Samuel L.H. Yu Appellant v. Chercover Massie & Associates Ltd., 2015 BCSC 1188

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Yu v. Chercover Massie & Associates Ltd., 2015 BCSC 1188 Date: 20150709 Docket: S151148 Registry: Vancouver Between: Samuel L.H. Yu Appellant And Chercover Massie & Associates Ltd. Respondent Before: The Honourable Mr. Justice Ball On appeal from: A decision from the Provincial Court of British Columbia, dated January 15, 2015, (Small Claims Division, File No., 1344382) Corrected Judgment: The text of the judgment was corrected at paragraph 12 where a change was made on July 14, 2015 Reasons for Judgment Counsel for the Appellant: Samuel L.H.

Yu (Appearing in Person) Counsel for the Respondent: D. Todorovic D. Massie (In Person) Place and Date of Trial/Hearing: Vancouver, B.C. June 25, 2015 Place and Date of Judgment: Vancouver, B.C. July 9, 2015 Introduction [ 1 ] Mr. Samuel L.H. Yu (the “Appellant”) appeals from a decision of the Provincial Court of British Columbia (Small Claims Division) made on the 15 th day of January, 2015. In that decision the trial judge granted a judgment for the appellant on part of the respondent’s claim and granted judgment for the respondent in the amount of $16,022.50 for payment for architectural services rendered. Mr.

Yu acknowledges that the architectural services provided by the responded added value to Mr. Yu’s home and where he continues to enjoy that benefit of the added value. Background [ 2 ] Mr. Yu was having renovation work done to his home in Burnaby. It was a significant renovation valued in excess of $300,000 which also involved the addition of square footage to the house. A first firm hired by Mr. Yu, Optimum Solutions Limited (“Optimum”), was the general contractor. Exhibit 8 in the trial below is a copy of the letter agreement between Optimum and Mr. Yu.

That document spoke of design service in that original agreement and included existing site measure, exterior architectural design, interior room layouts according to Mr. Yu’s requirements which included building floor plans, building elevations, building cross section, site plan and blueprints and typical rain screen details. Mr. Yu asserts that somehow included in this contract were a number of site visits to be performed by the firm Chercover Massie & Associates Ltd (the “Respondent”).

That document does not describe that form of site visit. [ 3 ] In any event, it was acknowledged that following the cancellation of the construction contract between Mr. Yu and Optimum, a new agreement was reached with another contractor, Mr. Jones. That contractor continued to call upon the services of the Respondent, both for structural and architectural advice and drawings long after the building permit was drawn and well beyond site inspections.

In particular the evidence before the court below was clear that, typical of renovations of existing properties, when existing walls of the home were being opened, it was evident that existing connections of beams were unsatisfactory and not in compliance with good

building practice or the Building Code. Those are among the matters that were described by Mr. Jones upon which he consulted with the respondent. Throughout this process, as noted by the trial judge, bills were rendered on a regular basis by the respondent to the appellant. The appellant simply ignored the bills and did not pay them; notwithstanding the services of the respondent were being used to create added value in Mr. Yu’s house. In this court, Mr.

Yu acknowledged that the architectural and structural services provided by the respondent has added value to his home. [ 4 ] The court below found that on a balance of probabilities, because of some confusion over contractual terms, the respondent was not entitled to fees in the amount of $8,977.50. Thereafter, however, the court below found that the Respondent had proven on a balance of probabilities that the respondent was owed for work performed after May 1, 2012, in the amount of $16,022.50.

Grounds of Appeal The Appellant’s Position [ 5 ] The notice of appeal is somewhat rambling; it simply alleges that the trial judge erred on facts in not allowing the claim. There was some difficulty at the hearing of the appeal attempting to restrict Mr. Yu to the evidence that was before the trial court and not allowing Mr. Yu to ramble into other materials that were not before the trial court. [ 6 ] Based on the oral submissions, the appellant, I understand him to say, that the trial judge either did not understand the issues or he erred in his appreciation of the arguments by the appellant. Mr.

Yu remains convinced that the decision in the trial court constitutes a fundamental unfairness and accordingly asks that the decision be set aside. The Position of the Respondent [ 7 ] While the respondent was not pleased with the dismissal of part of its claim in the trial court, the position taken was that the respondent had provided valuable services to the appellant and that the appellant should pay the respondent for those services, all of which were properly billed in detailed accounts, apparently ignored by Mr. Yu.

Standard of Review [ 8 ] The appropriate standard of review for appeals of this kind was discussed by Madam Justice Arnold-Bailey in Joubarne v. Loodou et al , 2005 BCSC 1340 , at para. 6-7 : [6] Appeals from the Small Claims Division of the Provincial Court of British Columbia are authorized by s. 5(1) of the Small Claims Act , R.S.B.C. 1996, c. 430 ( SCA ): Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

The scope of appellate review is set out in s. 12 of the SCA : An appeal to the Supreme Court under this Act (

a) may be brought to review the order under appeal on questions of fact and on questions of law, and (

b) must not be heard as a new trial unless the Supreme Court orders that the appeal be heard in that court as a new trial. This appeal was not heard as a new trial; it was an appeal on the record. [7] A discussion of the standard of review applicable to a small claims appeal is found in IBI Group v. LeFevre & Co. Property Agents Ltd. , 2004 BCSC 298 , at ¶16: The test to be applied on an appeal from Provincial Court pursuant to s. 12 of the Small Claims Act is whether the trial judge was "clearly wrong" on the facts or law.

It is akin to the standard applied by the Court of Appeal, which provides that findings of fact made at trial, though not immutable, are not to be reversed unless it can be established that the trial judge made some palpable and overriding error which affected his or her assessment of the facts. Accordingly, my duty is to re-examine the evidence in order to be satisfied that no such error occurred, but not to substitute my own assessment on the balance of probabilities.

Analysis [ 9 ] The trial judge approached a claim in this case for architectural and structural services as one based on the doctrine of quantum meruit . That is, professional services were provided, acknowledged to be of value and included in the production of a home where the Appellant still is a recipient of that value and its benefit. The court differentiated between periods where there may have been a written contract and periods where there was no contract. The evidence of Mr. Jones, the second contractor working for the appellant was clear on two points.

(1) He was aware that the services of the respondent were provided on matters which had nothing to do with existing drawings or other inspections and (2) the services were provided by the respondent in relation to “found” conditions of the home being renovated which required the services of the respondent to solve unsafe conditions.

[ 10 ] In my view, it is clear that the doctrine and approach taken by the court below is sound and that the court properly understood the circumstances of the case. In my view, the learned trial judge identified and applied the correct principles of law and his adjudication of this claim. Furthermore, I find that the trial judge’s application of the law to the facts in this case to be correct. [ 11 ] There is no basis to disturb the decision of the learned trial judge on the Appellant’s claim that the trial judgment be set aside.

The appeal is dismissed and the Respondent is entitled to an order that the funds paid into court pursuant to the Rules be paid out forthwith to the Respondent. [ 12 ] The Respondent is entitled to costs, but the costs will be limited to fees paid to the court registry and the costs of photocopying of exhibits and the like. The Respondent sought costs at the hourly rate of the two principals of the company who attended court at six hours each. I am satisfied that would not be an appropriate order given the existing case law. “Ball J.”