Mathieson v. Perka Date:, 2016 BCPC 64

Citation: Mathieson v. Perka Date: 2016 BCPC 0064 File No: S73840 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: EVAN MATHIESON, doing business as MATHIESON MILLWORK, MATHIESON MILLWORK, AND NORTH BLUFF DESIGN LTD. CLAIMANTS AND: KEN PERKA AND JO-ANNE PERKA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Counsel for the Claimants: R. Davidson

Appearing on their own behalf: K. Perka and J. Perka Place of Hearing: Surrey , B.C. Dates of Hearing: July 6, 7, August 31, October 27, November 30, 2015 Date of Judgment: March 11, 2016 INTRODUCTION [ 1 ] Home renovations rarely, if ever, occur without complications. Paint colours may not match and small and sometimes large changes are needed to accommodate unforeseen circumstances. Sometimes the contractor makes mistakes and sometimes the homeowners change their minds. [ 2 ] Another common feature of home renovations is that they often cost more than the initial quotation.

The additional cost of the project, combined with the other common complications, can lead to conflict between the contractor and the home owner. [ 3 ] This is a case of a kitchen renovation gone horribly wrong. The Claimant contractor made mistakes leading to necessary changes in the project coupled with added cost. The result was conflict between the Claimant, Evan Mathieson, and the Defendant homeowners, the Perkas. That conflict led to Mr. Mathieson walking off the kitchen renovation job he was doing for the Perkas before the renovation was complete. [ 4 ] Mr.

Mathieson sues to recover the balance owing on the unfinished kitchen renovation. In response, the Perkas sue to recover the money they paid to other contractors to complete the kitchen renovation. [ 5 ] In addition, the Defendants are facing a fairly costly repair to fix the one major mistake made by the Claimant in this kitchen renovation that has not yet been repaired. [ 6 ] Complicating this already messy case is the fact that there was no written quotation for the cost of this kitchen renovation and no written contract between the parties setting out their agreement.

In fact, it is not clear who are the parties to the kitchen renovation agreement. [ 7 ] There is in this case: i. a balance owing to Mr. Mathieson for his work and materials on this job; ii. costs incurred by the Perkas to complete the project; and iii. costs to fix the Claimant’s substantial error in his work at the Defendants’ home. [ 8 ] My task is to determine whether any money is owed by one party to the other as a result of the breakdown in the relationship between these parties. THE PARTIES [ 9 ] The Perkas are the homeowners who agreed to have their kitchen renovated.

That much is clear. [ 10 ] What is less clear is who the proper Claimant is. At all times Evan Mathieson dealt with the Perkas throughout this kitchen renovation. As I have indicated, he did not provide a written quotation, so there is nothing in writing that the Defendants were dealing with an entity other than Mr. Mathieson. Also, as I have noted, there is no written agreement between the Perkas and any other entity establishing that the Perkas were contracting with a limited company to complete their kitchen renovation. [ 11 ] Mr.

Mathieson asked the Perkas for a $7,000.00 deposit towards the cost of the renovation, and on January 18, 2013, Mrs. Perka wrote that cheque payable to a numbered company - 0903719 B.C. Ltd. - at Mr. Mathieson’s request. While the kitchen renovation was underway, Mr. Mathieson asked the Perkas for another payment, and on February 24, 2013, Mrs. Perka wrote a $5,000.00 cheque payable to North Bluff Design Ltd. (“North Bluff”), again at Mr. Mathieson’s request. [ 12 ] Mr. Perka testified that at no time did Mr. Mathieson advise the Perkas that a limited company was responsible for this kitchen renovation.

To explain why the second cheque was made out to North Bluff, Mr. Mathieson told the Perkas that he had merged his numbered company into North Bluff, such that they were the same corporate entity now operating as North Bluff. If that was the case, Mr. Mathieson was not asked and he did not explain why one of the final invoices issued to the Perkas on March 20, 2013 was issued by the numbered company. [ 13 ] As I have indicated, Mr. Mathieson did not provide a written quotation to the Perkas, so there is no corporate entity identified at the outset of the relationship between these parties.

As well, there is no written agreement that sets out who the parties are to this kitchen renovation agreement. Mr. Mathieson or his companies did not issue an invoice for the original deposit or the mid-project draw that the Perkas paid. The Perkas were not provided with a receipt from Mr. Mathieson or any of his companies to record their payments to him. [ 14 ] It is my view that just because a contractor asks that the homeowner’s cheque be made payable to a company, without any agreement in writing with that company, does not determine who the parties to the renovation agreement are.

The only representations made by Mr. Mathieson to the Perkas that they were dealing with a limited company occurred when Mr. Mathieson asked the Perkas for money. And those requests came at different times for money to be paid to different companies without a satisfactory explanation as to

why there were different companies involved. [ 15 ] There is no other evidence before me in this case that would support a conclusion that the Perkas were dealing with a limited company rather than Mr. Mathieson personally. For example, Mr. Mathieson did not supply any invoices from his sub-trades showing that those sub-trades were working for one of Mr. Mathieson’s companies. And there are no letters or emails in evidence from Mr. Mathieson indicating that the Perkas were conducting business with one of Mr. Mathieson’s companies. Mr.

Mathieson tendered in evidence a receipt for some tiles used in this project from one of his suppliers, indicating that the materials were supplied to North Bluff on January 18, 2013, which is the same date that Mr. Mathieson requested the initial deposit of $7,000.00 from the Perkas, payable to his numbered company. [ 16 ] Given the complete absence of anything in writing from Mr. Mathieson that he was performing the Perkas’ kitchen renovation through one of his companies, other than the cheques written by the Perkas, I conclude that the parties to this kitchen renovation contract were Mr.

Mathieson personally and the Perkas. BACKGROUND [ 17 ] The Perka’s decided to renovate their kitchen in December, 2012. They had received a small inheritance that they planned to use to finance the renovation. [ 18 ] Their original plan was to replace the linoleum kitchen floor with tiles, change the lighting in the ceiling, clean and repaint their kitchen cupboards, and place tiles on the backsplash behind the countertop. When Mr. Mathieson came to the Perka’s home in December, 2012, he gave the Perkas a verbal quote to do the kitchen renovation. There is a dispute over the terms of this verbal quote. [ 19 ] Mr.

Mathieson says that he told the Perkas that he would charge them $50.00 an hour for his labour on the renovation. He says that he told the Perkas they were better off with his hourly rate, because if he gave the Perkas a fixed price for the renovation, he would quote a higher figure because of the potential for unforeseen complications during the renovation. Mr. Mathieson says that the Perkas opted for his hourly rate rather than a fixed price quote. [ 20 ] The Perkas say that Mr. Mathieson gave them a fixed price quote of $5,000.00 to complete the kitchen renovation.

The Perkas had already received a quotation from another contractor to complete the renovation for $5,000.00 and Mr. Mathieson was aware of this. The Perkas say that Mr. Mathieson told them that the cost to the Perkas, if they opted for the hourly rate, would be less than $5,000.00. Mr. Mathieson denies this, saying he could not give the Perkas that assurance, again, because of the potential for unforeseen complications. [ 21 ] Unfortunately for all of the parties involved, none of the details of this quotation for the kitchen renovation are in writing. There is nothing.

Not even an email confirming the agreement. There is nothing that lists the scope of this kitchen renovation project that I could use in assessing a fair value for the work involved. It appears that the parties agree that the Perkas would supply the tiles and the countertop for the renovation, but nothing beyond those simple details. [ 22 ] So, I gather that when this kitchen renovation started the Perkas were under the impression that Mr. Mathieson’s cost for the renovation would not exceed $5,000.00, and Mr.

Mathieson was under the impression that he was going to charge the Perkas $50.00 an hour for his time spent on the renovation, and there was no upper limit to what he could charge. It should be obvious to everyone involved of the value of putting their agreement in writing. [ 23 ] The Perkas decided that they would delay the kitchen renovation until after Christmas, so the plan was to start the renovation in January, 2013. At some point prior to the start of the renovation, Mr.

Mathieson told the Perkas that, given the cost of the work on the cabinets, he felt he could replace their cabinets, put brand new doors on the cabinets, and install crown moulding around the kitchen, at a cost that would be close to their cost to clean and paint the cabinets. Mr. Mathieson verbally gave the Perkas a fixed price quote of $13,800.00 to install brand new custom made kitchen cabinets and crown moulding. All of the parties agree that is the fixed price Mr. Mathieson quoted the Perkas for their new cabinets.

Consistent with all of their other dealings, there is nothing in writing setting out the terms of this agreement regarding the new cabinets. So, for example, there is nothing in writing setting out whether the tax on the new cabinets and labour was included in the fixed price. There is nothing in writing setting out when Mr.

Mathieson was to receive payments toward the cost to build and install the cabinets and crown moulding. [ 24 ] In any event, the Perkas are firmly of the view, in their own minds at least, that this entire kitchen renovation, including building and installing brand new custom made cabinets and doors, crown moulding, a new tile floor and new lighting throughout the kitchen, would cost them no more than $18,800.00, taxes included. Mr.

Mathieson is firmly of the view that the cost for the new cabinets, doors and crown moulding, was $13,800.00, before tax, and there was no upper limit on the cost for the balance of the kitchen renovation. [ 25 ] There are two other elements to the “agreements” between the parties. First, the Perkas say that they extracted a commitment from Mr. Mathieson that their kitchen renovation would be completed in no more than two weeks. That commitment, of course, is not in writing. Second, Mr.

Mathieson says that the Perkas agreed to pay him $50.00 an hour for his “management” of the sub-trades who came to work on the kitchen renovation. For example, there was a plumber and an electrician who worked on this renovation. Mr. Mathieson says that the Perkas agreed to pay Mr. Mathieson $50.00 an hour for his time spent managing these other two tradesmen. This trades management agreement is not in writing. [ 26 ] On January 18, 2013, Mrs. Perka wrote a cheque payable to a numbered company - 0903719 B.C. Ltd. - for $7,000.00. Mr. Perka testified that Mr.

Mathieson asked for this down payment to cover some of the cost of the materials for the cabinets. When Mrs. Perka wrote the cheque, Mr. Mathieson told her to make the cheque payable to the numbered company, and she did so. [ 27 ] On February 24, 2013, Mrs. Perka wrote a cheque payable to North Bluff for $5,000.00. This cheque was a further draw to cover the ongoing cost of this kitchen renovation. Mr. Mathieson told Mrs. Perka that he had changed the name of his numbered company to North Bluff and that is why he asked that the second cheque be made out to that company.

[ 28 ] I am satisfied that the first time the Perkas learned of Mr. Mathieson’s numbered company was when Mrs. Perka issued her cheque on January 18, 2013. I am also satisfied that the first time the Perkas learned of the existence of North Bluff was when Mrs. Perka issued her second cheque on February 24, 2013. The issuing of those two cheques does not define who the parties to this renovation agreement are. For the reasons set out above, while it was open to Mr. Mathieson to ask for the Perkas’ cheques to be made payable to whatever entity he wished, his request does not define the parties to these agreements.

THE BREAKDOWN IN THE RELATIONSHIP [ 29 ] What appears to have been the genesis of this dispute is when the Perkas received a bill from Mr. Mathieson on March 20, 2013. A. The March 20, 2013 Invoice [ 30 ] This is a curious invoice. It has no invoice number. But even more confounding is that it is an invoice from 0903719 B.C. Ltd. Yet, Mr. Mathieson told the Perkas at the time they issued their cheque on February 24, 2013, that he had changed the name of his company to North Bluff, and he asked that the cheque be made out to that company. [ 31 ] Starting on March 18, 2013, Mr. Mathieson and Mr.

Perka sent and received a number of text messages. I will not repeat the contents of those messages in these reasons, but on March 18, 2013, Mr. Perka asked for confirmation that their kitchen renovation would be completed by March 26, 2013, in time for the Perkas’ Easter dinner. [ 32 ] On March 19, 2013, Mr. Mathieson replied, confirming the steps he was taking to finish up the project, and he stated he was going to send over an invoice to settle up for the tile and paint, and to get the cabinets paid up to 90% before the doors were delivered. Minutes later, Mr. Perka asked Mr.

Mathieson to send over his invoice. Mr. Mathieson replied that he would send the invoice over a bit later. [ 33 ] As at March 19, 2013, the cabinet doors had been finished but not yet delivered to the Perkas’ home. I infer that Mr. Mathieson’s practice is to take delivery of cabinet doors but not deliver them to the homeowner until such time as he is paid 90% of the cost of the cabinets and doors. [ 34 ] On March 20, 2013, Mr. Mathieson sent Mr. Perka a text message in the morning, wanting to make arrangements to pick up his cheque and drop off the cabinet doors. Later that morning, Mr.

Perka replied that he was in an all-day meeting, and confirmed that Mr. Mathieson should proceed with the delivery and installation of the cabinet doors. Mr. Mathieson replied, confirming he would proceed and asked if they could meet so he could get his cheque. Mr. Perka responded a short while later, saying he would call Mr. Mathieson at his earliest opportunity as he continued in his meeting. Mr. Mathieson replied, saying he understood and that he simply wanted to know if they were proceeding as planned the next day. At some point that day, Mr.

Mathieson sent the Perkas his March 20, 2013 invoice. [ 35 ] When the Perkas reviewed Mr. Mathieson’s March 20, 2013 invoice, they were very upset. According to Mr. Perka, he felt that they had been overcharged and that if they paid the invoice, they would have paid in excess of the $18,800.00 they felt would be the maximum cost of this renovation. [ 36 ] There is no evidence of any conversation between the Perkas and Mr.

Mathieson around the Perkas’ concerns about the amount of the March 20, 2013 invoice. [ 37 ] The March 20, 2013 invoice lists a number of the supplies used in the renovation, the cost of the labour for the floor and painting, the plumbing invoices, the $13,800.00 cost of the cabinets less the $12,000.00 already paid and less a ten percent holdback on the cabinets which was to be paid upon the completion of the renovation. The March 20, 2013 invoice is for $7,275.89. [ 38 ] If the Perkas had paid the March 20, 2013 invoice, they would have paid Mr.

Mathieson $19,275.89 ($12,000.00 + $7,275.89) which would be $475.89 more than the $18,800.00 they thought they were obliged to pay under their “agreement” with Mr. Mathieson. However, upon completion of the renovation, the Perkas would be obliged to pay the 10% hold back of $1,380.00, for a total renovation cost of $20,655.89, which is $1,855.89 more than what the Perkas believed they agreed to pay for their kitchen renovation.

While at first that may seem like a significant sum of money for the Perkas to pay above and beyond what they thought they had agreed to pay, as I will set out later in these reasons, the Perkas in fact paid other contractors nearly $13,000.00 to finish their kitchen renovation, so a payment of less than $2,000.00 more than what they thought they agreed to pay, in my view, is not a material overcharge. [ 39 ] The other point I will make about this March 20, 2013 invoice is that if Mr. Mathieson’s quote for the cabinets did not include taxes as asserted by Mr.

Mathieson, then when that tax is added to the cost of the cabinets, the total cost of the renovation would be $18,800.00 + $1,656.00 (12% of $13,800.00) for a total of $20,456.00 or a mere $200.00 less than the total cost to the Perkas if they paid the March 20, 2013 invoice plus the 10% holdback due when the renovation was complete. [ 40 ] What is clear is that after the Perkas received the March 20, 2013 invoice, they took no steps to pay the invoice because it represented, to the Perkas, a payment in excess of the amount they believe they “agreed” to pay Mr. Mathieson for their kitchen renovation.

As a result of the Perkas refusal to pay the March 20, 2013 invoice, the relationship between the parties broke down and Mr. Mathieson did no further work at the Perkas’ home.

In my view, the Perkas’ refusal to pay the March 20, 2013 invoice was unreasonable, and I am fortified in that conclusion because, as I have indicated, the Perkas wound up paying an additional nearly $13,000.00 to other contractors to complete their kitchen renovation. [ 41 ] Other than fairly typical grievances, such as the kitchen renovation taking longer than expected and some other fairly minor complaints, the Perkas provided no evidence of substantial problems with Mr. Mathieson’s work prior to March, 2013, when their relationship broke down.

The Perkas simply objected to paying anything more than $18,800.00, despite having nothing in writing confirming that the verbal quotes from Mr. Mathieson were “all in” inclusive of taxes. [ 42 ] My view is that this relationship ended as a result of the Perkas refusal to accommodate what I consider to be some added cost

that was not material to the “agreement” between the parties. I also point out that while the Perkas say that the cost for the non-cabinet renovation work was at $50.00 an hour, but not to exceed $5,000.00, Mr. Mathieson says there was no such fixed ceiling on the cost of the non-cabinet renovation. On the evidence before me, I am unable to determine which party’s view of the non-cabinet renovation “agreement” is accurate, but for the foregoing reasons, I conclude that the Perkas terminated the renovation “agreements” with Mr. Mathieson. B.

The March 26, 2013 Invoice - Project Management Fees [ 43 ] On March 26, 2013, Mr. Mathieson sent a further invoice to the Perkas for 18 hours of project management fees at $50.00 per hour. The invoice is for $900.00 plus $108.00 in taxes, for a total of $1,008.00. This invoice is from North Bluff. I gather that Mr. Mathieson would invoice his clients using either his numbered company or North Bluff interchangeably, given that the invoice six days earlier was from his numbered company. [ 44 ] The Perkas deny that they agreed to pay Mr. Mathieson to manage other trades involved in their kitchen renovation.

As noted earlier, any such “agreement” is not in writing. [ 45 ] The difficulty I have with the March 26, 2013 invoice is there are no details listed as to how Mr. Mathieson spent the 18 hours managing this renovation project. He did not produce any time sheets or other records listing what steps he took managing the project and how long those steps took. [ 46 ] As I will discuss shortly, some of these 18 hours likely went to managing the electrician working on the Perkas’ kitchen. If that is so, Mr.

Mathieson’s time spent managing the electrician is worth nothing. [ 47 ] Two of the electrician’s tasks on this kitchen renovation were first, to lay down electrical cables on the sub-floor of the kitchen so that the Perkas would have a heated floor, and second, to cut electrical splice boxes into the walls at a spot that would be covered by the new kitchen cabinets. Access to the splice boxes would be through a plate screwed into the back of the cabinet box. [ 48 ] When the Perkas existing linoleum floor was removed, it revealed that the sub-floor in the kitchen was made of particle board.

The electrician laid the electrical cables onto the particle board sub-floor. The problem with doing that is that Mr. Mathieson was going to put a tile floor into the Perka’s kitchen. In order to lay down a tile floor, Mr. Mathieson had to pour a self-levelling compound on the sub-floor to ensure that the kitchen floor was level. The self-levelling compound is water-based. The water in the self-levelling compound would be absorbed by the particle board which would expand and lose its firmness.

The manufacturers of self-levelling compound say that their product cannot be used on a particle board sub-floor for that reason. [ 49 ] So, if Mr. Mathieson was managing this project properly, when he saw that the Perkas’ sub-floor was particle board, he would not have let the electrician lay the electrical cables onto that sub-floor. And if the electrician had laid the electrical cables, Mr. Mathieson would have had the electrician remove those cables so that Mr.

Mathieson could either lay a plywood sub-floor on top of the particle board floor, or he could have removed the particle board sub-floor and replaced it with a plywood sub-floor. Mr. Mathieson did neither. Once the electrical cables were laid by the electrician, Mr. Mathieson went ahead and poured the self-levelling compound over the particle board sub-floor. Mr. Mathieson then went on to lay down the tile floor in the Perkas’ kitchen.

That was a serious mistake which I will turn to shortly. [ 50 ] With respect to the placement of the electrical splice boxes, the electrician cut and placed the splice boxes in the wrong place. When the upper kitchen cabinets were installed, portions of some of the splice boxes were visible below the bottom of the cabinets. In other words, the splice boxes were not completely covered behind the back of the cabinet. I will discuss why the electrician made this mistake below, but when Mr. Mathieson installed the upper kitchen cabinets, it would have been obvious that the splice boxes where in the wrong place.

You would not need to be an experienced contractor to immediately recognize that the electrician had cut the splice boxes too low on the wall behind the cabinets. If Mr. Mathieson had been managing the electrician, he would have removed the upper cabinets and had the electrician install the splice boxes in their correct location. Mr. Mathieson did not do that. [ 51 ] So, despite what are obvious and significant failures of the electrician and Mr. Mathieson, Mr. Mathieson seeks to be paid a management fee of $900.00 plus taxes. I decline to award those fees. There is no documentation to support those fees.

There are obvious and significant errors by the electrician that were not corrected through Mr. Mathieson’s management. [ 52 ] With respect to other management duties Mr. Mathieson billed the Perkas for, whoever installed the dishwasher in the Perka’s kitchen failed to properly secure it, such that the dishwasher was falling out of its location under the countertop in the kitchen. Securing the dishwasher was simple. A manager of this project would have taken care of this problem. Mr. Mathieson did not. [ 53 ] I am not satisfied that Mr.

Mathieson provided management of any value, and I have no ability, through records or any other evidence, to determine otherwise. Accordingly, I dismiss Mr. Mathieson’s claim for reimbursement of his management fees. THE PROBLEMS WITH THE PERKAS’ KITCHEN [ 54 ] Most of the problems I list below were not known to the Perkas at the time they ended their relationship with Mr. Mathieson. All but one are readily fixable, at no substantial additional expense to either the Perkas or Mr. Mathieson. The one problem that does not fall into that category is the tile floor which is a substantial problem caused by Mr.

Mathieson’s negligence. The cost to the Perkas to fix their tile floor will be thousands of dollars. A. The Dishwasher Issue [ 55 ] As I have indicated above, after the dishwasher was installed in the Perkas’ kitchen, it was not properly secured to the underside of the countertop, with the result that it fell or tipped forward. To correct this deficiency, someone had to secure a piece of wood to the underside of the countertop to allow the flanges on the top of the dishwasher to be screwed into that piece of wood.

The difficulty that arose was that nobody assumed responsibility for installing the piece of wood into which the dishwasher could be secured. In my view,

this was a minor problem and should have been rectified by Mr. Mathieson at no cost to the Perkas. B. The Ceiling Issue [ 56 ] As I have indicated, part of the renovation of the Perkas’ kitchen included changing the lighting in the kitchen. The lighting change meant that there was some drywall work to be done, along with some painting of the ceiling. [ 57 ] The drywall work had some imperfections that the Perkas noticed after the painting was complete. Mr. Mathieson asked the Perkas to mark the imperfections with painting tape so that he could fix the problems.

The Perkas marked the imperfections with painting tape, but Mr. Mathieson did not fix the problems in the ceiling drywall before his relationship with the Perkas ended. [ 58 ] Photographs of the kitchen ceiling with pieces of painting tape identifying the imperfections were tendered into evidence by the Perkas. Those photographs show minor imperfections that could easily have been rectified with some drywall filler, some sanding, and touch-up painting. Those imperfections should have been corrected by Mr. Mathieson at no cost to the Perkas. C.

The Oven and Range [ 59 ] The Perka’s discovered two problems with their oven and range. First, after the new bottom cabinets were installed, the electrical cord for the oven and range did not fit back inside the wall behind the oven and range, such that the oven and range did not fit back flush under the countertop. [ 60 ] The solution to this problem was to cut a larger hole in the wall behind the oven and range to accommodate the electrical cord. This was a simple solution that should have been corrected by Mr.

Mathieson at no cost to the Perkas. [ 61 ] The second problem with the oven and range was that the upper kitchen cabinet installed over the oven and range and on to which the range fan was installed, placed the range fan too high above the range. The manufacturer’s specifications for the range fan stipulated a maximum distance for the range fan to be installed above the range in order that the fan would function most effectively. Mr.

Mathieson installed the range fan at a distance above the range that exceeded the distance in the manufacturer’s specifications. [ 62 ] I do not believe the Perkas discovered this problem until they hired a different contractor to complete their kitchen renovation. The solution to this problem was to build a larger kitchen cabinet to install above the range, which would have the effect of reducing the distance between the bottom of that cabinet and the top of the range. Then, when installed, the range fan would be the correct distance from the top of the range. [ 63 ] In his evidence, Mr.

Mathieson did not acknowledge that his installation of the range fan at a distance greater than the manufacturer’s specifications was a problem. His evidence was that he installed a larger range fan than was previously above the Perka’s range, and that therefore, the range fan would function properly. [ 64 ] My view is that given that the Perkas were installing a substantially renovated kitchen, they were entitled to expect that Mr. Mathieson would install the range fan within the manufacturer’s specifications.

The solution to install a larger cabinet above the range so that the range fan was positioned properly above the range should have been corrected by Mr. Mathieson at no cost to the Perkas. D. The Edge Trim [ 65 ] Mr. Mathieson finished the edges of the Perkas kitchen cabinet boxes with strips of trim that come in pre-determined colours. When the cabinet doors are closed, you cannot see the cabinet edge trim because it is covered by the cabinet doors. However, when the cabinet doors are open, you are able to see the cabinet edge trim. [ 66 ] The cabinet edge trim that Mr.

Mathieson selected for the Perka’s kitchen is not an exact colour match to the custom stained cabinet doors. In order to have the cabinet edge trim match the cabinet doors, Mr. Mathieson would have to have used unstained wooden edge trim and have that trim custom stained with the same stain used on the cabinet doors. Mr. Mathieson testified that using that process to have an exact colour match between the edge trim and the cabinet doors would have added significantly to the cost of the kitchen cabinets. Mr.

Mathieson did not tell me what that cost would be. [ 67 ] The cabinet edge trim issue highlights the difficulty in this case with no written agreement between the parties. When the Perkas agreed to pay Mr. Mathieson $13,800.00 to build and install new kitchen cabinets, did they agree to have pre-stained edge trim or did they agree to have custom stained edge trim that would be an exact match to the colour of their cabinet doors? Choosing between these two options and their respective costs was never discussed with the Perkas. [ 68 ] My view is that the Perkas agreed to pay Mr.

Mathieson $13,800.00 to install custom kitchen cabinets with doors and edge trim that matched in colour. It is difficult to tell from the photographs of the edge trim tendered in evidence, how far off the colour mismatch is. Mr. Perka testified that there is a significant difference in colour. Mr. Mathieson testified that the colour difference is not significant and is not noticeable because the edge trim is concealed behind the cabinet doors when they are closed. [ 69 ] Had Mr.

Mathieson presented the Perkas with a detailed quotation setting out what he was installing for the price of $13,800.00 and other options the Perkas could choose from, like having custom stained edge trim to match the cupboard doors, and had the Perkas selected the pre-stained edge trim, this would not be an issue. But Mr. Mathieson did not give the Perkas that choice between the two options for the cabinet edge trim. When Mr.

Mathieson arrived at his price for the cabinets of $13,800.00, he knew he was planning on using the pre-stained edge trim, because the custom stained edge trim would have been much more expensive. The Perkas did not know what edge trim option Mr. Mathieson included in his quotation. [ 70 ] Accordingly, I am of the view that the problem of the mismatched cabinet edge trim is Mr. Mathieson’s responsibility and ought to have been corrected by Mr. Mathieson at no cost to the Perkas.

[ 71 ] As I have indicated above, the Perkas paid nearly $13,000.00 to other contractors to fix these problems with the kitchen that I have concluded Mr. Mathieson should have been responsible for rectifying at no cost to the Perkas. Unfortunately, the Perkas did not tender in evidence what they paid to subsequent contractors to remedy each of these problems. [ 72 ] The invoices the Perkas submitted into evidence establish that they paid a contractor $787.50 to finish the tiled backsplash and kick-plate in the kitchen, and to seal the tiles, which is work Mr.

Mathieson was to perform pursuant to the non-cabinet renovation “agreement” the terms of which I am unable to ascertain on the evidence before me. [ 73 ] The Perkas tendered an invoice from a contractor in the amount of $945.00 to complete the repairs to the kitchen ceiling and to finish some drywall work and to paint moulding around the kitchen windows. Again, it is not clear if the drywall work and painting the moulding around the windows was work that Mr. Mathieson was to perform pursuant to the non-cabinet renovation “agreement”, and whether the non-cabinet renovation “agreement” allowed Mr.

Mathieson to charge extra to do that work. The Perkas tendered into evidence an invoice from a contractor for $1,207.60 to place moulding around windows and two doors, but again, it is not clear if Mr. Mathieson’s non-cabinet renovation “agreement” with the Perkas allowed him to charge the Perkas to install that moulding. [ 74 ] So, while it is true that the Perkas have tendered into evidence invoices to establish what they paid to other contractors to complete the work on their kitchen renovation, given the uncertainty of the Perkas’ “agreement” with Mr. Mathieson, I am unable to conclude that Mr.

Mathieson is liable to the Perkas for those additional expenses. E. The Floor to Ceiling Height Issue [ 75 ] This problem in the Perkas’ kitchen is the first of three issues that Mr. Perka spent the bulk of this trial focused upon. [ 76 ] In the original drawings Mr. Mathieson produced for this kitchen renovation, the floor to ceiling height is noted to be 96 inches. Based upon a 96 inch floor to ceiling height, Mr. Mathieson planned to install lower cabinets, upper cabinets, and have a certain distance between the countertop on top of the lower cabinets and the bottom of the upper cabinets.

The size of the lower cabinets was fixed and the size of the upper cabinets was fixed. The fixed cabinet sizes, along with the distance between the countertop and the bottom of the upper cabinets, were to fit within the 96 inches from the floor to the ceiling. All of these measurements were designed to accommodate crown moulding selected by the Perkas to be placed around the border where the walls and upper cabinets meet the kitchen ceiling. [ 77 ] The difficulty with the floor to ceiling measurement was that Mr.

Mathieson’s calculations were all based upon 96 inches which is measured from the kitchen sub-floor and not the finished kitchen floor. However, Mr. Mathieson installed the lower kitchen cabinets on the finished kitchen tile floor. The result was that the lower cabinets were installed higher up the wall than on the measured drawings, and that distance was the thickness between the sub-floor and the top of the finished tile floor, which is somewhere between 1 ½ inches and 2 inches. [ 78 ] The problem created by the lower cabinets being installed 1 ½ to 2 inches higher up the wall than on Mr.

Mathieson’s drawings was that there was not enough space up against the ceiling to install the crown moulding the Perkas had chosen for their new kitchen. [ 79 ] When Mr. Mathieson discovered this problem with the floor to ceiling height, he arranged with the crown moulding supplier to obtain the exact same crown moulding the Perkas had selected, except that the new crown moulding was about one inch narrower than the crown moulding the Perkas had originally selected. Mr. Mathieson obtained the narrower crown moulding at his own expense and was not going to charge the Perkas to correct this mistake.

In his evidence, Mr. Mathieson attempted to explain this problem with the crown moulding as a mistake made by the crown moulding supplier rather than a measurement mistake in his drawings. [ 80 ] I reject Mr. Mathieson’s explanation for the crown moulding problem as a mistake made by his supplier. The Perkas kept an unfinished sample of the crown moulding they chose for their new kitchen and tendered that sample into evidence. I am satisfied that the crown moulding the Perkas selected for their kitchen is the same crown moulding supplied by Mr.

Mathieson’s supplier, and that the reason the Perkas’ crown moulding did not fit is because of Mr. Mathieson’s error in his floor to ceiling measurement in his drawings. [ 81 ] I do not believe the Perkas discovered the fact that the crown moulding did not fit until after Mr. Mathieson packed up his tools and belongings and left the Perka’s home for good. I say that because the photo of the Perka’s kitchen in the state that it was in at the time Mr.

Mathieson left the job for good, shows the kitchen without the crown moulding installed. [ 82 ] I am of the view that there were three solutions to this floor to ceiling height issue as it relates to the crown moulding not fitting. [ 83 ] First, the upper kitchen cabinets could have been installed slightly lower on the wall, but that would shorten the distance between the countertop and the bottom of the upper kitchen cabinets, and that is not an ideal solution because that shorter distance could result in insufficient space to store items on the kitchen counter.

This solution, however, would allow the originally selected crown moulding to be installed. [ 84 ] Second, the upper cabinets could be removed and cut shorter by 2 inches, reinstalled with new doors made for all of the upper cabinets to accommodate the smaller cabinet size, and then the originally selected crown moulding installed. This, of course, would be labour intensive and very expensive because all of the original upper cabinet doors would be of no use, and there would be a significant cost to build new and shorter upper cabinet doors.

Another problem with this solution is the shorter cabinets would reduce the storage space within those cabinets which is not ideal. [ 85 ] Third, the Perkas could simply accept the narrower crown moulding and keep everything else in their kitchen the same as originally planned. This third solution is the one that Mr.

Mathieson settled upon, but it is not clear he did that in consultation with the Perkas. [ 86 ] The Perkas, at their own significant expense ($9,959.25 paid to One Stop Kitchen Idea Ltd. “One Stop”), chose option two and had One Stop remove the cabinets, cut them shorter, make new shorter cabinet doors, and then had the upper cabinets reinstalled and had

the originally selected crown moulding installed. In my view, the Perka’s decision to go to the substantial expense with option two simply to preserve their choice of crown moulding was not reasonable. [ 87 ] Again, with nothing in writing between the parties as to the details of what they agreed upon, including the specifics as to the crown moulding selected, I am of the view that insisting on installing the originally selected crown moulding at an expense of nearly $10,000.00 was not, and is not, justified. Mr.

Mathieson obtained the exact same style of crown moulding, albeit slight narrower, had it stained and ready to install, all at his own expense.

In my view, installing the same style but slightly narrower crown moulding at no cost to the Perkas was, and is, the proper solution to this problem. [ 88 ] The second issue created by the floor to ceiling height problem is that the electrician cut the electrical splice boxes on the wall at a location where, once the upper cabinets were installed 1 ½ to 2 inches higher than planned, some of the electrical splice boxes were partially visible on the wall immediately below the bottom of the upper cabinets. I have already discussed this issue earlier in these reasons, and I will not belabour it here.

Simply put, the error in the location of the electrical splice boxes was either caused by a mistake by the electrician or was the result of the floor to ceiling height miscalculation. Regardless, the splice boxes needed to be relocated higher on the wall at no cost to the Perkas. As to who should bear the cost of relocating the electrical splice boxes, that is an issue between Mr. Mathieson and the electrician, and is not an issue before me in this trial. The Perkas did not tender evidence before me of what they paid another contractor or electrician to relocate the electrical splice boxes. F.

Installing ¾ Inch Gables [ 89 ] This is the second of the three renovation issues that Mr. Perka spent the bulk of this trial focused upon. [ 90 ] In Mr. Mathieson’s original drawings for the Perka’s kitchen, he did not account for the installation of ¾ inch gables anywhere in the kitchen. [ 91 ] I will try and keep my description of this issue simple. [ 92 ] Mr. Mathieson installed the upper and lower cabinets in the Perka’s kitchen in rows going along the upper and lower portions of the kitchen walls.

The cabinets stop where the upper and lower cabinets meet a doorway, so there is an exposed side of the cabinet box where the row of cabinets meet a doorway. Something is needed to finish the plywood side of the cabinet where it meets the doorway. [ 93 ] In addition, the cabinets were designed to allow for space for the refrigerator. Finishing the space for the refrigerator could be done one of two ways. Either the sides of the refrigerator are exposed to the countertop, or the sides of the refrigerator are hidden by a piece of finished and stained wood, matching the colour of the cabinets.

Enclosing the sides of the refrigerator behind finished wood panels is much nicer visually. [ 94 ] The same finishing for the sides of the refrigerator is available to finish the sides of the pantry cupboard that Mr. Mathieson installed for the Perkas. [ 95 ] In discussions between Mr.

Mathieson and the Perkas, the Perkas decided to finish the sides of the cabinets, refrigerator, and pantry with ¾ inch gables which are stained panels of wood placed on the side of the cabinet where it meets a door, placed on the sides of the refrigerator to encase the refrigerator, and placed on the sides of the pantry. [ 96 ] The problem, however, with adding ¾ inch gables to this project that were not included in the originally measured drawings for the Perkas’ kitchen, is that the cabinets that meet up with the doorway are 1 ½ inches closer to the doorway than they are supposed to be, because the two gables on either side of the pantry and the refrigerator together add 1 ½ inches of material along the walls.

The result is that the upper cabinets that meet the doorways are too close to the doorways. Two of the Perkas’ cabinets fell victim to this mismeasurement and were too close to the doorways in the Perka’s kitchen. [ 97 ] In Mr. Mathieson’s drawings for the Perkas’ kitchen, his software gave a number to each of the cabinets.

The two cabinets that were too close to the doorways were cabinets number 11 and 29. [ 98 ] There were two options to remedy the problem of cabinets number 11 and 29 being placed too close to the doorways. [ 99 ] First, cabinets number 11 and 29 could be removed and cut so that they were slightly more narrow than contemplated in the original drawings and then reinstalled, and the ¾ inch gable would then be placed on the exposed end of the cabinet where it meets the doorway. [ 100 ] Second, cabinets number 11 and 29 could be left the originally designed size and, rather than placing a ¾ inch gable on the exposed ends of the cabinets, the ends could be finished with a very thin veneer stained to match the doors of the cabinets and the ¾ inch gables.

The difficulty with this second option is the veneer finish does not look the same as the gable finish, and the ends of the upper cabinets do not line up with the ends of the lower cabinets due to the 1½ inches added by the two ¾ inch gables installed beside the refrigerator and pantry. [ 101 ] The Perkas chose the first solution and hired another contractor to cut cabinets 11 and 29 slightly more narrow so that the ends of the upper and lower cabinets would line up, and so that ¾ inch gables could be placed on the exposed ends of the cabinets.

There was a cost to the Perkas to do this which included the cost of a slightly more narrow door on each of the cabinets. [ 102 ] Mr. Mathieson recognized this measurement error when he installed the upper cabinets, and he offered to remove cabinet 11, cut it narrower, and obtain a narrower door, all at his own expense. As for cabinet 29, Mr. Mathieson’s solution was to do something to the doorway, and use a thin veneer finish on the exposed side of the cabinet. [ 103 ] My view is that Mr. Mathieson’s solution for cabinet 11 was reasonable, and should have been accepted by the Perkas. However, Mr.

Mathieson’s solution for cabinet 29 was not a reasonable solution. Mr. Mathieson should have removed cabinet 29, cut it

narrower, obtained a narrower door, reinstalled the cabinet, and finished it with a ¾ inch gable all at his own expense. [ 104 ] The invoice the Perkas tendered into evidence from One Stop shows that they paid One Stop $650.00 for the labour and materials to modify cabinets 11 and 29 in order to accommodate the chosen crown moulding and finished gables in their kitchen. Mr. Mathieson had agreed to modify the width of cabinet 11 at his own expense, and it is not clear what One Stop charged the Perkas for its work on cabinet 29. G.

The Tiled Kitchen Floor [ 105 ] I have already introduced this mistake in the Perka’s kitchen renovation earlier in these reasons. This is the third of the three renovation issues that Mr. Perka spent the bulk of this trial focussed upon. [ 106 ] Briefly, when the existing linoleum floor in the Perkas’ kitchen was removed, it revealed a particle board sub-floor. Rather than removing the particle board sub-floor and installing a plywood sub-floor before proceeding with the installation of the electrical cables for the heated floor, and then laying down the tiled kitchen floor, Mr.

Mathieson left the particle board sub-floor in place. [ 107 ] In my view, what should have happened is that once Mr. Mathieson discovered the particle board sub-floor, he should have recognized the sub-floor problem and spoken with the Perkas about the additional cost to remove the sub-floor and replace it with a plywood sub-floor suitable for installing their heated and tiled kitchen floor. Mr.

Mathieson did not have that conversation with the Perkas, and rather, just went ahead and laid down the tile floor. [ 108 ] As I stated earlier, pouring the self-levelling compound onto the particle board sub-floor was a serious mistake. The particle board sub-floor would absorb the water in the self-levelling compound and expand. The result was that the tiles were not installed on a solid or firm sub-floor. [ 109 ] The Perkas would not have known of this problem at the time when Mr. Mathieson left the kitchen renovation project for good.

However, over time, the Perkas have noticed that the grout between their tiles is failing and cracking. Some of the kitchen floor tiles have come loose which is called delaminating. I find that this failure of the kitchen floor installed by Mr. Mathieson is due solely to his negligence in installing the tile floor on the particle board sub-floor. [ 110 ] The Perkas called evidence from Ryan Baumer, who gave evidence as an experienced tile setter. Mr. Perka did not ask that I qualify Mr. Baumer as an expert qualified to give opinion evidence. However, I am satisfied that Mr.

Baumer has sufficient training and experience to provide me with the opinions he expressed in his testimony. Mr. Davidson, on behalf of Mr. Mathieson, did not object to me receiving Mr. Baumer’s opinion evidence at the time the evidence was proffered. [ 111 ] Mr. Baumer testified that he has been operating his own tiling business for the past eight years. He has received education about various products and their proper application or use in tile setting from manufacturers. He trained as an apprentice with a company called Elite for six months at the beginning of his career. [ 112 ] Mr.

Baumer worked on the Perkas’ kitchen renovation, installing the tiled backsplash and baseboards or kickboards. [ 113 ] Mr. Baumer testified that the main issue with the Perkas’ kitchen floor is that the tiles are delaminating or breaking loose from the compound securing the tiles to the sub-floor. This delamination causes the grout between the tiles to crack. The delamination is due to the tile floor being laid down on the compromised particle board sub-floor. [ 114 ] By removing the heating vents in the kitchen floor which exposes the sub-floor, Mr.

Baumer discovered that the tile floor has been installed on top of the particle board sub-floor. Mr. Baumer testified that particle board and self-levelling compound are not compatible. He said that moisture from the self-levelling compound swells the particle board, which, over time, leads to the tiles delaminating and the grout to fail. [ 115 ] Mr. Baumer testified that the integrity of the Perka’s kitchen floor installation shows signs of failing. He also testified that the Perka’s kitchen floor is repairable, but only with the full removal and replacement of the tile floor. [ 116 ] In cross-examination, Mr.

Baumer was asked his opinion of the lifespan of the Perka’s kitchen floor, and he responded saying that the floor has no lifespan, it is already falling apart. [ 117 ] The Perkas tendered into evidence Mr. Baumer’s estimate to replace the kitchen floor. I pause here to point out some of the details included in Mr. Baumer’s estimate to repair the Perkas’ kitchen floor that are missing from this case with Mr. Mathieson. [ 118 ] First, Mr. Baumer’s quotation is an email - it is in writing. [ 119 ] Second, the subject line of the quotation identifies Mr.

Baumer’s company as “Absolute Tile Co.” [ 120 ] Third, the quotation ends with “Estimated project cost:”. The obvious reason for that statement in the quotation is that Mr. Baumer cannot know for certain what the final cost of the floor replacement will be, but at least the Perkas know what Mr. Baumer has considered in arriving at his estimate of the cost of the project. [ 121 ] Mr.

Baumer’s quotation lists the labour and materials involved in the project, which include removing the existing floor and electrical heating system, installing a new plywood subfloor, and then resetting the tile floor and sealing the floor. [ 122 ] Mr. Baumer’s estimated cost to replace the Perka’s kitchen floor is “$4,880.00 plus tax”. So, it is clear that Mr. Baumer’s estimate does not include taxes. Such clarity is absent from the business relationship between Mr. Mathieson and the Perkas. [ 123 ] In addition to Mr. Baumer’s quotation, the Perka’s have included the invoice for the tiles purchased by Mr.

Mathieson for the kitchen floor. That invoice totalled $1,407.26. If the Perkas are able to buy the tiles for their replacement floor at a similar price, the

total estimated cost to replace the tiled kitchen floor is $6,287.26 plus tax on Mr. Baumer’s work, which on $4,880.00 would be $585.60, for a total cost to replace the kitchen floor of approximately $6,900.00. [ 124 ] I find that Mr. Mathieson is liable to the Perkas for the cost to replace their kitchen floor which is failing due to his negligent installation of the tile floor on the particle board sub-floor. WHO OWES WHAT TO WHOM? [ 125 ] I have dismissed Mr. Mathieson’s claim for $1,008.00 against the Perkas for his project management fees.

That leaves his claim for $7,275.89 for the unpaid balance due from the Perkas for their kitchen renovation. [ 126 ] The Perkas claim nearly $25,000.00 from Mr. Mathieson for the additional expenses they incurred to complete the kitchen renovation, along with the cost to have Mr. Baumer remove and properly reinstall the tiled kitchen floor. [ 127 ] I am not satisfied that Mr. Mathieson had breached his “agreements” with the Perkas at the time the Perkas refused to pay his March 20, 2013 invoice.

There was no agreement between these parties that obliged the Perkas to pay the full amount of the cost of the renovation, less the ten percent holdback on the cabinet portion of the project, before Mr. Mathieson delivered the cabinet doors. But it was not an unreasonable request to ask the Perkas to pay some more money towards the cost of the project in advance of Mr. Mathieson delivering the cabinet doors to the Perkas. [ 128 ] There was some evidence, but not much, of discussions between the parties as to how much the Perkas were willing to pay towards the March 20, 2013 invoice to keep Mr.

Mathieson working on the project. In their written submissions the Perkas attached some emails that did not form part of the evidence before me during this trial. I have not read those emails. [ 129 ] In short, Mr. Mathieson sent his invoice dated March 20, 2013, and the Perkas refused to pay that invoice. Mr. Mathieson gathered his tools, left the job, and then started this lawsuit. The Perkas hired another contractor to finish the kitchen renovation, and through that process discovered some of the problems with Mr. Mathieson’s work listed above.

The Perkas paid considerably more to the new contractor than I have found they would have had to pay Mr. Mathieson for him to fix the rather minor problems with the kitchen renovation I have identified earlier in this decision. The fact is that Mr. Mathieson still has in his possession all of the original doors he ordered and paid for to be used in the Perka’s kitchen renovation, along with the slightly narrower crown moulding he planned to install in the kitchen to accommodate the floor to ceiling height mismeasurement. [ 130 ] The Perkas paid Mr. Baumer $787.50 for tiling work that Mr.

Mathieson was to finish as part of the non-cabinet kitchen renovation “agreement” the terms of which I am unable to ascertain on the evidence in this case. They paid another contractor $945.00 for drywall and paint repairs to the kitchen ceiling that I have found Mr. Mathieson should have done at no cost to the Perkas, but the $945.00 also includes painting wood trim and drywall repairs around windows. There is no evidence that the repairs beyond fixing the ceiling were to be done at Mr.

Mathieson’s expense as part of the non-cabinet kitchen renovation “agreement”. [ 131 ] The Perkas paid $1,207.60 to a contractor for moulding on windows and two doors. It is not clear if this moulding around the windows and doors was something the Perkas hired Mr. Mathieson to perform. The Perkas paid One Stop $9,959.25 to modify the cabinet sizes, supply new doors and drawer fronts, door and drawer handles, and shelves into the cabinets installed by Mr. Mathieson.

I have determined that the Perkas’ decision to modify the kitchen cabinets and doors to accommodate the originally selected crown moulding was unreasonable and, therefore, Mr. Mathieson should not be held liable to the Perkas for that expense. [ 132 ] Unfortunately, the invoice the Perkas tendered into evidence from One Stop does not break down some of the costs that I have found ought to have been covered by Mr. Mathieson at no cost to the Perkas.

The One Stop invoice separates the cost for the cabinet modification to accommodate the gables and the chosen crown moulding to be $650.00, but that cost is not limited to cabinets 11 and 29. Rather it is the cost to modify all of the cabinets to accommodate the originally selected Crown moulding, a choice I have found was unreasonable. Given that Mr. Mathieson had agreed to modify cabinet 11 at his own cost, the Perkas ought not to have paid anything to make the adjustments to cabinets 11 and 29.

But I am unable to determine what the Perkas paid One Stop to modify cabinets 11 and 29. [ 133 ] The One Stop invoice includes the cost of new materials of $7,935.00 without breaking down what the materials cost was to modify cabinets 11 and 29. The new materials on the One Stop invoice also do not indicate what the cost was for the custom stained edge trim that I have found Mr. Mathieson should have paid for at his own expense. [ 134 ] Accordingly, although the Perkas are entitled to be reimbursed by Mr.

Mathieson for their cost for the labour and materials to modify cabinets 11 and 29 and for the custom stained edge trim, I am unable, on the evidence before me to determine what the Perkas paid to One Stop for those expenses. [ 135 ] I have concluded that the Perkas owe Mr. Mathieson $7,275.89 for refusing to pay all, or a portion of, the March 20, 2013 invoice which led to the breakdown in the relationship between Mr. Mathieson and the Perkas. [ 136 ] I would be inclined to order that the Perkas pay that sum to Mr. Mathieson because I have found that the Perkas were not in a position to refuse any payment to Mr.

Mathieson before he delivered the cabinet doors to the job site. [ 137 ] However, Mr. Mathieson’s negligent installation of the kitchen tile floor leaves the Perkas with a significant cost to remove and properly reinstall their kitchen tile floor. I have found that cost to be about $6,900.00, based upon Mr. Baumer’s estimate. If I set off the cost of the replacement kitchen floor from the amount I find the Perka’s owe Mr. Mathieson, that leaves a balance of $375.89 owing from the Perkas to Mr.

Mathieson. [ 138 ] I am satisfied that the cost to the Perkas for the labour and materials to modify cabinets 11 and 29 plus the cost for the matching edge tape, would easily absorb and exceed this trifling sum owing by the Perkas to Mr. Mathieson. Unfortunately for the Perkas, they did not break down the amounts they paid to One Stop for some of the work done by One Stop that I have found should have been covered by Mr. Mathieson at no cost to the Perkas.

[ 139 ] I am satisfied that in assessing the evidence as a whole, there should be some money paid by Mr. Mathieson to the Perkas to compensate them for money they paid to other contractors for work that Mr. Mathieson should have done at no expense to the Perkas. The difficulty is that the Perkas terminated the working relationship with Mr. Mathieson at a time and under circumstances that I have found the Perkas were not in a valid legal position to terminate that working relationship.

In addition, as set out above, I am unable to determine, on a balance of probabilities, what the Perkas paid to other contractors to perform the work that was Mr. Mathieson’s responsibility. CONCLUSION [ 140 ] Accordingly, I have concluded that the $375.89 owing by the Perkas to Mr. Mathieson is off-set by the amounts owed by Mr. Mathieson to the Perkas for his mistakes on this kitchen renovation project. [ 141 ] In the result, I dismiss Mr. Mathieson’s claim against the Perkas and I dismiss the Perkas’ counterclaim against Mr.

Mathieson. [ 142 ] Given the divided success in this matter the parties will bear their own expenses incurred in pursuit of their respective claims. The Honourable Regional Administrative Judge R. Hamilton Provincial Court of British Columbia