IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The claimant company provided landscaping services to the defendant homeowner between May 29, 2017 and June 10, 2017.  The relationship between the parties broke down prior to completion of the project.  The claimant says the amount of $9,200 is owing for services rendered.

[2]           The defendant says the claimant’s work was deficient and incomplete.  He seeks dismissal of the claim and counterclaims for $9,428.56, the amount needed to complete the work and correct the deficiencies.

[3]           The parties agree that they entered into a fixed price contract of $20,000 all-inclusive for specified landscaping services plus additional charges for variables such as drainage.  From this base amount there must be added the extras requested by the defendant, and there must be subtracted the deposit paid and additional amounts for work not completed.  The parties disagree on the value of some of these amounts and whether the defendant has proved deficiencies in the work done that should result in compensation to him.

[4]           The issues to be resolved are:

[5]           The evidence on this trial was heard over three partial days on July 9, 10 and 12, 2018.  Due to a shortage of time for argument, the parties agreed to proceed by way of written submissions.  I have considered the claimant’s submission filed July 18, 2018, the defendant’s submission filed July 26, 2018 and the claimant’s reply submission filed August 3, 2018.

[6]           On the trial, the claimant company called two witnesses, its principal Tyler Parke and its operations manager Matt Young.  The claimant’s book of documents was marked as Exhibit 1.

[7]           He has been in the landscaping business for 16 years.  He is the owner and president of the claimant company since 2002 when it was formed.  The business provides landscaping services including excavations and installations.  They have 25-35 employees with 2.5 million in annual sales.

[8]           His first contact with Mr. Gibson was in July 2016.  The contact was in regard to the installation of a synthetic lawn for his backyard.

[9]           He prepared an estimate for removal of the existing backyard, and installation of a synthetic lawn, and emailed it to the defendant.  The initial estimate is found at p. 1 of Exhibit 1.  It is dated July 7, 2016 and under the heading of “materials” it states:

[10]        Under the heading of “Labour”, the estimate is “nil”.

[11]        Discussions petered out and the job was put on hold.  A revised estimate was prepared in October 2016 and is found at p. 4 of Exhibit 1.  Under the heading of “materials” it states:

[12]        The new total was $24,533.25 including 5% GST.

[13]        The changes from the first estimate were based on site discussions with Mr. Gibson.  The job was put on hold to the spring of 2017.

[14]        In March 2017, another estimate was provided to Mr. Gibson.  It is found at pp. 6-7 of Exhibit 1.  Its format is different than the first two estimates:

[15]        In this revision there was a small material change to reduce the cost.  They also discussed a retainer wall on the south property line, as per the 5^th and 6^th line items.  There was the cost related to the access point through the neighbour’s property.  As a general practice there is no fixed price estimates due to uncontrollable elements.  Until you start the excavation you do not know how many rocks will have to be removed and drainage costs.  Things become clearer after excavation starts.

[16]        This estimate led to more discussions with Mr. Gibson.  He was focused on a budget of $20,000.  The difference between the two was not great, so he thought it was workable to proceed and agreed to work within that budget.  However, there were still unknowns including the drainage, remediation of the neighbour’s property as it was being used for access, and removal of rock debris.  These items were not included in the $20,000 price.

[17]        He was given the go ahead for the project by Mr. Gibson on April 24, 2017, and the work started on May 29, 2017.  The last day of work was June 10, 2017.  The work proceeded as planned with some changes requested by Mr. Gibson.

[18]        One of the changes was to install a sport court adjacent to the shed along the east side of the yard instead of the lawn.  This is depicted in the diagram he prepared at p. 8 of Exhibit 1.  The lawn area is thereby reduced from 1550 square feet to 1380 square feet.  A sport court base was installed with large 2 x 2 patio pavers.

[19]        Another change requested was the removal of the deck and hot tub along the west side of the yard (abutting the house) and relocating it to the north side of the house, away from the backyard.  This left an additional area to be excavated and covered with synthetic lawn.  Also the existing north side walkway and retaining wall was to be moved a few feet north, closer to the property line, requiring the removal of the cedar hedge and adding more lawn space.

[20]        The area of grass was changed to compensate for all these changes.  The net effect was 1380 square feet of grass was now required taking into consideration the loss of grass for the sport court area and the new requirement for grass where the deck and hot tub were located.  The cost for the lawn is $10-12 per square foot.

[21]        On June 13, 2017, he forwarded a summary of costs to date to Mr. Gibson.  It is found at p. 37 of Exhibit 1.  It reads in part:

[22]        The sport court installation was added to the project.  This was a play area for the children.  The extra cost is $5,550 to $5,850 on top of the budget.  Mr. Gibson did not ask for an estimate in advance of the work being done.  The cost is $12 per square foot for materials and labour.

[23]        Mr. Gibson wanted turf cloud to be added as a cushion or matting underneath the synthetic grass to provide a softer play area.  Mr. Gibson was sent the cost of this in a text message on June 9, 2017 and he said it was okay to add it on.  The cost is $1,800.  The turf was not installed by them as they did not get to that part of the job before the termination.

[24]        The removal of the deck and hot tub, and relocating it to the side of the house was an additional item.  This led to an additional area to prepare for grass installation.

[25]        The drainage charge was reduced to $750 including materials and labour.

[26]        The rock bin was needed for removal of boulders in the yard.  During the excavation, boulders were taken out of the ground and put in a bin.  The boulder removal was always considered an extra cost.  They excavated quite a few rocks.  It was very rocky ground.  They removed one load with the equipment they had.  Given the type of access they did not handle the other rocks.  Mr. Gibson dealt with it.

[27]        Regarding the cedar hedge removal and fence posts installation, the cost was $660.00.  A cost of $150 to $180 per post is standard.

[28]        Photos taken on June 20, 2017 at pp. 56-61 depict the state of the project as at that date.  The hot tub and deck were moved.  Excavation work was done.  Six inches of material was removed.  Drainage was completed.  Road base was in place and near ready for the synthetic lawn installation.  Some minor grading was needed.  The retaining wall was moved north and rebuilt.  The paving stone walkway was installed.  The sport court was installed with a base of 2 x 2 concrete pavers.  The hot tub was relocated to the north side of the house.

[29]        The photograph at p. 60 of Exhibit 1 shows the sunken patio abutting the residence in the southwest corner of the backyard and this is the lowest point of elevation.

[30]        The photographs at pp. 62-64 of Exhibit 1 were taken by him around July 7-10, 2017 and show that the synthetic lawn had been installed.  It was installed by someone else.  He did not notice any change to the grades that he had left.  There were no changes to the base materials that had been installed.  No steps had been added to change the level of the sunken patio, but maybe some minor grading had been done.  He did not see any changes to the area around the sport court.

[31]        The first indication that Mr. Gibson was unhappy with the work completed was in response to his June 13, 2017 email.  He was unhappy with the grades and elevations.

[32]        A deposit of $10,500 was made by Mr. Gibson on May 30, 2017, so as of June 13, 2017 there remained $10,711.11 owing.

[33]        He met Mr. Gibson on site on June 20, 2017.  That meeting focused on the elevation between the sport court and sunken patio area.  There was an elevation drop of 9 inches between the two.  The sunken patio was at the lowest elevation and the shed in the northeast corner of yard was the highest point.

[34]        If the sport court was not requested and the grass was installed from the shed to the sunken patio, the resulting slope would have been 1 to 2 inches.  The installation of the sport court was made level to the shed, so this required them to adjust the grade over a shorter distance.

[35]        In their June 20 meeting, they talked about solutions to the slope issue.  They discussed building a step up to the shed or adding height to the sunken patio.  Either option would involve additional work and add significant cost not contemplated in the estimate.

[36]        Between June 20 and 26, emails went back and forth.  He tried to provide solutions, but felt he was being attacked by Mr. Gibson.  The parties could not achieve a resolution and their relationship ended.

[37]        Starting from the $20,000 agreed to figure, Mr. Gibson is entitled to certain credits as some work contemplated was not performed or finished, and there should be debits for the additional work requested.  He agreed that a $10,500 down payment was made by Mr. Gibson.

[38]        Exhibit 2 is on “Ongoing Invoice Document” that summarizes the material and labour costs on the job.  It generally summarizes what was done prior to the work concluding on June 10, 2017.

[39]        He concedes that the job contemplated was unfinished.  The lawn had not been installed.  So this would reduce labour and material costs in the amount of $11,500 from the estimate.

[40]        The walkway pavers were not compacted down.  They needed to be levelled with a heavy compactor.  Additional pavers needed to be cut and added to the walkway to meet up with the retaining wall.  This would only take one half day of labour to complete at a cost of $160.

[41]        The credits or additions to the account include the sport court ($5,850), deck and hot tub removal ($660), drainage ($750), rock bin ($650), fence post installation ($650), and preparation of the area under the removed deck and hot tub ($1,500).

[42]        In cross-examination he gave the following further evidence.

[43]        His estimates are variable depending on the job.  Generally there is a mark-up of 20% on materials, and a mark-up on labour costs.  He knew Mr. Gibson would be relying on the estimate.  He agreed that Mr. Gibson advised that his maximum budget was $20,000, but he was never told that he would not be hired if the cost was not $20,000.

[44]        He provided only an estimate of the cost of the work identified.  There were some variables and he tried to merge the distance between the estimate provided and Mr. Gibson’s budget.  He suggested to Mr. Gibson to buy some materials at cost.  He offered to allow Mr. Gibson to pay him cash for materials.

[45]        Generally he does not do work under the table, but sometimes clients pay cash for materials.

[46]        An email from March 27, 2017, sent by him to Mr. Gibson was put to him.  It reads:

[47]        In his June 13, 2017 update email, he seeks an extra grass charge or credit of $1,500 since the grass rolls are 15 feet wide, and there is an additional area to be covered between the sunken patio to the walkway due to the removal of the deck and hot tub.

[48]        He estimates an $11,350 reduction to the original estimate since he did not purchase or install the lawn and turf cloud.  But this deduction is offset by the additional items requested to be done.  He denied double counting items.

[49]        On the north side they installed four fence posts.

[50]        The March 6, 2017 estimate contemplated a south side retaining wall.  A discussion led to a decision to move the north retaining wall instead.  He disagreed that the fence posts were part of that swap.  He agreed to take out the north hedge, excavate the stumps, dismantle the existing wall and caps, excavate material behind the retaining wall, reassemble it further north (i.e., closer to the north property line) and reinstall it.

[51]        Mr. Gibson did not know what he wanted to do with the north fence yet, so it was not part of the price swap.  The fence posts were added later.

[52]        The retaining wall was not finished by them.  The wall caps needed to be glued down.

[53]        He recalled Mr. Gibson complaining on June 20 about the retaining wall not being straight.  Mr. Gibson had changed the design or the corner of it in the last week, so it was not completed.  They had to cut paving stones, lay them down, and rebuild a portion of the wall near the shed.

[54]        He disagreed that the retaining wall was sloping and leaning.  He viewed the photograph at p. 64 of Exhibit 1 and it was the way they left it and he does not see any issue with it.

[55]        Reference was made to Exhibit 3, tab 1, p. 34.  It is an email from Mr. Gibson to him with some embedded quotes from his (Mr. Parke’s) correspondence.  It states:

[56]        Reference was also made to Exhibit 3, p. 26, a text message of May 31, 2017 where Mr. Gibson wrote to him:

[57]        He (Mr. Parke) responded: “Likely a better plan.  Wall was sloping and pacers were wonkey.”

[58]        The drainage cost was reduced to $750.  He initially suggested a $1,500 budget, but the excavation discovered some existing drainage.  He was told this by his foreman.  Some additional drain lines were put in from the shed to the house.  The cost for the PVC pipes and fittings was $220.

[59]        Regarding the March 3, 2017 estimate, he denied the suggestion that the second component of removing the boulders from the backyard and the eighth component that refers to the jack hammer for rock removal, moving rocks and digging holes to put them underground, could be seen as the same item.  The boulders were removed from the backyard.

[60]        The eighth component regarding excavation was left as a variable in the estimate.  The cost could not be determined until the excavation was done.  It could be simple or very challenging.

[61]        He would not be surprised if it cost Mr. Gibson $5,000 to remove the uncovered rocks.

[62]        Invoice #227 dated May 30, 2017 found at Exhibit 3, tab 5 was referenced.  This is the materials deposit invoice for $10,500.00 including GST.  There is a message to Mr. Gibson on the invoice as follows:

[63]        He agreed the note to Mr. Gibson did not make reference to additional costs for rock removal.  He was aware that the budget was important to Mr. Gibson.

[64]        Reference was made to an email dated June 2, 2017 from him to Mr. Gibson.  It reads:

[65]        He agreed that they were already one week into the project from May 29 to June 2.  He agreed there was nothing specific stated about being over budget.

[66]        Reference was then made to an email from him to Mr. Gibson dated June 7, 2017.  It reads:

[67]        He agreed that in this email he did not alert Mr. Gibson to cost overruns.

[68]        The next email is dated June 13, 2017.  This was sent after all labour was completed up to June 10, 2017.  This is the first mention to Mr. Gibson that the budget to complete the work is now up to $32,550 from $20,000.

[69]        He denied that Mr. Gibson first contacted him in relation to levelling the backyard.  He also denied that Mr. Gibson could have had that discussion with his carpenter Pete back on June 28, 2016 when Pete attended the first site meeting on his behalf as that was not the purpose of the meeting.  The purpose of that meeting was to meet Mr. Gibson and see the backyard.

[70]        Reference was made to an email from him to Mr. Gibson on November 27, 2016 that has similar language to the second item on the March 6, 2017 estimate.  The email reads:

[71]        He agreed that, in part, this email addresses how to make the backyard more level.

[72]        He agreed that the photograph in Exhibit 1, at p. 64, is taken from the northeast corner of the property, beside the shed, and it depicts the north side retaining wall, and walkway of pavers completed by another party.  The elevation beside the shed had not changed.

[73]        He disagreed that the plan was to raise the elevation further west where the hot tub had been moved to.  There was no plan to raise the elevation beside the house.  The southwest side is the lowest point of the yard.  There is more slope directed north to south than east to west.  The property drains in a southwest direction.  The shed is at a fixed elevation and so is the house.  There is a walkway between the two.  Referring to the email, the plan was to raise the paver walkway in two areas - the walkway in front of the shed and the north walkway.  That way the pavers were brought up to meet the grass.

[74]        The estimate indicated removal of 6 inches of material to be replaced with 6 inches of material.  The distance from the corner of the shed to the corner of the sunken patio was approximately 50 feet.  By installing grass in that entire area the slope would have been 1-2 inches.  However, the installation of the sport court at shed level, affected the slope grade between the southwest corner of the sport court and the sunken patio.

[75]        The higher ground excavation needed to be replaced with 6 inches of material as the artificial grass needs 6 inches of room to be installed.  The shed was on a two inch foundation and could not be excavated deeper.

[76]        The reference to dropping the elevation of the post 6 inches, the second item on the March 7, 2017 estimate, refers to the back of the yard to the east.  The fence on the east side back of the property had to be removed for the access point to the yard.  The garden bed in the southeast corner was removed along with the posts and fence.

[77]        The photograph at Exhibit 3, tab 4, p. 28, demonstrates a 9 inch slope in the yard from the edge of the sport court to the sunken patio by reference to a level.

[78]        Discussions regarding levels did not arise until later.  The grade was set over 6 inches of removed material, and then the sport court added afterward.  He believes that decision was made on June 6 or 7.  The sport court addition is to blame for the levelling issue.

[79]        He clarified that what he means by an estimated 1-2 inch slope, is 1-2 inches over every 10 feet.  The 9 inch height difference from the shed to the sunken patio was never planned to be changed.  A complete level backyard was not part of the estimate; it would require a more significant excavation and bigger price.

[80]        On re-examination he added that without the extra work they would have arrived on budget.

[81]        He has worked for the claimant company for the last two years.  He is an operations manager.  He recalls that Mr. Gibson requested some changes such as removal of the deck and hot tub at the back of the house, relocating the hot tub to the side of the house, adding drainage to the backyard, and adding extra grass to replace the deck and hot tub area.

[82]        He calculated the additional synthetic grass in his head to cost about $800 based on 250 square feet.  Mr. Gibson did not seek an estimate from him and they did not talk about the cost of drainage.  This was for the area that had been occupied by the hot tub.  His last visit to the job site was perhaps around June 4 to 6.  He did not hear any complaints regarding the slope of the property from Mr. Gibson.

[83]        In cross-examination Mr. Young gave the following further evidence.

[84]        He is paid a salary of $94,000 per year and this is the best paying job he has ever had.  The $800 mentioned was only for the synthetic turf and not for prepping the area.  The sport court had not yet been installed when he attended the site.  He cannot say how many drainage pipes were needed, but they cost $20-$30 each for a 10 foot length and 4 inch diameter.  He told Mr. Gibson that the additional drainage was no big deal as it was a simple drainage job, and nothing out of the ordinary.

[85]        That concluded the evidence on behalf of the claimant.

[86]        The defendant called two witnesses, himself and Mr. Curt Angelluci, and relies on the exhibits filed.

[87]        He is Mr. Gibson’s neighbour and has experience in carpentry and general construction jobs.  Mr. Gibson had approached him about the landscaping project.

[88]        Mr. Gibson discussed levelling out the yard and replacing the grass with artificial turf, and possibly adding a sport court to the right of the shed.  He vaguely recalls a discussion of a $15-$20,000 price, but they did not proceed any further.

[89]        Mr. Gibson consulted with him during the project and he dropped by once or twice.  He also attended a meeting with him and Mr. Parke to try to mediate a resolution of their impasse regarding deficiencies with the job.

[90]        The big issues were the levelness of the property, the retaining wall on the north side that had been moved not being straight at all, and the paving stones being uneven and not straight.  Also the caps were not glued down.  The wall did not follow a straight line and it was leaning in places.  The walkway pavers were uneven and not flat to each other.  There was a tapered gap between the pavers and the retaining wall, and the gap became narrower as you moved from the back to the front of the house.

[91]        The yard was visibly not level.  It was dramatically sloped from the back of the property to the front of the house.  At that time maybe half the sport court was built.

[92]        There was a discussion of solutions.  He (Mr. Angelluci) suggested to dig down the property towards the shed, around the shed, remove that material, and level it out more; or add another 2 stairs, concrete stairs, towards the house where the sunken patio was, and fill the property and remove some of the siding.  He does not recall if a price was discussed to solve this issue.

[93]        In cross-examination Mr. Angellucci gave the following additional evidence:

[94]        He resides at 1542 Edgewater Lane, North Vancouver, with his wife and three young children.  He is employed as a teacher in the West Vancouver School District.

[95]        They have owned the home for nine years and have done some upgrades including backyard drainage.

[96]        Regarding the backyard he wanted to maximize the usable space and level it off.  The east side, back of the yard, is a lot higher than the west side, which is the front of the yard closest to the house.  He was concerned about the slope and water flowing towards the house in heavy rain.

[97]        Some additional drainage was added between the sunken patio and the hot tub area due to water build-up that was bad one year.

[98]        He consulted with his neighbour Mr. Angelluci about levelling the yard and installing artificial turf.  He started to save money for the project.  He had a maximum budget of $20,000.

[99]        He wanted the backyard project to be completed for the summer of 2017 as they had guests scheduled to visit at that time.

[100]     He contacted the claimant company in 2016 and Pete did a site visit.  Mr. Parke did not attend the first visit.  At this visit they discussed his plan for a level backyard and artificial turf.

[101]     The email of November 27, 2016 from Mr. Parke excited him as it seemed they had a plan to level the yard.  The email is found in Exhibit 3, Tab 1, at p. 2.  It reads:

[102]     In response to the second quote of October 10, 2016, he sent an email to Mr. Parke on December 2, 2016 advising that the estimate of $24,533.25 was too high for him, and asked if he took up the pavers and moved rock himself how that might impact the price.  He did not receive any response to the email.

[103]     The email from Mr. Parke dated February 16, 2017 also indicated to him that levelling the backyard was a realistic goal.  It is found in Exhibit 3, tab 1, at p. 3 and reads in part:

[104]     They met the next day and discussed the levelling issue which was his main goal of the project.  It was important to him as his children play soccer and it increases the value of north shore properties.

[105]     The next estimate was provided on March 6, 2017 and it came to $23,630.25.  This was above his $20,000 budget and not affordable.  In subsequent emails Mr. Parke agreed to work within his budget of $20,000.  In the email of March 27, 2017, Mr. Parke suggested part of the payment could be made in cash.

[106]     The work started on May 29, 2017.  In one day a lot was done.  The excavation was well underway and he commented on how hard the claimant’s employees had worked.

[107]     He requested some changes in the first week.  The first change was to not proceed with a 51 foot Allan Block retaining wall along the south side of the yard but instead move and rebuild the north retaining wall, as it was leaning and crooked.

[108]     The second change was to remove the deck and hot tub from the backyard and move it to the north side of the house.  Moving the hot tub seemed like an obvious decision because if the elevation was lowered around the hot tub they would have to build a retaining wall against the hot tub.

[109]     There was also a discussion regarding the sport court that was planned from the beginning.  Initially it was going to be a grass surface but he opted for pavers.  He knew there would be an additional cost.  He was not provided with an estimate of additional costs associated with these changes.

[110]     The deposit Invoice no. 227 dated May 30, 2017, indicated the budget was still in check.  The note on the invoice reads:

[111]     The parties did not get together later that first week to discuss costs.

[112]     The next email from Mr. Parke was on June 2, 2017 and he interpreted it to mean that they were still on budget and on task.  It is found in Exhibit 1, at p. 32 and reads in part:

[113]     He asked Mr. Parke for a budget of updated costs but did not receive a response until June 7, 2017.  Mr. Parke indicated that he would have an updated costs-to-date soon.

[114]     He requested a meeting with Mr. Parke but it did not take place.  The sport court was installed during the second week of the project.

[115]     The email of June 13, 2017 from Mr. Parke was the next time he heard about costs.  It indicated that a total cost of $32,550 was now estimated.  The email felt like a punch to the stomach and his heart dropped.

[116]     He takes issue with a number of the extra charges.

[117]     The amount of $1,500 for the larger overall grass area seems high to him.  The deck and hot tub area was small, and since the area was at a lower elevation there should have been less excavation required.

[118]     The sport court cost of $5,500 to 5,800 was high.  The excavation had already been completed.  There would be an additional cost for subsurface and pavers but they could have considered buying seconds.

[119]     The $750 for drainage was upsetting since the drainage issue had been dealt with previously and there was no more pooling of water.  The claimant’s employee had told him that the additional drainage was no big deal.

[120]     The $660 fence post installation on the north side could have been included in an offset related to the swap for abandoning the south side retaining wall.  But he understands how the claimant might see this as an extra and agrees to include it as an extra in the overall calculation.

[121]     He met with Mr. Parke a few days later.  He advised Mr. Parke of the deficiencies and hoped to mediate a resolution.  He had his neighbour, Mr. Angelluci, attend to assist.

[122]     The issues discussed included the north side retaining wall and the walkway.  The wall was not finished.  It was leaning and crooked.  The caps were not glued down.  The gap between the walkway and the wall was not uniform and not filled in.  He wondered why the walkway did not abut against the wall in a neat way.  He expected the rebuild to produce a straight and non-leaning wall.

[123]     Also, the purpose of moving the retaining wall further north was to gain more space in the yard.  He had asked for the retaining wall to be moved to the property line.  Mr. Parke suggested one foot from the property line, but it was installed 31 inches from the property line.  (Note: Exhibit 3, tab 4, photo 5 shows by reference to a measuring tape that the north retaining wall is placed 22 inches from the north property line, and is 9 inches wide, and therefore ends 31 inches from the property line.)

[124]     There are text messages from May 31, 2017 in Exhibit 3, tab 1, at p. 26 that address this issue.  He texted Mr. Parke: “Go ahead with 1 ft wide retaining wall on north side.  I feel pavers and existing wall need to be relayed, thoughts?”  Mr. Parke responded:  “Likely a better plan.  Wall was sloping and pacers were wonkey.”

[125]     The context of these text messages is that he was agreeing to the suggestion of Mr. Parke that the wall could be placed one foot from the property line to save the extra work that would be needed to bring it to the property line.  As a result of the placement of the wall, he lost over 51 linear feet of space along the north side of the backyard.  (This issue was not pursued in submissions.)

[126]     The pavers that had been under the hot tub appear not to have been relayed.

[127]     The pavers in front of the shed do not appear to have been relayed.  In pre- and post-photographs of the area as found in Exhibit 3, tab 4, the vertical gap between the shed and the pavers is identical.  There is no evident change in elevation.  The contract called for the elevation to be lowered in that area so the shed should be sitting higher off the ground.

[128]     The east side fence posts were removed in part to allow access to the backyard.  The contract included lowering the level of the fence posts in that area and that implied putting them back in as part of the job.  He had to rebuild the fence in that area with seven posts.

[129]     About 50 square feet of dirt was left against the south side fence.

[130]     Boulders were left in the yard.  He had them split and removed.  He has invoices from “Jason” in the amount of $2,520 and $1,512.  He also spent an additional $1,500.  That additional invoice is not in the Exhibit book.

[131]     He has quotes to address the deficiencies.  To rebuild the north side retaining wall will cost $2,310.00.  To relay the pavers will cost $2,894.21.

[132]     By email dated July 4, 2017, Mr. Parke proposed an additional payment of $8,225 after a reduction for work that was left incomplete.  He wrote:

[133]     The sport court was not finished by Mr. Parke.  There was still one row of 2 x 2 pavers to be added to the south end.  He hired someone to lay them.  Dirt had to be removed along the south side of the yard.  One south side fence post had to be replaced because the dirt that had been left against it caused it to rot.

[134]     He obtained a quote for a sport court of the same size of $4,200 from True North Landscaping.

[135]     The future plan is to level the backyard by raising the level of the west side of the yard.  This can be done by adding a step to the sunken patio as had initially been recommended by Mr. Angelluci.

[136]     On cross-examination he gave the following additional evidence.

[137]     The quotation from True North was done over the phone and no one attended at the property for a site visit.

[138]     Another quote regarding the sport court and building a north side retaining wall came to $19,995 and does not include excavation or installation of artificial turf.

[139]     He knew that the cost of rock removal could not be estimated until the excavation was completed.  He was surprised by the number of boulders revealed by the excavation.

[140]     Exhibit 3 includes some invoices for rock splitting.  The boulders were too large to move so he arranged for someone to cut them.  He wondered why they were left behind.

[141]     He arranged for the rock splitting and removal before the June 19, 2017 meeting with Mr. Parke, and this was done as he knew the cost was not included in the estimate of $20,000.

[142]     He agreed that in his reply email of June 20, 2017, he did not complain about the north retaining wall being too far away from the property line but he did mention it in his face to face meeting with Mr. Parke.

[143]     Regarding the slope, he believes it is a fundamental aspect of the agreement and the discussion led to an expectation of, at most, a one to two inch difference.

[144]     He agreed that in the March 2017 estimate there is no specific mention of levelling the backyard.  However, it was part of the job.

[145]     It is not fair to say that they were not on the same page regarding the issue of levelling the backyard and its importance.  That only became evident later.

[146]     His email of June 20, 2017 to Mr. Parke was put to him.  It reads in part:

[147]     In context, this was in response to Mr. Parke’s email of June 20, 2017 offering an option to make the backyard level.  It reads:

[148]     He installed the synthetic grass himself at around the same grade as what was left by the claimant.

[149]     That concluded the evidence of the defendant.

[150]     The claimant accepts that the $23,630.25 estimate was replaced with a fixed price of $20,000 for the work identified in the estimate.  This price did not include extras or the unquantified items that included drainage, rock splitting and removal, and remediation of the neighbour’s property if needed.

[151]     The defendant acknowledged in cross-examination that rock splitting and removal was not included in the fixed price, and he made his own arrangements for the same.

[152]     The key difference between the parties concerns whether there was a binding contract to level the lawn.

[153]     The claimant denies an agreement to level the yard.  The claimant points to the following factors:

[154]     The defendant’s position is $450.  The claimant’s position is that $1,500 should stand.  While the sport court addition reduced the overall grass area, the shape of the remaining area and the widened lawn required more turf.

[155]     The defendant’s position is $4,200.  Although no estimate was sought or provided, the claimant’s position is that the price of $5,850 should stand as the work was done as requested.  The defendant does not get a price reduction because he found someone who provided a cheaper quote.

[156]     Agreed at $1,800.

[157]     Agreed at $660.

[158]     The defendant’s position is $250.  The claimant’s position is $750.  This amount was half of the original estimate.  The cost of materials is set out in Exhibit 2.  There is no basis to reduce the amount charged.

[159]     Agreed at $650.

[160]     Agreed at $660.

[161]     Agreed at $10,500.

[162]     Agreed at $11,350.

[163]     The defendant’s position is $1,000.  The claimant’s position is that $660 is reasonable.  This is the same amount charged for the four posts installed on the west side.

[164]     The defendant’s position is $1,000.  The claimant’s position is that $160 is adequate.  All that remained to be done was to bring in a vibrating compactor to finish levelling the pavers.  There is no expert evidence to the contrary that all that was required was a half day labour for the job at a cost of $160.

[165]     There is no expert evidence provided in support of the alleged deficiencies in the claimant’s work.  The quotes obtained by the defendant for certain work is not evidence that the work was necessary or the result of any deficiency in the claimant’s work.  The claimant’s position is that nothing is owed on any of the items listed by the defendant.

[166]     The defendant’s position is $4,032 owing.  However, the defendant acknowledged that the claimant was not responsible for this expense.

[167]     The defendant’s position is $2,322.56 owing.  The photos show the wall is straight.  There is a small wedge to be filled in with cut pavers but this work is included in the $160 credit noted above.

[168]     The defendant’s position is $2,894 owing.  This was not necessary and only required a compactor to adjust.

[169]     The defendant’s position is $5,000.  This was not part of the agreement.  The defendant used existing levels when laying the turf.  There is no evidence of technical problems caused by the slope.  There are no costs actually incurred and no evidence of what the cost would be except for speculation on the part of a neighbour.

[170]     In summary, the claimant seeks $9,200 plus costs and dismissal of the counterclaim.

[171]     This was a fixed price contract for $20,000.  The issues of how that amount was arrived at, what was included, and what risks were accepted by the claimant are germane to the claim.

[172]     The case of Straight Construction Ltd. v. Oday, [2006] B.C.J. No. 977, is relied on for the proposition that this was a fixed price contract and not a cost-plus contract.

[173]     Mr. Parke gave assurances to Mr. Gibson that the project could be completed on budget.  However, he did make it clear that added drainage, and machinery required for rock splitting and removal would be added costs.

[174]     Mr. Parke testified that if not for the changes to the project it would have been completed in line with the estimate.  If he meant $23,620, he admitted to being over the contract price of $20,000.  If he meant $20,000 the numbers do not add up to that being possible.

[175]     When the project was abandoned, the total cost for labour and materials was $21,211.11 according to the claimant.  If the extras are added and work not done subtracted there is a balance of $13,461.11.

[176]     If working from the budget of $20,000, there would have been left $6,538.89 for the purchase and installation of the 1550 square feet of turf without the turf cloud.  However, the cost would have been $9,550.  So the costs were in line with the estimate of $23,620.25 which would have left $10,142.14 for the purchase and installation of 1550 square feet of turf.

[177]     This was a fixed price contract, so the claimant assumed the risk of the cost overrun and attempted to recover this loss from Mr. Gibson in overcharging him for the extras.

[178]     The reduction from the estimate of $23,630.25 to $20,000 represents a 15% discount and since there was no agreement for the cost of the extras, the same 15% discount should be applied in determining the value of the work done.

[179]     Mr. Parke’s evidence was not clear.  He testified that there was an overall reduction of 1550 square feet of turf in the initial estimate to 1380 square feet, and this resulted in an increase in costs.  This underscores how many of the changes agreed to appeared to be straight trade-offs like the south retaining wall for the north retaining wall.  Regarding the turf, the sport court area of 425 square feet reduced the turf area and was replaced with 2 x 2 pavers.  This represented a trade-off.  Accordingly, there should be no additional cost for the installation of less turf.  The defendant acknowledges additional preparation work of the additional turf area was required and $450 is fair based on an estimate of $2.43 per square foot as determined by reference to the contract price and an additional 182 square feet.

[180]     No estimate for this work was provided by the claimant to the defendant.  Taking into consideration that Mr. Parke testified that $12 per square foot is the average rate; the defendant was not given an opportunity to purchase the pavers second hand to reduce material costs; there was no real difficulty in access to the yard; one row of 2 x 2 pavers was not laid, thereby reducing the area by 28 square feet; and applying the 15% discount; the amount of $4,200 as quoted by True North Landscaping is appropriate.

[181]     The $1,800 amount is agreed.  The $11,350 credit included this item.

[182]     $660 is agreed.

[183]     The defendant had drainage work done previously so was not concerned that there would be an additional cost.  The claimant has not provided a receipt for the $220 PVC drainage pipes amount that was added to the account.  The amount of labour involved is not clear on the evidence.  Mr. Young testified that it would take two to four 10-foot pipes or perhaps more.  He told Mr. Gibson that it would be no big deal.  Accordingly, the claimant has not proved this additional cost on a balance of probabilities.  The amount charged of $750 is arbitrary.  If any charge is warranted it should be $250 due to the small area where drainage was added.

[184]     $650 agreed.

[185]     $650 agreed.

[186]     The defendant should be credited with $1,000 and not $660 as proposed by the claimant.  Despite the uncertainty of whether 4 or 5 fence posts need to be installed, additional credit is owed for not putting the panels back either.

[187]     The defendant seeks a $1,000 credit.  Mr. Gibson testified that the walkway to the south of the shed was not re-laid.  Any charge for this section is double billing.  Also, the area under the hot tub by the side gate was not re-laid.  This space is 70 feet.  A credit of $1,000 addresses the misleading language in the estimate that pavers would be raised to accommodate the new elevation and relay.  The elevation did not change.

[188]     The defendant concedes that he assumed responsibility for this item; however, the claimant was remiss in not advising the defendant that costs could exceed $4,000.  It is open to the court to award damages for these excessive costs considering the importance of the fixed price contract and the claimant’s expertise.

[189]     By reference to his email of July 4, 2017, Mr. Parke concedes the cost of $2,500 for Mr. Gibson to complete the walkway and redo a section of the retaining wall.  Mr. Parke does not say that includes the cost of compacting the pavers.  The court should treat this concession as an absolute minimum cost to address the work not completed in respect of the walkway and deficiencies.

[190]     The defendant seeks $2,322.56.  In the email of July 4, 2017, Mr. Parke conceded that the north retaining wall by the gate needed to be rebuilt.  Also in his text of May 31, 2017, he agreed that the north retaining wall was sloping but in his email of June 20, 2017 he could not remember a discussion about any slope of the wall.  It is clear from Mr. Parke’s own admission that the wall is leaning.  Mr. Angelluci was a credible witness and he testified that the wall was leaning and crooked by reference to the pavers.  The quote from Great Canadian Landscaping Company to rebuild the north retaining wall is $2,322.56.

[191]     The defendant seeks $2,894.21.  The pavers are uneven as per the evidence of Mr. Gibson and Mr. Angelluci.  If all that needs to be done is compaction, it is doubtful that this could be done for $160.  When Mr. Gibson hires someone to level his lawn, he will need to relay the pavers to truly accommodate the “new levels and elevations”.  The quote from Great Canadian Landscaping addresses the damages suffered.

[192]     Lastly, Mr. Parke led Mr. Gibson to believe that he could achieve the desired result of a levelled backyard as per conversations and emails including the email of February 16, 2017 (Exhibit 3, tab 1, p. 3):

[193]     Item number 2 on the estimate of March 6, 2017 refers to “hand labour” and is consistent with the representations of levelling the backyard.  It reads in part:

[194]     An objective reading implies that the back property line (to the east) would be lowered 6 inches and the patio paver walkway which begins at the side gate (to the west) would be raised.

[195]     As per the evidence of Mr. Gibson, the yard slopes east to west, and not north to south as suggested by Mr. Parke.  Moreover, the claimant has not levelled the yard north to south.  Neither the elevation of walkway pavers to the north side of the shed, the high point, has changed, nor the elevation of the top step of the sunken patio at the southwest (the low point).

[196]     In cross-examination, Mr. Parke testified that what he really meant all along by a 1-2 inch grade was not from the low point to the high point, but 1-2 inch elevation distance every 10 feet.  This is not a satisfactory explanation for what he represented in the formation of the agreement.

[197]     Mr. Gibson’s email of June 20, 2017 where he commented that they had not been “on the same page” must be read in context of trying to resolve their outstanding issues.

[198]     It is acknowledged that the evidence at the hearing does not assist the court in quantifying the cost to bring the west half of the yard level with the east half.  However, “the Defendant proposes that if the Claimant has made out any claim in his favour on the balance of the accounting outside of this issue, that the Court can estimate a range of cost for the future work required to level the Defendant’s yard such that the range would be used to set off the outstanding claim.”

[199]     I have considered these submissions.  In general they address each point made in the defendant’s submission and repeat their original submissions.

[200]     I find both Mr. Parke and Mr. Gibson to be credible witnesses.  They both gave honest evidence to the best of their recollections and from their perspectives.  It is clear to me that the last thing these two individuals wanted was a protracted conflict.  Despite this conflict, they have both acted responsibly and respectfully toward each other in their representations to the court.  They were also well represented by counsel on this trial.

[201]     It is evident from the beginning of their relationship that Mr. Gibson wanted a near level backyard with a synthetic lawn, and he had a $20,000 budget.  Despite his good intentions of wanting to provide professional service to Mr. Gibson, Mr. Parke was remiss in not managing the expectations of Mr. Gibson.

[202]     It is apparent from his email of November 27, 2016 that Mr. Parke was aware of the importance of a levelled backyard to Mr. Gibson.  However, he failed to address the issue in a meaningful or direct way.  It was not until his email to Mr. Gibson of June 20, 2017 that Mr. Parke advised Mr. Gibson of realistic options to level his backyard.

[203]     One option was to raise the west side of the yard adjacent to the back of the house.  The other option was to lower the elevation going towards the east side of the yard, possibly removing the shed to do so and adding a retaining wall along the east side or back of the yard.  It seems rather obvious from the beginning that one of these two options would need to be pursued to give Mr. Gibson what he wanted.  However, Mr. Parke never provided a realistic estimate for achieving this goal.

[204]     Based on the evidence, it seems likely that the cost of either option would have been much greater than the $20,000 budget.  Mr. Parke, as the contractor, should have made that clear to Mr. Gibson so he could have made an informed decision to spend more money or abandon the idea of a levelled backyard in this project.  Difficult compromises often need to be made in the course of home renovation projects.

[205]     Instead of being straightforward and realistic in what could be achieved with a $20,000 budget, in his email of November 27, 2016, Mr. Parke gave Mr. Gibson hope that a levelled backyard or close to it was achievable within the budget.

[206]     This email seems to say that by lowering the elevation at the back or east side of the yard it would assist with making a more level backyard.  However, subsequent to this email exchange and the March 6, 2017 estimate, Mr. Gibson requested a sport court to be installed directly south of the shed that was situated in the northeast area of the backyard.  This “extra” interfered with the levelling plan since the sport court was made level to the shed, and made the remaining slope from the shed and sport court towards the house more obvious and visible.  Accordingly, lowering the elevation at the back fence line made no difference since the sport court was between the back fence and the lawn area to the west.

[207]     Once again, I fault Mr. Parke for failing to discuss the levelling issue with Mr. Gibson when the sport court was added to the project, and for not discussing the impact of the sport court on the overall budget.  On the other hand, it also seems reasonable that Mr. Gibson should have inquired about these issues.

[208]     That all being said, as at May 29, 2017, the date work started on the project, I am not satisfied that a levelled or near levelled backyard was a term or implied term of the contract for service.  Mr. Parke did not make that specific promise.  Moreover, once Mr. Gibson requested the sport court, a near level yard was not possible without significant additional work.

[209]     The claimant seeks $1,500 on the basis of the extra area to be prepared for turf (due to the removal of the hot tub and deck) and additional turf required to be purchased and installed.  Mr. Parke explained that additional turf would be required to cover this area due to the use of 15 foot rolls.  The defendant submits that this change in plan was likely part of a trade-off related to the decision to install the 2 x 2 pavers over the 425 square foot sport court, thereby reducing turf in that area.  The defendant further submits that the context of the analysis is the estimate given for the overall work of $20,000, and reassurances from the claimant that they were on budget.

[210]     I agree with the defendant that the claimant was remiss in not providing a revised estimate once these extras were requested; however, the defendant knew or should have known that these extras would have an impact on his budget.  Unfortunately, he failed to make any inquiries as to the cost prior to requesting the additional work be done.  I accept Mr. Parke’s evidence of a cost estimate of $10-12 per square foot for preparing and installing turf.  The additional area is over 200 square feet.  Accordingly the claim of $1,500 appears reasonable.

[211]     The parties agree on the amount of $660.

[212]     The parties agree on the amount of $1,800.

[213]     The parties agree on $650 and $660 respectively.

[214]     The claimant seeks $5,850.  The defendant submits that $4,200 is reasonable.  The sport court is 425 square feet.  Mr. Parke testified that $12 per square foot inclusive of materials and labour is a fair average price.  This evidence was not challenged on cross-examination.

[215]     The defendant submits that no estimate for this extra was provided to the defendant, second hand pavers could have been used, and one row of pavers was not laid.  He also says that a 15% discount should be applied to this extra as that was the approximated discount applied to the fixed price contract from $23,000 to $20,000.  The defendant also relies on the True North Landscaping quote of $4,200.

[216]     I am not persuaded by the defendant’s submissions that a $12 per square foot cost is unfair or unreasonable for a sport court.  Perhaps other contractors could have done it for less but the claimant is entitled to a fair fee for his materials and labour.  I accept that the job was not completed and there should be some small discount applied.  I award the claimant $4,800 for this extra.

[217]     The claimant seeks $750 and the defendant submits that $250 is reasonable.  The claimant says that the cost of materials was $220.  I accept his evidence on this point despite the absence of a receipt.  However, on the evidence I am not satisfied that $500 in labour costs were incurred or is reasonable.  The defendant had previous drainage work done, and was told by the claimant that the drainage issue was “no big deal”.  I award $350 for this extra.

[218]     Accordingly the extras total $10,420.

[219]     The deposit paid of $10,500 is agreed.

[220]     The turf purchase and installation including the turf cloud is agreed at $11,350.

[221]     The claimant says a $660 credit is reasonable and the defendant says this estimate does not include attaching the panels, so a $1,000 credit should be applied.  I award a $750 credit to complete this work.

[222]     The claimant submits there should be a $160 credit as all that is required is for the defendant to bring in a vibrating compactor to finish levelling the pavers.  The defendant submits that $160 is not adequate to address this aspect of the project.  The defendant further submits that some pavers were not re-laid at all and the walkway pavers were not “raised” to “accommodate new elevations and relay” as promised.  I find that additional work is required to compact the pavers and cut pavers to add to the walkway and that it is unlikely it can be done for only $160.  I award a $750 credit to complete this job considering equipment rental and labour.

[223]     I agree with the claimant that this was the defendant’s responsibility and no credit is awarded.

[224]     The defendant submits that there should be a minimum $2,500 credit as this amount was conceded by Mr. Parke in his email of July 4, 2017.  I agree with the claimant that this was an offer to settle the outstanding account and not a concession of actual costs to complete some of the work.  Accordingly, I decline to find that there should be a minimum $2,500 credit to address some of the outstanding work.

[225]     The credits to the defendant’s account total $23,350.

[226]     The defendant submits that the north retaining wall is sloping or leaning.  To rebuild the wall he seeks $2,333.56 as per the written estimate of the Great Canadian Landscaping Company.  Both Mr. Gibson and Mr. Angellucci testified that the wall is leaning but there is no evidence as to the extent of the lean or whether the lean falls within reasonable standards.  Mr. Parke testified that the wall is not leaning.  I disagree with the defendant’s submission that Mr. Parke conceded that the wall was leaning by reference to his text message of May 31, 2017.  In that text message he was referring to the wall prior to the rebuild.  I am unable to reach my own conclusion as to whether the wall is leaning, or by how much, by reviewing the photographs included in the exhibits.  I am unable to conclude on a balance of probabilities that the north wall is deficient and needs to be rebuilt again.

[227]     I am not satisfied on the evidence that this alleged deficiency has been proved.

[228]     I find that the extras to be added to the fixed price amount to $10,420.  The credits to be subtracted are $23,350.  I find no deficiencies requiring compensation.  Accordingly the claimant is entitled to judgment in the amount of $7,070 ($20,000 + $10,420 - $23,350) plus pre-judgment interest on $7,070 from July 15, 2017 to the date of judgment to be calculated by the Registrar, plus filing fees of $156 and service fee of $20.