IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Claimant, Scandia Paving Ltd., is suing the homeowner, Harmandeep Sidhu, for the balance owing for paving work done at 2641 Railcar Crescent in Abbotsford, BC. The Claimant alleges that the verbal contract was for $18,000 inclusive of GST. Ten thousand dollars had been paid, leaving a balance owing of $8000.

[2]         The Defendant, Mr. Sidhu, alleges that the contract price was for only $15,000 inclusive of GST and that he paid $2000 cash in addition to the $10,000 acknowledged by the Claimant. Further, Mr. Sidhu counterclaims for $35,000 on the basis the paving work was defective and required replacement. He asserts that the Claimant laid the pavement without proper water flow management and proper grading, and that it erroneously covered a catch basin and electrical wires.

[3]         At the outset, I must admonish both parties for having nothing reduced to writing. In this case, the parties first language is Punjabi and any writing could easily been in Punjabi. The Claimant did not issue a written quote or a written contract, and it never issued a written invoice even after its counsel sent out a demand letter.

[4]         The Defendant was not much better as he had no paper trail describing any deficiencies and no paper trail for the alleged $2000 payment.

[5]         These poor business practices probably meant that this lawsuit was inevitable.

[6]         The issues in this case are:

[7]         Mr. Kular is the principal owner of Scandia Paving Ltd. and he has been involved in the paving business for some 16 years. His wife does the accounting for the company.

[8]         A man named Harjiwan Khunkhuna was a former employee of the Claimant, and he approached Mr. Kular to do a paving job for Mr. Sidhu, someone known through a mutual friend. Mr. Kular went to the job site at Railcar Crescent with Mr. Khunkhuna and measured the area to be paved. While both Mr. Kular and Mr. Khunkhuna were in Mr. Kular’s truck, Mr. Khunkhuna spoke to Mr. Sidhu over the phone and provided an estimate of $18,000.

[9]         Mr. Kular could not remember the exact square footage for the job but it was around 6000-7000 square feet. The $18,000 estimate was based on a rate $2.50 to $3 per square foot, and this square footage rate has not changed to this day.

[10]      Mr. Sidhu told them to proceed with the job and he would pay the Claimant later as draws came in. Mr. Kular was concerned about getting paid, but he was assured through a friend that the money would get paid.

[11]      In November of 2017 the paving work was done on Railcar Crescent. On the first day, grading and packing work was performed after placing three inches of gravel on the driveway. No drain work was required as this was a new house.

[12]      On the second day, Mr. Kular had a machine brought in for the paving work, and the machine was set to place three inches of pavement on top of the gravel. One person drives the machine, and two people are behind the machine packing with a roller.

[13]      In cross examination, Mr. Kular said he would keep notes of the time spent on a paving job, and he would keep records for materials ordered for each job site. He never retained those records for this contract as he expected to be paid.

[14]      Mr. Kular testified that he had never been in court in 15 years, yet in cross it was put to him that 11 lawsuits had been commenced by the Claimant. He said those proceedings were started simply to push for payment.

[15]      Mr. Kular explained that his company grades six inches from the surface, with a three inch base and three inches of asphalt on top. If the base is weak, he tells the customer, and he would charge $300 per load to remove soil and $300 to place in new fill.

[16]      Mr. Kular removed no soil for this job as the base was good and this was a newly constructed home. The rollers operated nicely, and the price of $18,000 was based on three inches of asphalt being laid.

[17]      Mr. Kular said that drainage work was not required for a new house. He also described the Railcar Crescent property as hilly with a slope, so there should be no issue with water ponding. In cross, he conceded it was slight slope from the garage to the road of 8 to 12 inches.

[18]      Mr. Kular was shown a photograph of a circular imprint in the paved driveway, and he did not know what was underneath. He said he did not cover a drain visible within the top six inches of the driveway.

[19]      In terms of complaints about electrical wiring, Mr. Kular clarified that the Claimant does not do electrical work and he was not aware of buried electrical wires for the front gate. Mr. Sidhu did not request that any wires be buried. He was not aware that the front gate and lights stopped working at some later date.

[20]      No warranty work was discussed in this case, but the claimant typically provides a one-year warranty. If there is a problem with the paving in the first year, they repair it.

[21]      In February of 2018, a few months after completing the work, Mr. Kular phoned Mr. Sidhu requesting some money. Mr. Sidhu indicated he had not yet received a draw. Mr. Khular complained to Mr. Khunkhuna that he had paid for materials out of pocket for this job, and he not received any money.

[22]      Mr. Khunkhuna, as an intermediary, indicated that Mr. Sidhu would get $5000 from a friend. In March or April of 2018, Mr. Khunkhuna dropped off a cheque for $5000.

[23]      A few months later, Mr. Kular’s wife began calling Mr. Sidhu about the money owed. Mr. Kular met Mr. Sidhu at Roma Furniture in Surrey and received a further cheque for $5000.

[24]      Three to four months later, Mr. Kular took Mr. Khunkhuna with him to Mr. Sidhu’s home to ask for the balance owing. Mr. Sidhu’s wife was there and said she was not going to pay at that time.

[25]      Mr. Kular denies that Mr. Sidhu ever provided a cash payment of $2000. Furthermore, no one complained about the paving work until much later when they visited the Sidhu home and spoke with his wife. Mr. Kular feels that if he had done a poor job, Mr. Sidhu would not have paid him $5000 within four months of the paving and another $5000 in the next four months.

[26]      Ms. Kular is the wife of Mr. Kular and she handled the accounting for the Claimant. When Mr. Kular would come back from paving jobs each evening, she would ask him for the jobs he did, the addresses, and how much was charged for those jobs. She recorded deposits and any monies received.

[27]      In November of 2017, Ms. Kular recalled her husband telling her that he finished a job for $18,000 including GST and that the payment would be later. She has thrown out the notebook concerning this transaction, and she only keeps records for one or two years.

[28]      Ms. Kular phoned Mr. Sidhu for payment in January of 2018, and he told her to wait two or three months as he was financially light. She continued calling every month or two months.

[29]      In March of 2018, Mr. Khunkhuna gave her husband $5000 towards the balance. In May of 2018, she received another $5000. She has never received cash from Mr. Sidhu.

[30]      Two months after May of 2018, Ms. Kular called Mr. Sidhu and he again said payment would be a bit later as things were tight financially. In February of 2019, Mr. Sidhu said something similar.

[31]      In March of 2019, Ms. Kular learned that her husband and Mr. Khunkhuna went to the Sidhu home and Mr. Sidhu’s wife said she would not pay. Ms. Kular never received a complaint about deficient work.

[32]      The Claimant retained counsel to write a demand letter, and that demand letter was dated May 13, 2019. In cross, Ms. Kular said she was told by Mr. Sidhu not to issue an invoice until full payment was made.

[33]      Harjiwan Khunkhuna is a truck driver and he worked for the Claimant previously. Mr. Khunkhuna knew a fellow truck driver named Bhinda who was aware that Mr. Sidhu needed paving work done.

[34]      Ultimately, Mr. Khunkhuna went with Mr. Kular to the job site where measurements were taken. Mr. Khunkhun and Mr. Kular spoke to Mr. Sidhu over the speakerphone and gave a price of $18,000. Mr. Sidhu responded by saying “okay, fine.”

[35]      Sometime after the paving work was done, Mr. Khunkhuna spoke to Bhinda about the delay in payment and he received a $5000 cheque from someone in Surrey which was passed on to the Claimant.

[36]      Mr. Khunkhuna only visited the job site twice, once for the measurements and a second time in March of 2019 when a woman said she would not pay. Prior to March of 2019, he never heard a complaint about the paving job; the only issue was payment.

[37]      Mr. Sidhu hired a builder, Two Star Holdings, to construct a custom built home at 2641 Railcar Crescent in Abbotsford. Due to a number of factors, including the death of Mr. Sidhu’s father in India, the project was delayed and construction began in 2016.

[38]      Mr. Sidhu did not know of the Claimant, but his friends Raj and Bhinda mentioned that the Claimant did paving work. Bhinda knew that Mr.Sidhu had a relatively low construction mortgage and that there would be a delay in paying for the paving work. Bhinda informed Mr. Sidhu that the Claimant would not ask for the money up front.

[39]      Mr. Sidhu did not know Mr. Kunkhuna, but he acknowledged that he spoke with both Mr. Kular and Mr. Khunkhuna over the phone about the driveway paving estimate. Mr. Kular told them the scope of work required and that the driveway was an unusual shape. The area to be paved was 7000 square feet.

[40]      Prior to speaking with Mr. Kular, Mr. Sidhu got a paving quote from Keywest for $16,500 and a quote from Superior for $16,000. The Claimant’s quote was for $15,000 and it was the lowest. Bhinda also said they would do a good job. In cross, Mr. Sidhu said that his builder actually got the Keywest quote.

[41]      The work also included paving the neighbour’s property along the fence, an approximate two foot wide strip which Mr. Sidhu estimated to be more than 200 square feet. Mr. Sidhu testified that the Claimant’s quote was $13,500 for paving his property and $1500 for paving his neighbour’s property, resulting in a total quote of $15,000 including GST. He made his builder, Mr. Gill of Two Star Holdings, aware of this quote. His builder did not know Bhinda.

[42]      Mr. Sidhu said that he requested a written contract but he was never given one. Mr. Kular preferred cash.

[43]      Mr. Sidhu was present for an hour or so when the Claimant began its work on the first day, and he was present when the work was concluded on the second day. In cross, he agreed he did not personally see the Claimant cover a drain.

[44]      Mr. Sidhu said the parties agreed that he would pay the contract amount by June of 2018. He acknowledged that the Claimant was provided two separate $5000 cheques, one in March of 2018 and one on April 30, 2018. Mr. Sidhu gave the first cheque to Raj and Bhinda and they gave the cheque to Mr. Khunkhuna.

[45]      However, Mr. Sidhu testified that he also paid the Claimant $2000 cash in the first week of April in 2018. He and Mr. Gill met Mr. Kular at 27743 Swenson Avenue, a rental property partially owned by the two of them. Mr. Sidhu had received rent from a tenant at another property at 31075 Heron Avenue, and he personally handed the cash to Mr. Kular. The amended Reply with Counterclaim refers to a cash payment made between May and October of 2018, but Mr. Sidhu says that was an error.

[46]      Mr. Sidhu admitted in cross that his builder made him aware of the drain being covered up and a security deposit issue before he made the cash payment. He did not want to leave his trades unpaid, and he felt assured that the problems would be rectified.

[47]      Mr. Sidhu denied ever speaking to Ms. Kular about any payments. He promised the Claimant the balance of $3000 in May or June of 2018.

[48]      Following the last payment in April of 2018, problems with the paving job became more evident. First, the Claimant covered a drain with asphalt. Secondly, the Claimant simply paved over the electrical wire leading to the gate despite being told to run the wire through pipe and to bury it in the ground. The electrical front gate was installed in March or April of 2018, but by May of 2018, the gate would not function.

[49]      As well, by April of 2018, Mr. Sidhu noticed the paving at the back starting to sink a little, and the paving job was not smooth, allowing debris to collect in areas.

[50]      Mr. Sidhu stated that his wife mentioned these problems to the Claimant, and he phoned about the electrical problem in May of 2018. The Claimant stopped answering his calls. In May of 2019, he received a demand letter stating that $8000 was outstanding.

[51]      In August of 2018, Mr. Sidhu retained Pavecon Road Maintenance to remedy the driveway problems. Prior to starting their work, Pavecon came over three to four times to inspect and photograph the driveway.

[52]      Of significance, no one from Pavecon was called as a witness. Only Pavecon’s photographs and invoices were exhibits, but no reports were tendered. Mr. Sidhu was informed by Pavecon that asphalt had sunk and that compacting was not properly done, but I can rely only on the exhibits and the personal observations of the witnesses in this case.

[53]      Mr. Sidhu referred to photographs depicting some ponding of water on the driveway. He said there were significant dips in the driveway.

[54]      Other photographs show a drain covered by what is then broken asphalt.

[55]      Pavecon gave Mr. Sidhu a quote of $19,000 to replace the entire driveway with proper compaction. The driveway also had to be entirely dug up to locate the electrical wire, and photos depict the exposed electrical wire after excavation. These wires were not covered by conduit, and Mr. Sidhu testified that he had told the Claimant to do this. In cross, Mr. Sidhu said the Claimant was to provide its own pipe for the wires.

[56]      Due to weather and other issues, the work by Pavecon was not completed until May of 2020 even though Mr. Sidhu gave them a deposit of $12,000 in August of 2019. He paid the deposit in the same month he filed the Reply and Counterclaim in this proceeding.

[57]      Pavecon worked on the site for a good two weeks or more. They removed old material and brought in new material, and Mr. Sidhu personally saw how soft the old base was.

[58]      Pavecon put the electrical wiring through conduit and this work was not part of the original quote. Pavecon also dug out a broken sump/utility box which had to be replaced. As well, once Pavecon began digging, three loads of fill had to be hauled away. In addition, Pavecon dug up some lawn and paved that area, some 570 square feet.

[59]      Ultimately, Pavecon’s invoice was for $30,077.25 inclusive of GST. This included saw cutting and removing the existing asphalt and replacing it, as well as placing gravel road base. The invoice appears to have a contract price of $14,900 plus GST for a front area and $5,125 plus GST for a back area. An additional cost of $8,620 plus GST was for trenching the electrical wire, removing the garden area, installing a new utility box, and additional excavation.

[60]      Mr. Sidhu has paid Pavecon $19,000 and still owes about $10,000.

[61]      In cross, Mr. Sidhu said that he has sold the Railcar Crescent property and made over $600,000.

[62]      Mr. Karami was the neighbour of Mr. Sidhu when they both lived on Railcar Crescent. Both Mr. Sidhu and Mr. Karami have since moved.

[63]      In 2017, Mr. Sidhu approached Mr. Karami about some paving work to be done for their adjoining properties. Mr. Sidhu informed him that about a one foot strip of his property could be paved at a cost of $1,500 and Mr. Sidhu would cover this cost. The one foot strip was about 45 feet long. Mr. Karami never conversed with anyone on behalf of the Claimant.

[64]      After the paving work was completed, Mr. Karami thought the paving work looked “odd” - it looked like a “child did it.” The paving was very uneven, especially near the gate. Mr. Karami was not satisfied with the paving job. The paving area looked like “garbage run over by a machine.”

[65]      Mr. Karami observed Mr. Sidhu’s frustration with the front electric gate which was not functioning. He also saw ponding on the front driveway over a hundred foot area.

[66]      Mr. Karami is a truck driver and in cross examination, he agreed he had no experience in paving.

[67]      Suphwinder Gill was the principal owner of Two Star Holdings Inc. He is a long time friend of Mr. Sidhu, and he was the builder of Mr. Sidhu’s home on Railcar Crescent.

[68]      There was a delay in construction which created some financial issues. The bank ordinarily gives three or four draws: at the framing stage, at the drywall stage, and upon final inspection.

[69]      Mr. Gill said that Mr. Sidhu approached three or four companies for quotes to pave the driveway. Mr. Gill got the $16,500 quote himself from Keywest. Mr. Gill was familiar with the Claimant and Mr. Kular, as the Claimant still owed him money for excavating work done on a prior project in late 2016. Mr. Gill never directly told Mr. Sidhu of this issue.

[70]      In November of 2017, Mr. Sidhu discussed with Mr. Gill the possibility of using the Claimant for the paving work for a price of $15,000. This was the lowest of several quotes. Mr. Gill questioned Mr. Sidhu about his knowledge of Mr. Kular, but Mr. Gill did not say that Mr. Kular was no good. Mr. Sidhu said he had assurances from a friend who was a middleman.

[71]      Mr. Gill testified that the city would not return a security deposit because of a broken inspection chamber or utility box. He speculated that that the Claimant’s paving machine caused the problem, but he did not see how the chamber was broken.

[72]      Mr. Gill was present when Mr. Sidhu paid Mr.Kular $2000 cash at 27743 Swenson Avenue, Abbotsford in April of 2018. He said this money was paid even though he knew of the security deposit problem and that a drain had been covered. The Claimant was to finish the work properly.

[73]      Mr. Gill also became aware that the buried electrical wires to the gate did not function and they were not in conduit. Mr. Gill earlier hired the electrician who left the wires laying in the driveway to be later connected. Mr. Gill was not present when the Claimant paved over the wires, but he recalled Mr. Kular saying he would put the wires through piping which he had.

[74]      Mr. Gill also referred to several photographs showing a drain covered by pavement and then with broken pavement around it. In cross, Mr. Gill said he saw that the drain was covered just after the job was done. When asked why he did not tell the Claimant to rip up the asphalt over the drain, Mr. Gill simply said that the city inspectors checked everything.

[75]      Mr. Gill was present for several periods while the Claimant carried out the paving work. Later, the asphalt was coming apart and was of bad quality.

[76]      In cross examination, Mr. Gill agreed that another company was responsible for excavation, drain tile work and some piping for the catch basin. The catch basin was installed at the landscaping stage. The landscaper also placed the gravel for the driveway, but the driveway at that time was a temporary one.

[77]      Mr. Gill agreed that the paving company is generally not required to excavate more than 6 inches below the driveway surface. However, if there are soft spots, asphalt should not be placed there.

[78]      The builder, Two Star Holdings, provides a home warranty, but this warranty does not apply when the owner hires a trade directly, as was the case with the Claimant.

[79]      When the earlier excavation work was being done, Mr. Gill did not see issues with clay or soft soil. It was good dirt. However, the ground can become soft when trucks run over the area.

[80]      Clearly, there was a verbal contract between the Claimant company and Mr. Sidhu to pave the driveway on Railcar Crescent for a certain price. The paving was done by the Claimant and some monies were paid by Mr. Sidhu.

[81]      However, the parties disagree on certain terms of the contract, and the first issue I must determine is price. Mr. Kular and his witness, the former employee Mr. Khunkhuna, say the price was agreed to over speakerphone at $18,000 inclusive of GST. Mr. Sidhu says the price was $15,000 inclusive of GST. His builder and good friend, Mr. Gill, heard about the $15,000 but he was not present during the contractual discussions.

[82]      As stated above, I have no written documents or even texts to assist me in ascertaining the price. The onus is on the Claimant to prove the price of $18,000 on a balance of probabilities.

[83]      This issue of price and many of the other issues in this case rest on the credibility of the witnesses. As stated in Farnya v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, a judge like me is not clothed with divine insight into the hearts and minds of the witnesses. The real test of the truth of a witness must be “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[84]      Mr. Kular has no written quote or invoice for me to consider. It is true that a 7000 square foot paving job at the all-in price of $15,000 only results in a rate of $2.14 per square foot, below what appears to be the industry standard of $2.50 to $3.00 per square foot. But this was a larger paving job and sometimes discounts are built in to get the work. I also note that the other quotes were not excessively higher.

[85]      I appreciate that Mr. Khunkhuna also heard the agreed price to be $18,000, but he was a former employee of the Claimant and served as its middleman in this muddled transaction. He is as biased towards the Claimant as Mr. Sidhu’s builder and long time friend is biased towards Mr. Sidhu.

[86]      On the issue of price, I do not know whom to believe, and accordingly the Claimant has not proven the $18,000 price on a balance of probabilities. I find the contract price to be $15,000 inclusive of GST.

[87]      I also must ascertain the scope of work to be done by the Claimant under this verbal contract. Obviously, the scope of work includes grading and paving a driveway. I accept Mr. Kular’s uncontradicted evidence that a paving company for a project of this type provides a three inch base with about three inches of asphalt on top. Mr. Kular has over 15 years experience in the paving business.

[88]      However, I also accept that paving should not proceed where a soft base is discovered. Of course, Mr. Kular stated he saw no problems with the base and this was a new build, and I will deal with any deficiencies later.

[89]      As discussed by Judge MacCarthy in Infinity Roofing v. Bernhardt, 2018 BCPC 170, every contract for the performance of services has an implied term that those services will be performed in a good and workmanlike manner. That implied condition applies to this verbal paving contract.

[90]      A more difficult issue is whether the scope of work here required the Claimant to run electrical wiring through conduit and to bury it prior to paving. I accept Mr. Kular’s assertion that a paving company does not ordinarily do electrical work, but the narrow issue here is whether there was a specific agreement that the Claimant do such work in this case.

[91]      Mr. Kular asserts there was no such specific agreement, and he was not even aware there were buried electrical wires to the gate. In contrast, both Mr. Sidhu and his builder claim that Mr. Kular was instructed to place the wiring in conduit, and Mr. Kular had his own conduit. The photographs depict electrical wires without conduit after Pavecon had begun excavation of the pavement.

[92]      I accept the premise that an ordinary paving contract would not include electrical work. I also recognize that the contract price of $15,000 is very low if it is to include placing wire through conduit supplied by the Claimant. Mr. Kular never referred to bringing conduit in his evidence, but I appreciate Mr. Sidhu said otherwise, although no witness ever mentions seeing such conduit.

[93]      Given the above analysis and the fact that electrical work is out of the norm for a paving contract, especially for new construction, I am not satisfied on a balance of probabilities that this electrical work was part of the scope of work.

[94]      Neither party disputes that Mr. Sidhu paid $10,000 to the Claimant. The issue is whether Mr. Sidhu paid a further $2000 cash in April of 2018. Mr. Sidhu has the onus of proving this payment on a balance of probabilities.

[95]      Mr. Sidhu said that he paid the $2000 from rent received by a tenant, and his builder said he witnessed the payment. All this is denied by Mr. Kular. There is no written proof of the transaction, not even a receipt. No tenant was called as a witness. I am not satisfied on a balance of probabilities that this cash payment was made.

[96]      As stated above, there is an implied term in this paving contract that the paving work would be performed in a good and workmanlike manner. At a minimum, I am satisfied that the Claimant provided a base for the driveway and about three inches of asphalt on top.

[97]      The Defendant was somewhat handcuffed in this case because he retained Pavecon later to rectify many alleged deficiencies, but he was apparently unable to call a witness from that company and no report was filed. The Pavecon invoice was an exhibit as allowed for under Rule 10(7) of the Small Claims Rules, but that is a far cry from an expert report explaining any deficiencies with the compaction or paving work.

[98]      Concerning drainage and water flow management, I must bear in mind that this was a new build and an excavator was responsible for excavation and drain tile work. Moreover, a landscaper actually placed the gravel for the driveway, albeit as a temporary driveway. The builder also thought the soil on the property was good, although Pavecon later did remove 120 tonnes of soft soil/clay as outlined in the invoice.

[99]      Considering all the evidence, I do accept on a balance of probabilities that there were some deficiencies with the paving job, especially on the pavement surface. The photographs reveal some pooling of water, and both Mr. Sidhu and his neighbour observed that the paving was uneven and there was ponding. I viewed the neighbour’s evidence as less biased than that of the builder, and his description of the pavement was most unflattering, “like a child did it.” A workmanlike paving job should result in a smooth driveway with the paver rectifying any soft spots, and I find that this driveway was not completely even or smooth.

[100]   I am also satisfied that the Claimant wrongly covered at least one drain. One photograph taken after the Claimant’s work was completed showed the imprint of what appeared to be a circular drain underneath. After some excavation work, another photograph shows broken pavement around a buried circular drain. Defendant witnesses testified as to the buried drain, and clearly it was the Claimant who laid the pavement.

[101]   I am not satisfied that the Claimant was responsible for a broken utility box or sump, as I would be required to assume the Claimant’s machine caused the breakage when there are other possible causes and no eye witnesses.

[102]   Although I have concluded there were deficiencies in the paving surface and that at least one drain was erroneously covered, I do not consider the paving work to be so deficient as to relieve the Defendant of the obligation to pay the contracted sum. As discussed in McVie v. Summit Steel Cladding Inc., 2010 BCSC 1025, it is only in situations where the contractor is so deficient that the owner will be entitled to terminate the contract and be relieved of the obligation to pay the contracted sum.

[103]   However, the owner may well have a right to counterclaim for damages to repair faulty work, and that is what Mr. Sidhu is doing in this case. I find that Mr. Sidhu is entitled to damages for a deficient paving surface and the erroneous coverage of a drain.

[104]   However, I do not consider the defects here to be major for the following reasons. First, I must look at the behaviour of Mr. Sidhu. By his own admission, he paid the Claimant $5000 in March of 2018 and $5000 in April of 2018. These payments were made four or five months after the paving work was done and following the winter rains. Surely, Mr. Sidhu would have seen the ponding problem, and by April of 2018, he was aware of the covered drain. I am dealing with shrewd businessmen here. If Mr. Sidhu was really upset with the quality of the paving, I think it unlikely he would make such payments.

[105]   Secondly, Mr. Sidhu is entitled to a good driveway but he is not entitled to a Cadillac driveway. I appreciate Pavecon redid the driveway with extensive base construction, disposal of soil, and paving. But Pavecon charged twice as much as the Claimant, and it was on site for 3 weeks as opposed to 2 days. Pavecon did rip out the old driveway and perform additional paving over a grassed area, but overall, it was providing a top of the line service.

[106]   Thirdly and perhaps most importantly, I have found that the Claimant’s scope of work did not include any electrical services, such as placing the electrical wiring in conduit and burying same. From my review of the evidence, one of the main reasons Pavecon ripped up the driveway was to trench and cover the wiring so the electrical gate would work. Even if the electrical work was within the scope of the Claimant’s work, which is not my finding, the Defendant faces a causation issue because the gate functioned for a time after the Claimant completed the paving.

[107]   As outlined above, I have found there were deficiencies in the paving surface and that a drain was wrongly covered. I have also found that these were not major defects.

[108]   Cases such as Infinity Roofing cited above recognize that the courts typically employ two measures for evaluating damages for breach of contract: damages based on the difference in value between what was contracted for and what was received (diminution in value) and damages based on the cost of curing the defect (cost performance).

[109]   If I were to adopt a diminution in value approach, I suspect the Defendant would have no damages as he sold Railcar Crescent for a very large gain.

[110]   However, the standard measure of damages in building contract cases is the cost of performance, being the cost of rectifying, repairing or replacing the unsatisfactory work. As the case law suggests, estimating damages in these cases may well require a certain amount of guesswork.

[111]   The Defendant’s counsel suggests that the Defendant is entitled to at least $21,000, as that portion was invoiced by Pavecon to effectively redo the Claimant’s paving work. However, there are many other variables at play. Pavecon appears to have dealt with more than the top six inches of surface, and it did electrical work outside the scope of the Claimant’s contract. It paved a grass area. Again, I point out that a large reason for ripping up the entire driveway was to trench and place the wiring for the gate, not necessarily to rectify any surface dips. The buried drain could have been rectified at relatively low cost.

[112]   I reiterate that any estimation of damages is particularly difficult here because I heard no direct evidence from Pavecon. I estimate that the Pavecon invoice would be much lower if it were only dealing with surface dips and a buried drain, although I acknowledge that pavement repairs would not be as esthetically pleasing as a full driveway replacement.

[113]   Taking into account all the above factors, and my finding that the surface defects and covered drain were not major defects, I estimate the defendant’s damages for deficiencies to be $5000. This figure is my crude estimate to simply repair the dips and covered drain without a full driveway replacement. In another sense, one could also say the Defendant got about two thirds of the $15,000 driveway he bargained for.

[114]   Under the verbal paving contract, the Claimant is entitled to $5000, being the contract price of $15,000 less the $10,000 received. Under the Defendant’s counterclaim, the Defendant is entitled to $5000 for deficiencies. The set off leaves each party with nothing.

[115]   Each party shall bear their own costs, because there was divided success and this litigation largely arose because of poor business practices by both parties. I did not have a shred of paper to consider regarding the contract or payments made, and too many middlemen were involved.

[116]   I order that the Notice of Claim and Counterclaim be dismissed. Each party shall bear their own costs.