IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In January, 2010, Ms. Parker retained Mr. Robinson to replace the perimeter drain tiles at her home in Port Alberni, British Columbia.  The existing drainage system had failed, causing water to enter her basement.  Mr. Robinson completed the work in August, 2010.  In the autumn of 2010, Ms. Parker again observed water entering her basement.  She made enquiries, and was advised that: (i) Mr. Robinson`s work was deficient because he had not installed the replacement drain pipes below the level of the floor slab; and (ii) that deficiency was the cause of the problem observed in the autumn of 2010.  She retained another contractor to: (i) remove the drain pipes installed by Mr. Robinson; and (ii) install new drain pipes.  That work was done in June, 2012, at a cost of $13,496.98.  The results have been satisfactory.

[2]           During the trial, I raised a question as to whether Ms. Parker’s claim might have been extinguished by the Limitation Act RSBC 1996, c. 266 before that statute was repealed and replaced by the Limitation Act SBC 2012, c. 13.  However, I have concluded that the limitation period established by the former statute in cases of this kind was six years, rather than two years, with the result that the former statute did not extinguish Ms. Parker’s claim: Armstrong vs West Vancouver 2003 BCCA 73.

[3]           There was no written contract between Ms. Parker and Mr. Robinson.  She simply retained Mr. Robinson to do the work, without any discussion of detailed terms of contract.  In those circumstances, the law implies a term that the work will be performed with reasonable care and skill.  In the case of a building contract, the minimum requisite standard of care and skill is determined by the applicable building code.  Put another way, it is an implied term of such a contract that the standard of workmanship is to meet or exceed the requirements of the applicable building code: G. Ford Homes Ltd. vs Draft Masonry (York) Co. Ltd. (1983) 1983 CanLII 1719 (ON CA), 1 DLR (4^th) 262; 43 OR (2d) 401; Window & Door Centre Inc. vs Pine Lake Properties Ltd. 2014 ONSC 1844; [2014] OJ #1364; terNeuzen vs Korn 1995 CanLII 72 (SCC), [1995] 3 SCR 674 @ paragraph 81.

[4]           In common with most municipalities in British Columbia, the City of Port Alberni requires drainage systems to conform to the Canada Building Code.  The applicable provision of the Canada Building Code is:

[5]           Mr. Wong (an engineering technician employed by the City of Port Alberni), Mr. Versteeg, senior and Mr. Versteeg, junior (the contractors retained by Ms. Parker to replace the drain pipes installed by Mr. Robinson) all testified that, in more than one place, the top of the drain pipe installed by Mr. Robinson was above the top of the floor slab.  In at least one place, the bottom of the drain pipe was above the top of the floor slab.  I accept that evidence.  It necessarily follows that the drain pipe was not installed in conformity with the contract.

[6]           Mr. Robinson says that it is not the practice in Port Alberni to comply strictly with the Canada Building Code, and that, when replacing existing drain pipes in Port Alberni, it is sufficient if the top of the pipe is below the top of the floor slab.  I do not accept that assertion because: (i) that is not what the Canada Building Code says; and (ii) it is not consistent with the evidence of Mr. Wong.  The proposition was not put to Mr. Wong when he gave evidence, but it is apparent from the rest of his evidence that he is aware of no such practice as was asserted by Mr. Robinson.

[7]           Mr. Robinson says that it is not possible to ensure compliance with the Canada Building Code when replacing existing drain pipes, because, when replacing old drain pipes, one digs a trench around the outside of the perimeter wall down to find the existing pipe.  The perimeter wall typically sits on a footing below the level of the floor slab, with the result that the floor slab is not visible from the trench and one cannot determine the level of the bottom of the floor slab.  He asserts that, for that reason, it is not the common practice to comply with the Canada Building Code when replacing existing drain pipes.  He says that the practice is to dig down to the level of the old pipes, remove them, and install new ones at the same level.  I do not accept Mr. Robinson’s evidence for the following reasons:

[8]           Mr. Versteeg, senior and Mr. Versteeg, junior testified that the water penetration observed by Ms. Parker in the autumn of 2010 was caused by the fact that the drain pipe was installed above the bottom of the floor slab.  Were it necessary for me to decide that issue, I would accept that evidence.  However, for the reasons given below, I think it unnecessary to consider the point.

[9]           The basic principle is that the measure of damages for breach of contract is a sum of money sufficient to place the innocent party in the position which she would have occupied if the contract had been performed according to its terms: B.G. Checo Ltd. vs British Columbia Hydro & Power Authority 1993 CanLII 145 (SCC), [1993] 1 SCR 12 @ paragraph 12.  In this case, that could be done only by awarding Ms. Parker the cost (which she has incurred) to dig up the faulty drainage system installed by Mr Robinson and to replace it with one which conforms to the Canada Building Code. 

[10]        However, the basic principle is subject to some qualifications and exceptions in the case of construction contracts.  The authorities are difficult to reconcile, but, in my opinion, support the following statements of principle:

[11]        None of the qualifications or exceptions described in paragraph 10 apply in this case.  In deciding to dig up and replace the faulty system installed by Mr. Robinson, Ms. Parker acted on the advice of Mr. Versteeg, senior, and it was perfectly reasonable for her to do so.  She is therefore entitled to judgment for the sum of $13,496.98, together with court order interest at the Registrar’s rate from July 1, 2012 to October 6, 2014.