Lottis v. Stansal Date:, 2016 BCPC 209

Citation: Lottis v. Stansal Date: 20160622 2016 BCPC 209 File No: C7029 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHARON LOTTIS and KEVIN LOTTIS CLAIMANTS AND: EMORY JOSEPH STANSAL and SHERI LEE STANSAL DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. & Ms. Lottis Counsel for the Defendants: J. Millbank Place of Hearing: Campbell River , B.C. Dates of Hearing: January 27, 28, June 16, 17, 2016

Date of Judgment: June 22, 2016 The Issue [ 1 ] Pursuant to a contract, partly oral and partly in writing, entered into on July 15, 2013, the Defendants agreed to supply and install a total of 3840 square feet of hardwood flooring in a new house then under construction by the Claimants, at a total price of $56,372.93. The Defendants did supply and install the flooring, and the Claimants paid the contract price in full. [ 2 ] The Claimants allege that the Defendants’ workmanship was deficient, and that they expended more than $30,000 to remedy defects in the workmanship.

They have elected to limit their claim to $25,000, being the limit of the monetary jurisdiction of this court. The Facts [ 3 ] On July 15, 2013, the Defendants provided the Claimants with two written quotes, one for supply and installation of the hardwood floors on the ground level of the Claimants’ house (then under construction) and the other for supply and installation of the hardwood floors on the upper two levels.

Each quote contained the following term: The material acclimatization process requires the hardwood flooring to be on site minimum of one (1) week prior to installation. … Allow 24-hour cure time before any traffic on newly applied finish. Allow up to 7 days for the finish to completely cure before replacing any area rugs. Additionally, do not use any water or cleaning products for the first 7 days after installation. Ms.

Lottis accepted both quotes, and signed each to signify her agreement to the terms stated. [ 4 ] The Defendants rendered an invoice for $26,367.60 on June 12, 2013, which the Claimants paid by cheque on July 18, 2013. Ms. Stansal explained that this invoice was for the cost of the necessary materials, which the Defendants required to be paid before commencing work. [ 5 ] Mr. Stansal commenced work in September, 2013. He delivered the materials to the site and left them to acclimatize, as contemplated by the terms of his quote.

He was concerned because the house was far from finished, with the result that the interior of the house was not controlled for temperature or ambient moisture. However, he did not suggest to the Claimants that the flooring work be deferred until adequate climate controls were in place. He was also concerned because other tradesmen, notably stone cutters, drywallers and painters, were working in the house. That concerned him because dust, debris and foot traffic, which are necessarily incidental to the work of those other tradesmen, can have seriously adverse effects on the finish of a hardwood floor.

However, he did not request or suggest that other tradesmen be excluded from the house while the floor was being installed. He said that he made a conscious decision to refrain from raising these issues, and, instead, to try to work around the other tradesmen. Work on the floors progressed intermittently until the end of December, 2013. [ 6 ] On January 2, 2014, the Defendants rendered a second invoice for $26,855.33, which the Claimants paid on January 15, 2014. The total of the first two invoices was $53,242.93, about $3100 less than the total contract price.

The difference is attributable to an arrangement, agreed between the Claimants and the Defendants in December, 2013, to the effect that the stair treads would be finished by another tradesman, Mr. Nikolaisen, and that his fee would be deducted from the contract price. [ 7 ] Toward the end of January, 2014, the Claimants cleaned the newly-installed floor with a household cleaning product (“Pledge”).

The Defendants say that the cleaning product should not have been used until after the final finish coat had been applied to the floor because the chemical residue from the cleaning product will impair the chemical bond between the final coat and the underlying coats of the finish. They attribute part or all of the ensuing defects in the finish to this phenomenon. For the reasons given below, I need not decide this issue. [ 8 ] Mr.

Stansal continued to work on the floor intermittently through February and March, 2014. [ 9 ] Matters came to a head on March 16, 2014, when the Claimants visited the site to inspect the work in progress. Ms.

Lottis described the work in the following terms in an e-mail which she sent to the Defendants on March 16, 2014: When we returned to the house this evening and opened and opened the back door we were absolutely shocked to see the landing there that you sealed today completely covered in sealed pebble rocks and sand. … The upper two landings in the back stairwell were also sealed over top of small pebble rocks, wood chips, hair and had visible round sanding marks …. During his cross-examination, Mr. Stansal was shown photographs of the areas so described. Those photographs are consistent with Ms.

Lottis’ description. Mr. Stansal agreed that the standard of workmanship shown in the photographs is completely unacceptable. He attributes the problem to the activities of other tradesmen working in close proximity to the floor before the finish had time to cure. [ 10 ] After describing the deficiencies in the work in her e-mail of March 16, 2014, Ms. Lottis continued as follows: We asked you to return, after a very difficult time trying to get you back, to complete this job’s final seal coat, [and to] repair deficiencies …. Today, this job stepped backwards again.

You came today and made this job worse, not better. We do not have any confidence now in you returning to do any further work at our residence. Do not return to site on Tuesday as had been scheduled. Clearly, for whatever reason, you are either unwilling or unable to produce the quality of work you were contracted and paid to do. As our contract with you was paid in full, we are now in a difficult position of having to hire someone else to complete this job and repair your mistakes. We will being getting quotes on this tomorrow. Once we have the quotations, we will give you the option of

reimbursing us directly for this amount. If you choose not to do that, we will unfortunately be put in the position of having to file against you to recuperate those costs. Ms. Stansal replied by e-mail later that evening, in which she said “We will not be reimbursing you for anything”. She also advised Ms. Lottis to retain an inspector certified by the National Wood Flooring Association (“NWFA”) and that “… nobody else is acceptable”. [ 11 ] The Claimants then retained Mr. Wayne LaForet to inspect the floor, and to advise what should be done to remedy its deficiencies. Mr.

LaForet is certified by NWFA and other wood industry associations. He was called as an expert witness at trial, and I found him to be qualified to give opinion evidence. In his evidence, he identified the following items of defective workmanship: a. “Chatter” can be seen in large areas of the flooring. “Chatter” is a wave-like deformation of the floor surface, and causes the floor to be uneven. It is caused by an imbalance in the sander during the initial sanding process. If the floor is competently sanded, “chatter” does not result. Mr.

Laforet rejected the Defendants’ suggestion that “chatter” could be caused by uneven or flexible joists in the subfloor. He agreed that “chatter” can be caused by deformation of the subfloor, but said that he had taken laser readings of the floor in question, and that it was not deformed. b. “Raised grain” was observed in several areas. It is caused by over-sanding, resulting in heat that causes the grain to rise above the softer wood. c. Circular sanding marks were observed around the perimeter of the floor and are the result of improper sanding. d.

The stain on the stair landings is a different colour from the stain on the main floor. e. Debris and hairs are found embedded in the finish coat, causing it to be rough and unsightly. f. There are bubbles and craters in the finish coat, caused by improper installation. g. Some of the floor nails were not properly countersunk, and so fail to provide a smooth floor finish. h. In some areas, filler is missing between pieces of flooring. i. In some places, the floor fasteners are too far apart, or too far from the end of the piece of flooring. [ 12 ] The Claimants retained Mr.

Colin Aldridge to remedy the deficiencies identified by Mr. LaForet. Mr. Aldridge’s qualifications are similar to those of Mr. LaForet, and I accepted Mr. Aldridge also as qualified to give opinion evidence. He concurred in Mr. LaForet’s observations and conclusions. He said that the major problem was the chattering. In his opinion, the other deficiencies could have been remedied without removing the entire finish and starting over, but the only remedy for the chattering was to sand down to bare wood and recommence the finishing process from the beginning. The Claimants instructed Mr.

Aldridge to do that, which he did, at a cost of $30,488. [ 13 ] Ms. Lottis expresses herself to be completely satisfied with the floor, as refinished by Mr. Aldridge. There is now no sign of chattering in the finished floor. [ 14 ] It will be observed that the fee charged by Mr. Aldridge to remove and replace the existing finish is about $4000 more than the Defendants’ fee to install the floor and apply the existing finish. Given that Mr. Aldridge faced the extra work of removing the existing finish, and that he incurred some cost for finishing supplies, that appears to be reasonable.

The Defendants did not challenge the reasonableness of Mr. Aldridge’s fee at trial. Analysis [ 15 ] The central issue is whether the floor was affected by chattering. Mr. LaForet, Mr. Aldridge and Mr. Stansal all agree that: (

i) chattering is caused by the use of a sanding machine which is not properly balanced, with the result that the machine bounces up and down as it sands the floor, causing an uneven surface; (ii) chattering is caused by defective workmanship; (iii) the only way to remedy chattering is to sand all of the finish off the floor, sand off the chattering and refinish the floor. Mr. LaForet and Mr. Stansal both say that they observed chattering when they inspected the floor. Mr.

Stansal says that the uneven parts of the floor, evident in the photographs, are not the result of chattering, but rather the result of flexion or unevenness in the joists beneath the floor. [ 16 ] I accept the evidence of Mr. LaForet and Mr. Aldridge on this point, in preference to that of Mr. Stansal, for the following reasons: a. Mr. Aldridge was able to sand off the finish installed by Mr. Stansal and refinish the floor without any sign of waves, ridges or other unevenness. There is no indication that he encountered any difficulty in doing so.

It necessarily follows that the cause of the problem was not the structure, but rather Mr. Stansal’s workmanship. b. After she received Mr. LaForet’s report on March 20, 2014, Ms Lottis met on-site with Mr. Stansal to review Mr. LaForet’s findings and recommendations. She pointed out the chattering to Mr. Stansal, who replied that he could not see it. The chattering was clearly visible to Mr. LaForet when he inspected the floor. It was clearly visible to Ms. Lottis before she retained Mr. LaForet, and was one reason that she retained him. It was clearly visible to Mr.

Aldridge when he was retained to refinish the floor. It must have been visible to Mr. Stansal when he met with Ms. Lottis. It is notable that, during that meeting, he did not say to Ms. Lottis that the phenomenon of which she complained was not chattering, but rather the result of flexion or unevenness of the subfloor. He said that the phenomenon was invisible. His denial of the existence of an obvious problem does not reflect well on his credibility. c. Mr. Stansal’s one opportunity to observe the phenomenon in person was during his meeting with Ms. Lottis.

He says that he could not see the phenomenon during that meeting. His opinion, expressed at trial, that the phenomenon was caused by flexion or

unevenness of the subfloor is founded upon his review of the photographs now in evidence, which are a poor substitute for physicalinspection. d. Mr. LaForet and Mr. Aldridge are independent witnesses, with no interest in the outcome of the dispute. Mr. Stansal’s interest ismanifest. During her closing submissions, Ms. Millbank suggested that Mr. Aldridge’s evidence should be discounted because he isfinancially dependent on Mr. & Ms. Lottis. There is no evidence to support the suggestion that he is financially dependent on them, andno reason to believe that to be true.

He did some work for them, and has been paid for that work. During his cross-examination, Mr.Aldridge was asked no questions on the point.

In that circumstance, the observations of Lord Herschell in Brown vs Dunn are apposite: … it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speakingthe truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation isintended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible forhim to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggestedindicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.

My Lords, I have alwaysunderstood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making anyexplanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but isessential to fair play and fair dealing with witnesses. See also R. v. Ali [2009] BCJ No. 2107; 2009 BCCA 464. e.

Chattering was observed on the ground floor, which is laid on a concrete subfloor, and so not subject to flexion or unevenness. [17] The following conclusions, which I have reached, make it unnecessary to consider the other deficiencies identified by Mr.LaForet: a. The unevenness of the floor was chattering, caused by poor workmanship on the part of Mr. Stansal. b. In order to remedy the chattering, it is necessary to remove all of the existing finish, down to bare wood, and start over. c. In the course of doing that, all of the other deficiencies would necessarily be remedied en passant. The cost of Mr.

Aldridge’sservices was not increased by the other deficiencies identified by Mr. LaForet - it would have been the same if chattering were the onlydeficiency. d. The same cannot be said of other deficiencies, particularly the presence of hair and debris in the finish coat, which theDefendants attribute to the activities of other tradesmen. Those deficiencies could have been remedied, at much less cost, by sanding offand replacing the finish coat alone. For that reason, it does not matter whether Mr.

Stansal is correct in his complaints about other tradesmen, or in his suggestion that thedebris in the top coat was the result of their activities. [18] However, I think it useful to make the following observations: a. Mr. Stansal says that certain site conditions are necessary to enable an installer to properly install an hardwood floor. These, hesays, include certain temperature and humidity controls and the exclusion of other tradesmen from the site at certain stages of the work. Those site conditions, he says, were absent at this jobsite, and caused or contributed to the deficiencies identified by Mr.

LaForet. b. In Penvidic Contracting Co Ltd v.

International Nickel Co of Canada Ltd [1975] 1 SCR 267; (SCC), 53 DLR (3d)748, Justice Spence referred with approval to the following passage from Hudson's Building and Engineering Contracts: Since a sufficient degree of possession of the site is clearly a necessary pre-condition of the contractor's performance of his obligations,there must be an implied term that the site will be handed over to the contractor within a reasonable time of signing the contract, … and,in most cases, it is submitted, a sufficient degree of uninterrupted and exclusive possession to permit the contractor to carry out his workunimpeded and in the manner of his choice.

However, that principle must be subject to a limiting condition. Where, as in this case, specific site conditions are necessary to theproper completion of the work, and the contractor observes those conditions to be absent, it is the duty of the contractor to bring thecircumstances to the attention of the owner, and to advise the owner to defer the work until the necessary site conditions can be broughtinto existence. A contractor, like Mr.

Stansal, who elects to proceed with the work under unsatisfactory site conditions, without bringingthe circumstances to the attention of the owner (or the general contractor), must bear responsibility for deficiencies in the work resultingfrom those circumstances. Disposition The Claimants are entitled to judgment for $25,000, plus court order interest at the Registrar’s rate from June 30, 2014 to today’s date. They are also entitled to filing and service fees, as claimed, and to be reimbursed for their costs incurred in procuring Mr. LaForet’sreport and the attendance of Mr. LaForet and Mr.

Aldridge to give evidence at trial. If the parties are unable to agree on those figures,they may

schedule a brief hearing before me to determine the amounts. June 22, 2016 _________________________________ T. Gouge, PCJ