IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In this action, the claimant seeks to recover from the defendant a total of about $17,800.00 for extra work and materials as well as some wages foregone by him relating to two construction projects in Whistler – one being some renovation work done to a building located in Function Junction at Alpha Lake Road (“the Alpine project”), and the other relating to certain work done at a private residence located at 6152 Eagle Drive (“the Eagle Drive project” or “the residence”).

[2]           The defendant denies it owes any money to the claimant and seeks in a counterclaim to recover $25,000.00 damages against the claimant said to have been incurred by it in correcting certain deficiencies in the claimant’s work on both projects.  The claimant disputes the counterclaim.

[3]           In 2012 the claimant was a drywall contractor and used the business style of cause Bracken Tree Contracting which is not a limited company.  He had a grade 8 education and his business was truly a one man show or sole proprietorship.

[4]           The defendant limited company’s principal, sole officer, director and shareholder at all material times was Matt Morgan (“Morgan”).  This company was incorporated according to Mr. Morgan on March 30, 2006 and has carried on business since then doing general contracting, project management, and has done projects described as high-end residential, commercial work, and leasehold improvements mostly but not exclusively in Whistler.  Mr. Morgan is a certified red seal carpenter and obtained a certificate in project management from Langara College in 2005 or 2006.

[5]           During this trial, the parties testified and Mr. Morgan called two additional witnesses Andrew Tacilauskas, one of the two principals of Alpine West Systems Electrical (“AWSE”), and Shane Caruana, at all material times an employee of the defendant and a site supervisor on its various projects.  Mr. Tacilaukas (hereinafter “Andrew”) has been and is a licensed electrical contractor working as such both in Whistler and Vancouver.  In the Fall of 2015, his company changed its name to West Systems dba West Electronics.  I understand that in 2012 Andrew likely owned shares in a numbered company 0895828 BC Ltd., which company owned all of a commercial building located at 1345 Alpha Lake Road in Whistler.  Andrew’s partner, Jamie Yetman, may have also owned shares in this company.  Andrew was involved in the Alpine project but not the Eagle Drive project, whereas Mr. Caruana was involved in both, however only in a most minimal and informal way on the Alpine job.

[6]           The onus of proof in this case on both the claimant and defendant is that, to be successful, each must establish his claim or its counterclaim as the case may be on the balance of probabilities.  Failure to meet this burden results in the claims being dismissed.

[7]           I intend, in these reasons, to attempt to deal with the evidence of all witnesses with respect to each of the claimant’s claims first and then the evidence relating to the various counterclaims advanced by the defendant commencing with the Eagle Drive project which, according to Mr. Morgan, at least was commenced first in time in 2012.  I will also deal with the issue of credibility of the four witnesses who testified at trial and then in a concluding discussion render my decision.

[8]           Morgan testified that he first met Mr. Bracken (“Bracken”) in March or April 2012 when his company, the defendant Timberview Developments Ltd. (“Timberview”), was at the framing stage of the residence.  Later on he said they first met on or about April 3.  Bracken came on the site.  There was a prominent sign erected thereon clearly setting out Timberview’s corporate name.  It was the general contractor.  The new custom home was owned by one David.  Bracken asked Morgan if he could quote on the drywall, mudding and taping work that had yet to be done.

[9]           Morgan testified that Bracken then told him he specialized in drywall installation and project management.  There is no other evidence in this case that Bracken ever did any of the latter work.  He did drywall work via a sole proprietorship Bracken Tree Contracting at all material times.

[10]        Mr. Caruana (“Caruana”) was then on site as well.  He recalled Bracken advising Morgan and him that he could do, among other things, class or level 5 drywall finishes and all other aspects of drywall installation and repair.  Class 5 means that a nice smooth finish results with no deficiencies.  This, according to Caruana, is the finish wanted in a high-end home and exceeds in detail what he called the “general standard” used in most residential construction in the Lower Mainland.

[11]        Morgan took Bracken through the residence.  The residence required a shadow line or fairly complex detail along the baseboard area of the walls in all rooms.  Morgan said he discussed this requirement with Bracken in the first meeting and Bracken said he was familiar with it and had the skill to do it.  After this walk through and discussion, Morgan concluded and said it was clear to him that Bracken was not familiar with the shadow line detail required on the residence or qualified to do it.  This detail must, according to Morgan, be dead straight and level and is expensive to do in the first instance and to repair if not done properly.

[12]        At some point Morgan said to Bracken if he was interested in doing the drywall work at the residence, he should provide a written quotation.  He gave Bracken a business card again with Timberview’s corporate name on it.  This simple act would signal to Bracken, in my view, that any quote should go to Timberview.

[13]        It is unclear to me why Morgan would suggest that Bracken quote for drywall work on the residence Morgan felt he lacked the skill to complete.  This makes little sense.  Bracken nonetheless later provided a drywall quote but Morgan did not accept it as the price was too high and because of Bracken’s lack of experience.  No copy of the quote was placed in evidence at the trial.

[14]        Bracken was not cross-examined on any of this evidence as to the shadow line design and his level of experience with it.

[15]        The drywall work on the residence was later awarded to a subcontractor using the business style or name Certified Drywall (“Certified”) on a fixed price contract of $23,500.00 plus HST (Ex. 2, p. 54).

[16]        According to Morgan and Caruana, there was a delay on this project caused in part by some changes made to certain windows that had to be pulled out and reinstalled requiring their drywall jambs to be redone.  Some of these windows were quite large measuring 7 x 12 feet.

[17]        Timberview could not get Certified back to complete the drywall work as it was at the time working on other jobs.  Morgan testified that there was only a few days work required to complete the drywall so he called Bracken on June 19, 2012 and asked him if he would be interested in doing some hourly drywall and taping work at a rate of $45.00 an hour at the residence, work he and Caruana described as mostly touch-up work.  Bracken agreed.  I find, on all the evidence in this case, that the contract for drywall and related work on the residence was an oral contract made in or about June 2012 between the claimant and Timberview whereby Bracken was to be paid an hourly rate of $45.00 for the work he did or for work done by his helpers.

[18]        I note that before this call, Morgan and Bracken had discussed and agreed on Bracken doing fixed price work on the Alpine project in May 2012 which I shall come to below.  No budget was given to Bracken for this touch-up work or quote requested from Bracken.  There is no evidence he again did a walk-through of the residence before commencing work.

[19]        Utilizing his cell phone text messages and telephone call dates, Morgan testified that Bracken had told him that he would be at the residence at noon, June 20, 2012, to start work.  He was.  Morgan testified as I understood him that in one of these preliminary calls with Bracken, he told him that Timberview was trying to achieve a level 5 finish on the drywall.  I assume he would not have told Bracken this if it had not had some material bearing on the nature of the touch-up work to be done.

[20]        He agreed that Bracken had been on the job from noon Wednesday, June 20, to Friday, June 22, 2012 – some 2.5 days in total.

[21]        It was not made clear to me just exactly why Morgan would hire Bracken at all to do this touch-up work apparently requiring a level 5 finish having earlier concluded that he could not do the required shadow line detail.

[22]        Bracken testified that from early on, he associated Morgan with Timberview and understood in his dealings with Morgan he was dealing with him in essence as a representative of the company.  Morgan clearly did nothing to discourage or alter this understanding on this project where Timberview was the general contractor.

[23]        Bracken said the touch-up work he did was done pursuant to an oral contract with Timberview and authorized by it.  This is not in dispute.  Bracken did not challenge Morgan’s evidence as to how they had met and commenced work on this project albeit he chose not to be present in court for several days when Morgan testified and never cross-examined him.  He believed he started work in June 2012 and agreed his rate was to be $45.00 an hour.

[24]        Morgan testified that Bracken did touch-up work primarily in the master bedroom, but also in the main floor hallway, a staircase, and with respect to certain top floor windows.  The basement area was not then drywalled.  This work was done later as an addition to Certified’s contract.

[25]        Bracken agreed the work he did was done all over the house.  He described the shadow line detail by testifying that Morgan had MDF or medium density fibreboard – a type of engineered wood butting up to the drywall in the house for a base and found that it had cracked everywhere – all over the house.  In his view, there were a lot of deficiencies in the drywall work originally done by Certified.  His contract was to repair them.  This evidence was not challenged by Morgan in cross-examination.  Bracken felt Certified had done a good job initially, but that Morgan had made a lot of changes and he was brought in to finish the work that Certified had started.

[26]        Bracken said he discussed with Morgan his being able to hire his brother Tyler and one Bernard Tyerman to help with this touch-up work and at $45.00 an hour and said Morgan agreed to this.  Morgan was present in the residence and saw he and his two helpers working and never complained about his work, both while the project was ongoing and or when he later sent an invoice for the work or indeed in the summer of 2012 or to the end of the year.  He denied that Morgan had made numerous telephone calls to him to complain about the quality of his work.  He did agree that by December 2012, Morgan was asking for a breakdown of his hours on this job and said he gave them to him in 2012 in a document of some sort with a weekly breakdown of hours, his copy being at trial long gone.  Morgan denied receiving such a document.  Thus Bracken at least agreed there was no document in evidence at the trial explaining the hours he later billed Timberview.  Bracken testified that he once had a log book wherein every couple of days he recorded the hours his people worked and that he used these entries for billings, but that he had lost the same in one of his moves.  Bracken agreed that as a result of the loss of this log book, he had not produced in this action any original documents supporting the hours he claimed.

[27]        Morgan testified that he only saw Bracken working alone in the residence.  He saw no men but agreed Caruana, his site supervisor and project manager, had told him that Bracken did have a male helper working with him on this job on a sporadic basis.

[28]        Caruana’s evidence was that Bracken, commencing in the Spring of 2012, had done drywall, mudding and taping work and some repairs to move the project forward, but said he did not know if Bracken had done a first or second coat or the baseboard details.  He was unaware of the number of days Bracken worked or how he was to be paid.  He recalled seeing Bracken doing his work briefly on one of his walk throughs.  Caruana said twice in his evidence that Bracken’s work seemed to be up to standard.

[29]        This evidence is inconsistent with that given by his employer Morgan which I shall come to.

[30]        Morgan was asked by the court the following question concerning Caruana’s role during his direct evidence:

[31]        I observe that based on his own evidence as to Bracken’s inability to do the shadow line detail, he being unqualified, it cannot reasonably be said in the case at bar that Morgan could have had any reasonable expectation that Bracken was in June 2012 capable of meeting the above standard or quality especially relating to shadow line work.

[32]        Morgan testified that the main issue he had with Bracken’s work were the high traffic areas, such as the stairway, hallway, master bedroom, and upper window area.  He described the problem as follows:

[33]        Morgan then testified that because the drywall edge meeting the baseboard was not a factory edge, that the shadow line detail required mudding to extend higher than usual anywhere from 24 to 30 plus inches up the wall if done properly.

[34]        He was asked by the court:

[35]        Mr. Caruana was asked if any of Bracken’s work had to be redone?  He said there were some small aspects of it that had to be redone in part by employees of Certified and he recalled one Shane Bennett being hired to do drywall and painting work as well at the residence.  Bracken did no painting.  He said Bennett was primarily there to do touch-ups of Bracken’s work.  In answer to a question from the court, Caruana said a lot of deficiencies Shane Bennett had to fix really didn’t come to light until after the paint was done – they were hard to see with only raw drywall installed.  This was commonplace in his view especially when the contractor was wanting to achieve a higher level finish.  He was of the view that if a lower level finish was being done, to some extent the contractor might let these deficiencies go that only come to light when painted.

[36]        In re-examination, Caruana was asked by Morgan to clarify what deficiencies he was referring to as follows:

[37]        I make two observations.  Firstly, this evidence seems inconsistent with Mr. Caruana’s earlier direct evidence that Bennett came to the residence primarily to do touch-ups of Bracken’s work.  Secondly, there seems to be some dispute that when Bracken did his three days of touch-up work very importantly at an hourly rate, the drywall was unpainted.  Bracken said it was painted.  If it is commonplace with a level 5 finish not to detect a lot of drywall deficiencies until after painting, then it seems that any repair work to same would also be commonplace after painting and almost part of the expensive process of achieving a level 5 finish.  To label Bracken’s work as a deficiency when it was really a part of the process in achieving a higher level 5 finish seems unfair in the circumstances.

[38]        Caruana stated that he was a ticketed carpenter with twenty plus years working in construction, the last three being self-employed and that he had been with Timberview as an employee for 8-10 years.  He was the site supervisor and at the residence daily or every couple of days.  My clear impression on all the evidence was that he was present at the residence when Bracken was working more so than Morgan.

[39]        Each party prepared a document brief for use at trial.  Bracken openly admitted that most of his documents came from the defendant but said that he augmented them with certain emails he had himself.  Four invoices were filed in evidence from Bracken Tree Contracting to Timberview for 6152 Eagle Drive work as follows:

[40]        Bracken testified that he worked roughly 20 hours, that his brother worked probably 10 hours and that Bernard Tyerman worked 17.5 hours on this project.  He said these were not the total hours he had worked on this job.  He did not have the total hours as he was only suing for 47.5 hours.  He had no other evidence to support the total hours that he had worked.  He was however only claiming for these hours or $2,481.00 and monthly compounding interest over 11 months at 2% per month on same (which is referred to as a “service charge” on his Invoice #6) making up the claim (a) referred to his Notice of Claim in the amount of $3,243.94.  He said he relied on Invoice #6 (Ex. 1, tab 11, p.43) in support of his claim.

[41]        Bracken when asked when was Invoice #6 first issued to Timberview, said it was re-issued twice.  He did not have the first invoice that was sent out, only that copy of it found at Ex. 2, tab 20, p. 43.  It is a re-issue after Morgan said in an email to him that he did not receive the first one sent earlier in the same amount.  He could not recall when he first delivered the original invoice to Timberview but felt it was almost three weeks to a month before June 30, 2012 – in the first week in June.  The re-issued Invoice #6 he believed was sent to Timberview on June 30.  This was so even though he had earlier testified he had started work on the residence in June, which on cross-examination he changed to “around June”, but again he agreed he had no document to confirm his memory on point at trial, but repeated he had in 2012 provided a breakdown of the 47.5 hours worked in a paper format to Morgan.

[42]        Bracken’s evidence was that the 47.5 units or hours referred to in Invoice #6 were for taping and mudding only on drywall work that had already been painted.  He did no painting and again estimated the 47.5 hours from his “recollection” or memory and had no documents to support these hours done in the early part of June.

[43]        This Invoice #6 was not paid.  He discussed it with Morgan who said it would be; however, Bracken felt in various phone calls on point, Morgan kept stalling.

[44]        Bracken was asked by the court if there was anything else he wanted to tell the court about relating to claim (a) concerning the residence on his Notice of Claim and said “yes, there’s an additional contract that was started”, but then said he had no more evidence he wished to give in support of this claim.  The context of his above answer seems to relate to the Alpine contract.

[45]        In cross-examination, Morgan referred Bracken to the third invoice referenced above – that being #3 found at Ex. 2, tab 21, p. 44 in the amount of $3,855.60 dated July 31, 2012 claiming 76.5 hours for “work finished hourly contract” at the residence.  Again there is no breakdown of these hours set out by date, worker or task.  Bracken testified that even though the earlier invoice oddly bearing #3 was not paid, he nonetheless kept working on the residence for another 76.5 hours.  He denied that the 47.5 hours billed on June 30 were included in the 76.5 hours on Invoice #3.

[46]        Morgan cross-examined Bracken again on June 6, 2016 covering Invoice #3.  Bracken agreed this had been paid in full – $3,855.60 – but said he was not sure.  Morgan referred him to a Timberview cheque No. 1623 issued August 10, 2012 in the amount of $2,355.60 payable to Bracken Tree Contracting (Ex. 2, tab 24, p. 49).  Bracken agreed that he had received this cheque and altered the name of the payee to his own name, however when asked if it was meant for work on the residence, said he could not say – it could be for another house he did for Timberview at 8143 Alpine Way.  It might have been for this house or both houses.  I note that Bracken had earlier in his direct evidence testified that he had done other residential touch-up or deficiency repair work after another firm had done drywall or painting for Timberview other than at the residence or the Alpine project.  He described this as hourly paid work for which no quote was provided and which related to mudding and taping only (as was done at the residence) and stated that usually deficiencies appear after painting.  He was not cross-examined or challenged on this evidence.  Nor did Morgan suggest there were deficiencies in any of this work Bracken did.

[47]        Morgan showed Bracken a second cheque No. 235 dated August 3, 2012 for $1,500.00 payable to him personally and Bracken agreed he had received and cashed it, but could not say it was for work at the residence even though unlike cheque No. 1623, it states on its face “Eagle Dr. drywall”.  He agreed this part payment was received three days after Invoice #3’s date:  July 31, 2012 and agreed that the total of the two cheques amounted to $3,855.60 – the amount on Invoice #3.  Reluctantly, he then agreed the two cheques were meant to cover Invoice #3 which was paid in full.

[48]        I found Bracken’s evidence as to what work the above two cheques covered extremely evasive – his being unable to say they related to work done at the residence particularly in light of the above express reference line entry on cheque No. 235.

[49]        He did not agree that his two Invoices #6 and #3 were erroneous, or that he had double claimed hours in each or grossly exaggerated the hours he had worked at the residence or that his work was in any way deficient.

[50]        Morgan testified about the touch-up work Bracken was retained to do at the residence and completed in 2½ days; Wednesday, June 20 (1/2 day) and 2 full days, Thursday and Friday, June 22 and 22, 2012.  On inspection, he found it to be substandard specifically when it came to touch-up work at the shadow line’s detail.

[51]        Bracken’s mudding in Morgan’s view was too thick and he was not sanding it properly and thus the touch-up areas were quite noticeable especially where the tape line was for the shadow line.  In this project, two methodologies were equally used to create the shadow line in all rooms described in Exhibit 4 as option “A” and “B”.  Option “A”, according to Morgan, involved installation of a ½” thick baseboard, I believe made of MDF board, being installed at the base of the wall and then ½” drywall being hung above it but with a ½” gap covered with an “aluminium profile”.  The drywall has a cut and not a factory tapered edge facing down to the baseboard.  The profile runs up the back of the baseboard against the wall, out towards the room at a 90° angle along the ½” cut edge of the drywall and thence up to 90° on the exterior or front of the ½” drywall, thus covering the cut edge and closing in the wall area lying behind the ½” reveal or shadow line.  The wall is a flat surface floor to ceiling unlike a more standard application where the baseboard is applied on top of the drywall and stands proud of its surface by the width of the baseboard.

[52]        As noted above, according to Morgan the finishing of the bottom cut edge of the drywall with profile on top requires that the mud be floated up the wall 24” to 30” from the shadow line.  Morgan did not tell Bracken at the start of the job that this type of mudding to 24”-30” up the wall was required but discussed with him that Timberview was trying to achieve a level 5 finish and expected or I think really assumed that Bracken would know to do this if he was familiar with shadow line detailing.  When asked by the court if there was any standard set out for the floating of mud from a shadow line as he described it, he answered”

[53]        Thus there is no independent yardstick established in the evidence that would suggest that mudding not floated 24”-30” above a shadow line is deficient.

[54]        Morgan said, after inspecting Bracken’s work on the weekend of June 23, he determined it was substandard and not going to meet the standard of the calibre of the home and did not meet his requirements, so he called Bracken and told him his services were no longer required at that time.  He said this was before they had primed or painted the project, contrary to Bracken’s evidence that his touch-up work in issue had been done after the drywall work done by Certified had been completed.  He did not tell Bracken he felt his work was deficient.  He had spoken to Certified and they were ready to return to the job.

[55]        Morgan testified as to the expense (I understood) involved in repairing deficient mudding at or near a shadow line as follows:

[56]        I will deal with the defendant’s counterclaim or charge back relating to this project below.

[57]        Morgan asked Bracken for an invoice for his work on the 2½ days in question.  I note he did not cross-examine Bracken and seek his agreement as to his working only on these 2½ days in June.  He received Invoice No. 6 (Ex. 2, tab 20, p.43) by email and testified it was for work on the above days.  He did not recall receiving an earlier invoice.  It does not so state on its face.  He believed Bracken had only worked 20 hours and was concerned about the 47.5 hours charged and disputed this charge.

[58]        He first contacted Mr. Caruana to discuss the hours admitting that he was not on site all day every day and that potentially Bracken might have worked 16-hour days.  This is hearsay evidence unless offered solely as part of the narrative.  So Morgan called Bracken and asked for a daily breakdown of the hours, times worked, and tasks completed.  He told Bracken he was requesting this breakdown as he disagreed with his hours.

[59]        Contrary to the evidence given by Mr. Bracken, Morgan said he had never received this breakdown.  Morgan struck me as far more of a businessman than Bracken.  He preserved and produced a substantial number of documents in this case relating to the claims advanced by Bracken.  I am of the view that had Bracken sent Morgan a breakdown of hours, he would have preserved it and produced it at trial.  He has not.  I prefer Morgan’s evidence on this breakdown not being received to Bracken’s that it was delivered to Morgan by hand.  The only excuse Morgan could think of for why Bracken had not produced a breakdown for his hours on Invoice #6, despite his numerous requests of Bracken to provide one, was that Bracken had said he had lost his journal.  Bracken gave no evidence that this had occurred shortly after June 30, 2012.  Thus if he had a journal recording work done each day by himself and helpers, I do not understand that it had been lost at the time Morgan requested the breakdown of hours which was never given.  This calls into doubt Bracken’s evidence that he kept a book or journal at all.

[60]        Morgan agreed that while he felt Invoice #3 was excessive in hours claimed, he felt some amount was due to Bracken for the hours he had invoiced.

[61]        Mr. Caruana said he had seen Bracken’s Invoice #6 (Ex. 2, tab 20, p. 43) and said it did not make sense to him.  When shown a copy in court, he said it was a revision of the invoice he had seen – he did not say how it was – and testified that it made more sense.  Before testifying that he did feel Bracken’s hours were for example excessive, Morgan asked him a very leading question not based on any evidence he had given – why did he feel Bracken’s hours were not justified?  Caruana had only said this was one of two issues Morgan wished to discuss with him.  When asked by the court why he felt Bracken’s hours were not justified, he answered that he was not sure – it was not more that the hours were unjustifiable but the way it was worded.  He never asked Bracken for a breakdown of hours on the above invoice.  He could not tell the court whether or not Bracken did (or did not do) 47.5 hours of drywall work at the residence, as in 2012 he only then spent 1 to 2 hours per day on each site as he was supervising 4 sites in total.  Later in his evidence, he testified the reasons he could not recall things – and on some points he could not – was because he was not on the jobsite 100% of the time and the project was some four years ago.  When asked by Morgan to give his version of how Bracken had completed his work at the residence, he said he could not recall and could not recall, for example, whether he had completed his work in the master bedroom.  He did not recall if Bracken purchased any materials for the residence.  Thus Mr. Caruana could not corroborate Morgan’s trial evidence that Caruana had told him on review of Invoice #6, Bracken had not done 47.5 hours of touch-up work at the residence.

[62]        Mr. Bracken recalled Caruana called him in June 2012 not to discuss his hours but about the residence floors possibly being scratched by his helper, Bernard, using a ladder with no protection under it but said no scratching occurred.

[63]        Morgan was asked by the court if he had any evidence to provide the court (putting aside the quality of the work) as to what he believed Bracken’s hours should have been.  Morgan agreed Bracken had someone helping him over the three days, June 20-22, 2012, and felt his invoiced amount should have been 36 hours at $45.00 an hour and had Invoice #6 been in this amount, he would have paid it or had he been provided with the breakdown he had sought.

[64]        Morgan said he received Invoice #3 (Ex. 2, tab 21, p. 44) dated July 31, 2012 for 76.5 hours ($3,855.60).  He understood this was to replace Invoice #6 but did not say why nor did he suggest Bracken had so testified.  He received this in response to his request that Bracken clarify his hours on the earlier Invoice #6 and was confused by it.  He called Bracken seeking to clarify why another 29 hours had been added and Bracken said that Invoice #6 was a mistake and he had not included all his hours therein.  Bracken told him Invoice #3 included the hours in Invoice #6.  I note this is diametrically the opposite of Bracken’s evidence.  Morgan again asked for a breakdown which Bracken never provided.  Morgan also testified that from June 30 to July 31, 2012, Bracken had not performed any further work at the residence.  Bracken elected not to attend court on November 30, 2012 to challenge any of this evidence in cross-examination.  Morgan did not immediately pay Invoice #3 or #6.

[65]        Bracken then, according to Morgan, contacted him by email in a relentless fashion demanding payment in full.  After dozens of phone calls and conversations with Bracken and three days after Invoice #3, paid him $1,500.00 as above as Bracken was then claiming he had financial issues and needed some sort of compensation.  I confess I find Morgan's evidence as to the number of calls and emails (none of which were produced at trial) over the three days from July 31 to August 3, 2012 to be grossly exaggerated.  He did not cross-examine Bracken on this point.

[66]        Morgan continued to insist there would be no more money paid to Bracken without the hours’ breakdown.  On August 9 his bookkeeper called him and said Bracken was in his home office demanding payment and was threatening her and said she was clearly upset.  Being worried about his assistant’s safety, he paid the balance of Invoice #3 on august 10 as above.  On the basis that the hours in Invoice #6 were included in Invoice #3, Morgan said Bracken was therefore paid in full for all his work on the residence project.

[67]        The court asked why Morgan would pay Bracken in full when he had felt his work was deficient.  He responded as follows:

[68]        I turn now to the evidence relating to Timberview’s counterclaim against Bracken relating to the residence.

[69]        Morgan seeks to recover $22,289.29 against Bracken as per his charge back invoice #850-002 dated February 10, 2013 (Ex. 2, tab 25, p. 51).  In order to be successful, he too must prove this counterclaim on the balance of probabilities.  The charge back is said to be for labour to correct deficiencies and because it is directed to Bracken Tree Contracting, the fundamental assumption behind it is that in the 2½ days Bracken and according to Morgan likely another worked on the residence, that their work was so deficient that Timberview’s cost to rectify it was the above amount.

[70]        The work was said to have been performed by four Timberview employees, Shane Bennett (Whistler Web) and Certified Drywall between June 22 - September 6, 2012.

[71]        Morgan testified he met with a representative of Certified in the week after he dismissed Bracken.  He did not say who he met with.  They both agreed a large part of Bracken’s work needed to be redone.  No witness was called to testify from Certified.  Where Morgan purported to convey Certified’s opinion of the state of Bracken’s work at the residence, it is hearsay evidence.  Even if Certified’s opinion was admissible (as given by Morgan), it is inconsistent with another defendant witness’ evidence – Caruana.

[72]        Morgan said he instructed Certified in this discussion to repair Bracken’s work.  This firm’s Dale was first in at the jobsite to repair Bracken’s deficiencies.  Morgan said Certified corrected only Bracken deficiencies and that Certified would not have charged him for correcting deficiencies in its own work.  To the best of his knowledge, there were no deficiencies in Certified’s work.

[73]        I note this evidence is somewhat difficult to accept inasmuch as Bracken was hired in June 2012 to do touch-up work after Certified had left the job.  Why would he be required to do touch-up work if all of Certified’s work in the first instance had been blemish free?

[74]        Dale came to the job in late June and early July 2012.  Morgan referred to three invoices received from Certified as follows:

[75]        This was the total amount for Certified in the above charge back.  As to the first invoice, Morgan testified that all the work pertained to the master bedroom and involved inter alia removal of drywall.  He also testified his four carpenters had done this type of work.  Invoice 2 has a hand-written note “charge back” opposite the $1,500.00 entry and much of the description of the work relates to work Bracken did not do in an allegedly defective way.  Invoice 3 again with a hand-written note “charge back” opposite the $3,100.00 entry seems on its face to include work on a number of things Bracken did not do in June, e.g., bulkhead work.  Morgan agreed this was so but said Bracken had asserted he had done some bulkhead work but had not and wanted to be paid for it.  He seemed to rely on a quote and not an invoice dated 31/7/12 (Ex. 2, tab 22, p. 45) from Bracken Tree Contracting to support this position, but agreed he had never received an invoice for it and never paid it.  Thus it is very unclear to me why any amount would be included in the Timberview counterclaim against Bracken for work he never did at all, let alone did in a deficient manner.  The fact that it is included exaggerates the amount of the charge back and makes me question its accuracy, particularly where no witness was called to explain (a) what deficient work allegedly done by Bracken he worked on, (b) what he did to repair it, and (c) the time taken.  I also note Morgan in the case at bar is guilty of the very thing he has accused Bracken of not doing, namely, not producing time sheets to confirm the hours his people worked and at what rate as per his two charge backs.

[76]        This would have been important evidence on the counterclaim at least particularly in light of Caruana’s evidence that Bracken’s work seemed to be up to standard.

[77]        Likewise it would have been helpful to have photographs of the alleged Bracken deficiencies which Morgan said he recognized to exist on the weekend of June 23, 2012 when he was still general contractor on the job with free access to the residence then under construction.

[78]        Morgan said he used four Timberview employees at the residence to repair Bracken deficiencies, namely, Evan Taylor, Reece Tabor, Matt Chamberlain, and Adam Greg.  The total labour cost at $65.00 an hour for all four was some $2,405.00 included as a line item in the charge back.  There is no description on the charge back document as to what work each individual did for the total of 37 hours.  Morgan testified that the majority (not all) the work these men did related to Bracken deficiencies.  He said the majority of their work resulted in the full removal of Bracken’s work as Certified was not prepared to do this work.  I note that in the first Certified invoice ($6,081.00), there are two references to removal of drywall in the master bedroom.  The four men were said to have worked in the main floor hallway, front entry way, master bedroom, kitchen, and upper living room area including working on six window surrounds.  I was not told what they did or how Bracken’s work thereon was said to be deficient.  I do not understand work on a window surround has anything to do with baseboard shadow detailing.  He paid them typically $30.00-$40.00 an hour for the hours in question and said an additional 30% (or $12.00 an hour) should be added to these wages to take into account benefits that were paid for them, e.g., UIC and WCB contributions.  Thus there was a small profit built into this charge back and it does not relate strictly to what the defendant is out of pocket.

[79]        Caruana although called by the defendant gave no helpful evidence as to what work his fellow employees did at the residence to rectify Bracken deficiencies.

[80]        The charge back contains a $1,500.00 management fee for an estimated 12 hours of Morgan’s time at $125.00 an hour being hours he says he took dealing with Mr. Bracken, meeting with trades, and coming up with a solution on how to deal with Bracken’s deficiencies.  As I have said, as with Bracken, Morgan submitted no time sheets in support of this charge back nor with respect to the 37 hours his four carpenters had done, e.g., where in the residence and with respect to what task or deficiency?  This is not an out of pocket amount for the defendant.

[81]        Morgan included a $5,000.00 “drywall charge back due to job delay” asserting that Bracken had caused a delay due to his defective work of conservatively 3 - 4 weeks which delay led to a significant dispute with his client David.  He admitted that at trial he was also engaged in a Supreme Court of BC action with David as he was out of pocket over $200,000.00 on this job, but said Bracken’s delay was not then an issue in the sense that the owner was not seeking to pay Timberview less due to the delay allegedly caused by Bracken.

[82]        If this be so, I am not of the view that the $5,000.00 charge back is a valid claim at law and cannot surely be a loss of Timberview’s caused by Bracken’s deficient work.

[83]        The charge back contains a line item of $2,739.46 for labour done by one Shane Bennett of Whistler Web.  He was not called to testify at the trial notwithstanding Morgan’s evidence at trial being that the majority of the work he did later in the summer, after Certified had been on the job, related to Bracken’s defective work.  Bennett was said to be a drywaller and painter carrying on business in Whistler who was retained by Timberview to do touch-up work.  Morgan agreed that a large percentage of his work was painting work.  He received no invoice from Bennett and relied on a summary, I understood his bookkeeper prepared, relating to payment by the defendant to Bennett to support the $2,739.46 charge back (Ex. 2, p. 56).  This document does not state what work Bennett did or where.  Morgan agreed that Bennett did other work, other than repairing Bracken’s allegedly defective shadow line work (which was the main focus of his criticism of Bracken’s work), but seemed to suggest that the $2,739.46 charge back amount only related to repairing shadow line deficiencies and not the other work.  It is unclear how he could give such evidence based on the content of his bookkeeper’s summary.

[84]        I have also noted this summary includes I assume bills from Bennett commencing November 23, 2012 through to June 15, 2013 – over one year after Bracken did his allegedly defective work in June 2012 according to Morgan and well after Morgan’s four men finished their work (September 2012) and close to five weeks after Certified’s last invoice.  I had understood from Morgan’s evidence that Bennett came in after Certified in the latter part of 2012 and early 2013.

[85]        There is one point not explained by Morgan in any of his evidence and that is why would he hire Bracken at all in late June 2012 to do touch-up work on Certified’s drywall work assumedly involving a shadow line in most rooms of the residence (either option A or B on Ex. 4) when he earlier on that Spring in first meeting Bracken at the residence formed the view that he was not familiar with the shadow line detail or qualified to do it – a fairly complex detail – and would not therefore give him the contract?  Why would he think Bracken could do proper touch-up work involving this detail requiring a dead straight shadow line when finished?  If his work as Caruana said was up to standard, I would not have this concern that this apparent inconsistency in Morgan’s position is unexplained.

[86]        There is a second concern I have not had explained to me by Morgan or otherwise in the evidence and that is why would he recommend Bracken to Andrew at AWSE and continue with the recommendation and tell Andrew that Bracken was a suitable choice for his drywall work when by June 22, 2012 he testified that he had formed the view that (a) Bracken could not, due to lack of skills, do the high-end drywall work at the residence, (b) had a chance to see what Bracken could do at least in touch-up work which he says took Bracken 2½ days to complete and conclude it was substandard, and (c) by June 27 had come to the belief that a large portion of the touch-up work done by him at the residence had to be redone.  If all of Morgan’s evidence on point is true, one might reasonably conclude that he would tell his then friend Andrew that Bracken was a risky choice for his job.  On the other hand, if Bracken’s work at the residence seemed to be up to standard as described by Caruana and clearly the standard at the residence was higher than expected at the Alpine project, Morgan would have no reason to warn his friend Andrew and potentially aid him in locating another drywall contractor to build the demising wall.

[87]        I will deal with the claim and counterclaim at the conclusion of these reasons.

[88]        It is convenient now to deal with the claimant’s claims in paragraphs (c) and (d) of his Notice of Claim before discussing finally his largest claim pertaining to the Alpine project.

[89]        Bracken has claimed against Timberview in item (c) of his Notice of Claim for loss of wages on what he described as the Fairmont contract in the amount of $2,025.00.  He testified this was essentially one 40-hour week’s income foregone at this job involving a renovation to the hallways on four floors at the Fairmont Hotel in Whistler (often called the “Chateau Whistler”) lost as he was working at the Alpine project to be discussed below.  The above claim equates to an hourly rate of $50.65, which he said he was charging Chateau Whistler.  Bracken testified that his “loss” occurred when AWSE took out the 5/8” drywall and went to put the stairs back in or built the stairs – AWSE asked for what he described as “my alteration for their contract” where he had to pull himself off the above job to satisfy their contract and their needs.  Thus he lost wages on this other contract he could have been on.  In answer to questions from the court, he agreed he was seeking to be paid for these hours by Timberview and that he could not have worked both jobs in the same week.  He seemed to agree that he could not recover this amount twice against Timberview in (c) and (b) of his Notice of Claim.  Other points not addressed in his evidence included he basis on which he left the Chateau Whistler renovation – could he and did he return later to do the 40 hours of work and was he paid for it?

[90]        If he did so, did he do the work in a down week when he did not have other work he could have done?  Why did he not tell AWSE that he was busy during the week in question particularly where there was no completion date set out in his quote or contract with Timberview concerning the work?

[91]        I am of the view that Bracken really made a form of election concerning his labours in the week in question and that was to devote the 40 hours to AWSE’s project and Timberview and look to the defendant for payment of same.  If he can now prove this loss and that it is a legal obligation of the defendant, he will recover this loss.  If not, he will recover nothing for this week of work.  This claim is therefore dismissed and will be dealt with on the basis that these hours are part of his claim for alleged extra hours against the defendant for the Alpine project.

[92]        In paragraph (d) of his Notice of Claim, Bracken has claimed the sum of $1,440.00 as a “material charge” plus man-hours.  This is said by Bracken to represent a bunch of materials that he bought for the project and time running around to get materials.  When asked what materials, he said it was some of the materials he purchased at Rona in the original email contract or materials list and gave as an example “shot pins” used to fasten steel studs to, for example, a concrete floor and 10 pieces of eight foot lengths of steel studs.  He said Rona gave him no invoices at the time and he could not recall what the shot pins or steel studs cost – he had no idea and could not estimate the cost.  When asked what the man-hours were, he said he probably spent 20 hours running around trying to get materials – including going down to Squamish on one occasion after the defendant’s account at Rona was closed.  He testified that Morgan had given him a cheque to cover the cost of this COD purchase which he gave to the supplier.  This was only an estimate and he had no time sheets or any documentation supporting this claim.  He agreed on all work on the Alpine project, Timberview was to supply the materials and when asked why then would he be out buying materials and answered:

[93]        Initially he said the understanding he had with Morgan was that he (Bracken) would go to the Rona store across the street from the Alpine project site and use Timberview’s account, but that at some point Rona refused to allow him to do so when they closed the account.  He testified that he had made four or five trips to Rona across the street to pick up materials.  He was unable to say or estimate the time this took.

[94]        When asked if he was ever out of pocket and had not been reimbursed for materials that he purchased, he said only for pins, shot, and mud.  When he raised this outstanding obligation with Morgan, he would only get mad at him.  And then he said, “I’m trying to make a living so I just take it and bite the bullet and keep working.”  He believed a fair estimate of his claim in paragraph (d) would be to take 20 hours x $55.00 an hour or $1,100.00 for labour, and subtracting this from the total claim amount of $1,440.00 left $340.00 for supplies as a fair estimate of the materials he acquired and for which he was not reimbursed.  He agreed he had never invoiced Morgan or the defendant on this claim and that the first time they would have seen it would have been on receipt of his Notice of Claim.

[95]        Morgan testified that Bracken did not have to buy any materials which were all ordered by the defendant through Rona on Timberview’s account and delivered to the jobsite or Andrew ordered drywall and insulation at Pacwest for Bracken that Andrew picked up.  His above contract was labour only.  He never agreed on item (d) as an extra or told Bracken to go and buy materials.  Because Rona was so close, if Bracken had to go there at all, which he doubted, he felt it would only take 15 minutes.  Essentially he suggested that this claim at a bare minimum was both exaggerated and inflated.

[96]        I find that the contract Bracken had with the defendant for the Alpine project was indeed one for labour only.  It is referred to above (Ex. 2, tab 6, p. 16) and says so on its face.  It is telling I think that Bracken never invoiced the defendant for these charges and only set them out in his Notice of Claim filed June 10, 2013, almost one year after he had done the work on the Alpine project.  He was in dispute with Morgan in the Summer of 2012 over both the Eagle Drive job and later Alpine job and later with Andrew in mid-October 2012.  He then ought to have known if he had no invoices for the goods he alleges he purchased, that he ought to have taken reasonable steps to obtain same from Rona in support of this claim.  He did not do so.  This entire claim is unsupported with any documentation including current prices for the items in question still sold no doubt by Rona in Whistler and listed on its website.  I am hard pressed to find the supplies he estimates he purchased would cost $340.00 altogether.  Nor am I satisfied in light of his terribly vague evidence on point and his reliance on estimates only, that his hours are close to being accurate in light of Rona’s store being so close.  Thus I find that the claimant has not proven this claim on the balance of probabilities and it is dismissed.

[97]        Bracken testified that in May 2012, Morgan asked him if he could build a demising wall for him and do other work in Whistler.  He gave Morgan an email quote on May 11, 2012 – a quick scope of the work quote for labour only.  When he started this contract for the defendant, he knew the work was for a friend of Morgan’s – Alpine Electric.  He understood that the defendant had some form of contract with Alpine or an arrangement – whatever it was – to oversee and help build the demising wall and the two bathrooms.  He believed Alpine Electric owned the building in question located in Function Junction.  He agreed that he understood at the outset that the defendant was the general contractor on the job.  On cross-examination, he disagreed with the proposition that Timberview was not the general contractor on the job and that it had merely given him a referral to do drywall work for Alpine West.  Later he said he did not know what Morgan or Timberview’s role or involvement in the project was.  He believed Timberview was the general contractor as it hired him, paid for the materials he used, and said it would pay him for the work he was to do.  In answer to a question from the court, Bracken said that Morgan never told him that Alpine would be paying his wages.  In cross-examination in answer to certain questions from Morgan, Bracken said this on point:

[98]        Bracken agreed that the building plumbing permit for this project issued on July 12, 2012 does not show the defendant as the general contractor nor does the building permit #2316 issued on April 5, 2011 (Ex. 2, tab 47, p. 298).  There is no evidence Bracken ever saw either of these documents.

[99]        Bracken sent the requested quote to Morgan on May 11, 2012 and it states as follows:

[100]     The email he used was Matt@timber.view.com which is one of the email addresses on the defendant’s business card, one of which Morgan gave to Bracken when he first met him at the Eagle Drive project in the Spring of 2012.

[101]     There is no dispute that Bracken requested a deposit on this job before starting work and that on or about July 5, 2012, Timberview paid him $1,770.90 by its cheque No. 1589 [Ex. 2, tab 10, p. 23(b)].

[102]     Morgan testified that he had been asked by a friend (Andrew) if he knew of a drywall contractor who could do the work needed on the Alpine project.  This request was made in a telephone call Andrew made in March or April 2012.  He was then looking for some assistance on his project but not full-time project management or general contracting work.  Morgan was then familiar with his building and the units he owned in it.

[103]     Morgan was not then prepared to provide general contracting services as Andrew’s project was too small and he told Andrew this was so, but said as a friend he would help and give him some friendly advice.  On or about May 3, 2012 in an informal discussion, he gave Andrew names of three drywall firms – Blueline Drywall, Certified, and Bracken.  He understood Andrew called all of them.  Morgan told Andrew that Bracken was a new guy, trying to build a business and that he might be worth a try.  He said he did not then know Bracken that well but gave Andrew positive and negative comments on all three firms.  He told Andrew that any drywall contractor should be able to do his job and suggested that if he chose Certified, they would do a good job but would charge a premium.

[104]     He told Andrew he would need a building permit, a set of plans, and municipal approval.  Andrew wanted to avoid this procedure as originally, the demising wall in his building had been taken down without a permit, however, Morgan said he could not avoid these steps.

[105]     Morgan identified the plans for the Alpine project prepared by Architect Derek Venter dated February 9, 2011 (Ex. 2, tab 7).  He said he had not seen these when Andrew first called him.  This is the only set of plans relating to the Alpine project placed in evidence in this case.

[106]     I have no evidence as to why the Alpine project was delayed from the Spring of 2011 when the building permit was got until approximately July 2012 – over one year later.

[107]     Morgan said in his view, he had acted as Andrew’s agent only on this project but was involved in it nonetheless from start to finish.  The court asked Morgan why he would agree to help out Andrew at all?  He said Andrew was at the time a friend of his and more so of his business partner.  Andrew was always looking for a deal.  The job was not very large and Andrew did not see the point of paying him.  He and Andrew were both then building houses and both men had helped the other out on each with Andrew assisting Morgan on some required electrical work.  They also referred work to one another.  Morgan said it was hence in his best interests to be on side and help Andrew out including when he was in Hawaii.  Andrew had called him in April or May 2012 when he was out of town in Vancouver or Hawaii requesting that Morgan call Bracken to see if he would provide a fixed price quote.

[108]     Morgan did so on or about May 4, 2012 and met Bracken at the site on Alpha Lake Road on May 9, 2012 at 12:30 p.m.  Morgan said he did not tell Bracken who he would be working for in the May 4 call.  Morgan agreed that Bracken then knew he had a company due to their earlier meeting at the Eagle Drive project.

[109]     He had a set of the above drawings with him and told Bracken he wanted a quote.  Morgan seemed to suggest there was a change in the scope of the work in that the proposed demising wall was to run the length of the building but would not be built below the mezzanine level as an existing wall was there in place.

[110]     Morgan indicated he would on receipt of the quote forward it to Andrew, which he did, telling Andrew he felt it was a fair price and advising him that Bracken was in essence an acceptable choice for a drywall contractor.  Bracken’s quote says if it is a go ahead, he would send his material list.  Morgan requested this about nine hours after receiving Bracken’s May 11 quote telling Bracken that “the price looks fine” and Bracken supplied the list to him on the evening of May 11, 2012.  The next day Bracken sent Morgan an additional email requesting further supplies as follows:

[111]     The May 11, 2012 quote does not expressly refer to fire caulking being within the scope of work.  In his direct evidence, Bracken testified that they, meaning Alpine or Timberview, asked him to fire rate the “separating parties” who were going to be in the warehouse – meaning the tenants on each side of demising wall to be “double layer drywall fire rated”.  Bracken did not explain what this meant.

[112]     Morgan said that Andrew being out of town asked him to make the first instalment payment to Bracken and he did so as above ($1,770.90).

[113]     Morgan was asked if when he told Bracken to start work on the Alpine project, had he advised Bracken as to who would be paying him and answered that he told him that he would be making the first payment.  Thus I do not find that when the contract to do the drywall work was being negotiated, Bracken was even made aware someone other than the defendant would be paying him.

[114]     Morgan said as far as the first instalment payment was concerned, Andrew and he had agreed that Andrew (or Alpine) would reimburse him.  He testified that he had asked Andrew to do so and to pay for the materials I assume the defendant paid for on the Alpine project and that thus far Andrew was taking the position that Morgan brought Bracken to the job, that he is Morgan’s responsibility and that Morgan should bear the consequences including a loss of two months’ rent due to delays I assume Andrew feels Bracken caused on the job.  Andrew has not paid Morgan for these costs.

[115]     Andrew testified as to the discussions early on pertaining to Bracken’s hiring.  He agreed Morgan in early discussions agreed to help out but said Timberview had no official contract to assist Alpine with the construction of the demising wall, for example, as a general contractor.  He said he and Morgan had an oral arrangement whereby Morgan would help them out with someone to do the drywall, look it over for them, and deal with the Municipality “as they like to talk to a contractor”.  Morgan was not to be paid as Andrew had helped him out with electrical work on his house.  He could not recall when Bracken started his work and first met him on site at his building.

[116]     I find based on all the evidence in this case that on or about May 11, 2012, Bracken entered into a contract to do drywall work at the rate of $45.00 an hour as per his quote of this date with the defendant.  In my view the same rate would apply to any proven extras unless agreed otherwise.  There is no clear evidence that Morgan then told Bracken that he was merely an agent for the owner of the work or a friend helping him out and that Andrew or AWSE or someone other than the defendant would be paying him.

[117]     It matters not in my view what arrangement Morgan and Andrew may have had (and I accept it was as they both testified it to be) if Bracken was not privy to or a party to the arrangement and I find he was not.

[118]     The above May 11, 2012 contract is not one that might be described as an entire contract at law in my view, putting aside any changes that might have been made to it after May 11, 2012 and hence not one whereby all work specified in it must first be completed or at least substantially completed before any payment at all is due to the contractor.  It clearly calls for three instalments when only parts of the work are done.  The deposit which Morgan says Bracken insisted on before he began work, I assume was really a prepayment of the first 1/3 instalment.

[119]     This point, namely, the difference between an entire contract and one permitting part payments, is discussed in Hudson’s Building and Engineering Contracts (11^th edition) Chapter 4 at pp. 438 and 488 et seq under the heading “Completion for purposes of interim payments” as follows:

[120]     It follows that I do not accept the defendant’s arguments that no contract existed with respect to the Alpine project with the defendant and that if there was one, it was an entire contract and nothing was due under it as Bracken had not fully performed it.

[121]     This latter point has nothing to do in my view with whether or not legitimate extras were agreed upon or whether the scope of the work had changed.  As to abandonment, in my view Bracken and any contractor was and is entitled to leave a job if an instalment payment is due and the other contracting party refuses to pay it.  Such departure would be justified as a matter of contract law.  Contractors are not required to work for nothing.

[122]     I return to Bracken’s evidence relating to the work he says he did under the contract and relating to his claim for extras.  Bracken said the demising wall constructed of steel studs was 63′ long and 20′ high save for the area above the mezzanine floor where it was only 12 feet high.  The quote or contract refers only to the demising wall and not three bathrooms.  He recalled starting work on the Alpine project in approximately the first week of June 2012, but said in his direct evidence it could have been earlier and in cross-examination, it could have been late June or even early July.  Bernard Tyerman and his brother helped him.  He kept track of their hours, but did not have them anymore.  He could not estimate on April 10, 2015 at trial the number of hours spent on this alleged extra – building bathrooms.

[123]     This bathroom work was an extra as was putting drywall around the stairs and what he described as the framing.  He never gave a separate quote for the 3 bathrooms, which work he was asked to do after the initial quote and described as a separate contract and then testified that was more of a continuum of the contract based on the first May 11, 2012 quote.

[124]     On April 10, 2015, Bracken testified that bathrooms were first discussed with Morgan in July or August 2012 who then asked him to complete them, to build one bathroom from empty space.  He said this was an “add-on” or extra work not referred to in the May 11, 2012 contract.  He was to build, i.e., frame up with steel and drywall three bathroom walls and then said he was to build 3 bathrooms with 2 or 3 walls per bathroom.

[125]     On January 15, 2016 Bracken again testified in direct as to the 3 bathrooms he was asked to build.  There was nothing in writing relating to this work.  I understood he was referring to a contract.  He was to complete spaces ready for a plumber.  He said with respect to the downstairs bathrooms, there were walls there; he had to remove some to rebuild new walls to make a working space.  There was a bathroom upstairs that had no existing walls which he built measuring 8 feet by 6 feet.  Bracken said while Morgan came by a few times to deal with I assumed the location of these bathrooms – that Andrew was mostly regularly supervising everything and assisting as well with the construction.  Morgan saw him working on them and never criticized his work.

[126]     By the end of August 2 of the 3 bathrooms were finished, but the downstairs one was not – Bracken estimated it was 90% finished.  A few pieces of drywall connecting it to the stairwell remained to be done.

[127]     I should mention that Ex. 2, tab 7 – the four pages of plans all dated February 9, 2011 show only 2 bathrooms on the main floor of the site and I see no reference to an upstairs bathroom or bathrooms.  The revised plans, which I would understand Architect Venter referred to in the letter referred to below (Ex. 2, tab 5), were never produced by either party nor did either by way of a summons to a witness, for example, in Andrew’s summons, require him to bring his copy to court so that the alleged extras could be clearly explained with reference thereto.  The court and witnesses have hence been required to try to make sense of the witnesses’ evidence as to same with reference to the early I expect first set of plans which do not show them.

[128]     Morgan said, prior to Bracken starting work, that Timberview would be responsible for the extra cost at $45.00 an hour, but that Morgan tried to put the onus on the owner who told Bracken that Morgan owed him money.  Bracken said variously he did this work in July or August with Bernard and his brother helping him.  In his direct evidence given on January 15, 2016, he said he discussed the costs of these bathrooms with Morgan and he and his helpers were to be paid at $55.00 an hour not $45.00 an hour.  Timberview was to supply all needed materials.  Bracken gave no estimate of the cost of the 3 bathrooms.  Nor was one requested by Morgan.

[129]     Bracken was asked on April 10, 2015 by the court if there were other add-ons on the Alpine project and said just the plywood that went on top of the drywall.  He believed he installed 5/8” plywood the entire 63 feet length of the wall but only eight feet high.  This was done in late August or September after the stairs went in.  This was an add-on Morgan requested saying he, i.e., Timberview, would pay for it and extra bathroom work at the rate of $45.00 an hour.  He could not estimate on April 10 the number of hours involved in doing this add-on or extra.

[130]     The original quote and contract (May 11, 2012) called for a double layer of drywall 5/8” thick on both sides of the demising wall.  He said he did one layer on one side.

[131]     He said there were complications along the way with respect to the drywall work.

[132]     He recalled problems arose on the job immediately.  Early on there were problems getting materials to the site.  Bracken suggested that notwithstanding the May 11, 2012 contract language where materials were Timberview’s responsibility, that Morgan told him he relied on his sub-trades to get materials and thus he had to go to Rona at Morgan’s direction and put drywall and screws on Morgan’s account.  He was able to get some materials from Rona, but not all he needed.  He could not recall exactly what he got.

[133]     On the first day he testified in court (April 10, 2015), Bracken was asked when was the demising wall finished?  He said he had done the steel part and the majority of the drywall within two weeks of the start date which he put at roughly July 15, 2013, but agreed it had not been completed at that point.

[134]     At this point, Timberview and AWSE “pulled in an engineer” because the ratings were changed to suit a tenant moving in to operate a crossfit studio.  As a result of changed ratings, he was asked to pull off one side of double layered 5/8” drywall but leaving one side intact.  He said somewhat inconsistently when testifying on April 10 that he made this change but did not then say his workers did the demolition.  The new drywall was supplied by PacWest in Squamish.  This change and demolition occurred when he was midway through the project and had partially finished framing and boarding one side of the demising wall with 5/8” drywall – they – in essence Alpine - changed the scope of the work to ½” Type C drywall which could prevent hazardous chemicals if spilled in one of the units travelling through the wall into the adjoining unit.

[135]     This required some of the 5/8” drywall he had installed to be taken down; he estimated a big portion or 2/3 of the wall.

[136]     This demolition work was done by AWSE workers, but he was not sure exactly who they were.  He showed up one day to find this work already done.  As soon as he saw that his wall was taken apart, he told Morgan there would be an extra charge calculated at $55.00 an hour and he agreed and did not solicit a quote for this work from Bracken.

[137]     Morgan had told him nothing about this change.  When Bracken called him, he told Bracken to call an owner of AWSE.  Bracken talked to two men on site, one of whom he said was Andrew, a part owner who started managing the site as well.  They told him to hold off on his work because they had to put stairs in from the ground floor to the mezzanine floor and then he was to rebuild the wall that they took apart with ½” material.  They also agreed to give him a new set of plans.

[138]     Bracken said this change from 5/8” drywall double layered to ½” Type C drywall was a change in the scope of the work as set out in the original May 11, 2012 contract.  Andrew told him about the change.  He was sort of helping managing the project Bracken said because Morgan was failing to manage it more appropriately.

[139]     Another change that occurred on the job was that a large portion of the steel in the middle of the warehouse had to be removed in the wall he had built because Alpine had to put stairs into the building.  This change was brought to his attention by one of AWSE’s owners, possibly Andrew.  It occurred before the Type C drywall change occurred.  Bracken said Timberview agreed to these changes in several phone calls, first wanting a change order before Bracken did the new work but then instructing him that because he and Andrew were friends, to just keep going and charge by the hour for any extras on the jobsite.

[140]     On January 15, 2016, Bracken testified about his calls with Morgan and that Morgan said that Bracken could continue with Andrew because Andrew is his friend and not to worry – they will pay me for the extras:  “they” being Morgan and Andrew.  Bracken said Morgan was not in this phone call suggesting he was to look to Andrew for payment but he did “eventually go that route”.

[141]     Bracken testified that he received a second set of blueprints marked “final” from the architect Mr. Venter with the changes in the drywall (1/2”) and stairs in late July or early August of 2012.  These changes were not shown in the first set of plans.  The second set was not produced by either party at trial and Morgan did not ask Andrew about them in his direct examination.  Reference is made to a change in plans in an undated letter referred to by the parties from the architect Derek Venter (Ex. 2, tab 5) as follows:

[142]     Bracken admitted he did not fully complete the changed work – the Type C drywall as well as the change in the steel work for the stairs.  He recalled the stairs were completed in July or August of 2012 or late August.

[143]     Morgan gave him the go ahead to complete the drywall on the demising wall after the stairs were built in August.  He testified on April 10, 2015 that he started this work in late August or early September including hanging ½” drywall, finished replacing the 5/8” drywall that had been removed, and kept track of his hours.  There was some delay in his getting back to the Alpine job because he had been working on other projects.  As well, the required stairs did not arrive until late August.  On January 10, 2016, he testified that he finished the job near the end of August.  On April 10, 2015, the court asked Bracken how far he got doing the work on the job – what was the final state before he stopped and he responded that the wall was 95% complete and he had done as much work as he could, but admitted that there was then other stuff that was also undone; some fire rating and he had earlier referred to removing some drywall (which he did not do) and continuing the demising wall an extra 6” to concrete.  He could think of nothing else.  The latter two items were outside the scope of the May 11, 2012 contract.   On January 15, 2016, Morgan asked Bracken how much (of the project) would he say was completed when he abandoned the job.  He responded:  “90%, more than 90%”.  He believed there was may be two hours in total of work left to do on the demising walls and three bathrooms.  He then changed his estimate to three hours to complete all work on the job.

[144]     Bracken testified that he left the job at the end of August 2012 as they were not paying him and were creating more work for him ripping off drywall.

[145]     He testified that he only received the first of three payments on his May 11, 2012 contract and nothing more.  There is no dispute this was the $1,770.90 paid by Timberview early on.

[146]     He believed he got to the point where in his view, two-thirds of the May 11, 2012 contract work was complete in June relating to his installing 5/8” drywall.  This is so notwithstanding other evidence he gave that his work on this contract could have started in late June or July 2012.

[147]     Bracken said he then asked Morgan for payment of the next instalment; did not receive it and was told Morgan would get it to him later.  He did not say when.

[148]     He agreed he never got to the point where the job was fully complete with 5/8” drywall because they took off 2/3 of his 5/8” drywall and wanted 1/2" to go up, which he called a “change order”.  Thus his lack of completion was due to changes in the work made by the owner.

[149]     Bracken testified about his requests for payment or invoicing in the 90 days between June 1 and August 31, 2012.

[150]     He agreed he had no written communications with Morgan demanding payment save Invoice #8 dated October 15, 2012 (Ex. 1, tab 16, p. 25) for $3,243.94.  He suggested when invoicing he was using a system on the computer that was new to him.  Bracken admitted that this invoice has an error in the amount of HST ($583.91), which should not have been included because the initial amount $4,865.90 taken from the May 11, 2012 quote included HST.  This Invoice #8 (October 15, 2012) is billed to Timberview and is as follows:

[151]     In phone calls with Morgan, Morgan stalled him with excuses but never refused to pay him.  He eventually said in a telephone call that Andrew was going to pay him and this was before the October 15, 2012 invoice was sent out.  Morgan gave Bracken no explanation as to why Andrew was going to pay him.  He believed Morgan and Andrew made some kind of deal to this effect so went to Andrew for clarification.

[152]     By this he meant he fortuitously in likely September 2012 ran into Andrew at Function Junction.  Andrew did not confirm that he would be paying Bracken saying that Matt owed him money and that was why Morgan was “doing the contract”.

[153]     Bracken called Morgan later the same day and related this discussion with Andrew.  Morgan said he would call Andrew and get back to him but never did.

[154]     Bracken testified that he received a payment of $1,621.96 on this invoice.  This appears to be in error based on the evidence at trial where the only payment on the Alpine project by October 15, was the Timberview deposit of $1,770.90.  Nonetheless, Bracken testified that Timberview owed him $3,243.94 on the demising wall contract and had never paid it.  He is suing to recover this amount.

[155]     Bracken testified that in September 2012, he prepared and sent a separate invoice to the defendant Timberview for the “bathroom contract” or extra work he did on the bathrooms not included in the May 11, 2012 quote.  He then testified immediately that this was sent out because of the “complication between Andrew and Morgan” meaning Morgan had told him to send it to Andrew – so he did.  He sent it to both Morgan and Andrew so they could figure out who should pay him.

[156]     He did not provide a copy of this invoice at trial and said he did not have one.  The court asked Mr. Morgan if he had such a copy and he said he did not asserting “because it was never delivered”.  Bracken when asked about the amount of the charge for the bathroom work said all he had on point was this invoice he had given by email to Andrew.

[157]     Ultimately Bracken clarified his evidence by saying he did not have the copy of this invoice, that Andrew had it, but that he had produced in essence a photocopy at trial of the document – in essence the original of which Andrew possessed.  What he kept was exactly the same as what he emailed Andrew but billed to Timberview.  This was Invoice #7 dated October 15, 2012 for $6,221.60 directed to or “bill to” Andrew (Ex. 1, tab 16, p. 96).  I note that to complicate the facts in this case further, the parties have filed in evidence four copies or iterations of Invoice #7 all dated October 15, 2012 as follows:

[158]     Bracken said it was his position that Timberview owed him the amount outstanding on the demising wall contract ($3,243.94) and $6,221.60 for extra work which he had described to be on the “bathroom contract” and possibly some interest.  These two amounts total $9,465.54.  Bracken said he added monthly compounding interest at 2% in line (6) of his Notice of Claim.  The $6,221.60 was never paid.  He never called Andrew but agreed he did receive money from him.  He just left this invoice with the two men to work out.  Bracken testified it is still all outstanding and that he received no money on it.  He did however agree that he had received a sum of $4,928.00 from AWSE in October 2012, but said it was for hourly work for overtime completed for AWSE – doing the same sort of work that Timberview owed him for.  He testified that Andrew felt the amount Morgan owed him was not enough so he offered to pay Bracken for overtime hours he and Bernard and his brother did (at Alpine) doing drywall, working some night shifts.  He said there was no invoice he gave to AWSE for $4,928.00 and that this was a different issue and did not apply in essence to the issues at trial.  He gave as examples of the overtime work included in Andrew’s $4,928.00 payment drywall work on the party wall, insulation, caulking – not part of the original contract and all caulking above the mezzanine, 63 feet of fire caulking between the roof/ceiling and wall as well as work in three bathrooms (rough sanding and polishing), and applying double layered plywood 12 x 63 (I assume feet) – he could not remember exactly.

[159]     Bracken was asked whether or not this work covered by Andrew’s cheque was not within initial Invoice #8 for $4,865.90 and seemed to agree but said these were not overtime hours then billed but rather just straight hours.

[160]     He repeated the work Andrew paid him for ($4,928.00) was time and a half hours over and above the hours he was supposed to be working.  Invoice #8 ($4,865.90) was for standard overtime hours.  He said none of the $4,928.00 Andrew paid him covered putting up 1/2" Type C drywall or doing extra drywall work on the stair area after the stairs went in.  As well, none of the $4,928.99 Andrew paid him was allocated to Invoice #7 – I understood the one for $6,221.60 (Ex. 2, tab 12, p. 25) all of which remained unpaid. 

[161]     Morgan cross-examined Bracken as to the content of Invoice #7 ($4,928.00) (Ex. 2, tab 11, p. 24) as compared to Invoice #7 (Ex. 2, tab 12, p. 25) ($6,221.60) and Bracken agreed all line items were the same in both save the higher Invoice #7 ($6,221.60) has a new line item:

[162]     Morgan testified that Invoice #7 (Ex. 2, tab 11, p. 24) with the note “$4,480.00 paid in full” (which he believed to be Andrew’s or Morgan’s handwriting), which he guessed he received, “was sent out duplicates as well by mistake” whatever this means.  It had nothing to do with what Andrew paid him.  “It was just an accidental one”.  He clarified that he sent it out to Andrew with the wrong information and hours and everything.  It is incorrect in that (1) the above 21 hours were left off and (2) the payment Andrew gave him was not for these hours.

[163]     He later replaced at the p. 24 invoice with the p. 25 invoice ($6,221.60) which was sent out.  It had nothing to do with the p. 24 invoice.

[164]     Bracken testified that he never gave Andrew an invoice for the amount that he owed him for overtime which Andrew paid him for.  Again this amount had nothing to do with the p. 24 invoice which just happened to be in the same amount.

[165]     Bracken’s evidence was that he sent Invoice #7 (as above) to both men by email; one saying “Bill to Timberview” and the other “Bill to Andrew Tacilauskas”.  Morgan called and acknowledged receipt and said he was going to discuss it with Andrew and would get back to him.  He never did.  After sending this invoice to Morgan, he did call him and ask about payment and went to his house in October 2012 with Mr. Tyerman to ask where his money was, namely, the $9,465.54 above.  Morgan said he would pay him, but not when as he still had to review Invoice #7 with Andrew.  Bracken followed up this meeting with a series of telephone calls to Morgan; Morgan again promised to get back to him but never did.

[166]     In cross-examination Bracken admitted that he had changed the payee on two cheques Morgan had given him from Bracken Tree Contracting to Aerhyn Bracken (#1589 and #1623) as he did not have a bank account in the former name.  He openly admitted doing so and seemed not to appreciate that it was wrong to do this.  This evidence at best in my view corroborates that he was an unsophisticated businessman with a grade 8 education.

[167]     He also agreed that his estimates of the demising wall at 63 feet long and 16′ - 18′ or 20′ high were in error after having measured with a scale certain quarter inch scale drawings resulting in it being 58′ long and the wall above the mezzanine not being the 12′ he had estimated, but rather 9′1” and the main demising wall being 19′6” in height – not 16′ - 18′ or 20′ high.

[168]     In cross-examination Bracken gave the following evidence:

[169]     I note that Bracken was not really cross-examined on whether or not he had fully settled with Andrew, however in fairness, Andrew’s evidence followed Bracken’s at trial.

[170]     I turn now to a summary of the further evidence of Andrew Tacilauskas relating to the Alpine project.

[171]     The demising wall was the sole original work.  Additional work including bathrooms was done after Bracken started the job.

[172]     Two bathrooms were built later and not three as claimed by Bracken.  The original space had only one downstairs original bathroom.  Bracken did no work on this bathroom.  One new one was added upstairs and one new one downstairs.  In the top one, Bracken built approximately ten feet of wall and framed a door.  In the second downstairs bathroom located in Unit 2, Bracken started some stud work – about 2 feet – but AWSW finished it.  There was no problem with the work in the upstairs bathroom done by Bracken that Andrew could recall, but it was not finished.  Andrew had a friend from Vancouver and two helpers come up to finish it.  They had to do most of the stud and drywall work with respect to the downstairs bathroom – about ten feet in all, but Morgan helped them.  This took six hours for two men.

[173]     There was no discussion as to who would pay for the extra bathroom work.  The understanding he had with Morgan was that Morgan would pay Bracken for the drywall work on the demising wall and Morgan would then bill Alpine’s numbered property company for same who would reimburse Morgan on receipt of his invoice.

[174]     Andrew believed the new stairs were done by another contractor, namely, Whistler Welding or Protec before Bracken started work, but then said he really could not remember.  They went up to the mezzanine level.

[175]     Andrew said there were no other extras.

[176]     He first met Bracken on the site.  He only saw him working with a female helper and no one else.

[177]     He never witnessed Bracken finishing drywall on both sides of the demising wall (thereby potentially triggering the second instalment in the May 11 contract).  Nor did Bracken ever finish the demising wall contract.

[178]     He was shown a copy of the May 11 quote Bracken had sent to Morgan and agreed he had seen it and approved of the price, namely, $4,344.63 plus HST for the demising wall.

[179]     Andrew had difficulty getting a hold of Bracken throughout the work.  He believed there was a completion date.  He so advised Bracken on site on a number of occasions.  This date was driven by a tenant – one “Prospect” who had signed a lease, however Andrew could not recall the date.  I note there is no such completion date on the May 11 quote.

[180]     When Bracken did not show up on the job, Alpine had someone else do work on the bathrooms, but not on the demising wall.

[181]     Andrew estimated that Bracken had not done 3/4 of the drywall sheeting on one side of the demising wall because he could not get helpers to lift the sheets.  In the result, AWSE employees helped him including Andrew.

[182]     Bracken did not do all the required mudding and taping on the demising wall or the fire caulking.  He did some of the mudding and taping on both sides of the wall, but not all of it.  Andrew estimated that 40% of this work was undone.  AWSE employees and Andrew’s drywalling friend from Vancouver helped to finish this work.  Bracken did not assist as he honestly admitted he did not have the work force.

[183]     AWSE employees and Andrew stayed very late one night and did all the fire stopping or fire caulking where the wall meets the corrugated ceiling panels or Q decking.  He estimated this was some 15 feet and later involved more at the request of a building inspector.

[184]     There was nothing else Bracken ought to have done on the demising wall and did not do in Andrew’s view.

[185]     There were no deficiencies in Bracken’s work on the demising wall, i.e., work he did poorly that had to be redone.  The inspector eventually said it was done right.

[186]     Andrew recalled Morgan coming over to help do incomplete work not deficiencies.  He recalled seeing Shane Caruana there on more than four or five occasions.  I note Shane said in his evidence he had been there once for two hours.  He also recalled a few other Timberview guys helping out to get the work done to be ready for an inspection the next day.  The work he recalled them doing was finishing off drywall in a couple of areas Bracken could not get to that had to be done that allowed them to fire stop.

[187]     He testified that certain walls shown on the plan (Ex. 2, tab 7, p. A2) which Bracken had testified he had erected were existing walls, for example, in bathrooms.

[188]     He testified that he had seen something from Bracken by way of an invoice, but doubted he had ever seen Invoice #7 (October 15, 2012) for $6,221.60 (Ex. 1, tab 8, p. 25).

[189]     He agreed that in August 2012 Alpine paid Bracken $4,928.00 in full and never saw him after that.  This payment occurred after he had had discussions with Bracken after he had emailed Morgan concerning all the additional work Bracken had done as opposed to original contract work.  Morgan had told him that Bracken had been asked to provide hours he had worked on various days but never did.

[190]     He met Bracken who did not have records of his hours then either.  He discussed with Bracken not only the work he had done on demising wall but the matter of extras as well.  He was aware at the time that Morgan had given him a deposit, but did not know the amount.  Before he met Bracken, he told Morgan he would be meeting with Bracken and would be trying to settle up with him.  Andrew’s evidence at trial was as follows:

[191]     He agreed with the proposition that the payment of $4,928.00 amounted to about 81.5 hours, but said this really grossly over-stated Bracken’s hours, but he just in essence wanted to settle up with him.  It was not an accurate reflection of the work he did.  The over exaggeration was his in order to achieve a settlement.  He said he had not at the outset agreed to pay Bracken $55.00 an hour.  He first heard of this rate in the settlement discussion and just accepted it.

[192]     I should note that on October 16, 2012 before Alpine paid Bracken the $4,928 (which occurred in August) and I find before Andrew met Bracken, Morgan had emailed a copy of Bracken’s May 11, 2012 quote to Timberview to Andrew who then went through it assessing Bracken’s time and work and then sent his comments back to Morgan by email the same day with the following note:

[193]     There is no evidence (including a document) that Morgan ever added any notes to this email or made any comments to Andrew concerning his calculations.  I understood Morgan to agree that this email was sent on to Bracken at some point.

[194]     Andrew’s evidence was that he had discussed Bracken’s work with his right-hand man, one Jeff, and absent Bracken being able to supply hours that he had worked, made educated guesses as to what Bracken was entitled to and in essence paid him more than this.  Jeff witnessed much of the work in question.  Andrew’s written assessment (Ex. 2, tab 13, p. 26) uses the four items found in Bracken’s May 11, 2012 quote, e.g., “steel stud” and also refers to the quoted price in each case, e.g., $651.00.  Then in the email he appears to deal with extras in some cases.  For example, with respect to “steel stud” work, he addresses “additional steel stud work” and awards (so to speak) hours (all at $55.00 per hour) as follows:  22 hours for bathroom up #1 and down #1 as well as 8 hours for steel stud work under the floor and 8 hours for the redoing of steel stud for the stairs or a total of 38 additional hours or $2,090.00.  There is an error in Andrew’s arithmetic in that his line item re: Bathroom up #1 should read 16 hours and $880.00.

[195]     He awards no additional hours for item 2 on the May 11, 2012 quote, namely, “Frame box around beam” - $319.00.

[196]     As to item 3 “insulation” - $264.97, his calculation is confusing.  He asserts AWSE workers did 4 hours work here, so deducts $220.00 from $264.97 to get $44.97, but says because “he is not a dick” will make it $215.00.  This seems not to be a calculation of an extra but rather an assessment that Bracken’s quote should be reduced or discounted by $50.00 or 19% from $264.97 to $215.00.  Likewise in my view, this new figure should have been included as a line item at $215.00.  It has been left out.

[197]     As to item 4 on the quote:  “plywood and drywall and tape both sides double layer” ($3,209.66), he assesses that Bracken is really claiming too many hours having regard to the work he really did which he calculates to be 58 hours, but less 24 hours done assumedly by AWSE workers or his friend from the city, deducts these from 58 hours, leaving 34 hours representing his assessment of what Bracken really did (or $1,870.00 at $55.00 an hour), but says because he is “not a dick” in essence awards $2,800.00.  Thus this calculation is not an “extra” award as with respect to item #1 above, but a 13% discounting of Bracken’s quote from $3,209.66 to $2,800.00 based on what he did.

[198]     He awards for drywall and mudding in bathroom as an extra 18.5 hours by my calculation or $1,040.00 ($440.00 + $250.00 + $350.00).

[199]     He awards 30 hours for fire stopping as an extra or $1,650.00.

[200]     Thus the three extra amounts he calculates and awards to Bracken so to speak total some $4,780.00.

[201]     His mathematical analysis however becomes confusing because he adds all extras together with the agreed on May 11 quote prices for two only items (steel stud and frame box around beam), but includes only his amended drywalling amount $2,800.00) and leaves out altogether his calculated insulation amount ($215.00).  He then adds up all extra amounts and (1) the steel stud figure ($651.00), the frame box around beam amount ($319.00), his discounted drywall amount ($2,800.00) and obtains a total of $8,550.00 from which he subtracts the amount of the original quote ($4,344.00) not including tax to get $4,000.00, whereas the correct total would be $4,206.00.

[202]     If in this analysis Andrew is really saying (and none of his calculation was explained in court) that for reasons set out in his October 16 email, Bracken’s quote of May 11, 2012 having regard to work done by others – mostly AWSE employees – should be discounted, the correct final number would be calculated as follows:

[203]     His $8,550.00 total is in error and for completeness, his adjusted insulation figure (left out) should be added as well as 2 hours ($110.00) for “Bathroom up #1”, i.e., 16 - 14 = 2.  In the result, the May 11, 2012 adjusted contract amounts and what he is prepared to pay for extras becomes $8,550.00 + $325.00 or $8,875.00.  The May 11, 2012 contract amount he deducted needs to be amended so his calculation is consistent to $3,884.00 as calculated above.  The final total of his email calculation thus should be $8,875.00 - $3,884.00 = $4,991.00.  He paid Bracken $4,928.00 or $63.00 less.

[204]     Arithmetically the upshot of his October 15 email seems to me to be that he is saying extras aside ($4,730.00) Alpine thinks he performed $3,884.00 worth of his May 11, 2012 quoted work or 89% of it.  Andrew’s evidence, fire caulking aside, was that the work Bracken did was generally good.  He says in this email he was a hard worker.  His complaints about Bracken were moreso that he left work undone, did not meet vaguely described deadlines, did not always have a proper crew (leading to incomplete work), and at times showed up drunk on the job.  Nonetheless he did say Bracken “busted his butt” at times on the job and was honest on a number of occasions in openly admitting to him he did not have the work force to do all the work.

[205]     Bracken was paid an initial deposit by Timberview on his May 11, 2012 quote relating to labour on the demising wall only some of $1,770.00 (cheque 1589) – say $1,771.00.  Deducting this from the above adjusted $3,884.00 figure leaves a balance net of HST of $2,113.00 which with 12% HST (say $254.00) yields an adjusted May 11 quote (or contract price) of $2,367.00 if one were to assume Andrew’s figures are correct.

[206]     Andrew paid Bracken generously he said for the extras he felt he was entitled to receive at a higher rate than he believed he was entitled to, namely, $4,928.00.

[207]     If the total extras net of tax calculated by him are $4,780.00, then arithmetically at least one might say he overpaid extras by $148.00.  Or one might say based on the above interpretation of Andrew’s careful analysis, he paid his extras in full; at least what he felt Bracken was entitled to and $148.00 towards the balance of the May 11 quote/contract balance (as calculated above) leaving a balance of $2,113.00 - $148.00 or $1,965.00 which with 12% HST ($236.00) would be $2,201.00.

[208]     In my view on careful analysis, this October 13, 2012 email authored by Andrew corroborates his evidence that when he paid Bracken the $4,928.00 cheque, he did settle up fully at least what he perceived to be a fair amount for Bracken’s extra work, but it does not corroborate Andrew’s evidence where he seemed to suggest that he also settled up the balance outstanding on the original May 11 contract.  This assertion is not borne out at all by his calculations which in my view corroborate Bracken’s evidence that he settled up only extras with Andrew and not the original May 11 contract balance which was the responsibility of Timberview.  The above two “discounts” ($460.00) he has made to the May 11 quote/contract price, in my view, are really his evidence on behalf of the owner of the work as to the extent of Bracken’s completion of the job on October 13, 2012.  This discount represents 10.6% of the total quote ($4,344.00) which Andrew in the October 16 email felt Bracken was not entitled to.  Conversely, it suggests Bracken was entitled to 89% of the contract price on the demising wall work.

[209]     This calculation corroborates Bracken’s evidence to some extent – that at least 90% of the demising wall work was done.

[210]     I consider this October 16, 2012 email to be a central and extremely critical piece of evidence in this case for a number of reasons.  It was created on behalf of the owner of the work so to speak who was on the job quite regularly and saw what Bracken was doing.  He was a witness called by the defendant.  When a party calls a witness at a trial, it is in my view a fair inference for the court to draw that he puts him before the court as a credible person who is to be believed.  The assessment was prepared with input from his “right-hand man”, one Jeff, who was also on the job no doubt regularly, otherwise why would Andrew have consulted him at all for input?  It was created very close in time to when Bracken would have ceased his work.  And I think it is fair on its face in the sense that Andrew used a higher rate ($55.00) than he felt Bracken was entitled to, but certainly the rate Bracken had testified to for which he agreed to do extra work on the Alpine project.  He also seems to be making an effort to be fair in his analysis.  That is how I interpret his rather salty turn of phrase “I’m not a dick”.  He sent his calculations to Morgan.  There is no written communication he received from Morgan tendered in evidence in the way of a timely response saying that Morgan disagreed with his assessment.  Nor did Morgan testify that he disagreed with it.  It is a piece of written evidence in contrast to most of the evidence in this case being what people could remember.  And I consider overall Andrew to be a credible, reliable witness whose evidence generally made sense with one exception:  his evidence that the $4,928.00 cheque was understood to be an overall settlement of both the extras and outstanding unpaid May 11 contract demising wall work does accord with the close arithmetical scrutiny as above.  Insofar as he said this, I find that he was mistaken perhaps because his October 13, 2012 email is flawed as pointed out above.

[211]     Morgan also agreed that Andrew was on the site more regularly than he was.

[212]     In my view, Andrew would not have included the May 11, 2012 quote/contract line items in his analysis if he had not wanted to consider both Bracken’s demising wall work and his claim for extras.  But when he subtracted them out at the end to produce his “cheque for $4,000.00 plus HST for additional work”, it is clear to me his analysis only really related to what he would pay for extras which is what he wanted to settle up with Bracken.  Andrew was also clear in his evidence that Timberview was to pay Bracken for demising wall work.

[213]     In my view accepting as I do, Andrew’s evidence that the settlement was really between himself, Bracken, and Timberview and that Bracken could not later sue Timberview or Morgan for extras, it seems to me that as far as extras were and are concerned, I should likewise imply a term in the settlement and I do so that it was contemplated by all that neither Andrew, AWSE, his numbered company or Timberview or Morgan could sue Bracken for work they did on extras as distinct from work done in furtherance of the demising wall contract.

[214]     Andrew testified that after Alpine paid Bracken, he requested that he provide an invoice for Alpine’s account department in the amount of the cheque.  He was shown Bracken’s Invoice #7 dated October 15, 2012 ($4,928.00) (Ex. 1, tab 7, p. 24) and seemed to agree that this was the invoice Bracken sent him.  I note Bracken testified that he had emailed this document to both Andrew and Morgan.  Andrew could not say who had crossed out the 8^th line amount $4,400.00 and the total and added the words:  “$4,480 paid in full”.  I observe that a settlement of $4,400.00 net of HST at 12% ($528.00) yields a gross sum of $4,928.00.

[215]     He testified that he and Morgan helped Bracken finish the work.  Due to delay, he lost two months’ rent from a tenant who could not move into the renovated space as planned.

[216]     In cross-examination by Bracken, he gave the following relevant evidence:

[217]     I turn now to the further evidence given by Mr. Morgan on behalf of the defendant Timberview relating to the Alpine project.

[218]     The original plans (dated February 9, 2011) Ex. 2, tab 7 show that one larger end unit was to be divided into two smaller units.  These were given to Bracken to quote on prior to May 11, 2012.  He did so and he forwarded the quote to Andrew telling both Andrew and Bracken that he felt the price was fair and Andrew that Bracken was an “OK choice” to do the drywall work.  I note p. A4 of these plans seems to specify that for “fire separation” two continuous beads of sealant were required at the top of the wall.  I should note that it was never explained to me at trial why when the original and only plans for the Alpine work were dated February 9, 2011 and the building permit was obtained in April 2011, no quote was got for the work until May 2012 and work did not start on the demising wall until July 2012 according to both Morgan and Bracken.  There seems to have been considerable delay in getting underway.  Morgan had no answer for the two-month delay in the start.  I expect one is provided in the architect’s letter set out above.

[219]     Morgan recalled Bracken started the project in the first or second week of July 2012.  No work was done in May or June.  He provided his deposit cheque to Bracken on July 5, 2012.  Morgan said Bracken did not then raise as an issue the name of the payee “Bracken Tree Contracting” and said had he done so he would have changed it.

[220]     He stopped by the project he said typically in the evening between 6:00 p.m. and 7:00 p.m. to see how things were going and he also came from time to time during the day, but was not there on a daily basis.

[221]     He testified that there was a change to the original Alpine project as per the above plans.  Firstly, the demising wall was to run the length of the building but where the mezzanine area was located, no lower part was to be constructed as an existing wall was already there.  As well, originally the demising wall was to be two layers of 5/8” drywall each side and this was changed on one side to one layer of Type C 1/2” drywall on unit one.  Morgan was of the view that this change ought to have resulted in a credit being owed by Bracken to Alpine on the fixed price contract.  Alpine has not claimed any credit for same.  Morgan gave little evidence relating to the addition of the new stairs and the changes referenced in the architect’s above letter.

[222]     Morgan testified he never saw Mr. Tyerman or Bracken’s brother on the jobsite notwithstanding his attendances thereat from time to time during the day.

[223]     The final inspection on the Alpine project occurred on October 26, 2012 and it passed.

[224]     Morgan testified on a number of occasions at trial that Bracken never finished the Alpine contract as per the May 11, 2012 quote and chose to abandon it.  In his view, based on his attendances from time to time, he may at best have done 50% of it.  He also based this assessment in part on an inference he drew from a September 5, 2012 inspection report which states as follows;

[225]     He testified that the “do not cover” entry (on September 5, 2012) was a clear indication that 90% of the demising wall had not been completed I assume then.  I am unable to draw such an inference, for example, that the whole wall was then unfinished.  Neither does this conclusion emerge from the email Andrew sent to Morgan later on October 13, 2012.  More troubling is the defendant and Andrew’s failure to deal with the significant changes in the approved drawings and above reference to “revised drawings”.  These drawings would be the best evidence of changes in the scope of work and were not filed by any party to this action.  This inspection report does not clearly appear to refer to the February 9, 2011 drawings.

[226]     Morgan said he never agreed to pay Bracken $55.00 an hour for extras.  I have dealt with the owner’s evidence (Andrew) on point above.  He points to the two invoices relevant to the Eagle Drive project as proof.  Both refer to $45.00 an hour.

[227]     Morgan gave extensive evidence as to essentially errors in Bracken’s evidence as to work he did or did not do or how he did it.  At times, he appeared simply to rely on Andrew’s evidence, for example, that he had missed deadlines.  Morgan never said what precisely the deadlines were or that he had set them.  I do find nonetheless that Andrew had a deadline of sorts in mind on the Alpine project in that he wanted to complete the renovations as soon as possible to get a crossfit studio tenant in place paying rent.  This goal was seemingly delayed for at least two reasons:  (1) Bracken not always having a proper crew to install drywall, particularly boards located at the top of the demising wall and (2) the matters alluded to in the above Ventner letter which I understand include new stairs and bathroom additions.

[228]     Morgan testified that Bracken claimed he did work that he did not do giving as an example framing a wall under the mezzanine level that was already built.  He invoiced Alpine for it (Invoice #7, Ex. 2, tab 11) and Morgan says he ought not to be paid for it.  He admits that Bracken did frame and drywall that portion of the wall above the mezzanine floor.  He was not asked by Morgan whether the line item should have read “over” rather than “under”. 

[229]     Morgan said Bracken claimed he framed three bathrooms but did not.  There were only two added as add-ons or changes to the original plans.  I found Morgan’s evidence difficult to follow as I did Bracken’s on point particularly where reference was made to the February 9, 2011 plans to explain what Bracken had done or not done and where existing bathrooms were located or not and where new ones were constructed, one of which was said really to be a shower.  I had no sense that the February 9, 2011 plans really showed where the new bathrooms were located – on the ground floor or mezzanine level and what work Bracken had done or not on same.  Morgan nonetheless admitted that Bracken had done some framing work on these structures, but did not know if he completed the drywall on same.

[230]     This issue will be resolved in my determination on how to handle extras in this case.  Andrew and Morgan both admit this bathroom work was an extra – whatever Bracken did or did not do on it.

[231]     Morgan testified that Bracken invoiced for fire caulking, but did not do any of it.  He seemed to describe this fire caulking as well with the noun “tape”.  Only Invoice #8 directed to Timberview discloses a reference to this term.  I have described what fire caulking is above.  Morgan testified that this work was completed by AWSE and Timberview employees.  Andrew corroborated this evidence as to what AWSE employees did late one night immediately before an important inspection was to occur but also admitted that Bracken had done some fire caulking, much of which had to be redone.  Andrew agreed this was an extra to the May 11, 2012 quote/contract and in my view should be resolved as such.  I am mindful of Morgan’s evidence on point, I think corroborated by Andrew, that fire caulking was a required part of the demising wall job that Bracken ought to have done as part of the agreed upon fixed price and that in every project he had ever done where a drywaller built a demising wall to meet building code requirements, that fire caulking was always included in the scope of work.  Morgan admitted that he saw no invoice that Bracken had sent to Andrew that suggested he had charged Alpine for this work.

[232]     Morgan testified that Bracken had never given him an invoice for the work done in the May 11, 2012 quote nor one for the $1,770.60 initial Timberview payment.  He said Bracken’s invoices on the Alpine project dated October 15, 2012 were directed to Andrew and not Timberview.  This is true with respect to Invoice #7.  Only Invoice #8 also dated October 15, 2012 is directed to Timberview showing the original quoted price ($4,344.63 + HST $521.36) or $4,865.90 less a deposit received $1,621.96 (an error - $1,770.90 was received) and a balance outstanding of $3,243.94.  Bracken admitted that he received more than $1,621.96 from Morgan.  This balance shown on Invoice #8 hence should be $3,095.00 if the correct deposit amount is deducted.

[233]     I note these two invoices are different on their face.  Invoice #7 all refer to “Alpine West Electric extras” immediately above the description of the work; whereas Invoice #8 does not refer to “extras” and the work described is different from that described in Invoice #7.  I understood Morgan to say he never received copies of Invoice #7, but he agreed he had received Invoice #8 directed to Timberview.  Morgan seemed to say that any payment due on Invoice #7 dealing with extras should be the responsibility of AWSE as they were directed by Andrew and not Timberview and that he never received them.  As to Invoice #8, Bracken was not entitled to any further payment as he had not completed the work.  Further in reliance on Andrew’s above October 16, 2012 email to him, Morgan asserts that Bracken has been overpaid in essence for all the work he did on the Alpine project.  He testified as follows referring to this email:

[234]     I note that the reference is to Invoice #7 (dealing with extras only) and not Invoice #8 which does not.

[235]     Based on all the evidence in this case, I find that copies of Invoice #7 were sent to both Andrew and Morgan.  Bracken had been left in a position where it could not have been entirely clear to him in October 2012 who was going to pay him for his extra work and common-sense would suggest he would send this invoice to both Alpine and Timberview.  Invoice #8 by comparison did not deal with extras but rather work he said was done under the demising wall contract with Timberview.

[236]     One helpful decision on point is that of R. v. Parent, 2000 BCPC 11, a decision of Her Honour Judge Ann Rounthwaite of this Court where she dealt with the credibility of witnesses generally and how a trial judge can assess it at paras. 4 to 5 of her reasons where she stated as follows:

[237]     In para. 9 of her reasons, Her Honour Judge Rounthwaite used the term “ring of truth” as a different way of expressing the point in para. 5 above the sense of the witness’ evidence.

[238]     On this same point, our British Columbia Court of Appeal in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 commented in the context of credibility in civil actions.  This well-known case from our Court of Appeal encourages trial judges not to rely too strongly on the demeanour of a witness or the fact that his or her evidence remains uncontradicted but rather we should be concerned with whether the evidence of the witness is “consistent with the probabilities affecting the case as a whole”.

[239]     The test if you will is repeated at p. 4 of the Quicklaw report of the reasons as follows:

[240]     Generally and notwithstanding Mr. Morgan’s frequent suggestions that Mr. Bracken was not a credible witness, I found that to some extent he was.  He was poor on dates and not nearly as articulate, smart or business savvy as was Mr. Morgan.  He had few documents.  He could not support much of his evidence as to hours worked with chapter and verse, for example, time sheet entries of the type a lawyer might keep of the work done each day, on what and by whom and how long it took.  But nor did Mr. Morgan file such documents in evidence.  Bracken honestly admitted he went by memory when calculating hours on the Eagle Drive job.  There were however times when I found him to be evasive, for example, his inability to admit that two cheques Nos. 1623 and 235 fully paid his invoice on the Eagle Drive job.  At times his evidence was inconsistent where he appeared to say Morgan had agreed to pay for extra work on the Alpine project at both $45.00 and $55.00 an hour.  On one occasion, as an example of his admittedly poor memory, he had difficulty describing the extra work he did on the Alpine job.  However, generally his story is in accord with the evidence of others or content of documents.  He said he was engaged to build a wall and that after he started important changes were made to meet a tenant’s needs (the crossfit studio) which necessitated new stairs up to the mezzanine, removal of dry wall and studs he had installed, and bathroom work which required him to do extra work.  Thus his basic story is indeed what this case is all about.  I do also bear in mind that he has only a grade 8 education and very clearly was not good on keeping and saving records.  I also bear in mind what others said about him – that he was a hard worker and even Morgan’s right hand man Shane Caruana felt his work at the residence was up to standard as did Andrew with respect to what he did at the Alpine project.

[241]     Mr. Morgan was light years ahead of Bracken in terms of his business acumen, business knowledge, and level of articulateness.  He professed a more accurate recall or memory of things than did Mr. Bracken.  He was better at preserving documents and providing them to the Court with the one notable exception referred to above – the absence of the very important revised plans describing the changes to the May 11, 2012 contract.

[242]     There were however some important external inconsistencies in his trial evidence as compared to other witnesses.  Morgan in a blanket way condemned Bracken’s touch-up work as substandard.  It was said to have been done in 2½ days.  Why Morgan did not see it was substandard sooner and stop him is unclear particularly where he left the impression he was regularly on this job.

[243]     Far more importantly, Morgan’s own site supervisor said it was up to standard.  It was his job to check on subtrades.  Morgan’s evidence on this important point is thus materially inconsistent with that of his own witness Shane Caruana.  Caruana was of the view that some small aspects of his work had to be redone again contrary to the weight of Morgan’s evidence.  Caruana seemed not to question that Bracken’s hours on the residence were excessive contrary to Morgan’s evidence.  Morgan’s evidence that Certified opined that Bracken’s work was deficient is hearsay, but nonetheless again contrary to Caruana’s.  Morgan had a tendency to exaggerate about Bracken.  For example, he testified that Bracken made dozens of phone calls concerning his outstanding invoices relating to work on the residence.  This seems unlikely.

[244]     Morgan accused Bracken of not having time sheets to support his hours claimed and really he is in the same boat.  He argues that Bracken’s credibility is affected by his attempting to bill for work not done, but admitted in his counterclaim against Bracken relating to the residence project he claims for costs related to work Bracken was not required to do, never touched and was not one of his alleged deficiencies.  It was clear to me throughout this long trial that neither Bracken nor Morgan liked the other and held strong feelings about the other’s want of character.  I think this clearly was a factor in the way each testified.  I have mentioned above that it did not make sense to me that Morgan would testify that Bracken’s skills were so deficient that he did not hire him in the first instance to do the drywall work at the residence, fired him after 2½ days based on his deficient touch-up work for which he claims $22,289.00 in his charge back to rectify, but yet advised his friend Andrew that he was OK to do his drywall work – albeit not a job requiring a level 5 finish and not residential construction.  If Bracken’s work was not as bad as Morgan said it was, there would of course be no need to contact his friend and give him a “heads up” with respect to the quality of Bracken’s work.  Thus I find there are credibility problems with both Bracken and Morgan.  I am unable to say that without exception I prefer Morgan’s evidence to that given by Bracken or vice versa.

[245]     While generally I found Andrew to be a credible, reliable witness who gave sensible evidence, I was and am of the view that his bold assertion that the $4,928.00 payment settled all Bracken’s claims against him and Morgan (Timberview) is inconsistent in a material way with his own email done when the events in issue were fresh in his mind.  I reject this evidence as erroneous.  His estimate that Bracken did only 60% of the work on the demising wall also seems to be inconsistent in the same way when compared to his own October 16 email which seems to provide an analysis that some 89% of the work was done, very close to the evidence Bracken gave at trial.  I prefer his evidence given relating to his email assessment (and inferences therefrom) to his more general assertions on this point.  I did feel that Andrew tried not to over-reach in testifying about Bracken admitting that he was a hard worker, at times busted his butt and generally that the work he did was OK.  I accept these observations as truthful.

[246]     As to Mr. Caruana, his evidence was not really shaken in court in anyway and I found him to be a credible witness who gave evidence based on first-hand observations to the Court.

[247]     Bracken presented this claim (a) on his Notice of Claim initially in the amount of $2,481.00 plus interest for a total of $3,243.94.  This is the balance outstanding on Invoice #6 dated June 30, 2012 inclusive of HST.  I accept Caruana’s evidence that his work was generally up to standard and that only small aspects had to be redone.  Mr. Caruana did not take serious issue with the hours said to have been worked – 47.5.  Morgan suggested they were high by some 24%.  I do not accept Bracken’s evidence that notwithstanding Invoice #6 was unpaid, that he worked another 76.5 hours billed separately on Invoice #3 dated July 31, 2012 in the amount of $3,855.60.  I find this invoice was paid in full and that in all probability the initial 47.5 hours on Invoice #6 were included on this bill and that Bracken is mistaken when he suggested otherwise.

[248]     Bracken did not provide at trial any time sheets or like records to show that the hotly disputed 76.5 hours were for work over and above that on Invoice #3.  I also doubt he ever provided the requested breakdown of hours he said he did to Morgan relating to this work.  Bracken’s excuse that his journal containing time records was lost is not really an excuse when the upshot of it was that seemingly it was lost some time after Morgan requested the breakdown.  I accept as accurate Morgan’s memory that Bracken did no work between the two invoice dates on the residence.

[249]     I find that Bracken has failed to establish that he is owed anything more than he was paid by the defendant for Invoice #3 which amount exceeds the claim he has advanced in (a) on his Notice of Claim.  This claim is dismissed.

[250]     I do not intend to repeat a second time all the concerns I raised above in my consideration of the defendant’s evidence (and lack thereof) relating to its $22,289.00 “charge back” concerning this project.  I am not satisfied that the defendant has here proved any damages on the balance of probabilities against the claimant.  His position that the hourly extra work done by Bracken and possibly his helpers was so defective and deficient that it required this level of repair costs offends my common-sense and flies in the face of the evidence twice given by his own right hand man that Bracken’s work seemed to him when he saw it to be up to standard.  He has included amounts in this charge back that do not admittedly relate to Bracken’s work which inaccuracy, in my view, calls into question the accuracy of his entire counterclaim.  Not a single worker of the at least 7 workers referred to on Invoice 850-002 was called to testify at trial.  No photos were filed to show just how bad Bracken’s work was.  I dismiss this aspect of the defendant’s counterclaim as unproven.

[251]     There are four issues that must be resolved with respect to the Alpine project as follows:

[252]     I find on all the evidence in this case that Bracken contracted solely with Timberview to do the work under the demising wall contract.  I accept that Morgan and/or Timberview may have had some oral understanding as to how either were to be reimbursed by AWSE or the company which owned the building on the demising wall contract and that Bracken understood Alpine was Morgan’s client, but none of this affects the status of his contract with the defendant.  Andrew admitted that on the May 11, 2012 contract he understood Timberview would pay the bills and then submit an invoice to the numbered company and it would then reimburse him.  As to extras on the Alpine job, Andrew testified that there was no discussion and implicitly I think too no agreement with Timberview as to who would pay them.  Certainly the evidence in this case seems to support this position.

[253]     With respect to extras, I find that there was an oral contract between Bracken and Timberview that Bracken would do the work at an hourly rate of $45.00 an hour and invoice Timberview.  It is difficult to say when this agreement was reached.  It would have been in the summer of 2012 after Bracken started work on the demising wall and after AWSE (or the numbered company) became aware extra work outside the scope of the May 11, 2012 contract was required to be done by Bracken.

[254]     As to the extras, I find on all the evidence that they were done after the initial May 11, 2012 contract was made and that eventually only Alpine took on the responsibility of paying same to Bracken.  This occurred based on all the evidence likely because Morgan simply told Bracken to pursue Andrew for these time charges and Bracken needing money, did what he was told.  Andrew wanted to get to the end of the project and get his tenant ensconced in the space.  I find that there was a negotiation between Andrew and Bracken likely after October 16, 2012 when Andrew had received both iterations of Exhibit 7 dealing with extras (but not Invoice #8) and that the two men, based on Andrew’s calculations referred to in the above October 16, 2012 email from Andrew to Morgan (and which by his silence on point were really approved of by Morgan) fully and finally settled all Bracken’s claims for extras on the Alpine project.  In accepting the $4,928.00 cheque, Bracken was in essence settling and resolving all such claims against both the owner (Alpine and/or its numbered company) and Timberview.  Andrew and he agreed on what the extras were and how much he should be paid for same.  Thus, insofar as in this action, he is seeking to recover damages against Timberview for extras on the Alpine job, that claims fails and is dismissed.

[255]     I turn now to the claimant’s claim for damages against Timberview for breach of the May 11, 2012 demising wall contract, namely, failure to make I assume the last two instalments.  These would only be recoverable for work done by Bracken pursuant to this contract for which he had not been paid by Timberview.  This claim is not for extras.  It relates only to two instalment payments under the May 11, 2012 contract.  I find that notwithstanding Andrew’s evidence as to the scope of the settlement set out above, that this claim was not settled by Andrew and not part of the settlement of extras.  Thus Bracken may pursue it.  When Bracken testified as to his sole Invoice #8 on point, he said that the balance owing was what he sought to recover against Timberview, namely, $3,243.94.  I was told by Bracken that this was part of his claim (b) in his Notice of Claim and that the total of Invoice #7 issued to Andrew for $6,221.60 was also part thereof.  The correct amount outstanding on Invoice #8 is as above $3,095.00.  Insofar as Invoice #7 says on its face it is for extras, I find that it was fully settled by Andrew when he paid Bracken the $4,928.00 in August 2012 and thus this aspect of his claim (b) in his Notice of Claim is dismissed.

[256]     I also find that save for consideration of the $3,095.00 correct balance on Invoice #7 as above that Bracken has failed to prove any other damages in item (b).

[257]     Hence I now focus on whether or not Bracken having regard to the work he did is entitled to recover under this contract any amount at all.

[258]     The contract expressly provides for payment of three instalments.  The first was not due until 1/3 of the job was complete – frame and plywood.  It does not provide for a deposit before the work started.  I accept Morgan’s evidence that Bracken demanded a deposit be paid July 5, 2012 before any work began and that Timberview paid it.  The defendant thereby in essence waived its right to rely on the strict contractual payment provision for the first instalment.  The defendant does not assert that this first instalment was unearned and hence not due.  I will therefore consider this deposit to have been paid in satisfaction of the first instalment.  The first instalment was $4,865.90 ÷ 3 or $1,621.96 and thus Timberview overpaid this instalment by $148.94, say $149.00.  In my view, this modest sum should stand as a credit inTimberview’s favour against any amount I find it owes Bracken.

[259]     Are the second and third instalments now owing?

[260]     The last third instalment (say $1,622.00) was only due when the job was fully or substantially complete according to the contract.  I find that Bracken never achieved that goal so to speak.  There are on the evidence in this case a number of reasons why he did not and not all of them are his fault.  I accept Andrew’s evidence that he did not always have a proper crew to assist with drywall installation, particularly on the higher parts of the demising wall.  So he got help from AWSE personnel to do this work.  This help is referred to in Andrew’s October 16, 2012 email.

[261]     As well I find on all the evidence that there were changes to the work which occurred after Bracken started the job that both caused extra work and resulted in a delay in his completing his contract.  These changes included building bathrooms or parts thereof, the removal of some 5/8” drywall and installation of 1/2” Type C drywall, removal of stud work, and the erection of a new set of stairs.  I find that these changes and the extra work required and delays associated with them occurred roughly between July 1 and September 30, 2012.  None of these changes were caused by or the fault of Bracken.  They were done as Architect Ventner explains to accommodate a changed tenancy from retail to a gym – a crossfit facility.

[262]     What of the second instalment said to be due when:  2/3 of the job was complete – drywall on both sides?  This of course was before any changes were made to the scope of the work.  I have attempted to set out Bracken’s evidence above on point.  There are clearly inconsistencies in it.  But I find based on all of it, that he did at some point, likely in July 2012 get to the point where the second instalment was due to him under the May 11, 2012 contract as he had effectively and satisfactorily performed the work required.  He explained that by mid-July the steel part and the majority of the drywall was done and that due to changes in the scope of work, one double side of 5/8” drywall was pulled off but one remained intact.  I also accept that Andrew’s analysis which I have dealt with at length above leads to an inference which I draw that 89% of Bracken’s work on the May 11, 2012 contract was done by October 15, 2012.

[263]     It is not entirely clear when Bracken left the Alpine job.  I accept that on or about October 15, 2012, he sent Invoice #8 to Timberview which was never paid.  On October 24, 2012 (Ex. 1, tab 9, p. 29), Morgan emailed Bracken asking for clarification of “everything outstanding with AWSE”.  He concludes:  “Once I see all this information, I can finalize payment”.  He never received the requested breakdown.  I have preferred his evidence on point to that of Bracken.  It is telling that this email does not state, for example:  “You settled all claims against me and AWSE recently with Andrew and I owe you nothing” (if this had by then occurred) or “Timberview owes you nothing further for instalment payments as you never completed the work called for in the contract for instalment two”.

[264]     I am not of the view that Bracken abandoned this contract.  He left as he was legally permitted to do because he was not being paid.  At some point Morgan and Andrew seemed to develop a dispute as to which of them should pay Bracken.  Bracken was a one man show and entitled to be paid fairly if he was to continue his work.  When he was on the job, Andrew said he was a hard worker.  I find he did not abandon the contract before the second instalment was completely earned.  Even if he had, any later abandonment after the instalment was due would not give Timberview a right to refuse payment on the second instalment (see Hudson extract above).

[265]     If I am wrong on this analysis in the event drywall was not installed on both sides of the demising wall, I would reach the same result as I have in a different way.  Andrew and the project owner changed the scope of the work in the middle of the contract as a result of a fitness studio tenant signing a lease requiring various changes to the work required on the demising wall itself – ½” drywall on one side and a set of stairs to the mezzanine level.  Bracken was required to redo some of the work he did on the demising wall and would be entitled to recover on a quantum meruit basis at the very least.

[266]     Doing the best I can with all the evidence bearing on what work Bracken completed, I award damages of $1,622.00 - $149.00 (see paragraph 258 above) or $1,473.00 against Timberview subject as well to a deduction of a further $148.00 (see paragraph 207 above) or $1,325.00.

[267]     In the counterclaim forming part of Timberview’s reply filed July 2, 2013, Morgan seeks damages against Bracken in the amount of $15,000.00.  He had explained the basis for his claim in Schedule B attached.  It says this in part:

[268]     On November 30, 2016 when testifying, Morgan described this as “the heart” of his counterclaim against Bracken with respect to this project.  Following his reply, he prepared a “charge back” Invoice No. 848-003 against Bracken Tree Consulting dated October 2, 2013 in the total amount of $11,009.58 (Ex. 2, tab 17, p. 34).  Morgan said he emailed this to Bracken and believed that he had received it. 

[269]     Bracken testified that he had not and that he first saw it when Timberview produced copies of relevant documents in the case.  Nonetheless this charge back was the basis of his counterclaim at trial.

[270]     The focus of Morgan’s evidence at trial relating to the counterclaim was all the work referred to on it was work within the scope of the work that was required or ought to have been done by Bracken.  This may generally be so, but on all the evidence in this case, it is clear that Bracken initially agreed to build a demising wall only as per his May 11, 2012 quote which formed the basis of the original contract I have found existed between Bracken and the defendant.  Later he agreed to do extra work not part of the original contract.  I have found that he settled with Andrew for this work following Andrew’s October 16, 2012 email to Morgan and which email Morgan understood had been sent on to Bracken.  I have found that Morgan essentially agreed with Andrew’s assessment of Bracken’s work and that Andrew excluded the cost or amount of the demising wall contract in his calculations.

[271]     I will first deal with what aspects of the defendant’s counterclaim and charge back I find relate to work under the original May 11, 2012 quote/contract.

[272]     In my view Timberview has no supportable counterclaim against Bracken for work done on extras as Bracken’s claims for same were fully settled with the $4,928.00 payment and on the basis I have found that Bracken could thereafter no longer pursue AWSE or Timberview for same and neither could AWSE or Timberview pursue Bracken for work done related to the extras.  Timberview must, if it wants the benefit of the payment, bear the corresponding burden that flows from it.  I have above implied a term into the settlement to this effect.

[273]     According to the chargeback, Matt Chamberlain, a carpenter in the full-time employ of the defendant, did 16 hours of work on October 25 and 26, 2012 and the work related to three tasks:

[274]     I am not of the view that the charge out rate of $65.00 an hour for Timberview workers is appropriate as this includes some profit for the defendant.  A fairer rate in my view for Mr. Chamberlain would be the above rate of $42.90.  Of the three jobs done by Mr. Chamberlain, only one (item 2) relates to work that was part of the demising wall contract as opposed to a settled extra.  Doing the best I can with the evidence and absent any Timberview time sheets, I award 8 hours for this task or $42.90 x 8 = $343.20.

[275]     I award nothing for Mr. Caruana based on his rather vague evidence to the effect that he went there one evening to deliver some tools – he did not say what and got cornered into lifting a couple of drywall panels on the second level.  It is not clear this related to extra work or work under the demising wall contract.  He worked and got paid for a couple of hours.  Otherwise he stood and watched Morgan doing drywall work pretty much on his own.  This evidence and that given by Morgan on point, in my view, does not amount to requisite proof of this aspect of the counterclaim.

[276]     Tom Rudgoza was a carpenter who did drywall around a column bearing a steel beam, part of the unit’s roof structure.  This work was required to protect the column from buckling in the event of a fire as explained by Morgan.  He was paid $28.00 an hour by the defendant and the hard cost as above would therefore be $28.00 x 1.30% or $36.40 per hour.  I accept that he worked 8.5 hours and that what he did was work Bracken ought to have done to properly complete the demising wall contract.  The total cost I award is $36.40 x 8.5 hours or $309.40.

[277]     Morgan testified that he too helped on October 25 at Andrew’s request commencing at 4:00 p.m. and did drywall work that was required finishing uncompleted work that Bracken ought to have done most notably installing missing drywall, drywall mudding, and taping to meet fire code requirements.  I am satisfied he did such work and that it related to the demising wall contract.  Caruana observed him doing it.  But he charged himself out at $130.00 an hour or double time for every hour based on a journeyman carpenter’s charge out rate of $65.00 an hour.  I accept the work he did ought to have been done by Bracken.  There is no reasonable basis in my view to award damages at $130.00 an hour.  In my view, Morgan worked as a carpenter and in the Timberview counterclaim, it should recover for Morgan’s work at Chamberlain’s rate or $42.90 x 10 hours or $429.00.

[278]     Morgan has included on the Alpine charge back Invoice #848-003 an amount of $6,517.66.  This is said to be an amount that AWSE says that Timberview is responsible for on the Alpine project because of Bracken’s conduct.  It is particularized in Ex. 2, tab 19, at p. 36, which is a document prepared by Alpine’s accounting department.  The total amount thereon as understood by Morgan comprises labour costs incurred by 3 to 4 AWSE employees who worked on October 25 and/or 26 to help complete the demising wall work ($880.87) and Morgan thinks two invoices for a Shane Bennett, a drywaller AWSE retained to complete what Morgan said was “a large part of Bracken’s work”.  He had never seen the invoices totalling $2,534.67.  Lastly, the above AWSE accounting includes an entry for loss of rental income for October of $3,102.12. Morgan understood this was an amount AWSE lost for this month due to delays on the Alpine project, the responsibility for which clearly Andrew felt was to the defendant’s account as they were all caused by Bracken.  This is far from clear on the evidence I have heard in this case.

[279]     Morgan received this accounting because he put together an Invoice #848-006 in the amount of $12,575.24 (Ex. 2, tab 48, p. 309) and sent the same to the numbered company which he understood owned the work likely in November 2013.  This invoice included a materials cost, a claim for a drywaller, and the 36 hours he and the above three Timberview employees had worked on the Alpine project all at $65.00 an hour ($2,340.00).  He sent this invoice to this company as I understood his evidence because (a) he had an expectation that he would be paid for the work Andrew had asked him to help with the night before the final inspection on October 26, 2012 and (b) when he initially agreed to help Andrew out on the Alpine project, he and Andrew agreed that Timberview would invoice the numbered company for some of the above costs, for example materials used, and be reimbursed.

[280]     Timberview has not been paid on this invoice and the above accounting has thus far been in essence AWSE’s response.  No lawsuit has as yet been started by Timberview or AWSE (or the numbered company) to seek to recover these amounts.  Nor has the defendant paid the $6,517.66 to Alpine or anyone.  Morgan said it was included in his charge back because if he had to pay it to Alpine, he felt Bracken should in essence pay it in the first instance.

[281]     This aspect of the counterclaim lacks merit and fails.  It is not an out-of-pocket expense the defendant has incurred and there is no evidence that it will ever be responsible for some or all of the component amounts.  There is a great deal of speculation involved in this aspect of the counterclaim.  I note some AWSE labour costs were taken into account as a credit for AWSE in the October 16, 2012 email calculations referred to above.  If in that way AWSE was earlier reimbursed for these costs by paying Bracken less, it would seem difficult to support their being properly claimed again against the defendant.

[282]     The 15% mark up in materials claimed at $977.65 is merely 15% of the above unproven $6,017.66 and was not explained in evidence.  This claim fails.

[283]     The GST is merely 5% on all claimed amounts.  It is proper addition to any award I make.

[284]     The total award I make on the counterclaim solely for labour costs which I accept the defendant incurred and for which it paid its employees is thus as follows:

[285]     Adding 5% GST ($54.08), the counterclaim award becomes $1,135.68, say $1,136.00.  The defendant will recover this amount against the claimant in this action.  He is entitled to set this amount off the amount recovered by the claimant $1,325.00 and in the result the claimant will recover $189.00 against the defendant.  This award will bear court order interest from October 31, 2012 to the date of these Reasons.  Success in this matter was divided and each party will thus bear all their own costs.  While the claimant might be seen as the successful party recovering $189.00 as he did, under Rule 20(2), I have a discretion not to award him his costs.  It would not be fair having regard to the history of this matter and the result achieved to do so and where, but for his recovery of a very small amount after a lengthy trial, neither party was clearly successful and certainly not substantially successful.  I have considered the case of Citta Construction Ltd. v. Elizabeth Lane Holdings Ltd., 2004 BCSC 280 in coming to this decision on costs and am alive to the amount of claim and counterclaim and the fact that the claimant recovered a larger percentage of his pleaded claim than did the defendant.

[286]     This then is the decision I have come to on the merits of this case based on the evidence I heard at trial.

[287]     In his closing submission given on December 12, 2016, Mr. Morgan invited me to dismiss the claimant’s claim not on the merits and on the evidence but for want of prosecution or as an abuse of process.  He filed a lengthy written memorandum in large part on this point, but also dealing with the merits of the claimant’s claim.

[288]     I have carefully considered Mr. Morgan’s 20-page written argument and a further 23 pages of various attachments and cases in support.  He very helpfully filed a law brief with copies of the six cases he relies on in support of his application.  I have considered these cases.  All can be distinguished on their facts.  I do not intend to deal with all of these cases one by one.  In Kemp v. Dickson, 2006 BCSC 288, Mr. Justice Groberman notes at para. 23 the respondent’s reliance on the case of Homer Estate v. Eurocopter S.A., 2003 BCCA 229, where the court noted that striking a pleading was a draconian remedy only to be invoked in the most egregious cases because it deprives the litigants of a trial on the evidence.  So too does a dismissal for want of prosecution and I am of the view that this principle in Homer can be considered whereas here, an application is made to dismiss for want of prosecution.  It should only succeed in the clearest of cases where there is egregious delay causing real prejudice to the applicant.  Otherwise, it is the business of the court to do what I have done – decide cases on the merits.

[289]     At the trial, I expressed some concern that a judge of this Court had the jurisdiction to dismiss a claim for want of prosecution; something Mr. Morgan urged me to do on December 12, 2016 in his closing argument.  He then drew to my attention a decision of Threlfall PCJ in Gradley v. Doig Baily et al, 2000 BCPC 25, wherein he considered an application brought by the defendant to dismiss the claimant’s case for want of prosecution at which application the claimant was represented by counsel and dismissed the claimant’s claim seeking apparently damages for wrongful dismissal.  This order was made after hearing all the evidence at trial on the basis that the claimant had not in 20 months filed a written argument dealing particularly with issues of credibility as directed by the court after the trial concluded.  He took the view that the claimant is not doing so had essentially abandoned its case as a result of the evidence at trial and that further delay would prejudice the defendant.  He found that the discretion he had was based on s. 2 of the Small Claims Act and Rule 19(1).  Thus this case might seem to support the view that I do have a discretion (and jurisdiction) to dismiss a case for want of prosecution and potentially even after all the evidence is heard at trial.  I find this latter proposition unsettling in the extreme.  The decision in Gradley surely is fact driven.  The claimant was a lawyer and had been directed to file a written argument, was 20 months late in doing so, on at least two occasions Threlfall PCJ had directed Registry staff to contact the claimant (which assumedly occurred) with no result and he found in essence as a fact that the defendant could take the view that the claimant had abandoned his claim as a result of the evidence at trial.  He found the unexplained delay was such that the defendant was likely to be prejudiced by it.  Thus he granted the application to dismiss for want of prosecution.

[290]     When noted up with Quickcite and other case law databases, it appears that Gradley has not been followed at all anywhere by any judge in this or any other court.  In my view, I am not bound to follow the Gradley decision as I would be a decision on point of a higher court confirming that a Provincial Court Judge does has the jurisdiction which Threlfall PCJ said it did.  In my view, a closing submission especially where a party is represented by counsel can be helpful in assisting a trial judge decide a case, but they are surely not mandatory.  Whereas here for whatever reason a party (the claimant) elects not to make one, in my view that should not preclude the trial judge from deciding the case based on the evidence and his own findings of fact including on credibility of parties.  Thus, I choose not to follow Gradley.

[291]     I am not of the view having considered all the facts and circumstances of this case, including its history through our Court, that the defendant should succeed on this aspect of his closing submission.  I do not find there has been inordinate delay in this matter.  It is true there were 8 trial days.  It is also true that both parties were unrepresented.  The defendant filed a document binder with over 300 pages of materials.  His cross-examination of Bracken was extensive and time consuming.  Some of it was really argument.  Some of it was repetitive.  He commenced calling his evidence on June 6, 2016.  The better part of the last four trial days were taken up with his evidence and closing submissions.  And Mr. Bracken had a grade 8 education.  In my view, Morgan must take some responsibility for the time it took to conclude this trial.  I am also of the view that such delay as occurred is excusable where the facts of the case were far from straight forward and as well the exact legal relationships between the parties and others were in issue.  The real world in the Small Claims Division of the Provincial Court of BC is that notwithstanding the sentiment expressed in Section 2 of the Act and Rules which is to allow litigants in this Court to have claims resolved in a just, speedy, inexpensive, and simple manner – the reality often is that a party, here the defendant for example, files a trial brief with 300 documents or pages, lengthy written arguments, and a multitude of cases.  A further aspect of the reality of such cases is that often the unrepresented litigants do not understand the court process or as here, one does very well, and the other, the claimant does not.  Construction and renovation cases in my experience are often among the worst compared to other civil actions for requiring as here significant court time.  Often some of this court time as here occurred is used in pursuing claims that lack any real merit, for example that aspect of the counterclaim or charge back in the case at bar relating to the Alpine accounting of $6,517.66.

[292]     In my view, the defendant applicant has failed to show that any delay not caused by him prejudiced his presentation of his side of the case at bar.  The one witness who moved away – his bookkeeping assistant whom he claims the claimant essentially threatened could not I think be described as a particularly material witness for the defendant in any event.

[293]     I dismiss the defendant`s want of prosecution application.  I have chosen to decide this case on the merits having first heard both parties’ evidence.