wizriber later details in an email her concerns including no levelling, parts of the floor coming apart, pieces not glued down and no underlay, et cetera. [ 8 ] The parties had a confrontation on April 17th, 2015, and ultimately Globe Agro sent an invoice for $7,078.40 which included concrete breaking, levelling and removal of the carpet. Mr. Demirbas also says he never received his samples back. [ 9 ] Exhibit 4 is a letter from Mr. Laforet, a flooring consultant. His letter essentially asserts that Ms. Wizriber would not allow him to inspect her home and the flooring. It appears Mr.

Laforet called someone other than Ms. Wizriber on May 30th, 2016, and that person had no issues with her flooring. On June 7th, 2016, Mr. Laforet tried another number and Ms. Wizriber told him that the time limit for inspection had passed and there was no use in him looking at the job. Ms. Wizriber did send an email June 28th, 2016, offering contact with Mr. Laforet by email. [ 10 ] Mr. Demirbas has been in the floor-laying business seven years and he was an installer prior to that time. He has good references. [ 11 ] In cross-examination, when Mr.

Demirbas was shown photographs marked as Exhibit 6, he agreed that there was some raised planking but he could use transitions. He also said that if he were required to level concrete, the job would have taken a week, not two days. He says he did do some chipping and he used levelling compounds. He said only little things remained to be done on the flooring job. Galina Demirbash [ 12 ] Ms. Demirbash, and that is spelled slightly different than her husband's name, D-e-m-i-r-b-a-s-h. [ 13 ] UNIDENTIFIED SPEAKER: Yeah, it's spelled different. [ 14 ] THE COURT: Yes, thank you. Is the spouse of Mr. Demirbas.

She was somewhat aware of the measuring and quote for the flooring work. She was aware of the work being done April 18th and 19th, 2015, at Ms. Wizriber's home. According to Mr. Demirbas,

Ms. Wizriber seemed very satisfied with the work the evening of April 19th. However, Ms. Wizriber was taking pictures of the floor on Saturday, which seemed suspicious. Ms. Demirbash explained her repeated attempts to communicate with Ms. Wizriber to finish the flooring work. [ 15 ] In cross-examination, Ms. Demirbash said any clothing or jewellery she received from Ms. Wizriber was a gift. [ 16 ] An invoice was presented from Taiga, the flooring supplier, indicating that the flooring product itself cost $1,595.62.

In Exhibit 10, Taiga also said that "vertical deflection" was caused by an uneven subfloor and that does not qualify as a warranty claim. Wayne Laforet [ 17 ] I allowed Mr. Laforet to testify by telephone. He is one of two inspectors with the B.C. Flooring Covering Association and he is a certified inspector for all types of floor coverings. He agreed that home inspectors have general knowledge about flooring but tests need to be performed for specific types of floors with specific guidelines. [ 18 ] Mr. Laforet testified about his attempted contacts with Ms. Wizriber.

He agreed he called the wrong person on May 30th, 2016, but he stands by his letter concerning June 7th, 2016. Ms. Wizriber told him the time limit for inspection had passed, the flooring job was horrible and it was not convenient for her to have the floor inspected. [ 19 ] On October 17th, 2016, Mr. Laforet tried to call Ms. Wizriber. There was a hang-up call and then he left a voicemail. He says he called her five times without a response. Ms. Wizriber says he may have called her daycare line and she did attempt to respond. [ 20 ] Globe Agro has spent a total of $761.25 for Mr.

Laforet's services. [ 21 ] In cross-examination, Mr. Laforet did say that it is the floor installer's responsibility to ensure the floor is level before installing the flooring. The Wizriber Case Duncan Buss [ 22 ] Mr. Buss is a licensed home inspector. He has experience with flooring products. Mr.

Buss examined the vinyl planking and noted that there were several noticeable areas of uneven subfloor, the perimeter of the floor was 15 to 20 millimetres than the rest of the floor, unsuccessful attempts at levelling the perimeter wall were evident, concrete was raised at the door, planks at the perimeter were uneven and loose-fitting. [ 23 ] He recommended that the flooring be removed and a new subfloor be poured. [ 24 ] In cross, Mr. Buss agreed he was not a floor-layer specialized in vinyl flooring; however, he said he was qualified to do visual inspections of flooring. Mr.

Buss also said that a reducer is usually for a transition between rooms, not for uneven cement. Keren Wizriber [ 25 ] Ms. Wizriber runs a daycare business in Mission, B.C. She wanted new flooring and made it clear that the work could only be done on weekends. She obtained many quotes for the flooring job and she chose Globe Agro because of their experience and size. She claims that Mr. Demirbas said he would be levelling the subfloor and he calculated the bags of cement required. She also lifted up a corner of the carpet to show him the uneven concrete. [ 26 ] Ms. Wizriber was quoted $4,870 for the flooring job.

This was a higher quote, she says, than quotes from other professionals. Ms. Wizriber asserts that she never said she was on a budget. She expected a perfect job for $4,870. [ 27 ] Ms. Wizriber also stated that on the first day of the job, Saturday, April 18th, 2015, Mr. Demirbas' workers "bailed on him". Carpet was removed and that was, according to her, part of the quote. [ 28 ] Ms. Wizriber claims that Mr. Demirbas took three clothing items and jewellery which was to be deducted from the Globe Agro flooring bill. [ 29 ] She agrees she was to paint the baseboards when installed. [ 30 ] Ms.

Wizriber states that she pointed out to Mr. Demirbas the unlevel flooring near the wall. On the Sunday before Mr. Demirbas left, she pointed out the uneven corners and the fact that the floor was moving and not glued down. When she later received emails from Globe Agro offering only to do "transitions", she was concerned. [ 31 ] Ms. Wizriber says that she had the flooring in the two bedrooms redone. She cannot reuse the vinyl planking supplied by Globe Agro. [ 32 ] Regarding the inspector, Mr. Laforet, Ms. Wizriber says she never got a phone call on May 30th, 2016.

The screenshot shows someone else's phone number. She agrees she had a conversation with Mr. Laforet on June 7th, 2016 but she denies refusing the inspection. She also denies getting the voicemails in October. [ 33 ] In cross-examination, Ms. Wizriber denied that she made up the invoice for flooring work on the two bedrooms, which is marked Exhibit C for Identification. My Findings

The Contract [ 34 ] First of all, I am satisfied that there was a verbal contract for Globe Agro to supply and install vinyl planking in Ms. Wizriber's basement daycare and two bedrooms. The only hard evidence I have about price is the email quote for $4,870 and taxes. I appreciate that Globe Agro later sent an invoice which included an extra $1,450 for concrete breaking, levelling and removal of carpet, but Ms. Wizriber says that was part of the original quote. I have no written proof by email or otherwise that she agreed to pay extra for those items. It also makes sense to me that Mr.

Demirbas calculated levelling and costs of cement in the original quote. [ 35 ] I conclude that Globe Agro had a verbal contract with Ms. Wizriber to install vinyl planking in her basement for $4,870 plus taxes. There is no contractual term about interest. Installation [ 36 ] When I review the evidence in total and examine the photographs, there is no doubt that the vinyl planking was not installed in a workmanlike manner. I am fully satisfied that the subfloor was uneven and there were problems with the flooring at the perimeter and at the front door. [ 37 ] The floor supplier itself said the floor was uneven.

See Exhibits 10 and 11. Mr. Cavanaugh from Taiga said, via email, that the floor is not level and many areas had high points and concaves. Ms. Wizriber has no warranty as a result. Transition pieces are not intended to cover up these problems. Quite frankly, the elevated piece of flooring at the doorway looks most unprofessional even if transition pieces were to be added later. [ 38 ] I am also satisfied that the oral contract did not permit Globe Agro to cut corners by not taking the time to chip and level the cement subfloor. [ 39 ] I appreciate Mr.

Buss is a home inspector and not a floor installer but I share his concerns. [ 40 ] My conclusion is that the contract must be severely discounted taking into account deficient workmanship. Ms. Wizriber will essentially have to remove the daycare flooring, have the cement levelled and reinstall likely new planking. This already happened to some degree with the bedrooms. Ms. Wizriber's Duty to Allow Inspection [ 41 ] A court order was granted allowing Globe Agro to have their own inspector attend at Ms. Wizriber's home. The order of July 14th, 2016, says as follows: Mr.

Laforet will be granted permission to inspect the work done by Globe Agro Group at 32948 - 14th Avenue, Mission, B.C., for the purposes of preparing a report in this matter on a date to be arranged and agreed upon between the parties. Failing agreement between the parties, the matter may be brought back before the court for the court to choose a date for that inspection. [ 42 ] I note Ms.

Wizriber was previously ordered to pay monies for an adjournment request and I note that this order followed an earlier direction to the same effect. [ 43 ] I should say now that I do not consider that an inspection by Globe Agro's expert would have made any difference in my findings because Globe Agro's own supplier concedes that the subfloor was uneven and the floor needed to be unassembled. Mr. Laforet said himself that levelling the floor is an installer's obligation and that makes common sense. [ 44 ] Nevertheless, I am concerned that Ms.

Wizriber showed some reluctance in allowing the inspection by Globe Agro's expert. It is true that Mr. Laforet's first call was to the wrong person; however, he says he met resistance when he ultimately did contact Ms. Wizriber. Ms. Wizriber has a different version of events but I am satisfied that there was some reluctance on her part to comply with the inspection. I see no reason why Mr. Laforet would not be telling the truth. [ 45 ] Ms. Wizriber was also very slow to respond to Globe Agro after the first two days of work were completed and she never allowed Globe Agro back to see what problems she was raising.

She also replaced the flooring on the two bedrooms unilaterally. [ 46 ] Under Rule 20(6), I am satisfied that Globe Agro is entitled to compensation due to Ms. Wizriber's conduct in not making her home available for inspection, as required by court order. Globe Agro's Other Claims [ 47 ] Globe Agro's claims for moral compensation and loss of time are not made out. Their claim under the $4,870 invoice includes their time, and "moral compensation" is a claim unknown to law. [ 48 ] I also reject any claim for non-returned samples, as I have no proof of value of the samples. Further, Ms.

Wizriber claims she returned the samples and I cannot resolve this issue on a balance of probabilities. Keren Wizriber's Claims [ 49 ] Ms. Wizriber's claims for clothing are not made out. No invoice was provided and Globe Agro says everything received was a gift. [ 50 ] No evidence was provided to support a claim for closing of the daycare and the work occurred on the weekend, as agreed. The compensation claim of $1,000 is unfounded. [ 51 ] Ms. Wizriber also has not provided sufficient evidence for loss incurred for removing the flooring or for inspection fees. The

only flooring invoice provided was by Mr. Aguilar and that invoice was contested and Mr. Aguilar was not called as a witness. I am disinclined to award any inspection fees to Ms. Wizriber for an inspection given the difficulties that Globe Agro had in getting their own inspection. Conclusion [ 52 ] I am satisfied that Globe Agro had a contract with Ms. Wizriber to install vinyl planking in her daycare for $4,870 plus taxes. Nothing was paid under the contract. [ 53 ] The workmanship was so poor that I can assign only a value to the materials supplied. The material cost was some $1,500.

Even then, the material will have to be removed and it may or may not be reusable. [ 54 ] Accordingly, I discount the possible contractual claim of $4,870 plus taxes to $800. [ 55 ] I am adding in $500 because Ms. Wizriber did not fully comply with her duty to allow an inspection. [ 56 ] These are my orders:

(1) Under file 22380, the claimant, Globe Agro Group Trade Inc., shall have judgment against Keren Wizriber for the sum of $1,300 total.

(2) Under file 22390, all claims are dismissed.

(3) As there was mixed success, no party will be entitled to costs and there will be no pre-judgment interest. G. J. BROWN Provincial Court Judge