Date Issued: August 9, 2019

File: SC-2018-004109

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Avid Contracting Ltd. v. PaintBC.ca Painting & Color Consulting Ltd.,
2019 BCCRT 953

Between:

Avid Contracting Ltd.

Applicant

And:

PaintBC.ca Painting & Color Consulting Ltd.

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      The applicant, Avid Contracting Ltd., says that the respondent, PaintBC.ca Painting & Color Consulting Ltd., has not completely paid for painting and surface prep services provided at three houses. The respondent says that it already paid the applicant by giving the money owing to the applicant’s subcontractor and representative in this dispute, John Hepburn. The respondent also says that, in any event, it shouldn’t have to pay for work at the third house because it was deficient.

2.      The respondent is represented by Mark Hinkson. I infer that each representative is the principal or employee of the party they represent.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, with a “he said, he said” situation where both sides have called into question the credibility of the other. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me.

5.      Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I decided to hear this dispute through written submissions.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders where permitted by section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

8.      The applicant’s representative requests that I order the respondent’s representative to stay away and refrain from threatening or otherwise harassing him. I do not have the jurisdiction to grant such an order. Claims for restraining or no-contact orders fall outside of the tribunal’s small claims jurisdiction that is set out in sections 118 and 119 of the Act. Further, the respondent’s representative is not a party to this dispute. I refuse to resolve this portion of the applicant’s claim.

ISSUE

9.      The issue in this dispute is whether the respondent owes the applicant:

a.    $100 plus $50 GST for the work at the first house;

b.    $2,200 plus $110 GST for work at the second house; and/or

c.    $350 plus $17.50 GST for work at the third house.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.   The parties agree that the applicant worked as a subcontractor for the respondent to provide surface prep work and painting at three houses.

The First House

12.   The applicant was hired to paint the exterior of the first house, and did this in May 2018. Although the respondent says this work had some issues, it also submits that the applicant’s crew returned to complete touch-ups or remediation work. I find the evidence shows that the applicant reasonably completed the job for this contract. The respondent also hired the applicant for a second job, discussed below. That decision is consistent with the conclusion that the applicant did acceptable work. The respondent also paid for most of the work. A May 2018 invoice shows that the respondent paid $900 cash of the invoiced $1,000 amount. The invoice is signed by the applicant’s representative to show receipt of payment.

13.   The applicant claims for a $100 shortfall, as well as GST of $50. The respondent submits that the applicant was paid in full.

14.   I conclude from the May 2018 invoice that the applicant accepted less than full payment for its work. The applicant did not make any note of a balance owing. The applicant was also willing to work on a second and third house for the respondent, which I discuss in further detail below. These facts support the conclusion that the applicant accepted less than full payment of the May 2018 invoice for money owing.

15.   The applicant also provided inconsistent submissions, stating that it was both paid in full except for the GST, and elsewhere stating that there remained $100 owing in addition to the GST. Given the facts and this inconsistency, I dismiss the “first house” portion of the applicant’s claim.

16.   I note that the May 2018 invoice was later edited to include work on the second house. I shall refer to this as the edited May 2018 invoice, below.

The Second House

17.   The applicant painted the interior of a second house in May 2018. The parties agree that the applicant completed the second job properly. The applicant says the respondent agreed to pay $2,200 plus GST for this work but was never paid any amounts. Despite this, the applicant decided to power wash and paint the exterior of a third house for the respondent in late May or early June 2018. The applicant says it did this because the respondent agreed to pay the applicant more for the second house and $6,000 for the third house. The applicant felt this was a “more than reasonable” amount for the work involved. The respondent disagrees and says it fully paid for the work on the second house.

18.   I find it likely that the respondent did not pay the applicant at all for work at the second house. The parties documented receipt of the first payment for the first house by having the applicant sign the May 2018 invoice. The respondent later edited the May 2018 invoice. The edited May 2018 invoice contains a May 25, 2018 line item of $2,100 in cash for work at the second house. However, this revised invoice lacks any signature to show receipt of payment. Given the above background, I find the lack of signature to be significant.

19.   The revised May 2018 invoice also states that, in addition to receiving full payment for all three houses, the applicant’s representative agreed not to contact the respondent’s current and previous clients and agreed that he was paid in full. I find it unlikely that the applicant’s representative agreed to these terms. There is no signature or initial to show acceptance. The applicant’s representative also acted in a manner inconsistent with the existence of such an agreement. For example, he contacted the client at the second house for a letter. The client wrote that the applicant did a satisfactory job of painting his house interior and that his understanding was that the applicant was unpaid.

20.   Further, the applicant explained the circumstances for the lack of payment. He says that parties went to the respondent’s bank. The respondent’s representative wanted the applicant to acknowledge receipt of payment. However, the applicant’s representative refused because the respondent only offered to pay $2,000 for all the work done on the second house and a third house discussed below.

21.   I find the applicant representative’s explanation plausible, in part because he also provided an undated letter from the applicant’s owner. The owner wrote that after finishing work at the second and third houses, the applicant’s representative called him to advise that the respondent had offered to pay $2,000 cash for all the work done at both those houses. The owner told the applicant’s representative to refuse.

22.   The applicant has the burden of proof. However, I note that there is no transaction record or banking document from the respondent to show that any payment was made to the applicant.

23.   In summary, I find that the applicant did satisfactory work on the second house and was not paid. However, the applicant did not provide an invoice or bill for the amount it claims is owing on the second house. As noted above, the edited May 2018 was edited and provided by the respondent. The question that arises is how much the applicant is owed.

24.   Ultimately, I accept the applicant’s submissions. I find it more likely than not that the applicant is owed $2,310 for work at the second house, being the claimed amount of $2,200 plus GST of $110. The other main evidence of the price of the work is the edited May 2018 invoice. The amount listed there is $2,100. Although the amounts do not perfectly match the difference is relatively small. I find the claimed amount to be therefore largely consistent with the evidence.

The Third House

25.   The applicant says it pressure-washed the third house and is owed $350, plus GST of $17.50. The applicant says that the next time its crew showed up for work it found that the respondent had spray-painted the house without telling the applicant. The respondent now only wanted to pay $1,500 for the applicant to paint the trim, instead of $6,000 for the entire exterior. The applicant decided to pull its work crew and demanded payment of the amounts outstanding to date. The applicant says it has still not been paid for its work in connection with the third house.

26.   In contrast, the respondent says that the applicant “just started to spray some paint” and “made a complete mess”. The applicant’s crew also only worked there for half an hour before the workers were told to leave early as the work done was deficient. As for whether the applicant was paid, the respondent provided inconsistent submissions on this point. It says that it received a bill that it refused to pay but also submitted that the applicant was paid in full for all three houses.

27.   I find that the applicant provided the agreed-upon power washing and is owed $350, plus GST of $17.50 for the work. I base my finding in part on a June 14, 2019 letter from one of the applicant’s workers. He writes that he spent the whole day power washing the third house and that at the time the applicant was working with the respondent. There is no indication in the letter that the applicant did any of the problematic spray painting or otherwise created any mess. I also find it likely that the power washing was done at an acceptable level, given that the respondent hired the applicant after the first house, and again after seeing the work on the second house. While the respondent also submits the applicant created additional costs and lost the respondent clients, few details were provided.

28.   I do not have a bill or invoice before me for the claimed amount. However, I do not find that unusual in the circumstances, given that the respondent says it “fired” the applicant from working at the third house. I accept the applicant’s figure of $350, plus GST of $17.50, as a reasonable value of the pressure-washing work done.

29.   In summary, I find that the applicant is owed $2,310 for the second house and $367.50 for the third house, for a total of $2,677.50. I dismiss the applicant’s claim for the first house.

30.   The applicant is entitled to pre-judgment interest under the Court Order Interest Act (COIA). The dates upon which payments were due is not well documented. I find that applicant is entitled to pre-judgment interest on the sum of $2,677.50 from June 28, 2018, being a month from the May 28, 2018 invoice, which is a date I consider reasonable in all of the circumstances. This equals $51.45.

TRIBUNAL FEES AND DISPUTE-RELATED EXPENSES

31.   Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable expenses related to the dispute resolution process. I see no reason in this case to deviate from the general rule.

32.   The applicant was largely successful in this dispute. I therefore award the applicant $175 for reimbursement of tribunal fees. The applicant did not claim dispute related-expenses.

ORDERS

33.   Within 30 days of this decision, I order the respondents to pay the applicant a total of $2,903.95, broken down as follows:

a.    $2,677.50 in debt,

b.    $51.45 in pre-judgment interest under the COIA from June 28, 2018, and

c.    $175.00 as reimbursement of tribunal fees.

34.   The applicant is entitled to post-judgment interest under the COIA. The applicant’s remaining claims are dismissed.

35.   Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

36.   Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.