Shama Plumbing & Heating Ltd. Plaintiff v. Star Properties Inc. and Shavinder Parmar, 2015 BCSC 1156

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Shama Plumbing & Heating Ltd. v. Star Properties Inc., 2015 BCSC 1156 Date: 20150703 Docket: S158960 Registry: New Westminster Between: Shama Plumbing & Heating Ltd. Plaintiff And Star Properties Inc. and Shavinder Parmar Defendants Before: The Honourable Madam Justice Fenlon Reasons for Judgment Counsel for the Plaintiff: R. Davidson Appearing on his own behalf and on behalf of the Defendant Star Properties Inc.: S. Parmar Place and Date of Trial: New Westminster, B.C. May 5-8, 2015 Place and Date of Judgment: New Westminster, B.C. July 3, 2015 I.

INTRODUCTION [ 1 ] The plaintiff, Shama Plumbing & Heating Ltd. (“Shama Plumbing”), installed plumbing and heating in several homes built by the defendant Shavinder Parmar and his company the defendant Star Properties Inc. (“Star Properties”). These homes are located in Burnaby, B.C., on Waverly Avenue (the “Waverly Property”); Irving Street (the “Irving Property”); and Waltham Avenue (the “Waltham Property”).

The parties entered into an overarching agreement for heating and plumbing services, as well as separate contracts concerning each of the three properties. [ 2 ] Shama Plumbing sues for payment for services provided; the defendants counterclaim for damages arising from poor workmanship. II. ISSUES [ 3 ] The plaintiff claims damages for breach of contract against both the corporate defendant, Star Properties, and Mr. Parmar personally. Mr. Parmar asserts that he is not a party to any contract with Shama Plumbing.

A preliminary issue therefore arises as to whether both defendants are bound by the contracts with Shama Plumbing. [ 4 ] The bulk of the issues concern the parties’ claims and counterclaims for breach of contract arising from work done on the three properties. [ 5 ] One final issue concerns whether Mr. Parmar may personally claim damages for breach of contract as a result of his time spent living in a house that he alleges was not heated properly due to the poor workmanship of the plaintiff. III. ANALYSIS 1. Are both defendants bound by the contracts with the plaintiff? [ 6 ] The plaintiff argues that since Mr.

Parmar and Star Properties are both named in the contracts, both are bound by them. The plaintiff says that since Mr. Parmar failed to disclose that he was acting only as a principal of his company, he is personally liable for any damages awarded.

[7] There is ample authority to support the principle that the onus is on the individual who contracts to make it known to the otherparty that he is acting for a corporate principal: Lohnes v. Corkum (1981), (NS CA), 121 D.L.R. (3d) 761, 43 N.S.R.(2d) 477; Bridge City Electric

(1981) Ltd. v. Robertson, (SK KB), [1986] S.J. No. 396, 49 Sask R. 58 (Q.B.). [8] Cooper J.A., in delivering the judgment of the Court in Lohnes, stated at p. 766: If a person incorporates his business as was done by the appellant in 1977 he must make it clear to those with whom he is negotiatingcontracts that he is doing so on behalf of his company and not in his personal capacity. If he fails not only to do so but also enters into acontract, as here, signing only in his personal capacity he should not thereafter when sued be allowed to hide behind the corporate veilso-called.

We should not countenance such an effort. [9] To similar effect is Truster v. Tri-Lux Homes Ltd., (ON CA), [1998] O.J.

No. 2001, 110 O.A.C. 101 (C.A.).In that case, at para. 17 the Ontario Court of Appeal adopted the trial judge’s conclusion that: ... persons who profess to be carrying on business under their corporate name (and who deny any personal responsibility in respect ofcontracts or obligations for which they have signed in what might be considered to be personal circumstances) must take reasonable stepsto make it clear to the other party with whom they have contracted, ostensibly in their own name, or a partnership, that the contract iswith a corporation and disclose its full and proper name. [10] In Bridge City Electric, the contractor was never made aware of a corporate entity, and indeed the company may not yet havebeen incorporated at the time the agreement was first entered into. [11] In Truster the trial judge found that the numerous documents that made up the agreement between the parties did not containthe name of the corporation.

It was not until “just about closing” that the corporate name appeared on an undertaking (at para. 15). [12] The case before me is quite different from this line of cases. On June 2, 2012, the parties entered into the first overarchingagreement setting the price to be paid for various services in relation to all work done by Shama Plumbing on houses built by Mr. Parmar(the “General Contract”). Mr. Gulbar Gill, who is the principal of Shama Plumbing, signed and initialed the General Contact.Mr.

Parmar also initialed the first page and signed as follows: “Shavinder Parmar” ↓ STAR PROPERTIES INC. [13] Shortly thereafter, Mr. Parmar sent an email to Mr. Gill attaching a copy of the General Contract. The subject line of the emailread: “CONTRACT BETWEEN SHAMA PLUMBING STAR PROPERTIES INC.” The body of the email read: THIS IS GENERAL CONTRACT WILL BE APPLIED TO ALL THE HOUSES BUILT BY STAR PROPERTIES BY SHAMAPLUMBING AND HEATING. ANY CHANGE TO THIS HAS TO BE AGRED BY WRITTEN CONSENT OF BOTH PARTIES. [14] The General Contract refers to houses to be built by a second company owned by Mr.

Parmar, “Italian Homes Inc.”, in additionto houses to be built by Star Properties. The plaintiff argues that since Mr. Parmar signed his name above the words “STARPROPERTIES INC.” but did not sign on behalf of “Italian Homes Inc.”, Mr. Parmar’s signature must be intended to bind him personallyas the owner of the shares of Italian Homes Inc. and of Star Properties. [15] I do not find that argument persuasive. The contract refers to two corporations. The signing of Mr. Parmar’s name with an arrowpointing to “STAR PROPERTIES INC.” strongly suggests that Mr. Parmar is signing on behalf of that company.

The failure to include asimilar signature block with respect to “Italian Homes Inc.” suggests that Mr. Parmar failed to sign on behalf of that company. Thatcould raise an issue as to whether Shama Plumbing would be bound to provide services to Italian Homes Inc. at the prices set out in theGeneral Contract, but it does not change the nature and effect of the signature of Mr. Parmar on behalf of Star Properties. [16] On June 2, 2012, the parties signed an agreement specific to the house to be built on the Waltham Property. It is stated to bebetween Shama Plumbing and “Owner: Mr.

Parmar: Star Properties Inc.” [17] The agreement covering the Waverley Property was signed on October 7, 2012 (the “Waverly Agreement”). It is betweenShama Plumbing and “Owner: Star Properties Inc.” [18] Finally, the agreement specific to the Irving Property is stated to be between Shama Plumbing and “Owner: Mr. Parmar StarProperties Inc.” [19] Invoices for the work done at all three properties are addressed to Star Properties or “Mr. Parmar Star Properties Inc.” [20] In these circumstances, unlike the cases the plaintiff relies on, Mr.

Gill (who signed the agreements and issued the invoices onbehalf of his corporation Shama Plumbing), cannot assert that he was unaware of the existence of Mr. Parmar’s corporation. Companiesare legal entities that necessarily act through their principals and agents. I find that Mr. Parmar took reasonable steps to make it clear toMr. Gill that the contracts were with a corporation and not Mr. Parmar personally. Mr. Gill also worked through a corporation. I find itimprobable that Mr. Gill believed he was contracting with both Mr. Parmar personally and Star Properties. [21] In conclusion on this issue, Mr.

Parmar is not personally bound by the agreements governing the plumbing and heating work onthe three houses in issue in this case, as he is not personally a party to the agreements. 2. The Plaintiff’s Claim for Breach of Contract and the Defendants’

Counterclaim [ 22 ] Shama Plumbing provided plumbing and heating services on the Waverley Property, the Irving Property, and the Waltham Property. Star Properties paid for some of the work as it was invoiced, but failed to pay the balance owing of $47,845.50. [ 23 ] At trial, Mr. Parmar acknowledged that Star Properties owed Shama Plumbing for the majority of the sum sought, but continued to dispute a portion of it. In addition, Star Properties argues it has suffered damages due to the negligent performance of the work by Shama Plumbing. I will address these claims in relation to each property.

I note that some of the complaints raised by Mr. Parmar were resolved by the plaintiff and no damages are therefore claimed. I do not intend to address those complaints which include, for example, a gas leak at the Waltham Property during construction and the initial misplacement of washer and dryer connections at the Irving Property. (

a) Waltham Property: The Plaintiff’s Claim [ 24 ] Shama Plumbing claims $12,972 inclusive of taxes is owed by the defendants for work done on the Waltham Property. Star Properties disputes about one-third of that bill, arguing that it should not have to pay for the following work. i. Sump Myer pump installed inside house including permit fees: $1,800 [ 25 ] Mr. Parmar says after he sold the Waltham Property the purchaser complained repeatedly that the sewer pump was too noisy and that the toilets flushed slowly at times. He submits he should not have to pay for the sewer pump since it did not work properly.

However, Mr. Parmar said a number of plumbers he brought to the site found nothing wrong with the pump installed by Shama Plumbing and could offer no suggestions for resolving the problems complained of by the owner. Ultimately, Mr. Parmar and the owners’ internet research suggested a solution: installation of a second check valve along the line. Once that was done, the problems ended. [ 26 ] It is apparent from Mr. Parmar’s own evidence that the sewer pump installed by Shama Plumbing was not the problem. It was never replaced.

Accordingly, I find Star Properties is obligated to pay for that pump and its installation. ii. 2 Outside Sump Myer pumps with float: $1,750 [ 27 ] Mr. Parmar refused to pay for these pumps because they had to be replaced within a year of the purchaser taking possession. He says the plaintiff used an inferior pump design that drew water into the bottom of the pump rather than from the side. Mr.

Parmar says that because the pumps were installed flush with the bottom of the well, they became clogged with the rocks and debris which inevitably filtered into the sump, necessitating replacement of both pumps. [ 28 ] Mr. Gill testified that the pumps he used were actually a superior design and were not installed so that they were flush with the ground. Each pump was set on legs that lifted the pump four to five inches above the floor of the well. He argues that any debris that damaged the pumps was due to the builder letting such debris fall into the well during construction. Mr.

Gill points out that rocks cannot flow into the well where the sump is located because only water coming from the drain tiles flows into that covered well. The drain tiles have small holes which allow water that has been filtered through a bed of larger gravel that surrounds the drain tiles to pass through the tiles. [ 29 ] It is common ground that the pumps installed by the plaintiff passed inspection by the City of Burnaby. I therefore find that they were installed properly and that damage to the pumps approximately one year later from debris is not the fault of Shama Plumbing.

Accordingly, Shama Plumbing is entitled to be paid for its work. iii. Future Kitchen: $1,000 [ 30 ] Mr. Parmar agrees he asked Mr. Gill to install two sinks ($450 each) and ducting for two exhaust fans ($50 each) as extra expenses so that he could install two illegal suites in the basement in future. Initially Mr. Parmar said he should not have to pay for this work because it was done after the final inspection by the City and because the plaintiff did not obtain a permit for the work. Given that the additional kitchens were illegal, and that Mr.

Parmar intended to add them after the City’s final inspection and instructed the plaintiff to do just that, it hardly behooves him to complain that the work was done without a permit. In cross-examination, Mr. Parmar admitted that the plaintiff should be paid for this work but submitted that it should be paid at “half the price claimed”. [ 31 ] I find that the work is governed by the General Contract which provides for a $450 fee per roughed in fixture. The full amount of $1,000 is accordingly due. iv. Sensor: $175 [ 32 ] Mr.

Parmar gave no evidence in support of his failure to pay this sum other than his general evidence that he should not have to pay for any work that was not included in the original General Contract. Since Mr. Parmar asked for these extras to be performed, his company must pay for them. (

b) Waltham Property: The Defendants’ Counterclaim [ 33 ] I turn now to the defendants’ counterclaim for damages arising out of the work done by the plaintiff on the Waltham Property. First, Star Properties claims $1,338 for the cost of installing an extra check valve to remedy the noisy sewer pump and slow flushing of the toilets. The plaintiff does not strenuously contest this claim. I find the plaintiff should have installed a second check valve when the

initial work was done. Accordingly, the defendants have proved damages in the amount of $1,338 to correct that failing. [ 34 ] Second, the defendants claim $1,130 to replace the two sump pumps which have been considered earlier. I have already found that the defendants have not proved that the two pumps failed due to a breach by the plaintiff.

While the defendants suggest that the plaintiff was required to provide a two-year warranty on the pumps, such warranty would not cover construction debris damaging the pumps. [ 35 ] Further, the plaintiff stated that a one-year warranty from the date of installation was applicable, and that warranty had expired by the time the pumps became clogged. Mr. Parmar argued that the Homeowner Protection Act , S.B.C. 1998, c. 31, requires a two-year warranty from the date of purchase, but I find no basis in the Act for such an assertion in relation to a subtrade as opposed to the builder. (

c) Irving Property: The Plaintiff’s Claim [ 36 ] The plaintiff claims a balance due of $24,496 for work performed at the Irving Property. The defendant objects to paying for the following work. i. Outside Water Service: $350 [ 37 ] Mr. Parmar asked for larger piping to accommodate an increased volume of water in the event that he added a sprinkler system to the property. At the time of the request, Shama Plumbing had not yet begun the work and simply used one-and-a half-inch pipe instead of one-inch pipe.

On another property, Shama Plumbing charged $350 to remove and replace the entire water line with the larger piping. The plaintiff agrees that it has overcharged the defendants for the increased pipe size at the Irving Property. I find that $50 is an appropriate payment for this work and Star Properties must pay that sum. ii. 2 Pump Outside for Storm Connection: $350 each and Material and Labour, Deck Drain: $250 [ 38 ] These items are extras added to the original contract for the Irving Property. Mr.

Parmar testified that he should not have to pay the plaintiff for the two pumps because Star Properties bought them. However, there is no evidence supporting this assertion. In contrast, Mr. Parmar provided receipts for the two pumps he bought to replace the Waltham Property sump pumps. Although the General Contract does not specify a price for sump pumps, the price charged by the plaintiff is consistent with the price paid by Mr. Parmar for the Waltham Property sump pumps. I find the sum of $350 per pump to be appropriate, which I note is $700, not the $750 stated on the invoice.

Star Properties must pay $700 for the pumps. [ 39 ] The deck drain is specifically priced in the General Contract at $250. It was an extra added to the Irving Property and Star Properties should pay for it at that rate. [ 40 ] In

summary, with respect to the Irving Property, the plaintiff is entitled to be paid $24,104, taking into account the $300 deducted from the outside water service claim and $50 deducted for the overcharge noted above, as well as the associated taxes. (

d) Irving Property: The Defendants’ Counterclaim [ 41 ] I turn now to the defendants’ counterclaim for damages to cover the cost of fixing what is alleged to be the plaintiff’s negligent work on the Irving Property. [ 42 ] Mr. Parmar points to two problems with the heating in the Irving Property. First, there was no thermostat in the master bedroom. The heat worked in that room but the temperature was controlled by a thermostat in one of the other bedrooms. Mr. Gill acknowledges that to be so, but testified that the drywallers covered over the wires for the thermostat in the master bedroom.

He says when his employees could not locate the wires after cutting a few holes in the wall, Mr. Parmar instructed them to tie the two zones into the one thermostat. Mr. Parmar vehemently denies that and indeed hired another plumber to locate the wires and install the thermostat. The invoice states that the connections were wrong and that the plumber had to fix those connections to have the heating zones working properly. [ 43 ] I find that the defendant is entitled to damages of $260, the sum paid by Star Properties to Nagra Bros. Plumbing & Heating Ltd. to fix the heating connections.

It was an implied term of the contract between Shama Plumbing and Star Properties that Shama Plumbing would complete its work in a competent manner. The plaintiff admits it did not meet its contractual obligations in relation to this aspect of the work. [ 44 ] The second problem with the heat related to the boiler. It worked for a few months and then stopped working entirely. The house was empty at the time and Mr. Parmar was trying to sell it. When he received an offer, the purchaser did an inspection and insisted that the heating issue be addressed. It appears Shama Plumbing was unavailable so Mr.

Parmar hired another plumber to fix it. The boiler repair cost $577.50. [ 45 ] Mr. Parmar has not proved that the problem with the boiler related to the work done by the plaintiff. The boiler worked initially. It is equally likely that there was a problem with the boiler itself, rather than the manner in which the plaintiff installed the boiler. I therefore dismiss the defendants’ counterclaim for the boiler repair costs. [ 46 ] In

summary on the defendants’ counterclaim, I award damages relating to the Irving Property of $260. (

e) Waverley Property: The Plaintiff’s Claim [ 47 ] The Waverley Property is now owned by Mr. Parmar’s son, although Mr. Parmar has also lived there since construction was completed. The plaintiff initially claimed $12,124.50 for unpaid work done on the Waverly Property. At trial the plaintiff abandoned its

claim for $1,750 for five extra heating zones, reducing the claim to $10,374.50. Mr. Parmar disputes a $350 charge for a larger capacityoutside water service and $2,450 charged for a number of other extras. [48] I find the plaintiff is entitled to $350 for installation of the outside water service. There is no dispute that the plaintiff hadalready installed a one-inch standard water line before being asked to change that line to one-and-half-inches to accommodate a sprinklersystem.

The originally-installed piping had to be removed and replaced. [49] The most significant dispute is payment for extra work requested by Mr. Parmar which included (according to the invoice): 1 Auto washer in basement $4501 Extra bar sink $4501 Gas Range hookup $2501 Gas Fire Place $150alsofinished kitchen sink $450+ fan duct $250 $2450 [50] I note that these amounts total $2,000 rather than the $2,450 shown. [51] Mr. Parmar does not dispute that he asked Mr. Gill to complete this work on the Waverley Property, but he says that he had “alump sum contract” which did not permit charges for any extra work. Mr.

Parmar relies on the words he added to the WaverleyAgreement: “

(1) NO VERBAL CONTRACT COULD BE APPLIED TO THIS CONTRACT - THIS IS FINAL.” Both Mr. Gill andMr. Parmar initialed that handwritten addition to the contract. [52] According to Mr. Parmar, these words mean that no matter what additional work he asked Shama Plumbing to do on theWaverley Property, it had to be done for the initial quoted price of $28,750. That

interpretation makes no commercial sense. I find thatthe parties agreed that the work described in the Waverley Agreement was to be done for the fixed price, even if it took longer or costmore than the plaintiff anticipated. The “lump sum” covered all work described in the Waverley Agreement but it did not apply to anyextra work Mr. Parmar sought to have done that was not covered by the contract. The extra work charged appears to relate to anadditional suite in the basement. The fees are in accordance with the General Contract and the sum of $2,000 is payable. [53] It follows that Star Properties owes the plaintiff $9,924.50 for work done on the Waverley Property. (

f) Waverley Property: The Defendants’ Counterclaim [54] I turn now to the defendants’ counterclaim. Star Properties claims damages for the cost to repair plumbing for a bathroom in thebasement of the Waverley Property and for heating problems related to the thermostats and zones not working coherently. Mr.

Parmarpersonally also claims $5,000 for pain and suffering because he had to live in a house that was not heated properly, and a further $33,000to replace Brazilian hardwood damaged when the radiant flooring heat was set too high because of the faulty thermostats. [55] I will deal summarily with the $5,000 claimed for pain and suffering. First, I have already established that Mr. Parmar was notpersonally a party to the contracts. Nor was he a third party beneficiary contemplated in the contract as was the case in Beswick v.Beswick, [1968] A.C. 58 (H.L.), and London Drugs Ltd. v.

Kuehne & Nagel International Ltd., (SCC), [1992] 3 S.C.R.299. It follows that he cannot claim damages for a breach of contract between Shama Plumbing and Star Properties. [56] Second, there is little evidentiary basis for Mr. Parmar’s claim that he suffered anything more than the inconvenience associatedwith a room that might be a little warmer or cooler than would be considered ideal. I find that any damages that Mr.

Parmar may havebeen able to claim had he been a party to the contract, were so trifling in nature as to not be recoverable in any event. [57] I turn next to the $7,875 invoice from Powerful Plumbing & Renovations to address the heating and re-plumbing in theWaverley Property basement. [58] The defendants were self-represented. They rely on an expert report by a home inspector. That report establishes that theheating at the Waverley Property is not working properly. The inspector found no heat in the master bedroom and in other areas thethermostat did not control the zones in which they were located.

The invoice from Powerful Plumbing & Renovations for $7,875 includesthe cost of fixing the heat, although Mr. Parmar asserts that the heating problems remain. In any event, I have no evidence of any otherdamages relating to the mixed up wiring in the house and Mr. Parmar has evidently taken no further steps to repair or to determine thecost to repair any remaining issues. Nor has he demonstrated what portion of the invoice relates to work on the heating system. [59] It was evident, however, that the $7,875 Powerful Plumbing invoice relates primarily to the re-plumbing of the toilet andbathroom in the basement.

Mr. Parmar argues that the work on the basement bathroom was negligently performed by Shama Plumbingbecause the drain for the toilet was located ten inches above the ground. Mr. Gill said that was the only way to plumb the toiletaccording to the building code which requires either a drop of one inch per foot of line to the city sewer connection so that sewage movesby force of gravity, or a shallower connection assisted by a sewer pump. [60] Mr. Gill testified that he spoke to Mr. Parmar about this problem at length before he installed the plumbing. He told Mr.

Parmarthat if a sewer pump was not installed the toilet would end up sitting significantly higher than the floor. Mr. Parmar insisted that he didnot want a sewer pump in the house. At trial Mr. Parmar agreed that he told Mr. Gill there should not be a sewer pump. He said he didnot want one because they can sometimes cause odours and noise and also because in his view there was a 12-inch drop that wassufficient to plumb the pipes using gravity rather than a pump. [61] Mr. Gill says he installed the sewer connection in accordance with the code, and as he predicted, the toilet was ten inches above

the floor. The work was inspected by the City of Burnaby and approved. The next day, Mr. Parmar hired Powerful Plumbing to redo the plumbing so that the toilet was level with the floor. That work was not inspected and was done without a permit. When asked about the lack of a permit, Mr. Parmar explained that he can only have one permit per job and it is restricted to the plumber who takes out the original permit. I find this evidence unconvincing. [ 62 ] It is also somewhat surprising that the invoice tendered at trial was dated August 2014, two years after Powerful Plumbing did the work on the Waverley Property.

The plaintiff alleges that the invoice was fabricated for trial, as it was produced after the plaintiff commenced this litigation. The plaintiff argues that it is unlikely that a plumber would wait two years before invoicing almost $8,000 worth of work. Mr. Parmar said that this is common in the building industry. He said he had other work with Powerful Plumbing and he often does not pay his trades until a property is sold one-and-a-half to two years after the work is done. [ 63 ] I find the defendants’ evidence on this part of his claim to be improbable. I also note that Mr.

Parmar continued to use Shama Plumbing’s services even after he says the plaintiff “completely failed” in plumbing the Waverley Property bathroom. [ 64 ] The defendants have the burden of proof on their counterclaim.

I find that they have not established either that the original plumbing work on the two bathrooms in the basement of the Waverley Property was negligently done, or that they spent close to $7,000 fixing it the day after the City completed its plumbing inspection. [ 65 ] Finally, the defendants seek damages to replace the Brazilian cherry wood floors throughout the main and second floors of the Waverley Property, an area of approximately 2,000 square feet. Mr.

Parmar presented two quotations: one from Abbotsford Carpets & Flooring for $32,865, and the other from Professional Touch Construction Ltd. for $34,650. [ 66 ] The only evidence supporting this claim is the home inspection report. Mr. Aston, who prepared that report, observed that the thermostats do not control the areas where the thermostats are.

He states, “[t]his is [ sic ] caused some extreme heat to some areas.” He then attached three photographs of the flooring and stated “[t]he extreme heat has caused the floor to separate and in my opinion this floor will need to be replaced.” In his evidence at trial, Mr. Aston said that radiant heat under wood floors can cause the wood flooring to dry out if the heat is set too high even over a period of 24 hours. [ 67 ] Mr. Aston described himself as “a general practitioner” and acknowledged that he is not an expert in flooring.

I am not satisfied that his evidence establishes that the poor thermostat controls caused the problems he identified with the floor. [ 68 ] In addition, Mr. Aston’s report, even if accepted, refers to “some extreme heat to some areas”. He did not indicate what areas or the square footage involved. His testimony at trial suggested that an area in the living room was affected, but that was not clear. I would not, on this evidence alone, find that the wood flooring throughout the entire house has to be replaced. Mr.

Parmar suggested that it is not possible to patch a small area, but again, I have no evidence of that. [ 69 ] Finally, in relation to this part of the counterclaim, I note that the Waverley Property residence belongs to Mr. Parmar’s son. Mr. Parmar claims the cost of replacing the floor in his capacity as the builder who is required to provide a “2/5/10 warranty” under the Homeowner Protection Act (this definition refers to the two-year, five-year, and ten-year home warranty insurance elements required for new homes under the Act).

He stated that his son has not made a claim for the cost of repairing the floor, and has not taken any steps to replace it. In these circumstances, Star Properties’ claim is based on a potential liability only. [ 70 ] For all of these reasons, I am not satisfied that Star Properties has proved this aspect of its counterclaim. IV.

CONCLUSION [ 71 ] The plaintiff is entitled to damages from Star Properties for breach of contract for unpaid work in the amount of $47,000.50, calculated as follows: $12,972 for work completed on the Waltham Property $24,104 for work completed on the Irving Property $9,924.50 for work completed on the Waverley Property [ 72 ] The defendant Star Properties has succeeded in proving damages under its counterclaim of $1,598 ($1,338 for the Waltham Property, and $260 for the Irving Property). [ 73 ] The General Contract provides for interest on unpaid sums due to Shama Plumbing in the amount of 2% per month.

The plaintiff submits interest should run from October 2013, the date on which Mr. Parmar tendered a cheque for $37,000 in payment of the work which had at that point been completed. The cheque was undated and was more akin to a promise to pay once Star Properties had funds in hand.

Given the amounts involved, and the plaintiff’s agreement to use one date, rather than the date on which each of the invoices was provided to Star Properties, (August 5, 2013 for the Waverley Property, March 5, 2013 for Waltham Avenue, and August 5, 2013 for the Irving Property), I agree that 2% contractual interest should be calculated from October 1, 2013 to the date of these reasons as follows: 2% from October 1, 2013 to June 30, 2015 (21 months) $47,000.50 + 1,645.02 $48,645.52

[ 74 ] Star Properties is entitled to pre-judgment interest on $1,598 from the same date. V. COSTS [ 75 ] The claim and counterclaim are closely related. The plaintiff has been largely successful and the defendants did not succeed in establishing the bulk of their counterclaim. As the successful party, the plaintiff is entitled to costs. Given the amount of the present judgement awarded to the plaintiff, Rules 14-1(1)(f)(

i) and 15-1(15) apply to the costs award. [ 76 ] Rule 14-1(1)(f)(

i) reads as follows:

(1) If costs are payable to a party under these Supreme Court Civil Rules or by order, those costs must be assessed as party and party costs in accordance with Appendix B unless any of the following circumstances exist: … (

f) subject to subrule (10) of this rule, (

i) the only relief granted in the action is one or more of money, real property, a builder's lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or … in which event, Rule 15-1 (15) to (17) applies to the action unless the court orders otherwise. [ 77 ] Rule 15-1(15) states:

(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows: … (

c) if the time spent on the hearing of the trial is more than 2 days, $11000. [ 78 ] The effect of this Rule 14-1(1)(

f) was discussed in Axten v. Johnson , 2011 BCSC 1005 at para. 27 : [27] Rule 14-1(1)(

f) states costs are assessed under Rule 15-1(15) to (17) where “the only relief granted in the action is one or more of money, real property, a builder's lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs [emphasis added].” Essentially, Rule 14-1(1)(

f) places actions that should have been fast-tracked but were not, under the fact track costs schema. As the settlement in this case was for $90,000, there is no issue as to the monetary aspect of this provision: the quantum awarded is clearly captured within this legislative scheme. [ 79 ] In Peacock v. Battel , 2013 BCSC 1902 , Mr.

Justice Affleck held that under this Rule an additional costs award is appropriate in the following circumstances (at para. 18): [18] Special circumstances have been held to apply in cases where the trial took longer than the maximum amount of days referenced in the fast track litigation rule, or the action was complex or where a reasonable offer to settle was made but not accepted. [ 80 ] Mr.

Justice Affleck determined an amount of $1,500 per additional day of trial after the first three days (being “the maximum amount of days referenced in the fast track litigation rule”) is appropriate in such circumstances (see paras. 16-23). [ 81 ] This trial took four days. I award costs of $1,500 for the fourth day of trial, in addition to the $11,000 stipulated by Rule 15- 1(15)(c). In the result, I award the plaintiff costs of $12,500 plus disbursements. The Honourable Madam Justice L.A. Fenlon