IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Fon-Tile Corporation Limited claims against Andrea Jonsson for the unpaid balance owing under a contract for the purchase and installation of a custom countertop, vanity and cabinetry, that being $19,216.53, plus contract interest of 1.5% per month and court fees.

[2]         Ms. Jonsson opposes the order sought and counterclaims for $20,000 for breach of contract, lost income and reimbursement for the costs of doing work she says the claimant was required to do. Ms. Jonsson also asks for an order that the claimant provide to her any missing items that the claimant did not provide to her pursuant to the contract.

[3]         Andrea Jonsson will pay to Fon-Tile Corporation Limited $13,716.52, being the amount due under the contract less damages owed to Ms. Jonsson for the claimant’s failure to complete the work within a reasonable time. Ms. Jonsson will pay interest on this sum calculated at 5% per annum starting May 1, 2018. My reasons follow.

[4]         In 2017, Andrea Jonsson decided to have her small apartment in Vancouver, B.C. renovated. Ms. Jonsson had no previous experience in home renovations. She spoke to Tori Kershaw, a designer for the claimant Fon-Tile Corporation Limited and on December 6, 2017, she received an emailed quotation. The quotation read in part:

[5]         Ms. Jonsson accepted the quotation and on December 15, 2017, the parties signed a formal contract, called a “Purchase Agreement.” A portion of the Purchase Agreement read as follows:

[6]         The Purchase Agreement provided a definition of “substantial completion” as follows:

[7]         The Purchase Agreement included a term, also numbered 14, providing for interest on unpaid balances. The term reads as follows:

[8]         Attached to the Purchase Agreement were five pages of construction plans, each with the initials “AJ” written upon them. I find that Ms. Jonsson did initial each of the pages of the plans to signify her approval of them. Ms. Jonsson testified though that she has never been involved in a construction or renovation project and I accept that even though she approved the plans, I do not believe she understood them. Ms. Jonsson confirmed such in her evidence.

[9]         The emails passing between the parties provide a record of their dealings. Although I have reviewed them all, I will only refer to the relevant ones.

[10]      On January 10, 2018, Tori Kershaw emailed Andrea Jonsson to say that the order will be ready mid- February and they could “schedule delivery and install depending on Tyler’s schedule for Monday, February 19.”

[11]      Tyler was a person recommended by Tori Kershaw to do the demolition work in Ms. Jonsson’s kitchen and to prepare the site for the installation of the cabinets. Ms. Jonsson chose to use another person named John Ballantyne to handle the demolition and site preparation work.

[12]      There is some dispute as to when the site preparation work was completed. Ms. Jonsson says the work was completed by February 18 and the cabinets could have been installed on February 19, 2018. She said an email from Mr. Ballantyne confirmed this but did not provide a copy of that email as supporting evidence.

[13]      Antonio Perez is the operations manager for the claimant. Whereas Ms. Kershaw was involved in the design of the renovation, Mr. Perez was involved in the installation work. Mr. Perez said he understood Mr. Ballantyne was the general contractor on the site, and in charge of organizing all aspects of the renovation work. Ms. Jonsson testified that she hired Mr. Ballantyne only to do the demolition and site preparation work. In effect then, Ms. Johnson was acting as her own general contractor.

[14]      According to Mr. Perez, Mr. Ballantyne said the demolition and site preparation work would be completed by March 9, 2018. There is no documentation confirming this date. Mr. Perez said the cabinets were delivered on March 9, 2018 and he was on site for the delivery. The installation of the cabinets was to occur during the week of March 12, 2018.

[15]      On March 9, 2018, Ms. Kershaw sent an email to Ms. Jonsson confirming that the cabinets were delivered that day. Ms. Johnson replied by email:

[16]      On March 15, 2018, Ms. Kershaw emailed Ms. Jonsson to say that she did not take the sprinkler head in the kitchen ceiling into consideration when she planned the kitchen cabinets. The location of the sprinkler head would block the opening of the cabinet door above the refrigerator. Ms. Kershaw said that they would order a shorter door so that it would clear the sprinkler head when it opened.

[17]      Later that same day, Ms. Johnson sent an email to Ms. Kershaw to say:

[18]      Ms. Kershaw responded the next morning to say that the cabinets were supposed to be 18 inches deep and that she would sort this out.

[19]      The email correspondence shows a delay in the installation of the cabinets. On March 21, 2018, Ms. Jonsson emailed Ms. Kershaw to ask why the installers were not at her home as promised. Ms. Kershaw responded that the installer was delayed on another job and he would be there tomorrow to complete installation. She also said that Mr. Perez would be going to the apartment that day to take further measurements for the countertop.

[20]      On March 23, 2018, Ms. Kershaw sent an email to Ms. Jonsson to say that she was at the apartment to go over details with the installer. Her email said the countertop measurements had to be confirmed before cutting but that this would not affect the installation date.

[21]      Ms. Kershaw also stated:

[22]      Ms. Kershaw went on to say, “Rubbish bin is on-site but we cannot install until after the plumbing. I hope it fits!” Ultimately, the claimant did not install a rubbish bin because the plumbing blocked the proposed bin. The claimant alleged that Ms. Jonsson’s plumbers moved the plumbing to a location that blocked the bin. Ms. Jonsson said the plumbing was pre-existing. The construction plans attached to the Purchase Agreement show that a plan for a bin described as “Pull Out Recycling” was crossed out. Ms. Kershaw said that the crossing out of this on the plans confirmed that claimant was not providing a pull out bin.

[23]      On March 26, 2018, Ms. Jonsson emailed Ms. Kershaw to say that the cabinets had not yet been finished and she asked when they would be completed. Ms. Jonsson also asked when the countertops would be installed so that she could organize the appliance delivery. Ms. Kershaw responded that day to say she asked ATT Stonework about installation of the countertop. Ms. Kershaw also said that the installation price had risen by $500 and she asked ATT Stonework to honor their original quote of $3,746.

[24]      On March 29, 2018, Fon-Tile issued Invoice # 307578-00 to Ms. Jonsson for the kitchen and dining room cabinetry, showing an amount outstanding of $14,779.24. According to the Purchase Agreement though, this amount should have been $14,279.22 as there was a $500 holdback.

[25]      An installation checklist from ATT Stonework confirms that the countertop was installed on April 2, 2018. However, there was a problem with the countertop in that the corners were rounded rather than cut to a 45-degree angle. ATT Stonework returned to the apartment to recut the corners. Ms. Jonsson believes this occurred on either May 2 or 4, 2018.

[26]      The issue of delay in completion of the project was a concern for Ms. Jonsson. On April 9, 2018, Ms. Jonsson emailed Ms. Kershaw to say:

[27]      On April 10, 2018, Ms. Kershaw said in an email:

[28]      Ms. Jonsson responded that same day that Fon-Tile had yet to construct and install cabinets that can safely accommodate appliances. She said the dining room closet depth was 16 ¾” and could not accommodate a hanger. She also said the closet box no longer protruded outward but still did not appear as if it were built-in because it sat too far back. Ms. Jonsson referred to the closet as being too small.

[29]      On April 11, 2018, Ms. Jonsson emailed Ms. Kershaw and Mr. Perez to say that she “just finished trying to set up the kitchen this evening and the top drawers do not open and the ones below are extremely tight and do not close properly.” Ms. Jonsson asked for someone to be sent over to adjust the drawers.

[30]      On April 12, 2018, Mr. Perez emailed Ms. Jonsson to tell her that he will try to book the installer as soon as possible to address the following:

[31]      Mr. Perez went on to say it is after countertops and appliances are installed that final adjustments are usually made.

[32]      On April 13, 2018, Ms. Kershaw emailed Ms. Jonsson with suggested “clothes hanging solutions”.

[33]      The construction plans called for four side-by-side units or boxes installed along the wall in the kitchen/dining room area. The two end boxes were for shelving. The two middle boxes were for a closet to hang clothes and they were initially built too large. Ms. Jonsson’s email of March 15, 2018 said that the boxes were built to a 23” depth and she asked if they should have been built to a 19” depth. Ms. Kershaw said the boxes should have been built to an 18” depth. As I stated, the intention was for these units to appear built-in and flush with the adjoining fireplace.

[34]      The building plans attached to the Purchase Agreement show a wall depth beside the fireplace of 18 ¼”. Ms. Kershaw testified that in order for the boxes to be flush with the fireplace, they were built with an 18” exterior depth. Because of this, the inside of the box only permitted the use of smaller sized hangers.

[35]      The expert opinion report of Eric Wolf dated January 20, 2021 and submitted by Ms. Jonsson said the inside of the closet boxes had a depth of 16 ½”, and that a standard closet ranged from 21” to 24”. The report said a standard coat hanger was 17”.

[36]      Ms. Jonsson took issue with the smaller size of the closet boxes. Ms. Kershaw’s email of April 13, 2018 offered possible solutions to this issue.

[37]      On April 24, 2018, Fon-Tile issued Invoice # 307578-00 for the countertop for $4,226.00 plus GST of $211.30, a total of $4,437.30.

[38]      The Purchase Agreement referred to the supply and installation of countertops for the kitchen at a cost of $3,316 and the bathroom at a cost of $1,301 plus tax. By my calculation, this totals $4,617 plus GST of $230.85, a total of $4,847.85. The invoiced amount of $4,437.30 was for less than the price set out in the Purchase Agreement. Fon-Tile claimed the invoiced amount in the Notice of Claim and never had this claimed amount amended. As such, Fon-Tile is restricted to the maximum of the dollar amount sought in the Notice of Claim.

[39]      On April 27, 2018, Ms. Jonsson sent an email to Ms. Kershaw and Mr. Perez listing outstanding items, as follows:

[40]      On April 30, 2018, Mr. Perez emailed Ms. Jonsson and referred her to some websites so that she could choose hardware. He recommended installing a grill in the toe-kick for the fridge, and that Ms. Jonsson obtain a microwave trim kit from the appliance supplier. Mr. Perez said they have the materials needed for the shelves, toe kick and scribe for the top of the units. Mr. Perez said he would have the installer do final adjustments and ensure all drawers and doors open, and he would confirm a time for the installer.

[41]      On May 2, 2018, Ms. Jonsson emailed Mr. Perez to ask for confirmation of the time the installer would be coming the next day. Mr. Perez responded that the installer could not attend that day but would be available May 8, 2018. Ms. Jonsson emailed to express her disappointment because she had taken the day off from work.

[42]      On either May 2 or May 4, 2018, ATT Stonework re-cut the countertop corners to make 45-degree corner angles.

[43]      On May 7, 2018, Mr. Perez emailed Ms. Jonsson to tell her the handles she ordered for the living room units would take a week for delivery.

[44]      On May 8, 2018, a carpenter named Peter Powell attended at Ms. Jonsson’s apartment. This is referred to in an invoice issued by Mr. Powell to Mr. Perez dated June 25, 2018 which described 8 hours of work done.

[45]      Ms. Jonsson’s microwave sat on a shelf in the kitchen. There was some earlier discussions about obtaining a microwave trim kit to cover the shelf opening. Ms. Jonsson then decided to have a door installed over the opening to hide the microwave. Ms. Kershaw said this was not part of the Purchase Agreement but Fon-Tile still had the door installed at no cost to Ms. Jonsson. On May 14, 2018, Ms. Kershaw emailed Ms. Jonsson to confirm that a door and hinges were ordered for the microwave opening.

[46]      On May 15, 2018, Ms. Jonsson emailed Ms. Kershaw to ask about the door for the cabinet above the fridge. There is no evidence of any emailed response.

[47]      On July 26, 2018, Ms. Jonsson emailed Mr. Perez to say that she was still waiting for the installation of two doors and the handles.

[48]      It was not until August 31, 2018 that Mr. Perez responded to Ms. Jonsson, stating:

[49]      Ms. Jonsson said the Thursday was available and Mr. Perez confirmed that the installer, Bill, would come at noon on that day, being September 9, 2018.

[50]      On September 4, 2018, Mr. Perez said that the installer had something to finish in the morning and that he should only take him 1 hour to 1.5 hours to do the work.

[51]      Ms. Jonsson testified that Peter Powell came to her apartment to work on September 7 and then again on September 14, 2018. She said that when he left there still remained deficiencies as listed in the report from Eric Wolf. Mr. Wolf’s report was a result of a site visit that occurred quite some time later on January 15, 2021.

[52]      On October 23, 2021, Mr. Perez emailed Ms. Jonsson to ask about the outstanding invoice for the kitchen and countertops. He listed the outstanding amounts as follows:

[53]      On October 29, 2018, Ms. Jonsson said she would be happy to look at the invoices when the job is complete, noting that there were still many deficiencies.

[54]      Mr. Perez responded that same day to say he thought everything had been done and asked what deficiencies he needed to address.

[55]      On November 8, 2018, Mr. Perez emailed Ms. Jonsson again to ask about setting up a meeting to discuss the deficiencies. He also asked Ms. Jonsson to deal with the outstanding invoices.

[56]      Ms. Jonsson has submitted into evidence a copy of an undated email from Sasha Topol, who handles accounts receivable for the claimant. The email refers to a past balance due and attaches copies of three invoices, one each for the cabinets, the countertop and the vanity. The claim for the vanity was part of the Notice of Claim but at trial that claim was properly withdrawn because the price referred to in the Purchase Agreement included the vanity.

[57]      Ms. Jonsson did not respond to the email from Sasha Topol.

[58]      On December 6, 2019, the claimant filed its Notice of Claim.

[59]      Where a breach of a contract is significant enough, where it goes “to the root of the contract” and is a fundamental breach, then the party who is not in breach of the contract may treat the contract as repudiated by the other party: see Cartoon v. Natterjack Animation, 2002 BCSC 1763 at para. 48.

[60]      A breach of contract that constitutes a repudiation is where a party has failed to perform the very purpose for which the contract is designed, and that this deprives the other party of the whole or substantially the whole benefit that was to be obtained under the contract: see Penticton (City) v. Penticton Hospitality Association, 2014 BCSC 1448 (CanLII) at paras. 66 to 67.

[61]      If the repudiation of a contract is accepted, the contract is at an end and both parties to the contract are excused from further obligations under the contract. Alternatively, the innocent party may elect to affirm the contract and insist on the carrying out of the contractual terms, while reserving the right to claim for damages: see Fraser Valley Title Search Ltd. v. Gallagher, (1983) CanLII 423 (BCSC) at para. 5.

[62]      Pursuant to the Purchase Agreement, Fon-Tile Corporation Limited was required to provide and install cabinets, a vanity and countertop. This was the substance or the very purpose of the contract between the parties and the claimant did supply these items. In my view, there has not been a fundamental breach of contract. As such, Ms. Jonsson did not have the right to elect to treat the contract as having been repudiated by the claimant.

[63]      If I am wrong in this assessment, I find that at all times Ms. Jonsson was asking the claimant to deal with the deficiencies, as was shown for example in her email of October 29, 2018. Ms. Jonsson’s actions affirmed the contract terms. As a result, the terms of the contract remain binding upon the parties.

[64]      As the contract remains binding on the parties, Ms. Jonsson remains liable for payment of the sum owed under the Purchase Agreement subject to a claim for a set off based on damages suffered by her.

[65]      The balance due under the Purchase Agreement is $14,279.22. This does not include the $500 holdback that was due upon substantial completion. The Purchase Agreement defines “substantial completion” as “when Fon-Tile Corporation has performed all services as called for in this agreement…” As there remained deficiencies, Fon-Tile has not performed all services called for in the Agreement and there has not been substantial completion as defined in the Purchase Agreement. Therefore, Ms. Jonsson does not owe the sum of $500 to the claimant.

[66]      Counsel for Ms. Jonsson raises an issue of contractual interpretation. The Purchase Agreement lists the goods and services to be provided, which includes the kitchen cabinets, vanity and countertop. The Purchase Agreement goes on to say:

[67]      The Purchase Agreement then goes on to list the contract value of $28,150.90 with a balance owing of $14,279.22 and the $500 holdback due upon substantial completion. In other words, Ms. Jonsson’s counsel argues that the price of the vanity is part of the overall price based on the Purchase Agreement stating that the price was for the “above goods and services,” being a reference to the list of goods and services that includes the cabinets, vanity and countertop.

[68]      I am not prepared to accept this submission. The description of the countertop in the Purchase Agreement sets out a separate price and specifically refers to a separate invoice.

[69]      The leading case dealing with the interpretation of contracts is Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53 (CanLII), where the court stated:

[70]      The parties were well aware that the countertop was being separately billed, as shown by the estimate dated December 6, 2017, which set out a separate price for the countertop. Because the Purchase Agreement referred to a separate invoice for the countertop, I find that the parties intended the countertop to be a separately billed item.

[71]      I conclude that the amount owing under the Purchase Agreement is $14,279.22 plus $4,437.30, which is both the amount claimed in the Notice of Claim for the countertop and the amount invoiced. This totals $18,716.52.

[72]      I will first deal with the issue of the size of the closet space in the kitchen/dining room area. Two of the four cabinets installed in this area were for closet space. The units were intended to appear built-in and so the depth of the units had to conform to the surrounding areas.

[73]      The building plans showed a wall depth beside the fireplace of 18 ½”. According to the report of Eric Wolf, this resulted in an interior depth of 16 ½” which is smaller than a standard sized closet.

[74]      Fon-Tile could have supplied closet space that was of standard depth. As shown in an email sent by Ms. Kershaw to Ms. Jonsson on March 23, 2018, the originally constructed closets were a larger size. However, Ms. Jonsson was seeking closets that appeared to be built-in and so the claimant rebuilt the closets to a smaller size. I do not consider this is a breach of contract. Ms. Jonsson was seeking closet cabinets that appeared built-in and the surrounding wall depth dictated the size of the closet cabinets. There was no evidence that Fon-Tile could have created a larger closet given the constraint that the closet had to appear to be a built in unit.

[75]      I turn now to the issue of delay. The Purchase Agreement lacked any deadline for the completion of the renovation work. In such a case, there is an implied term of the contract that it will be completed within a reasonable time: see Diamond 11 Excavating and Demolition Ltd. v Dhunna, 2018 BCSC 2230 at para. 50.

[76]      Ms. Jonsson’s understanding was that it would take 3 days to install cabinets, 1 week to draw countertop templates, and then 2 weeks to cut the countertop. Her expectation then was for completion of the work no more than one month after demolition. Mr. Perez testified that the average time from design to construction was 6 months. He has the experience and background to provide a better estimate of reasonable completion time compared to Ms. Jonsson, who has never been involved in a renovation project.

[77]      This was a relatively small renovation job involving a kitchen/dining room area and a bathroom. If the average job takes about 6 months, this job should have taken less. In my view, a reasonable time to complete the renovation would have been no more than 4 to 5 months. As there remained deficiencies some 9 to 10 months after the Purchase Agreement was signed, I find that Fon-Tile breached the contract by failing to fulfill its obligations within a reasonable time.

[78]      Ms. Jonsson also shares some of the responsibility for the delay. Her failure to pay the amount due under the Purchase Agreement likely contributed to Fon-Tile’s unwillingness to correct the deficiencies.

[79]      Ms. Jonsson suggested that she lost income because she had to cancel work appointments so that she could be at her apartment waiting for contractors. However, she provided no evidence to show what her income was both prior to and after the start of construction. This evidence could have shown any effect to her income from missed appointments. Ms. Jonsson also did not supply evidence to show that cancelled appointments could not be re-scheduled. Simply put, there is insufficient evidence to satisfy me on the balance of probabilities that Ms. Jonsson lost income due to the breach of contract.

[80]      The expert report of Eric Wolf identified a number of deficiencies but did not provide any estimate for repair costs.

[81]      The report of Hoang Ngo dated March 31, 2021 confirmed that a number of deficiencies existed. That report fixed repair costs at $2,445 if the cabinets are reconstructed, and $4,335 if the cabinets are replaced. The problem with this assessment was that Ms. Jonsson did obtain the cabinets she contracted for, that being cabinets that appeared to be built-in. The unintended consequence of this request though was that the cabinets were not full-sized closets. The assessment of damages must take into consideration my finding that the supplied cabinets were the ones requested.

[82]      Based on my finding that Fon-Tile should have completed the renovation work in 4 to 5 months, I fix the amount of damages on the counterclaim at $5,000.

[83]      I previously found that the amount owing by Ms. Jonsson pursuant to the Purchase Agreement was $18,716.52. The amount of the counterclaim will be set off against the $18,716.52 and the result is that Ms. Jonsson must pay to the claimant the sum of $13,716.52.

[84]      Ms. Jonsson asks for an order that Fon-Tile give her with any missing items that the claimant did not provide to her pursuant to the Purchase Agreement. This is in the nature of claim for specific performance, that Fon-Tile carry out at least part of its obligations under the Purchase Agreement. Ms. Jonsson’s counterclaim did not seek an order for specific performance and she instead elected a remedy of damages. I refer to the decision Inmet Mining Corp. v. Homestake Canada Inc., 2003 BCCA 610 (CanLII) starting at para. 203 for a discussion about the election of alternative remedies for a breach of contract.

[85]      In addition, I lack evidence of what items Fon-Tile did not provide Ms. Jonsson. Those items would have been to repair any deficiencies or complete the contract work. The award of $5,000 on the counterclaim takes into consideration any deficiency items.

[86]      Given the above, I will not order Fon-Tile to provide any missing items to Ms. Jonsson.

[87]      Fon-Tile claims interest on the unpaid balance at the contract rate of 1.5% per month.

[88]      I refer to the Interest Act, R.S.C., 1985, c. I-15, at section 4, which reads:

[89]      As the Purchase Agreement fails to contain an express statement of the yearly rate or percentage of interest, then the applicable rate of interest on the unpaid balance is 5% per annum. Ms. Jonsson will owe interest starting May 1, 2018, which is after the delivery of the cabinets, being the due date for the unpaid balance less the $500 holdback.

[90]      Given the divided success at trial, I decline to make any order for payment of court filing fees or service fees. Both parties will also bear the costs of their own expert reports.

[91]      If there is any claim for a penalty based on an Offer to Settle issued pursuant to Small Claims Rule 10.1, the party claiming the penalty may provide written submissions to the court, with a copy to the other party, within 21 days of the date of this decision. The other party will have 14 days after receipt of the written submissions to file with the court and to provide to the first party a response to the submissions. I will then issue written reasons regarding the application for payment of a penalty.

[92]      Andrea Jonsson will pay to Fon-Tile Corporation Limited $13,716.52 plus interest at the rate of 5% per annum starting May 1, 2018. The Registry will calculate the interest amount owing. There will be no award for court filing or service fees.