Baker v. Mayrhofer Date:, 2013 BCPC 162

Citation: Baker v. Mayrhofer Date: 20130624 2013 BCPC 0162 File No: C65262 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BOB BAKER CLAIMANT AND: ROLF MAYRHOFER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. Baker Appearing in person: Mr. Mayrhofer Place of Hearing: Nanaimo , B.C.

Date of Hearing: January 24, June 3, 2013 Date of Judgment: June 24, 2013 [ 1 ] Mr. Baker is the owner of a waterfront home in the Nanoose area, north of Nanaimo. It is a large, high-quality home with a deck looking out over the ocean. In lieu of a railing, the perimeter of the deck is guarded by a row of 18 tempered glass panels. The panels were manufactured by the Garibaldi Glass Company, based in Burnaby, British Columbia. [ 2 ] In the spring of 2011, Mr. Baker decided to sell his house. He retained Mr. Mayrhofer to clean the windows so as to make it more attractive to prospective purchasers.

The contract was entirely oral, and quite informal. Mr. Baker asked Mr. Mayrhofer for a quote to clean the windows. Mr. Mayrhofer provided a quote of $175, which Mr. Baker accepted, and the contract was made. [ 3 ] Included in the scope of work was the cleaning of the tempered glass panels bordering the deck. Mr. Mayrhofer and his assistants performed the work on June 7, 2011, which was a bright and sunny day. All appeared to be well until a few days later, when Mr. Baker noticed that the glass panels surrounding the deck had been scratched during the cleaning process. Mr. Baker explained, and Mr.

Mayrhofer agreed, that the scratches are not normally visible. They become visible only when the light strikes the glass at a certain angle. Mr. Baker attempted to photograph the scratches, so as to have photographs available to place in evidence, but the scratches did not show up in the photographs. [ 4 ] Mr. Baker has obtained a quote of $11,959 for the labour and materials to replace the scratched panels. Mr. Mayrhofer considers that to be a reasonable estimate. Mr. Baker has not commissioned that work because of financial constraints.

He says that he will order the work immediately if he is successful in this action, and that, if he is not successful, he will order the work when he can afford to pay for it. [ 5 ] Mr. Baker asserts, and Mr. Mayrhofer agrees, that the scratches were caused during the cleaning process when the metal scrapers used by Mr. Mayrhofer and his assistants scraped off microscopic particles from the tempered glass surface and dragged them across the glass, scoring the surface. [ 6 ] Mr. Baker advances three complaints: a.

He asserts that metal scrapers should not be used on glass surfaces, and particularly not on tempered glass surfaces, because they tend to scratch the surface. In support of this assertion, he relies upon a number of publications by organizations in the glass industry. A representative example is provided by the following passage from a publication of the Glass Association of North America: The entire industry ... neither condones nor recommends widespread scraping of glass surfaces with metal blades or knives. Such scraping will often permanently damage or scratch the glass surfaces.

However, other publications placed in evidence by Mr. Baker as part of his case reflect a vigorous debate on the question. Some, particularly in the cleaning industry, assert that glass can be safely cleaned with metal scrapers, and that metal scrapers are, in some circumstances, the only effective cleaning tool. Mr. Mayrhofer subscribes to that view. b. Mr. Baker’s second complaint is that Mr. Mayrhofer should have cleaned one panel, using a metal scraper, and checked that panel for damage before proceeding to clean the others. Had he done so, Mr.

Baker asserts, he would have noticed the damage to the first panel and refrained from using the scraper on the rest. c. Mr. Baker’s third complaint is that Mr. Mayrhofer should have alerted him to the debate, in order that Mr. Baker could make his own decision as to whether he wished to risk damage to the glass or to accept a lesser standard of cleaning. He says that, if Mr. Mayrhofer had alerted him to the risk, he would have instructed that metal scrapers not be used. [ 7 ] At an early stage of the trial, I: a. warned Mr.

Baker that he could succeed in relation to his first complaint only by leading expert evidence in support of the views of the Glass Association of North America, quoted in paragraph 6(

a) above; b. told Mr. Baker that I would be favourably inclined to an adjournment application if he wanted to make one to allow him time to procure such evidence. Mr. Baker declined my invitation, expressed himself to be resolved to proceed without the assistance of expert evidence. [ 8 ] In common with most ordinary people, I lack any knowledge or experience which would allow me to decide whether the use of metal scrapers is appropriate or prudent in these circumstances.

I could not draw any conclusion on that point without the evidence of an expert to assist me: Professional Welding Consultants Ltd. vs Bank of Nova Scotia [1982] BCJ #1262 @ paragraphs 39 – 47. That being so, Mr. Baker has failed to establish an evidentiary foundation for his first complaint. I observe parenthetically that I would have reached the same conclusion even in the absence of the other industry publications tendered by Mr. Baker, which express views contrary to those on which he relies. [ 9 ] Mr. Baker’s second complaint fails for the same reason as the first. The scratches were not readily visible.

They could, and can, be seen only when the light strikes the glass at a certain angle. For that reason, Mr. Baker did not notice them for several days after the completion of cleaning. There was no evidence from which I could infer that it is a common or prudent practice in the cleaning industry to clean one panel, using a metal scraper, and then microscopically examine it for scratches before proceeding to clean others, nor any evidence from which I can conclude that the scratches would have been apparent on examination under the weather conditions prevailing on June 7, 2011.

[10] Mr. Baker’s third complaint requires a more complex analysis. [11] A contractor owes a duty of care to the owner to perform the work with reasonable care and skill. The duty arises from twosources: (

i) a term which arises by necessary implication in any contract for services, unless excluded by an express term; and (ii) a dutyof care in tort arising from the relationship of proximity between the owner and the contractor: Howie vs Donovan-Brisbois 2008 SKQB228; 72 CLR (3d) 234. The governing principle was stated by the Supreme Court of Canada in B.G. Checo International Ltd vs BritishColumbia Hydro & Power Authority [1992] 1 SCR 12 and Royal Bank of Canada vs W.

Got & Associates Electric Ltd [1999] 1 SCR 12,and was summarized in the following terms by Picard, JA in Plas-Tex Canada Ltd vs Dow Chemical Company of Canada Ltd 2004 ABCA 309; 245 DLR (4th) 650 @ paragraph 60: ... where a given wrong supports an action both in contract and in tort, a party may sue in either or both with the only limit on a party'sright to sue in tort being the right of the parties to restrict their liability in tort through an effective limitation of liability clause in thecontract. Mr. Baker’s Notice of Claim is sufficient to raise alternate pleas in tort and in contract. [12] Mr.

Baker led no evidence on the central question relevant to his third complaint; i.e. whether a prudent contractor, actingreasonably, would have alerted Mr. Baker to the debate over the use of metal scrapers in cleaning tempered glass and would have soughtMr. Baker’s instructions before proceeding. The question is whether I can properly form a conclusion on that point without expertevidence. Because of the evidence given by Mr. Mayrhofer, I think that I can. [13] Mr. Mayrhofer said that: a. One cannot cut tempered glass.

For that reason, sheets of tempered glass are cut cold, then rolled into an oven to be tempered. Unless great care is taken, tiny pieces of glass (like sawdust) fall onto the surface of the glass as it is rolled into the oven. During thetempering process, these tiny pieces melt into the surface of the glass, causing imperfections. b. Until about 10 years ago, this was not a serious problem, because the market for tempered glass was relatively small and themanufacturers took proper care.

About 10 years ago, building codes were amended to require tempered glass in many circumstances forwhich it had not previously been required. As a result, many new manufacturers entered that line of business. Some of those were not asskilled or careful as their predecessors. c. Before June, 2011, Mr. Mayrhofer was aware that Garibaldi Glass Company had entered the tempered glass market, and that itstempered glass was both cheaper and more prone to imperfections than that of its competitors. Mr.

Mayrhofer had encounteredproblems before June, 2011 when cleaning tempered glass doors (particularly shower doors) manufactured by Garibaldi Glass. As aresult, he was cautious about cleaning such items if he knew that they had been manufactured by Garibaldi Glass. However, he was notaware that Garibaldi Glass manufactured tempered glass panels like those surrounding Mr. Baker’s deck. For that reason, he made noenquiry about the manufacturer of Mr. Baker’s panels. d. If one looks closely, the Garibaldi Glass logo can be seen on Mr. Baker’s panels. [14] I conclude that Mr.

Mayrhofer failed to exercise reasonable care in the following ways: a. As a professional in his field, he ought to have been aware of the products in circulation. More specifically, being aware of anexisting problem with the products of Garibaldi Glass, he ought to have made himself aware of whether that company had expanded intothe glass panel market. b. If he had made enquiries, as he ought to have done, and discovered, as he would have done, that Garibaldi Glass manufactured glasspanels, he ought to have made a practice of determining the identity of the panel manufacturer before cleaning glass panels. c.

Independently of “b”, being aware that Garibaldi Glass products suffered from the deficiency described, he should have looked forthe Garibaldi Glass logo on the panels before he started work. d. If he had learned, as he ought to have done, that Mr.Baker’s panels were manufactured by Garibaldi Glass, he ought to have informedMr. Baker of the risk of damage if scrapers were used, and offered Mr. Baker the opportunity to accept a less effective cleaning job onthe panels, as an alternative to the risk of damage if scrapers were used. [15] If Mr. Mayrhofer had done so, I have no doubt that Mr.

Baker would have instructed that scrapers not be used, and that thepanels would not have been damaged. As a result, I conclude that Mr. Mayrhofer is at fault for failing to warn Mr. Baker of the risk ofdamage resulting from the use of metal scrapers on Garibaldi Glass panels. [16] A question arises as to the appropriate measure of damages. There have been many cases in which courts have addressed thequestion whether a person in the position of Mr. Baker is entitled to be awarded: (

i) the cost of remedying the damage (in this case, byreplacing the damaged panels); or (ii) the diminution in value of his property as a result of the damage. In this case, there is undisputedevidence of the former quantity, and no evidence of the latter. The authorities are difficult to reconcile, but, in my opinion, support thefollowing 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. [17] Mr. Baker has not replaced the glass panels, but he says that he intends to replace them as soon as he can afford to do so, and hisevidence on that point was not challenged. The question is whether it would be unreasonable for him to incur that expense. [18] Mr. Baker tendered the evidence of Ms.

Gloria Dafoe. She is a licensed realtor, with more than 20 years experience in theupper end of the real estate market in the Nanoose area. She said that prospective purchasers in that market are not normally interested inbuying a house with deficiencies to be remedied. Rather than make a lower offer to take into account the cost of remedying deficiencies,such purchasers will normally make an offer subject to a condition that the deficiencies be remedied by the vendor, at the vendor’sexpense, before closing. She would expect any offer for Mr.

Baker’s house to be subject to such a condition in relation to the scratchedglass panels. That being so, I cannot conclude that Mr. Baker would act unreasonably if he were to incur the cost of replacing the panels. [19] However, Mr. Mayrhofer raised another issue during his cross-examination of Ms. Dafoe. As noted above, the glass panelssupplied by Garibaldi Glass are of lesser quality than other tempered glass panels. I am sure that Mr. Baker will not buy Garibaldi Glasspanels again. He will also receive new panels for old ones. As a consequence, if I award the full replacement cost, Mr.

Baker will be ina better position after the replacement than he was before Mr. Mayrhofer scratched the existing panels. Because the object of an awardof damages is indemnity, not betterment, some allowance must be made. Betterment is often difficult to quantify, as it is in this case. In such circumstances, the assessment must be somewhat arbitrary: James Street Hardware & Furniture Co vs Spizziri [1985] OJ #2609; Dupuis vs Bleckney [2003] NBJ #303.

I think that an allowance of 33% for betterment is appropriate. [20] As a result, I find that the appropriate measure of damages is the replacement cost of the glass panels, less a 33% allowance forbetterment. In the result, Mr. Baker is entitled to judgment for $8012.53, plus filing fees of $156.00 and service costs of $20.00. He isnot entitled to prejudgment interest because he has not yet incurred the cost of the replacement panels. June 24, 2013 ________________________T. Gouge, PCJ