Royal Paving v. Marshall Date:, 2015 BCPC 143

Citation: Royal Paving v. Marshall Date: 20150522 2015 BCPC 0143 File No: C70832 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROYAL PAVING LTD CLAIMANT AND: JOHN MARSHALL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing for the Claimant: D.J. Howell

Appearing in person: Mr. Marshall Place of Hearing: Nanaimo, B.C. Date of Hearing: May 11, 2015 Date of Judgment: May 22, 2015 [1] In July, 2013, Mr. Marshall retained the Claimant to repair an existing asphalt pad at his home and to extend the asphalt overan area previously paved with gravel. The contract price was $3795. The scope of work, defined in the written quote provided to Mr.Marshall by the Claimant, did not include any drainage works or structures. The work was completed in August, 2013. Mr.

Marshallhas declined to pay the contract price because, he says: a. he instructed the Claimant to install the new asphalt on the site of the old gravelled area, bounded by the line between Mr.Marshall’s property and that of his neighbour; b. the new asphalt pad deviates from the property line by as much as 3 feet in some places; c. the new asphalt pad disrupts the natural flow of surface and ground water, creating boggy spots on Mr. Marshall’s property. Mr. Marshall counterclaims for the cost, estimated at $5200, of removing the asphalt installed by the Claimant and replacing it with newasphalt to Mr.

Marshall’s specifications. Mr. Marshall also complains that the Claimant’s management treated him disrespectfullyduring the discussions which followed after completion of the work. [2] In respect of the first claim (the location of the new asphalt), Mr. Marshall says simply that he did not receive what he ordered,and that he ought to recover the cost of removing what was supplied and replacing it with what he ordered. While admirably simple, Mr.Marshall’s approach to the problem is not supported by the legal principles governing the assessment of damages for breach of contract.

The leading authority is McGarry et al vs Richards, Ackroyd & Gall Ltd. (BC SC), [1954] 2 DLR 367, which wasadopted and approved by the Court of Appeal in Strata Corp NW 1714 vs Winkler (BC CA), [1987] BCJ No. 2340; 20 BCLR (2d) 16; 45 DLR (4th) 741. In McGarry, Justice Davey held that there are two alternate measures of damages for breach of aconstruction contract: (

i) the cost of removing and replacing the defective work; or (ii) the diminution in value of the plaintiff’s propertyresulting from the defect. In Winkler, Justice Esson expressly approved the following passages from McGarry (underlining added): Counsel for the plaintiff cited Dakin & Co v. Lee …; Holliston v. Zaluski …, and Allen v. Pierce … to support his submission that themeasure of damages is the cost of making good the defective work.

For reasons which I will develop, I do not think they apply where theowner does not intend to, or cannot rectify or complete the defective work, or where he would be acting unreasonably or oppressively indoing so. * * * I think the likelihood of the plaintiff doing the work must always be considered before adopting the cost of remedying the default as themeasure of damages, except where that measure is applied by way of mitigation of damages.

Also, the reasonableness of doing the workmust be judged not only by the effect of the default upon the amenities of the property, but by the relation between the cost of repairingthe default and the diminution in the value of the premises caused by it. In McGarry, Justice Davey ordered a reference to the Registrar to assess the diminution in value of the plaintiff’s property flowing fromthe proven breach of contract. [3] In this case: a. There is no evidence of any diminution of the value of Mr. Marshall`s property arising from the location of the asphalt pad.

Ithink it unlikely that that the small deviation of which he complains would materially affect the price which a prospective purchaserwould offer for the property. b. I do not think it practical to adjourn the trial, or to order a reference to the Registrar, to assess the diminution in value, if any, ofMr. Marshall’s property resulting from the deviation of some 3 feet from the property line. As noted, I doubt that there has been any. The cost of the reference, including the fee of an appraiser, would be out of proportion to the amount in issue. c. Mr.

Marshall has procured an estimate of $5200 to remove the asphalt and replace it in the desired location. Mr. Marshall saysthat he intends to incur that expenditure. However, I observe that more than 18 months have passed since the Claimant completed thework, and Mr. Marshall has not yet replaced the asphalt. I think it reasonable to doubt that he will do so. The problem cannot beconstraints on Mr. Marshall’s financial resources. He contracted to pay the Claimant $3795 in August, 2013, which he has not paid.

Ifhe were sincere in his resolve to replace the defective work, he could have used that money for the purpose. d. Even if Mr. Marshall does intend to remove and replace the defective work, I do not think that he would be acting reasonably inso doing. There is no evidence that the present location of the asphalt pad is materially less convenient than the planned location, or thatit gives rise to some aesthetic issue. The evidence does not show that the defect has had any effect on the amenities of the property. Mr.Marshall says simply that it is not where he wanted it. I think that Mr.

Marshall would be “acting unreasonably or oppressively” if hereplaced the asphalt now simply because he hopes to do so at the Claimant’s expense.

For those reasons, I would not allow the cost of replacing the asphalt as the measure of damages in this case. No other measure was established by the evidence. For that reason, I dismiss Mr. Marshall’s first complaint. [ 4 ] Absent an express term as to standards of workmanship, it is an implied term of a construction contract that the contractor will exercise the standard of care and skill to be expected of a competent contractor in the industry: Ivan’s Renovations Ltd. vs Arabsky 2014 ABQB 700 ; [2014] AJ No. 1367 @ paragraph 65.

If it were proven that the Claimant failed to exercise that standard of care and skill, and that the drainage problems of which Mr. Marshall complains were caused by that failure, Mr. Marshall would be entitled to damages. However, there is no evidence to support either proposition. I observe that Mr. Marshall called a professional engineer, Mr. Warbrick, as his witness, and that Mr. Warbrick voiced no criticism of the standard of the Claimant’s workmanship. There being no evidence on which I could conclude that the drainage problems were caused by defective workmanship on the part of the Claimant, I dismiss Mr.

Marshall’s second complaint. [ 5 ] Gross discourtesy is not a cause of action recognized by the law. While some of the language employed by Mr. Howell was quite inexcusable, and might possibly give rise to an action for defamation, this court does not have jurisdiction over such a claim: Small Claims Act RSBC 1996, c 430, s 3(2). For that reason, I dismiss Mr. Marshall’s third complaint. [ 6 ] In the result, the Claimant is entitled to judgment for $3975, plus GST, together with court order interest, at the Registrar’s rate, on that amount from August 1, 2013 to May 20, 2015.

If the parties are unable to agree on the interest calculation, the matter may be referred to the Registrar for a decision. In addition, Rule 20(2) of the Small Claims Rules BC Reg 183/2014 provides: 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. If the Claimant seeks recovery of any of those items, and the parties are unable to agree, the matter may be referred to the Registrar for a decision. [ 7 ] Mr. Marshall’s counterclaim is dismissed. May 22, 2015 ____________________________ T. Gouge, PCJ