IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Vista Leadership Inc. doing business as Thermal King Glass (the “Claimant TKG”) seeks in its Notice of Claim to recover a judgment in debt in the amount of $16,020 being the balance owing on a rendered invoice. It further seeks damages for 30 hours of additional personnel time used and “wasted” in the amount of $2,850 plus interest at the invoiced rate of 2.5% per month against the defendant Muriel Pilon (the “Defendant”).

[2]         These claims arise out of and in connection with the supply and installation of new replacement windows throughout the residence of the Defendant.

[3]         The controlling shareholder of the Claimant TKG is Milan Prpic (the “Claimant Prpic”) who is also named as a Claimant. As will be seen below, the Claimant Prpic has been improperly joined in these proceedings.

[4]         The Defendant disputes both of those claim and in essence says that she should not have to pay because she did not get what she contracted for and then further counterclaims against the Claimant TKG and the Claimant Prpic for $7,500, being the entire deposit amount originally paid by the Defendant. The Defendant alleges in her counterclaim it is an amount that is required to fix, replace or to complete necessary installation work with respect to the replacement windows.

[5]         The Claimant denies the counter claim saying the Defendant has not allowed the Claimants to complete any remaining or outstanding work.

[6]         While the foregoing describes the original claim and counterclaim, this matter has metastasized into a high conflict case with each side seeking a broad range of remedies, including a claim for punitive damages.

[7]         The task of this court is to determine whether or not the Claimants (or either of them) has proven that the Defendant is liable for the amounts claimed in either debt or in damages and whether the Defendant has proven her counterclaim and the relief sought.

[8]         I note parenthetically that the hearing of this trial took place over a lengthy time span. It was interrupted and delayed in part by the fact that on March 11, 2020, the World Health Organization classified COVID-19 as a pandemic. Shortly thereafter the BC Provincial Health Officer, Dr. Bonnie Henry, commenced issuing a number of orders under the Public Health Act. Those orders had a significant impact on trial scheduling within the Provincial Court.

[9]         However, a lack of preparedness by the Defendant and her failure to arrange for an expert witness in a timely manner, her failure to respond in a timely fashion to requests regarding scheduling from the court’s Judicial Case Manager, her failure to materially comply with both timelines and with court orders and directions, made both in advance and in the course of the trial and her failure to attend at court because she forgot a continuation date have also contributed to the length of these proceedings.

[10]      The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 at paragraph 49, states:

[11]      Therefore, the Claimants must prove the existence of the facts and other essential elements upon which it relies in order to succeed in their claim against the Defendant. If they fails to do so, the Claimants cannot succeed.

[12]      Similarly the Defendant, as a Claimant by way of counterclaim, must do the same with respect to the subject matter of the counter claim and in connection with that prove her mitigation of damages.

[13]      What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard of proof applies only in criminal trials. In civil trials the party who has the burden of proof on an issue must convince the finder of fact (here being the court) that what she or he asserts is more probable than not or to put it another way, that the balance is tipped in his or her favour. (see F.H. v. McDougall, supra).

[14]      The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denning in the following terms:

[15]      In Smith v. Smith 1952 CanLII 3 (SCC), [1952] S.C.J. No. 25 (SCC) Justice Cartwright (as he then was) of the Supreme Court of Canada articulates the applicable test as follows:

[16]      Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) (“Sopinka”) at ss. 5.52 and 5.53 provide the following useful summary:

[17]      Sopinka in s. 5.53 at footnote 135 goes on to cite Dixon J. in Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 at paragraphs 361-362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words:

[18]      If the evidence on an issue is evenly balanced such that the trier of fact is unable to say where the balance of probabilities lies, then the decision on that issue must be made against the party who has the burden of proving it.

[19]      In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidence relevant to that issue, no matter who produced it.

[20]      In the course of these proceedings, expert evidence was sought to be adduced by the Defendant.

[21]      The Supreme Court of Canada’s decision in R. v. Mohan, 1994 CanLII 80, sets out criteria for determining the admissibility of expert opinion. To qualify for admissibility the expert evidence must meet four criteria:

[22]      A properly qualified witness must be independent and impartial (see: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para 53)

[23]      Evidence from a qualified expert is admitted in a trial as an exception to the general exclusionary rule barring opinion evidence, in order to provide the trier of fact with the necessary technical or scientific basis upon which to properly assess the evidence presented (see: Sopinka at s. 12.35). In other words, it is a tool to allow the trier of fact to better comprehend complex or technical evidence in making its decision, where the complex or technical evidence is likely outside the knowledge and experience of the trier of fact.

[24]      A previous rule of evidence known as the “ultimate issue rule” restricted an expert from opining on the very issue before and to be determined by the court. The concern was that court’s role as the trier of fact may be usurped by experts.

[25]      The modern judicial view is that the admission into evidence of the opinion of an expert on the “ultimate issue” is not necessarily inconsistent with the prerogative of the trier of fact to decide the ultimate issue. In all circumstances it is open to the trier of fact to accept or reject the opinion of an expert on the ultimate issue. (see: The Continuing Legal Education Society of British Columbia: Expert Evidence in British Columbia Civil Proceedings, third edition (2011) (“CLEBC: Expert Evidence”) parts 2.17 to 2.21 inclusive).

[26]      I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed and somewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach was approved by the Honourable Judge T.S. Woods in R. v. Connell, 2017 BCPC 123, at paras. 5 and 6. This approach has been followed in other fairly recent decisions of our court including my own: see for example Izzard v. Hopkins, 2021 BCPC 35 (CanLII).

[27]      However, in drawing necessary inferences and in reaching my conclusions I have carefully considered all of the evidence, even if I have not made specific reference to certain aspects of it.

[28]      The Claimant TKG operates a well-established Victoria based business on southern Vancouver Island that provides a broad range of glass products and services for residential and commercial customers.

[29]      It includes the replacement and retrofitting of glass windows and glass doors for residential customers, which is a niche market and a specialty for it. The business was originally established in 1980 under the name of “Thermal King Glass”.

[30]      The corporate entity known as Vista Leadership Inc. under the direction of the Claimant Prpic acquired the business in 2017. Two of the founder’s sons continue as operational employees, one being Sean McIlveen, a product advisor, who was the Defendant’s product advisor. The other is Jesse McIlveen, a certified glazier since 1990. He primarily works as a window and door installer. Therefore, he has extensive experience in this type of installation and acts as a site supervisor overseeing other installers for his employer. Jesse Mcllveen performed these roles for the Claimant TKG on the project that gives rise to these claims.

[31]      The Claimant Prpic is the controlling shareholder and an officer and director of the Claimant TKG. He is responsible for the overall operations, administration and management of its business, which he described as a “growing business” that employs approximately 10 to 11 people.

[32]      At the outset of the trial, the Defendant held long time employment as a room attendant and housekeeper with a prominent local hotel. The COVID-19 pandemic and resulting lockdown in March of 2020 may have impacted the Defendant’s employment.

[33]      The Defendant is the sole owner of an exterior stucco residential premises, originally constructed in 1958 and located within the City of Victoria (the “Residence”). The Defendant acquired the Residence some 18 years ago. Although an extensive renovation of the Residence has never been undertaken by the Defendant she has completed some ongoing repairs and updating, including a roof replacement and the replacement of her heating system. Therefore, at the outset of her dealings with the Claimant TKG she had relatively little experience in home renovations and improvements and none with respect to modernizing her windows.

[34]      The Defendant decided to replace the original single pane windows throughout the Residence with modern and more energy efficient windows. She testified that she was motivated to do so over her concerns about interior condensation accumulation on the existing single pane windows which required her constant attention, wiping down and treating with an essential oil to eliminate an existing mould condition and to prevent further mould growth. She testified that she was concerned about “liability exposure” to her international student tenant for harm caused by that mould. There is nothing in the evidence to suggest that she ever shared these concerns with the Claimant TKG.

[35]      The Defendant obtained the name of Thermal King Glass from a neighbour who was a retired architect (the “Neighbour”). The Neighbour lived in a house a few blocks away from the Defendant (the “Neighbour’s House”) which is not dissimilar to the Residence. Some 6 to 8 years ago, the Neighbour apparently had engaged the business then known as Thermal King Glass to replace the original single glazed windows in the Neighbour’s House. He was apparently pleased with the results. According to the Defendant, on her behalf the Neighbour contacted the business offices of the Claimant TKG. The Neighbour was not called as a witness and therefore there is no evidence about what transpired during those discussions nor what, if any, information was provided to the Claimant TKG by the Neighbour.

[36]      Thereafter, Sean McIlveen, in his role as a product advisor, contacted the Defendant and met with her. Sean McIlveen remained her main contact with the Claimant TKG.

[37]      Sean McIlveen has some 20 years of experience as a product advisor in the field of new windows and window replacements. His role is to meet with customers, discuss their needs, provide solution options and prices, determine the scope of the work to be undertaken, and take measurements. Those measurements are then subsequently provided to the actual window manufacturer who completes detailed drawings for the replacement windows. Sean McIlveen then presents those drawings to the customer for approval, gets contracts signed, and places orders with the window manufacturer, all to get the project underway. He does not oversee nor supervise the project installation work but does remain as the customer’s principal contact, provides customer support and is responsible for dealing with customer satisfaction until the project is finished. He receives both a salary and a commission on successfully completed projects and upon payment of the contract amount in full by a customer.

[38]      It is common ground that the Defendant and Sean McIlveen met at the Residence of the Defendant in mid-October of 2018 with nobody else present. Neither kept notes or other records of the discussions that ensued. It seems likely that on that particular occasion Sean McIlveen took measurements for the windows in the Residence that were to be replaced with new replacement windows, that being all of the windows in the Residence totalling 13 windows except a bathroom window (the “Replacement Windows”).

[39]      Thereafter the Defendant visited the Claimant TKG’s showroom to discuss the available options and methods of installation and the respective benefits of these options. It is common ground and it was understood by both parties that the Replacement Windows were being sourced from a third party window manufacturer. In this case it was VINYLTEK (the “Manufacturer”). As noted below the Defendant suggests she did not understand that the Replacement Windows were being custom manufactured for her Residence.

[40]      There is contradictory evidence provided by the Defendant and by Sean McIlveen. Sean McIlveen stated that in the course of their discussions, the Defendant had a “clear idea” of the type of replacement window she wanted and the method of installation to be utilized. Sean McIlveen says that this was the basis for the order taken by him from the Defendant for the Residence and then placed with the Manufacturer. However, the Defendant suggests in her evidence that at the outset the Claimant TKG was made aware that she wanted the “same as” or “exactly the same” windows as the Neighbour’s House. She goes so far as to suggest that the civic location of the Neighbour’s residence at the very outset was provided to and made known to somebody when she called the business offices of the Claimant TKG and that was the specific reason the Claimant TKG was selected and hired by her. She also contends that Sean Mcllveen told her that he had copies of the documentation relating to the replacement of windows at the Neighbour’s House. That is inconsistent with Sean Mcllveen’s evidence.

[41]      There is no doubt that eventually Sean McIlveen and the Defendant visited the Neighbour’s House for a viewing of those windows but that occurred later. Sean McIlveen testified that he believes that discussions about “looking like” the windows at Neighbour’s House occurred after the signing of the Original Order Document and prior to signing the Order Modification Document, as each are described below.

[42]      As a result of the meetings between the Defendant and Sean McIlveen, Sean McIlveen described the Defendant’s choice for the Replacement Windows as “full removal and full replacement”. This entails the removal of the existing windows and the original frames, and then the replacement installation of a new framed window, complete with a weather barrier, into each of the original rough opening gaps left after the removal of the existing windows. The replacement window unit is then attached to the superstructure of the house by way of a nailed flange system. This system requires some cutting around the original opening gap which for the Residence, meant cutting into the stucco.

[43]      A type written “order” document dated October 17, 2018, identified as Order No. 3994 on the Claimant TKG’s form was prepared by Sean McIlveen. It specifically referenced the supply and installation of “new premium grade VINYLTEK windows “as per attached details” with specific reference to a seven page document #51805. That seven page document was prepared by the Manufacturer (being VINYLTEK). It contains drawings, specifications and dimensions for the new Replacement Windows and a glass door (the “Manufacturer’s Plans”). The signature of the Defendant appears on this “order” document (the “Original Order Document”). Reference is made to other specifications and colours.

[44]      Specific mention is made in the Original Order Document to a: “Lifetime manufacturers Warranty, 10 year installation warranty”. The Claimant Prpic confirmed that the Manufacturer provides the “Lifetime manufacturers Warranty” which covers any failures of the Replacement Windows. The Claimant TKG provides the “10 year installation warranty”. The Claimant Prpic testified that there has never been a problem with any window installations of the Claimant TKG nor any warranty installation claims made against the Claimant TKG.

[45]      Specific mention is also made on the face of the Original Order Document about the “full removal of old frames and installation of new windows” and “Measured to fit inside the existing line space-interior trim will stay in place”. It goes on to specify an upgrade of the living room to laminated glass for “better noise reduction of road noise” and for providing a specific type of glass door described as a “Inswing Eurotwist door with multi point lock” (the “Eurotwist Door”).

[46]      Another provision states: “Includes removal and disposal of old material from the site. Finish trims will be primed and ready for finish paint unless otherwise noted. Electrical conduit above rear windows to be moved by homeowner prior to installation of windows.”

[47]      On the face of the Original Order Document the total price inclusive of taxes is stated to be $23,244.90 and then there is a handwritten insertion showing a deposit paid by Visa of $7,500 (the “Deposit”) with the outstanding balance being $15,744.90.

[48]      The Defendant testified that she saw the Manufacturer’s Plans before she signed the Original Order Document. Sean Mcllveen conceded that the Manufacturer’s Plans do not provide information on the flanges but he testified that the available options were discussed between himself and the Defendant and were reflected in Original Order Document.

[49]      Notwithstanding that the Manufacturer’s Plans were attached to the Original Order Document, the Defendant testified that she did not recall knowing or being told by Sean Mcllveen or anybody else that the Replacement Windows had to be specifically custom manufactured for the Residence.

[50]      Following the placement of the order with the Manufacturer based upon the Original Order Document, the Defendant contacted Sean McIlveen with concerns that what she was getting by way of the “full removal and full replacement” was not the same as the Neighbour’s House replacement windows which apparently was an option known as a “rebate window system”.

[51]      According to all of the evidence before the Court, the “rebate window system” form of installation involves removal of the original glass while retaining the original permanent window frames, which in this case are the original metal frames. The new vinyl frame is then inserted inside that original metal window frame and then affixed by drilling through the vinyl frame from the interior side into the original metal frame and through into the superstructure of the house. The result is that from the exterior the new vinyl frame generally covers the original metal frame, with some exceptions, depending upon the type of the exterior covering of the house such as stucco, wood or vinyl.

[52]      Following the placement of the Original Order Document with the Manufacturer, the Defendant apparently realized that the type of installation for the full removal and full replacement process that she had ordered resulted in cutting into the exterior stucco. How she became so aware is unclear. The evidence suggests that what prompted her was the realization, from some unspecified source, that what the Neighbour’s House had was the “rebate window system” otherwise called a “partial replacement” window.

[53]      She contacted Sean McIlveen about her concerns sometime in mid-November of 2018. She indicated that what she had ordered is not what she what she actually wanted. They subsequently met at the Residence. Again, neither kept notes nor other records of the discussions. The Defendant described that she got “very, very upset” with Sean McIlveen and they argued. She suggested that it was Sean McIlveen who was most argumentative but concedes that she was “fighting with him”. Sean McIlveen goes so far as to agree in his testimony that she was “upset”.

[54]      It is common ground that during this subsequent attendance at the Residence, that the Defendant and Sean McIlveen together then personally visited the Neighbour’s House to view the windows at that location.

[55]      Again, there is a conflict in the respective versions of what was then discussed during that subsequent visit. The Defendant suggest that on that occasion she told Sean McIlveen that the windows of the Neighbour’s House was “what I want” and “exactly like this” and that it fit her budget. She goes on to say that Sean McIlveen then said: “I clearly see what you want”. In her evidence, the Defendant then goes so far as to say to Sean Mcllveen that she specifically wanted the “flanges” to look like those on the Neighbour’s House, although at that point it is uncertain that she even knew what a flange was on any of the windows. She went on to testify that it was her belief that the Neighbour’s House replacement windows only cost about $6,000 when he had it done. The source of the information is unclear and its factual correctness was not verified from any independent source at trial. The Defendant did concede there were likely more Replacement Windows that had to be replaced on the Residence than on the Neighbour’s House.

[56]      On the other hand, Sean McIlveen testified that when he met with the Defendant on the subsequent time at the Residence that it was the Defendant who then had a “new clear idea” of what she wanted. That then precipitated the visit to the Neighbour’s House. He also testified that he would have told the Defendant that the new Replacement Windows would not look exactly like those on the Neighbour’s House. The reason being that the original windows of the Neighbour’s House were likely a different kind of aluminium frame window from the 1950’s or 1960’s, with a different size opening and requiring a different size of flange, being a 2 inch flange. The Original Order specified a 2 1/2 inch flange to properly cover around the Replacement Windows. Sean Mcllveen testified that the option reflected in the Original Order Document would have been more in keeping with the appearance of the Replacement Windows in Neighbour’s House. He had no recall of a discussion about a $6,000 cost amount nor any questions or concerns from the Defendant about her budget at this time or on previous occasions.

[57]      Ultimately and shortly thereafter in an attempt to address the Defendant’s concerns, Sean McIlveen made inquiries with the Manufacturer regarding the status of the manufacturing of the new Replacement Windows.

[58]      As it turned out, the manufacturing of the new Replacement Windows had already been completed. However, Sean McIlveen learned from the Manufacturer that some adaptations and modifications to the installation procedures could be made in order to make use of those completed Replacement Windows, to avoid cutting the stucco and to obtain something close to the look of the windows that had been installed at the Neighbour’s House.

[59]      However this modified installation process also required the removal of the existing nail flanges on the newly manufactured windows and in substitution of that existing nail flange, the use of a 2 1/4 inch stucco flange to cover the original frames of the Residence from the exterior. A 2 inch flange, like that on the Neighbour’s House, would not provide satisfactory aesthetics coverage. As I understand Sean McIlveen’s evidence a 2 1/4 inch stucco flange was not available from the Manufacturer but a 2 1/2 inch stucco flange was available. However, that particular flange needed to be cut in order to properly install the new Replacement Windows on the Residence.

[60]      Sean Mcllveen testified that the flange was also important as a water seal and to keep bugs out and that cutting the flange resulted in an aesthetic change but no loss to its strength or its functions. He further explained that this cutting was required in order to bring it into proper contact with the frame of the original windows in certain areas.

[61]      I understand from the whole of the evidence provided by the witnesses testifying on behalf of the Claimant TKG that the Replacement Windows are manufactured as a sealed unit. However, it is essential to have the Replacement Window unit fitted properly into the window space; part of that installation procedure involves the covering of any gaps between the sealed window unit and the window space and that flanges often serve that purpose.

[62]      On November 15, 2018, a hand written document was prepared by Sean McIlveen and signed by the Defendant (the “Order Modification Document”). This changed the scope of the work. It references the order number of the Original Order Document and the net price before taxes, set out therein at $22,138. It then sets out the required modifications to that Original Order Document which includes the following:

[63]      Therefore, the Order Modification Document shows a new total before taxes of $22,400, plus taxes of $1,120, for an aggregate of $23,520. The Deposit amount of $7,500 is credited, resulting in a balance owing shown as $16,020.

[64]      The Defendant’s evidence is that she did not recall knowing or being told that the Manufacturer had already completed the Replacement Windows or that modifications would be required to the flanges. She conceded that she knew and approved some cutting of the flanges on some five windows in order to fit under the eaves. She testified that she understood that when she was signing the Order Modification Document that she would be getting the same window appearance as the Neighbour’s House.

[65]      Sean Mcllveen testified, that in hindsight, there was a further possible option to remanufacture the Replacement Windows but the total cost, including the cost to the Defendant for the already manufactured windows under the Original Order Document, would have been in the range of between $30,000 to $40,000. According to Sean Mcllveen’s evidence this hindsight approach may have provided an appearance closer to the Neighbour’s House but of course was much more expensive. He never presented that option to the Defendant.

[66]      As I understand the evidence of both Sean McIlveen and the Defendant the installation by the Claimant TKG of the new Replacement Windows and the new door proceeded following the execution of the Order Modification Document.

[67]      Based upon the evidence of the Claimant Prpic, Sean McIlveen and Jesse McIlveen the Claimant TKG’s installation work occurred at the Residence between January 7 thru to January 9, 2019, under the direction of Jesse McIlveen, who was overseeing a 3 or 4 person crew. The Defendant testified that she was on paid vacation and was present at the Residence to observe the installation work. She says she spoke with and dealt with Jesse Mcllveen during the installation. She also says that she provided food and refreshments for the crew. She neither had nor expressed any concerns or dissatisfaction to either Jesse Mcllveen or Sean Mcllveen during the course of the installation of the Replacement Windows or the Eurotwist Door.

[68]      The Claimant TKG asserts that the installation was “substantially complete” on January 9, 2019. Specifically the Claimant Prpic testified that approximately 3% to 4% of the work remained to be completed.

[69]      The Defendant says that she immediately saw there were things that were incomplete and deficient.

[70]      The usual practice of the Claimant TKG is to have the assigned product advisor (in this case Sean McIlveen) conduct a walk through inspection with the customer. This is to determine that the customer is satisfied or to determine what remaining work or deficiencies have to be addressed by the Claimant TKG’s employees, and to thereby complete and finalize all project matters (the “Final Corrective Work”). The Final Corrective Work also includes cleaning of the interior and exterior of installed windows and frames, the clean-up and touch up painting of rough cuts on the flanges, and other touch up painting and caulking.

[71]      In the meantime and prior to an opportunity for the Defendant’s walk through with Sean McIlveen, Invoice 101644 addressed to the Defendant (the “Invoice”) was generated by the Claimant TKG and apparently sent to the Defendant via email on January 10, 2019. It showed a total amount owing of $16,020 after a credit for the Deposit and a reduction of $1,480 for elimination of the stucco cutting. Therefore, prior to the applicable credit for the Deposit the total gross amount inclusive of GST equalled $23,520. All of this was consistent with the Order Modification Document.

[72]      The Invoice contained a provision stating: “Due upon Receipt 2.5% per month service charge will be added on overdue invoices”. The Original Order Document signed by the Defendant makes no mention of payment terms or interest on overdue balances. The Order Modification Document, also signed by the Defendant, does contain a line with a box for ticking that recites the payment terms contained in the Invoice but that box was not ticked as to become applicable. There is no evidence that the Defendant agreed to pay interest at that rate or for that matter any interest at any rate.

[73]       According to the Claimant Prpic, it was an administrative error that caused the Invoice to be so rendered to the Defendant at that time and specifically prior to the walkthrough as between the Defendant and Sean McIlveen occurring.

[74]      In response to receiving the Invoice, the Defendant sent a return email of January 10, 2019 to Caroline Prpic, spouse of the Claimant Prpic, who as part of the Claimant TKG’s administration team had sent out the Invoice. In that email, the Defendant indicated she was waiting for the “storage window” and the Eurotwist Door to both be repaired, being a reference to the door’s latch. She also raised a question about discounts for a “crack in the front window frame” which I understand to be in the window’s flange.

[75]      In a prompt email response from Sean Mcllveen, he apologized for the Invoice having being rendered before the walk through and before their in person discussions about the identified “service issues” and “appropriate compensation”. He requested that she “please set the invoice aside for now” pending those discussions. He further indicated that the Claimant TKG was working with the Manufacturer to resolve the window and door issues and confirmed that the Claimant TKG had ordered “a replacement vent (the sliding window frame) for the storage window”. He sought to arrange an in person meeting with the Defendant to arrange for the Final Corrective Work.

[76]      The Defendant’s responding email of January 13, 2019 noted the following specific concerns and made the following specific and general comments and raised the following questions:

[77]      Thereafter, Defendant continued to complain about several things following what the Claimant TKG had considered to be the substantial completion of the scope of the work (but before completion of the Final Corrective Work). These complaints of the Defendant included the quality of the installation work.

[78]      There is considerable disagreement between the evidence of the Defendant and that of the three witnesses of the Claimant TKG about the basis for the Defendant’s complaints and the validity of those complaints. The evidence of the expert witness called by the Defendant does raise a couple of issues as discussed below.

[79]      There is no disagreement that the customer relationship and communications between the Claimant TKG and particularly, Sean McIlveen, with the Defendant became increasingly strained.

[80]      Personal communication was replaced by email communication at the insistence of the Defendant shortly after she first lodged her complaints. Her stated reason in her evidence for insisting upon the use of email was for “clarity” and because “our communication was not good”. The Defendant refused Sean McIlveen’s suggestion made via email on January 21, 2019 for them to have a telephone chat.

[81]      As part of the documentary exhibits in this trial are a number of emails exchanged between the Defendant and Sean McIlveen from between approximately January 15, 2019 to February 11, 2019 following an actual in person discussion that apparently occurred between them on or about January 14, 2019.

[82]      It appears that at this juncture there were three categories of the Defendant’s concerns and one category of concern of the Claimant TKG that were discussed on or about January 14 to 15, 2019.

[83]      The first category of the Defendant’s concerns appears to relate to what can be characterized as cosmetic work or minor work, such as touch painting on the cut flanges, touch up painting on all windows and cleaning of windows inside and out, providing a new vent for the storage room window and dropping off a sample of the 2 1/4 inch VINYLTEK flange, all of which was to be attended to by the employees of the Claimant TKG as part of Final Corrective Work.

[84]      The second category of the Defendant’s concerns appears to relate to the adjustments or repairs to the Eurotwist Door. It seems that the Manufacturer had provided the wrong hardware at the time the door was installed by the Jesse Mcllveen. The available evidence suggests that the Defendant was insistent that this adjustment be attended to by the Manufacturer or its service agent, but not by the Claimant TKG. However, this remedial work for the Defendant was to be arranged with these other service providers by Sean McIlveen.

[85]      The Defendant’s third category of concern was a “cracked” living room flange for which the Sean McIlveen offered an “additional discount” of $105; a further “discount” of $315 for a side bedroom window which Sean McIlveen stated in his follow up email was ordered by the Defendant, but what was not what she expected and “may have been my error in understanding what you wanted”. He asked if that particular discount was acceptable to the Defendant or whether we should be looking into a full window replacement”. Again this appears to all be part of Final Corrective Work.

[86]      The sole category of concern for the Claimant TKG was payment of the rendered Invoice. In that regard, the email exchanges indicated that the “adjusted balance” of $15,600 should be satisfied in part by a $13,100 progress payment (the “Progress Payment”) with an amount of $2,550 to be held back by the Defendant pending the completion of the services by the Claimant TKG.

[87]      All of this was confirmed in Sean McIlveen’s follow up email of January 16, 2019 sent at 12:13 pm. It appears that the Claimant TKG’s employees were to attend at the Residence on the Defendant’s next available date, being Monday, January 21, 2019 to deal with first category of concerns. Sean McIlveen was to inform the Defendant when the representatives of the Manufacturer or its service agents were to attend to deal with the Defendant’s second category of concerns.

[88]      Very shortly thereafter the Defendant sent two emails to Sean McIlveen. The first sent at 6:33 pm, cancelled the next Monday’s attendance indicating she wanted to make it clear what her concerns were which included not being “satisfied with the work done” and enumerating a number of examples. In one of those two emails the Defendant recounted that she had checked with three unidentified people who “had better quality doors” (presumably with reference to the Eurotwist Door) and also spoke with two other unidentified people who suggested to her that it sounded like the Claimant TKG had sold the Defendant their “reject orders”. Furthermore, those unidentified people allegedly told her that the flanges should not be cut. None of these people were ever identified nor were any of them called as witnesses for the Defendant. The Claimant Prpic categorically denied the suggestion that the Claimant TKG had provided “reject orders” to the Defendant and both he and Sean Mcllveen denied that the flanges should not be cut.

[89]      A further email from the Defendant sent on January 17, 2019 listed more concerns and amplified on her past, identified concerns. In response, Sean McIlveen acknowledged the concerns and suggested a meeting with the Claimant Prpic as the owner of the Claimant TKG which was then declined by the Defendant.

[90]      In further response to that January 17, 2019 email from the Defendant, Sean Mcllveen provided a point by point response to each of the concerns; in some instances explaining certain things as being what was ordered by the Defendant or with an explanation of how the Claimant TKG was planning or prepared to respond to certain deficiencies and proceed to rectify them, all as part of the Final Corrective Work.

[91]      In her response, by way of an email of January 21, 2019 sent at 11:49 am and specifically about the required adjustments to the Eurotwist Door, the Defendant stated she intended to replace it and had ordered another door from a different company because of the existence of a wooden sill on the Eurotwist Door that had been installed, and then contending that a wooden sill was not used nor installed by other door providers.

[92]      There appears to have been an assumption on the part of the Defendant that what had been provided was a door actually constructed out of wood. She seemed to raise concerns about “quality” which I take to include the Eurotwist Door. She then further stated she would let the Claimant TKG know when they could come and pick up that Eurotwist Door, being when the Manufacturer came with her “new window for downstairs”, which I understand is a reference to the window that was mentioned in earlier emails and which opened in the opposite direction to that envisioned by the Defendant.

[93]      Sean Mcllveen responded immediately at 12:05 pm, stating that they needed to “chat on the phone” about the Defendant’s intended action and further stating that Eurotwist Door was what she had ordered and had agreed to, with a cautionary note if she proceeded in this fashion she may be “contractually obligated to pay for two new doors.” He stated that the installed door “may have wood finishing, but the sill is made primarily of PVC, steel and rubber gaskets.”

[94]      The Defendant replied at 3:58 pm again on January 21, 2019 stating that she intended to get a “second opinion” and then again at 4:42 pm with a postscript saying that she had “taken pictures of everything and everything documented”. There is further indication that she had watched Jesse Mcllveen install the door and “didn’t see anything but wood”. She then went on to note as follows: “You did not give me what I wanted AND with a LOT of mistakes that I will not be paying for.”

[95]      The Defendant then requested of Sean Mcllveen and was then provided with photos of the showroom version of the Eurotwist Door’s sill, taken between January 23 and January 28, 2019. This led the Defendant to identify in her email of January 28, 2019 of what appear to be some minor differences between her installed Eurotwist Door and the show room version. Sean Mcllveen replied within less than an hour that these items would be taken care of by the Claimant TKG, along with other identified deficiencies as part of the Final Corrective Work.

[96]      Sean Mcllveen suggested a February 4, 2019 date, being a Monday and a day that Claimant was usually at home and not working, for the Claimant TKG’s employees to attend for the Final Corrective Work. He also said that he would attend at that time to explain the flange cutting and installation. Also, he would arrange to have the service representative from the Manufacturer attend that same day. Sean Mcllveen did in fact contact the Manufacturer and arranged to have their service representatives attend at the Residence on that date.

[97]      The email exchanges about the Eurotwist Door continued between the two of them. On January 29, 2019 the Defendant emailed Sean Mcllveen to confirm that she had received the “second opinion” on the back door to the effect that “it is a good door” but the unidentified individual shared her belief that the door sill was “wood” and she expressed concern about a difference of a sill height between what was depicted in the showroom pictures and her door. Sean McIlveen indicated that this would be taken care of on February 4, 2019.

[98]      On Sunday, February 3, 2019 at 4:51 pm, the Defendant stated for the first time to Sean Mcllveen that Jesse Mcllveen had “put foam around door” during the first installation and when he had to remove the Eurotwist Door he had “cut all the foam out before installing a second time”. Therefore, as I understand it, she believed that Jesse McIlveen did not replace foam around the door during the reinstallation. She therefore concluded: “It changed the whole door” and she wanted the foam put back. She said she was advised to do so, but again that was by an unidentified individual.

[99]      Jesse Mcllveen testified that he had installed the Eurotwist Door and then had to make an adjustment at the bottom of the Eurotwist Door to allow it to match correctly on both sides. He did not recall having to take the door off to do that. He testified that the foam that is used is actually an expandable foam product. It is used in the installation process to help shim doors into place and has nothing to do with insulation for the door. He also indicated that he has no recollection of cutting into the Eurotwist Door nor would there be any reason for him to do so in making the necessary adjustments.

[100]   Furthermore, Jesse Mcllveen testified that he had no recollection of removing any weather stripping. He confirmed that replacement of any foam (if required or requested) and dealing with any weather stripping concerns were straightforward and easy matters to address and would be completed at the time that the Claimant TKG’s installers were permitted back to the Residence to complete the Final Corrective Work. He confirmed that there was an issue with latching of the Eurotwist Door because of the incorrect hardware that had been provided by the Manufacturer and that this was something with which the Claimant TKG had intended to deal with, again as I understand it as part of the Final Corrective Work.

[101]   It is noteworthy that throughout this entire period Sean Mcllveen consistently was attempting to arrange times for the employees of the Claimant TKG to attend at the Residence in order to complete matters forming part of the Final Corrective Work. However, the Defendant continuously deflected those requests and failed to provide alternative dates and continuously indicated she would be in touch with Sean Mcllveen at some non- specified date in the future.

[102]   Finally, February 4, 2019 was arranged by Sean Mcllveen as the date that both the employees of the Claimant TKG and the Manufacturer’s service representatives would attend, all at the same time, for the purposes of dealing with the identified concerns and to complete the Final Corrective Work. It was a specific requirement of the Defendant that this all be done on the same day. Sean Mcllveen kept assuring her in his emails that he had made the necessary arrangements with and was awaiting confirmation from the Manufacturer’s service representatives of their planned attendance.

[103]   In the meantime, on or before January 31, 2019, the Defendant also contacted the Manufacturer’s office about the February 4, 2019 date and began an email exchange with their controller. Those email exchanges continued for several weeks thereafter, during which the Defendant’s complaints about the Claimant TKG were being expressed.

[104]   When the Manufacturer’s service representatives were unable to attend on February 4, 2019 due to staff illnesses, and when the Defendant became aware of the cancellation, she blamed Sean Mcllveen, who of course had no control over that happening. The Defendant went so far as to tell Sean Mcllveen that it was a “broken promise” on his part, which Sean Mcllveen found to be quite troubling. The Defendant stated that she did not want the employees of the Claimant TKG to attend on February 4, 2019.

[105]   The Defendant then told Sean Mcllveen in a series of subsequent emails that it would be necessary for new appointment dates to be arranged and that the Manufacturer’s service representatives and the employees of the Claimant TKG would have to come on separate days. Sean Mcllveen pressed for a date when that could occur but the Defendant continued to deflect that request.

[106]   Starting on January 28, 2019, the emails from the Defendant to Sean Mcllveen raised other concerns including a thin black mark on one of the new windows which she took to be a crack which, as it turned out, was not and was found to be a removable streak. As I understand it, the most noticeable black marks were removed when the Manufacturer’s service representatives eventually did attend on or about March 5, 2019. The Defendant was provided with some cleaning products by the Manufacturer’s service representatives that she used herself to remove some remaining black marks.

[107]   However, in her later evidence she suggests that there were also “streak marks” which she had never seen, before they were pointed out to her by the Manufacturer’s service representatives. As I understand the Defendant’s evidence, she has been unable to remove those streak marks, which she also describes as “smudge marks” inside some of the largest front windows. She testified that these streaks or smudge marks are particularly visible on a sunny day from some 50 feet away inside the Residence. They are less visible on a cloudy day and she would have to be about 10 feet away, inside the Residence, in order to see them. She says that she cannot get these streaks or smudges off by using any of the cleaning products that she received from the Manufacturer’s service representatives.

[108]   The Defendant conceded that there are no photographs among the several that were admitted into evidence that show these marks or smudges. She testified that she has never called anybody to attend at the Residence to examine these marks or smudges. She suggests that she spoke to Sean Mcllveen about these marks or smudges by way of verbal communication after the Manufacturer’s services representatives had been at the Residence, notwithstanding her insistence on using email to communicate with Sean Mcllveen. The Defendant acknowledged in her evidence that she knew about the Lifetime Manufacturer’s Warranty but she never has contacted the Manufacturer about the remaining marks or smudges. She contended in her evidence the that expert called by her, being Gordon Kyle had observed these marks or smudges, but there is nothing in the Kyle Summary (as hereinafter referenced) or in Mr. Kyle’s evidence to this effect.

[109]   The Defendant testified that she was very pleased with the work done by the Manufacturer’s service representatives on the Eurotwist Door and ultimately very pleased with Eurotwist Door, notwithstanding all of her prior complaints and concerns. She testified that Manufacturer’s service representatives “tweaked the door” (which I understand to be the Eurotwist Door) and that fixed it “right away” and that it was not necessary for them to change any hardware on that door.

[110]   In her various email, the Defendant also raised concerns about the look of the flanges not being identical in appearance to that of the Neighbour’s House, and about her other observed deficiencies such as in the sealing and caulking around the Replacement Windows.

[111]   The Defendant says that when she attempted to discuss her concerns about the flanges with the Manufacturer’s service representatives, they just referred her to the Claimant TKG.

[112]   The Defendant in her evidence suggests that Sean Mcllveen did in fact conduct a final walk around inspection but she was not certain when that occurred and whether or not it occurred before or after the Manufacturer’s personnel did their corrective work on the Eurotwist door which was March 5, 2019. She then said she thought it was before. On the whole of the evidence, it appears that there may have in fact been a walk through at some point in time by the Defendant with Sean Mcllveen, possibly around January 14, 2019 during which the Defendant continued to press her growing list of concerns.

[113]   The Defendant contends that throughout this phase Sean Mcllveen was not addressing her multitude of concerns and was only speaking in terms of “touch up work” on things like the flanges. She concedes that Sean Mcllveen told her that the Claimant TKG was more than happy to do the “touch ups” and offered to give her the paint to do it herself, if she wished.

[114]   In her evidence she rejects the notion that what remained outstanding was in the nature of what had been characterized as “touch up” work. In her view, this “touch up work” did not address her larger concerns, which were now multiple in number including cracks in the flanges, and the cut edges of the flanges; she contends these were problems Sean Mcllveen was ignoring. She also suggested in her evidence that she was raising concerns with Sean Mcllveen about the strength of the flanges being jeopardized, because they had been cut. She went so far as to say she understood that the cut flanges had no strength whatsoever. The source of that information and the basis of that belief is unclear on her evidence because it pre-dated her discussions with Mr. Gordon Kyle and further no other informed individual had apparently visited the Residence to inspect the Replacement Windows.

[115]   She confirmed in her evidence that she has never permitted the crews from the Claimant TKG to come back and complete any of the Final Corrective Work or for that matter any other work on her Residence.

[116]   In her evidence the Defendant suggests that there was a wooden bottom window sill that she was told (again by an unidentified source) should have been replaced. She agreed that there is nothing in the Original Order Documentation or the Order Modification Document that requires that work to be completed by the Claimant TKG. She also stated that she did discuss that uncompleted work as a deficiency with Sean Mcllveen when they conducted a walk around inspection of the Replacement Windows. So far as I can see, there is no mention of this particular alleged deficiency in any of her emails.

[117]   During this period of time, the Claimant Prpic was informing Sean Mcllveen by way of an email on February 5, 2019, about the Claimant TKG’s concerns. Specifically the concerns about the “protracted resolution” of outstanding matters with the Defendant since the “project was substantially completed Jan. 7, 2019”. The Claimant Prpic stated that because of the alleged deficiencies that the Defendant would be “entitled” to a “holdback of 10% of the contract amount” (which contract amount Mr. Prpic stated to be $25,320) and therefore he calculated the maximum holdback amount to be $2,532. Again, I note parenthetically, that based upon the Invoice the total amount billed was actually $23,520.00, including taxes, and after adjustments. After giving a credit for the Deposit $7,500 the balance owing on the amount of the Invoice was $16,020.

[118]   The Claimant Prpic indicated to Sean Mcllveen that he was to inform the Defendant that she was required to immediately make a payment to the Claimant TKG of $13,488 on the outstanding amount of the Invoice by February 7, 2019. Failing that, a builder’s lien would be filed against the lands and premises forming the Defendant’s Residence by the Claimant TKG for the entire outstanding balance of the Invoice. The Claimant Prpic urged Sean Mcllveen to inform the Defendant about the adverse effect this could have on her credit rating and further that the Claimant TKG may be “forced” to take court action shortly thereafter, which I presume to be after the filing of the builder’s lien and to then enforce the builder’s lien.

[119]   On February 11, 2019 at 11:57 am Sean Mcllveen emailed the Defendant and told her that he was being pressured by the Claimant Prpic to get the Defendant’s job completed because it had taken too long to resolve and “at the very least to collect payment for work we have already completed”. Sean Mcllveen then went on to indicate what was required from the Defendant was to make a payment to the Claimant TKG of “at least $15,000 prior to February 13, 2019 for the work completed”. He then went on to say to the Defendant that failure to pay, left the Claimant Prpic “no choice but to register a building lien on your property”. Furthermore that the original holdback suggested to her by Sean Mcllveen of $2,500, in the Claimant Prpic’s assessment, “far exceeds the value of the work left to be completed”. There was also a further request to contact Sean Mcllveen to arrange for the Claimant TKG’s employees to attend at the Residence to complete the remaining work as part of the Final Corrective Work.

[120]   In the Defendant’s responding email of February 11, 2019 to Sean Mcllveen she stated as follows:

[121]   The amount sought from the Defendant to be paid to the Claimant TKG was never paid. Sean Mcllveen sent further emails on February 21 and March 6, 2019 seeking to get an update about VINYLTEK’s attendance with the Defendant at the Residence and to seek to arrange the dates for completion of the Final Corrective Work by the Claimant TKG. On March 14, 2019 Sean Mcllveen emailed the Defendant again to say he understood VINYLTEK had completed their visit on March 5, 2019 to service the Eurotwist Door and he sought to schedule the Claimant TKG’s appointment for the Final Corrective Work; however those inquiries and suggestions were again rebuffed by the Defendant.

[122]   The Claimant Prpic had now become directly involved with the Defendant. Late on February 11, 2019 by way of email and in apparent reply to the Defendant’s email of that date, the Claimant Prpic made formal demand for payment $15,600 by the end of the day on February 12, 2019 and further demanded that the Defendant confirm service appointments with the Claimant TKG by that same deadline, and threatening to file a builder’s lien in default. On February 13, 2019, by way of a further email, the Claimant Prpic informed the Defendant that a builder’s lien had been filed in the Victoria Land Title office on that date against her real property and suggested that if funds were paid were paid within the next 3 or 4 days that the builder’s lien would be withdrawn and they could proceed to resolving issues.

[123]   That demanded payment did not occur and eventually the builder’s lien expired and no formal steps were ever taken by the Claimant TKG or the Claimant Prpic to either enforce or remove the filed lien in the Land Title Office from the Defendant’s lands and premises. It is noteworthy that the Claim of Lien was drafted in such a fashion that the Claimant Prpic was named as the lien claimant in the following manner: “Milan Prpic, owner of Vista Leadership Inc. dba Thermal King Glass of 250 Island Highway Victoria, BC V9B 1G2, British Columbia, claims a lien against the following lands: …”. It was registered in the Land Title Office with the registered owner of the charge being shown as “Thermal King Glass”.

[124]   On March 18, 2019 an email exchange occurred between the Claimant Prpic and the Defendant. The Claimant Prpic demanded full payment by the end of the day on March 20, 2019, or legal action would be filed, to which the Defendant stated she was waiting for “the sleeve” for the window downstairs from VINYLTEK and that the Claimant TKG would have to wait “like me”.

[125]   In response, the Claimant Prpic stated “that is unacceptable” and further that he had paid VINYLTEK “in full”. The Defendant then responded by asking if she paid in full, could she still “do a rebate or grant on my windows”. The Claimant Prpic sent the Defendant a lengthy email explaining about that there was no connection between payment and the rebate programs through EfficiencyBC, explaining features of those programs and reiterating about the payment deadline. Apparently this was the first time that a question about a rebate had ever been raised by the Defendant.

[126]   In the Claimant Prpic’s evidence, he stated that the Replacement Windows which had been ordered and installed would not likely qualify for a rebate program and the cost of meeting the required standard would have increased the Defendant’s cost of the Replacement Windows by some $7,000 to $8,000 and the extra cost would not result in a rebate to the Defendant that would cover that extra amount.

[127]   As noted above, no further payment was received from the Defendant by the Claimant TKG. A Notice of Claim was filed on March 22, 2019 naming the Claimant TKG and the Claimant Prpic as the Claimants and the Defendant as the defendant. The Defendant filed a Reply and Counterclaim against both Claimants on April 4, 2019. A Reply to the Counterclaim was filed only on behalf of the Claimant TKG and not on behalf of the Claimant Prpic.

[128]   It appears from the Claimant Prpic’s evidence that naming himself as a claimant in the Notice of Claim (and as the lien claimant in Claim of Lien document) was an error on his part and that of the Claimants. In his evidence he confirmed that he was not asserting any personal claim for any monies being owed to him by the Defendant and conceded that the amount claimed was solely for the benefit of the Claimant TKG.

[129]   According to the evidence of Claimant Prpic, the Claimant TKG adheres to the “Residential Construction Performance Guide for New Homes Covered by Home Warranty in British Columbia”. Specific reference was then made to section 4.40 entitled Window or door frame exhibit damage which provides as follows:

[130]   Exhibit 3 being part of the evidence contains a number of photographs of both the Defendant’s Residence and the Neighbour’s House. The photographs of the Neighbour’s House are relied upon by the Defendant to demonstrate that its replacement windows have a materially different appearance than the Replacement Windows in the Defendant’s Residence. The photographs of the Defendant’s Residence are also being relied upon to demonstrate the Defendant’s complaints about the alleged poor quality of the installation of the Replacement Windows by the Claimant TKG and the incomplete work on the project.

[131]   The alleged defects identified by the Defendant and depicted in the photographs forming part of Exhibit 3 and the responding evidence of the witnesses called on behalf of the Claimant TKG may be summarized as follows:

[132]   Sean Mcllveen confirmed in his testimony that all of the Final Corrective Work, including anything mentioned above and beyond what would commonly be regarded as Final Corrective Work, on this project would take an estimated one to two days to complete. The estimated monetary value to complete all of it was equal to between 10% and 15% of the total cost of the project of $23,520 as set out in the Invoice. That figure to complete the Final Corrective Work and the other noted items is therefore between $2,352 and $3,528.

[133]   The Defendant conceded that at all material times there was an expressed willingness on the part of the Claimant TKG to do the work in order to deal with some of her complaints but she says not the complete list of all her complaints. She testified that she never allowed the Claimant TKG’s crew to return to the Residence for that purpose.

[134]   The Defendant testified that she obtained some advice from the Manufacturer’s service representatives when they attended at her Residence but that most of her concerns were simply referred back by those representatives to the Claimant TKG. She continued to email the Manufacturer but never received any responses but did receive some type of messages back from them but she believes they eventually blocked her emails.

[135]   Gordon Kyle, being the individual called by the Defendant and qualified as an expert witness canvassed some of the complaints of the Defendant in his evidence. He was not entirely in agreement with the evidence adduced by the Claimant TGK’s witnesses. However, as noted below, Mr. Kyle’s evidence did not entirely contradict the Claimant TKG’s evidence and in particular the evidence presented by the Claimant TKG’s witnesses as to:

[136]   By the time all of the evidence was before the court the Defendant had not incurred any personal expense to complete any of the Final Corrective Work and specifically she was not billed by the Manufacturer for any work completed by its service representatives.

[137]   Similarly, there is no evidence that the Claimant TKG was required to pay anything to the Manufacturer for any of their work completed at the Residence.

[138]   The Defendant’s further evidence was that she was not going to retain the services of a third party to complete any of the Final Corrective Work nor to complete annual inspections nor to complete any possible ongoing work such as caulking or other possible work identified by Gordon Kyle in his evidence. She did not present any estimates for completing that type of work. Similarly, she indicated that she had not made any annual inspections or, for that matter, any regular inspections around the Replacement Windows, other than possibly to clean them.

[139]   It was a consistent theme of the Defendant throughout the trial, both in submissions to the court, in mid-trial conferences, and in her evidence that nobody would assist her with her case or be a witness for her (until she located Mr. Kyle in the midst of the trial) and nobody would come out to the Residence to provide her with quotes or estimates.

[140]   Another consistent theme she presented was that Sean Mcllveen was not hearing her as to her wishes as to what she wanted in the Replacement Window or he was ignoring her wishes or was not understanding her, although she thought she was making herself clear. She went so far as to suggest that she was “forced” by Sean Mcllveen to sign the Original Order Document and the Order Modification Document.

[141]   In her cross examination the Defendant conceded that there is nothing in the Original Order Document and the Order Modification Document about the cosmetics of the Replacement Windows and further stated that the aesthetics of the Replacement Windows were not important to her but rather the functionality of the Replacement Windows was important to her. This is a curious comment having regard to her litany of complaints about the appearance of the Replacement Windows.

[142]   It is very noteworthy that the Defendant confirmed that the Replacement Windows remain in place as at the date of the conclusion of the evidence in the trial and there are no functional problems with any of them.

[143]   She did express her concerns about “possible” water ingress, (especially from storms) occurring around the Replacement Windows because of the alleged improper installation by the Claimants. She had not observed any such water ingress up to the time of the conclusion of the evidence in the trial in April of 2021.

[144]   The Defendant reported her concerns about the Replacement Windows to her home insurer but did not get a favourable response. Nobody from her insurance carrier ever came out to complete an inspection.

[145]   The Defendant either denied seeing or could not recall ever receiving a number of email exchanged between herself and either Sean McIIveen or the Claimant Prpic which only appeared in the Claimant’ documents but not in the Defendant’s documents. She held to this denial notwithstanding the subject several of the emails were part of a string of emails. Many of the email exchanges omitted from the Defendant’s documents were not particularly beneficial to the Defendant’s case. She also contended that there were additional emails, which she alleged were important to her case, but did not appear in either the Claimants’ or the Defendants documents.

[146]   Of significant concern to this court is an email sent by the Defendant on August 9, 2019 to the Victoria Judicial Case Manager, who was attempting to schedule the trial of this matter. It was copied to the Claimant Prpic. In that email the Defendant indicates that she wishes to obtain a trial date “A.S.A.P.” (i.e. as soon as possible) citing “intentional dangers” to the Residence caused by the work of the Claimant TKG. The Defendant then goes onto to make what I will characterize and call “Criminal Allegations” against the Claimants. She starts by stating that she “has had a lead” that “this company is with” and then she specifically names a certain organization. I take judicial notice that this specifically named organization is frequently described or referred to in the public media and in the evidence adduced in a large number of Canadian criminal cases as an international “motorcycle gang”; some of its members have at various times been convicted of a number and variety of criminal offences; it has been alleged to be a “criminal organization” within the meaning of section 467.1 of the Criminal Code and a number of its chapters and related organizations have been the subject matter of various civil forfeiture proceedings because they are the alleged proceeds of alleged criminal activity.

[147]   The Defendant then goes on in that August 29, 2019 email to the Judicial Case Manager to state that she believes it is necessary for her to get a criminal record check on “both owners to see what I will be dealing with”. She then suggests that she has been “threatened” by the owner of the Claimant TKG. I include this particular statement about a threat as part of the Criminal Allegations.

[148]   In response, the Judicial Case Manager tells the Defendant not to send those allegations to the Judicial Case Manager and that the email exchange was strictly for scheduling dates.

[149]   In his evidence the Claimant Prpic strenuously and categorically denied any of these Criminal Allegations. There is absolutely no evidence before this court that supports nor substantiates any basis for the truth, accuracy or the reliability of those Criminal Allegations. I accept the Claimant Prpic’s evidence on this point without any qualifications.

[150]   In the usual course, I would not make mention of these Criminal Allegations. However, I do so because they form part of the basis for the damages being sought by the Claimants. Also, they go to the credibility and reliability of the Defendant.

[151]   The August 29, 2019 email was contained in the Claimant’s documents which were exchanged in advance of the trial and were admitted into evidence as part of the Claimants’ case.

[152]   In her cross examination, the Defendant:

[153]   In my view, this evidence provided by the Defendant lacks the important “ring of truth”. I will have more to say about this below.

[154]   As previously noted, Gordon Kyle was located by the Defendant in the midst of the trial. In June and July of 2020 there were trial conferences held in order to deal with the Defendant’s requests to have Mr. Kyle testify. She ultimately sought to have him called and then qualified as an expert to testify about the installation of the Replacement Windows. The Claimants did not contest this but clearly had concerns about the both the timeliness of the request and the additional trial time that would be required.

[155]   On July 24, 2020 an order was made that permitted the Defendant to call Mr. Kyle at the continuation of the trial for purposes of qualifying him as an expert witness and if so qualified to provide evidence on the Replacement Window installation and the installed flanges utilized (the “Proposed Area of Expertise”). Mr. Kyle was directed by the court to attend at the Residence by a certain date to complete his site inspection and to provide an update to his previously prepared summary letter, and further to provide a “will-say” statement about his intended testimony and the conclusions that he had reached. This was to be delivered to the Claimants by a specified date.

[156]   The July 24, 2020 order further permitted the Claimants to arrange for a person intended to be called as a rebuttal expert by the Claimants to attend at the Residence by a certain date for the purposes of inspecting the installation of the Replacement Windows and the flanges utilized. Thereafter the rebuttal expert was to provide a written summary of his or her observations and the conclusions reached.

[157]   Ultimately the Claimants elected not to obtain or call a rebuttal expert after they had been served with documentation prepared and delivered by Mr. Kyle in accordance with the July 24, 2020 Order.

[158]   It is noteworthy that the Defendant failed to comply with the time limitations contained in the July 24, 2020 Order with the result that a further order was made on September 11, 2020 extending the time frames set out in the July 24, 2020 Order by some three weeks.

[159]   Mr. Kyle was qualified and accepted as an expert, specifically to provide expert opinion evidence in the Proposed Area of Expertise.

[160]   It is noteworthy that Mr. Kyle’s expertise does not arise from any academic qualifications nor formal training. For example, he is not a professional engineer nor a certified technician. However, prior to his retirement and throughout his lengthy career he worked in sales of construction products, focusing on technical aspects. None of this involved the Manufacturer’s products.

[161]   Part of his career led him to develop a relationship, to collaborate and to consult with and become a Provincial Government contact for an engineering firm which was primarily focused on studying the durability of building systems and building materials. That engineering firm had extensive amount of work in its primary area of expertise. It provided advice to the Provincial Government on building standards and construction procedures in response to the “leaky condominiums” problems in British Columbia.

[162]   Mr. Kyle was involved in technical aspects of design work for new high performance and replacement window systems as well as the sale of these types of high performance window systems. He explained in his testimony that the high performance of a window is no longer just measured on air ingress, water ingress or structural strength but now is determined on the basis of its “pressure group”, (the higher the better), its ability to resist different forms of water ingress, and its strength to withstand things such as high winds. His focus was on the durability aspect of those products.

[163]   His work brought him into frequent contact with BC Housing. He attended several meetings of ASHRAE (which is the American Society of Heating, Refrigeration and Air-Conditioning Engineers) and he made presentations to meetings of that organization on the topics of fenestration. Mr. Kyle also attended, participated in and made presentations to meetings of the BC Building Envelope Council which is a trade organization that deals with building envelope issues, developments and standards. His presentations dealt with transitioning doors to a “high performance” standard.

[164]   Mr. Kyle does not have a background in window installation per se but has carpentry skills. He has overseen window installations to ensure their proper installation in accordance with building codes and manufacturer specifications. His principle focus was educating contractors about how to install high performance windows. Commencing in 2005 he started selling high performance windows for two manufacturers other than the Manufacturer.

[165]   Mr. Kyle prepared a summary of expert evidence as contemplated by Rule 10(3) of the Small Claims Rules (the “Kyle Summary”). It was admitted into evidence.

[166]   In addition to the written Kyle Summary, Mr. Kyle also provided viva voce evidence as is permitted, at the discretion of the trial judge under Rule 10(1) [see: Wallace v. Joughin, 2014 BCPC 73 at paras. 223-227].

[167]   The Kyle Summary was prepared following an on-site inspection of the Replacement Windows at Residence, completed on September 14, 2020. He did not attend at the Neighbour’s House before completing the Kyle Summary.

[168]   Accordingly, he had obtained information from the Defendant about her numerous complaints and concerns about the Replacement Windows. He stated that he listened politely but prepared the Kyle’s Summary “objectively on my own”. It was completed within four days of his on-site inspection at the Residence. While conducting the on-site inspection he took a number of photographs of the certain aspects of the Replacement Window installation.

[169]   The Kyle Summary reached numerous conclusions. Some of these were positive for the Claimant, namely:

[170]   The Kyle Summary identifies some concerns ( the “Kyle Concerns”) about the installation of the Replacement Windows, namely:

[171]   In the course of his evidence in chief and in cross examination Mr. Kyle was referred to a BC Housing publication by the Homeowner Protection Office entitled “Best Practices for Window and Door Replacement in Wood-Frame Buildings”. He was familiar with that publication. He was not familiar with the Home Warranty publication entitled Residential Construction Performance Guide and the standards set out therein and referred to above and cited by the Claimant Prpic in his testimony. Mr. Kyle was familiar with the “consistency and inspection standards” developed by the International Glass Manufacturers Association.

[172]   In his oral evidence, Mr. Kyle noted that an important function of the “return” on the flange was also to permit the proper installation of caulking for the window and specifically between the window and the cladding on the exterior of the building. That was part of the water shield. He did note that it was also possible to insert the protective caulking below or behind the exterior surface.

[173]   In his oral evidence, Mr. Kyle did concede that although his “strong preference” was for the use of a double walled flange, the use of single wall flange was an option “in a pinch” and for use in sheltered locations for windows which were under overhangs, such as at the Residence. However, he stated that he always informs customers that there is a risk for leaking where the flange does not meet the exterior cladding and he further recommends annual inspections by the installing contractor and re-caulking to deal with “deflection” of the flange, which I take to be the warping problem due to heat, as previously described. Again, he continued to take issue with the cutting of the return on the single flange.

[174]   As part of his physical inspection and his observations in the Kyle Concern number 5 above, Mr. Kyle suggested that he was able to observe with his naked eye, the “pull away” of the flange and that there was an air and/or water path into the substrata area behind the window which he probed with a nail clipper.

[175]   Mr. Kyle testified that he observed that there were two significant warped flanges in the range of between 1/8 of an inch and 3/16 of an inch and two slightly warped flanges.

[176]   In terms of remedial work to correct these issues he stated that he was not sure how the single wall flanges could be fixed other than by replacing them with a double walled flange which would likely require the replacement of the entire window frame but that the glass and hardware could be re-utilized. In cross examination he indicated that annual caulking and inspection of the Replacement Windows was an option and was recommended.

[177]   With respect to the Kyle Concern number 6 of above, he testified that this was quite minor and could be easily fixed by removing the intrusive caulking to permit water drainage to occur.

[178]   In cross-examination, Mr. Kyle confirmed that:

[179]   In the second day of his cross examination he corrected himself about his previous evidence regarding a flange that he was shown. He ultimately agreed that it was not a single wall flanged but rather what was referenced as a “snap on flange”, which he accepted may have been the type of flange used in the Defendant’s Residence on the on the large windows.

[180]   He also had to correct his previous day’s evidence about the type of flange used at the Neighbour’s House; following this first day of evidence he attended at the Neighbour’s House to make observations and some notes which he could rely upon when photographic evidence was placed before him. He conceded that it was a single wall flanged of a different construction. He noted that the single wall flanges on the Neighbour’s House did not have the “returns cut”. He conceded he was not aware whether or not the type of flange on the Neighbour’s House was still available from the Manufacturer nor what other alternatives were presently available from the Manufacturer or from other suppliers or manufacturers.

[181]   He was less definitive about the importance of the flanges providing extra strength, conceding that the window frame had its own strength and it was further strengthened by being screwed into the superstructure of the building. But he stressed that the important function of a flanged was to “span or bridge the gap” between the window frame and the exterior cladding and to deflect and to keep water out. The use of caulking should not be used as a primary protection or defense against water ingress and that reliance has to be placed upon the flange.

[182]   He conceded that there was some difficulty on his part in determining the underlying aluminum window frame profile that was being covered by the Replacement Windows. He further conceded that the underlying profile may influence the method of installation of the Replacement Windows and the resulting look.

[183]   He could not conclude that the Replacement Windows system that had been installed was not working as it had been designed but was able to say that on three or four of the Replacement Windows there was a problem with “deflection” or warping of the flanges.

[184]   He conceded that the “warping” in the flanges, which he had attributed to a high temperature, would not likely have occurred in January 2019 when the Replacement Windows were installed. Hence that would not be the cause of the warping which was apparently immediately observable at that time, as confirmed by some of the photographs admitted into evidence.

[185]   He was unable to say definitively about the amount of caulking and the width of the caulking surrounding the installed Replacement Window unit. But from his available observations made from a difficult viewing position, by looking from the exterior of the Residence into the installations base he concluded that a single bead of good quality caulking had been used but he could not say for sure, (that being in his words beyond 75%) there were no other lines of caulking in place.

[186]   He conceded that cutting of the flanges was necessary in certain locations in order to complete the installation of the Replacement Windows and specifically where there was limited spaces available, such as immediately under the soffits. He also conceded that cutting the “curly Q” portion of the flange may be required to secure proper adhesion and to seal the perimeter of the Replacement Window against the existing frame surface. As I understand it, he admitted that the “curly Q” (which is apparently also referenced as the “return” portion”) may create an “unacceptable depth” such that if it were not cut off, there would be an interference with achieving a full contact seal. He further suggested that even when manufacturers suggest cutting flanges it may not be right and may contribute to a water leaking issue.

[187]   He confirmed that there were three different types of Windows used in the Replacement Windows which, therefor, have inconsistent methods of installations and resulting appearances. If uniformity in appearance was a priority then cutting the flanged may have to occur but that would potentially increase the likelihood of opening up the building envelope and increasing the possibility of leaking. However, he conceded that water ingress would only occur if there was either a lack of sealant or the sealant failed.

[188]   His concluding observation in re-direct examination was that “if the right flange had been used, I would be happy with the windows and installation on Muriel Pilon’s house”.

[189]   The Claimants’ type written submissions, filed on April 19, 2021, are 29 pages in length and very detailed. The Claimants’ four additional typewritten submissions, filed May 5, 2021 were provided in response to the Defendant’s five pages of handwritten submissions filed April 28, 2021. Several pages were devoted to a highly critical personality analysis of the Defendant. For the most part I did not find those specific aspects of the Claimants’ submissions to be particularly helpful. However, some salient points were made about inconsistencies and contradictions in the Defendant’s evidence and that of Gordon Kyle.

[190]   I will only summarize or reference what is relevant and necessary for the issues that this court must decide.

[191]   As noted above, I accept that the claim against the Defendant is only being brought for the benefit of the Claimant TKG and not the Claimant Prpic.

[192]   The Claimant TKG submits that it has satisfactorily fulfilled the terms of the contract with the Defendant and has supplied and installed the agreed Replacement Windows and the Eurotwist Door. Furthermore the work was substantially completed on or about January 9, 2019.

[193]   The Claimant TKG further submits that Defendant has repeatedly refused to permit the Claimant TKG to perform any required warranty work, which has also been described in these reasons as Final Corrective Work and has refused the Claimant TKG the opportunity to address other issues and complaints that the Defendant has raised.

[194]   In the course of the Claimants’ evidence it was acknowledged that there is Final Corrective Work to be completed. However, in submissions the Claimant TKG seemingly indicates that the evidence is that the Defendant breached the contract and the Claimant TKG has accepted the breach and “no accrual of responsibility rests” with the Claimant TKG, especially since the Defendant “has not allowed us to assist with any issues in response to her expressed dissatisfaction.” Reliance is placed upon the Western Homes & Management Ltd. v. Yusuf, 2009 BCSC 1136 (“Western Home Trial Decision”).

[195]   The Claimant TKG therefore seeks a judgment in debt for the amount outstanding on the Invoice of $16,020.

[196]   In addition, the Claimant TKG originally in its Notice of Claim sought recovery of the amount of $2,850 by way of damages for “time utilization/waste” on the basis of 30 hours at $95 per hour. I understand this claim is for what is alleged by the Claimant TKG to be compensation for the extensive amount of unnecessary time expended by Sean Mcllveen and the Claimant Prpic attempting to resolve the unsubstantiated and unwarranted concerns and complaints of the Defendant.

[197]   In submissions, the Claimants seek, post-trial, to recover “management time” of 200 hours for “lost time in addressing other customer after sales support.”

[198]   In addition it seeks recovery of interest “per-invoice-2.5% /month”.

[199]   Although it was not pled within the Notice of Claim, the Claimant TKG in its written submissions says that it should be entitled to “punitive damages” in the amount of $10,000. It is submitted that “punitive damages” is an “essential part of this claim” in part because of:

[200]   The Claimants further seek the dismissal of the Defendant’s Counterclaim on the basis that any noted deficiencies forming the basis of the counter-claim, which may in fact exist, were to be subject to the Final Corrective Work, which the Defendant has refused to let the Claimant TKG complete.

[201]   As I understand it, in the Defendant’s Reply she say that after she had signed the Original Order Document, she had to insist on getting what she “wanted” which was “what a previous customer” had [being the Neighbour]. Thereafter, it was Sean Mcllveen who did his best to convince her he could “do it after the contract was signed”. The Defendant’s Reply goes on to state that Sean Mcllveen failed to do what she set out in her various emails and in her oral discussions with him.

[202]   Thus as I understand her written submission, the Defendant says that the Claimant TKG did not fulfil its contractual obligations of providing the windows which she wanted and it failed to complete the agreed work.

[203]   In the Defendant’s Counterclaim she seeks a judgment in the amount of $7,500 being an amount equal to the Deposit paid by her. The Defendant then pleads that the Claimant TKG “wants to do work to finish the job which is not part of the contract” and then goes onto particularize it as the painting of cut edges of flanges. Specific mention is also made of a lack of cleaning and the existence of certain “black marks”.

[204]   Hence as I understand both the Defendant’s pleadings the $7,500 represents a deduction for what needs fixing or replacing and further that there is “work to be finished” on the part of the Claimant TKG.

[205]   However, in her written submissions the Defendant submits that the “Solutions” she seeks are as follows:

[206]   Although unclear both in the Defendant’s pleadings and in her submission it appears that she is saying that she is not indebted to the Claimant TKG in any fashion because of the breach of contract on the part of the Claimant TKG.

[207]   It is unclear in these submissions as to whether or not it is the Defendant’s view that this breach entitles the Defendant to retain the Replacement Windows without making any payment which is a possible inference about the Defendant’s position.

[208]   Alternatively, she seems to suggest that any “warranty work” is to be done at the expense of the Claimant TKG but that she is entitled to have new windows of her choice to replace the Replacement windows.

[209]   In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence and I must also assess their reliability.

[210]   I must instruct myself that there is a difference between credibility and reliability of a witness. In R. v. H.C., 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:

[211]    I must weigh all of the evidence in assessing a witness. In so weighing the evidence, I may reject or accept some or all of a witness's testimony, after having taken into account a multitude of factors which include, but are not limited to: appearance or demeanour; ability to perceive, ability to recall; motivation; probability or plausibility; and internal or external consistency.

[212]   I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

[213]   It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v. Jackson, 2007 BCSC 636; see also R. v. Mann 2010 ABPC 306)

[214]   A further useful summary for dealing with the assessment of credibility is found in Bradshaw v. Stenner, 2010 BCSC 1398 wherein Madam Justice Dillion says as follows:

[215]   Here I have heard evidence presented by the Claimant Prpic, Sean Mcllveen and Jesse Mcllveen on behalf of the Claimant TKG. I have also heard the Defendant’s evidence and the evidence of Mr. Kyle. There is conflicting evidence on the circumstances and the discussions giving rise to the Original Order and the Order Modification Document. There is also some conflict in the evidence of Jesse McIIveen and the Defendant about the installation of the Replacement Windows and the Eurotwist Door.

[216]   Similarly there is a conflict in the evidence of the Claimant TKG’s three witnesses and Gordon Kyle pertaining to the method and the procedures used to install the Replacement Windows and in particular the flanges utilized.

[217]   I have used the approaches described above to make an assessment of the credibility and the reliability of each of the witnesses. There are factors that shape the reliability of each of them as witnesses.

[218]   Based upon my assessment, I have concluded that all of the Claimants’ witnesses are credible and none seek to misdirect, deceive or lie to the court. I have come to the same conclusion with respect to Mr. Kyle’s evidence.

[219]   The Defendant presents some significant credibility issues with respect to her extensive denials relating to the Criminal Allegations as are described above. In that regard, I simply do not believe her. That does not mean that I can reject all other parts of her evidence as lacking in credibility.

[220]   The Defendant is very emotionally involved in this case. I attribute this in part to the significant distrust that the Defendant developed for both Sean Mcllveen and generally for the Claimant TKG. Based upon all of the evidence before this court, that mistrust may have been created initially by certain presumptions on the part of the Defendant namely: that the Claimant TKG had more in depth knowledge and information about her window replacement project based upon some historical connection with the replacement windows at the Neighbour’s House.

[221]   As noted often above, the Defendant appears to have the sought advice of various unidentified individuals. Whether or not that advice was accurate or was well meaning, it appears that it continued to fuel the Defendant’s suspicion about the both Sean Mcllveen and the Claimant TKG. It is through this lens and the Defendant’s sense of injustice that the Defendant has presented her evidence and reconstructed what she believes occurred.

[222]   It makes her evidence unreliable on certain events and the timing of certain events. For example, she appeared to be insistent that Sean Mcllveen knew or should have known about the replacement windows in the Neighbour’s House were informing her choices and selection of windows in her own Residence. On the whole of the evidence I accept, I do not believe this to be case.

[223]   Furthermore, she was unable to see or accept that there was an alternative and plausible explanation to her suppositions and presumptions, both in the course of her dealings with the Claimant TKG. To an extent, this flowed over into her evidence. An example is her evidence that the Eurotwist Door was made of wood and was of poor quality and was completely inadequately installed by Jesse Mcllveen. These assertions are not supported by the whole of the evidence including the Defendant’s own evidence.

[224]   On the other hand, Sean Mcllveen appeared to much less emotionally engaged in this dispute. That is not to say that he was a completely disinterested witnessed. His conduct as a product advisor was under scrutiny and he had a financial interest in the outcome based upon some form of bonus based on whether or not the Defendant was required to pay the outstanding amount on the Invoice. That aside, he gave straight forward answers, reasonable explanations and conceded when he was not entirely certain about specific details. He made appropriate concessions in his evidence that were not necessarily in the interests of the Claimant TKG, such as conceding that this was project was “less than our typical job with the cutting of the flanges” and that there was more than usual outstanding work that had to be completed as part of the Final Corrective Work. I am certain that he was quite frustrated in his dealings with the Defendant but he did not let that spill over into his testimony. Therefore, when assessing his evidence, on the whole of the evidence that I accept as accurate, I find Sean Mcllveen to be a reliable witness and specifically more credible and more reliable than the Defendant when their evidence is contradictory.

[225]   I found Jesse Mcllveen to be straightforward in his answers. He admitted when he did not have a clear recollection of events. He gave plausible and consistent answers. I therefore found him to be a reliable witness. I accept his evidence when it is contradictory to that of the Defendant.

[226]   As a shareholder in and a director of the Claimant TKG, the Claimant Prpic certainly has an interest, both financial and otherwise, in the outcome of this case. He obviously takes pride in what I understand to be a long held positive business and industry reputation of the Claimant TKG.

[227]   This lawsuit and the suggestion by the Defendant that Mr. Prpic or Sean Mcllveen have acted improperly as alleged by the Defendant understandably is of significant concern to the Claimants. Notwithstanding all of this, the Claimant Prpic presented as a matter of fact witness. In terms of reliability, it must be noted that until the collections phase of his dealing with the Defendant, the Claimant Prpic had little direct contact with the Defendant and much of his knowledge about the specifics of this case came to him from third hand accounts and his review of email exchanges between the Defendant and Sean Mcllveen. I have taken that in account in my assessment of his evidence and in finding him to be credible and reliable.

[228]   I accept the expert opinion evidence of Mr. Kyle to be generally reliable. He has maintained his duty to the court. There are certain weaknesses to his opinion evidence. Part of it flows from apparently not being informed by the Defendant that there was Final Corrective Work outstanding that the Claimant TKG was required and willing to do. Part of it flows from a lack of his detailed knowledge about the Manufacturer’s product, the apparent suitable options that may be available for its installation and in particular what may be available for the Replacement Windows. As noted above, Gordon Kyle was often required during the course of his testimony to correct his initial evidence on a number of points and to make a number of concessions about the basis for the Kyle Concerns. In the end, I am still required to determine what, if any, weight I can place upon Mr. Kyle’s expert opinion evidence.

[229]   On the whole of the evidence, I am satisfied that the Claimant TKG supplied the Replacement Windows and the Eurotwist Door that were the subject matter of the contract between the Defendant and the Claimant TKG. I find that contract to be partially in writing and partially oral. The oral terms appear to be things like the initial delivery date and installation date of the Replacement Windows.

[230]   The written portion is reflected in the Original Order Document and the Order Modification Document. I accept that the essential terms of the scope of the work being to supply and install the Replacement Windows, the type of those Replacement Windows, the specifications of the Replacement Windows and the description of the installation methods are set out in those two documents

[231]   I do not find that it was an expressed or implied material term of the contract in the Original Order Document or an oral term that the Replacement Window were to be the same as or identical to those of the Neighbour’s House. Nor do I find that to be an expressed written, oral or implied material term surrounding the changes that are reflected within the Order Modification Document.

[232]   It is noteworthy that the Defendant’s Reply makes mention of the fact that she “had to insist on what I wanted”. It is clear that the Defendant had in mind something that looked like windows in the Neighbour’s House. However, she bargained for something quite specific and was clearly set out in the Original Order Document.

[233]   The Original Order Document makes no reference generally or specifically for the supplied Replacement Windows to look like, or be the same or identical to the Neighbour’s House replacement windows. The Manufacturer’s Drawings and the specifications contained therein, in my view were intended to and do form part of the Original Order Document and they provide a detailed visual representation of the final product that was ordered and was to be supplied. The Defendant received the Manufacturer’s Drawing prior to signing the Original Order Document.

[234]   The Defendant may have presumed that when the Neighbour had apparently made initial contact with the Claimant TKG that he relayed more information about the Defendant’s intentions and her needs and specifications for the Replacement Windows than he actually did. She may have also presumed that the same supplier always provides the same product. None of this is clear nor substantiated on the evidence. The Defendant did not call the Neighbour to provide evidence on any of these important points.

[235]   However, on the whole of the evidence, I accept the testimony of Sean Mcllveen that when he was dealing with the Defendant, prior to the execution of the Original Order Document, the Defendant did not make it clear to him that the Replacement Windows to be ordered and provided by the Claimant TKG to her, must meet the requirement that they look like or be the same or identical to the replaced window in the Neighbour’s House.

[236]   There is nothing within the evidence that I accept to suggest that Sean Mcllveen used any form of high-pressure sales tactics to obtain the Defendant’s agreement to the Original Order Document or that he “forced” her to sign any documents or to agree to something she did not want. I accept that sufficient information was provided to the Defendant, such that she should have understood that the ordered Replacement Windows were going to be custom made for the Defendant’s Residence. There is nothing to indicate that during this particular period of time the Defendant raised questions about any differences between what she ordered and those of Neighbour’s House.

[237]   One of the obvious differences was the Defendant’s apparent belief that the Neighbour had paid considerably less for his replacement window, which price the Defendant put in the range of $6,000. It seems to me that cost differences would have been an obvious question for her to have raised with Sean Mcllveen prior to signing the Original Order Document and to thereby clarify what she wanted and what she was ordering.

[238]   I further accept Sean Mcllveen’s evidence, that as an experienced product advisor, that he would have canvassed the various available options with the Defendant as to the types and the options for the Replacement Windows that were available in order to achieve the goal of client satisfaction. Based on Sean Mcllveen’s evidence, I do accept he proceeded in his customary fashion. There was no benefit for him in not doing so.

[239]   As indicated above, the evidence supports the conclusion that the Defendant appears at various stages of her dealings with the Claimant TKG and with Sean Mcllveen to be seeking and accepting advice from several unidentified and unnamed sources. The nature of the advice sought, the advice given and the qualifications of those providing that advice is not clear and not properly before this court.

[240]   I accept on the whole of the evidence, that after the Original Order Document had been signed and submitted and the custom Replacement Windows manufactured, the Defendant sought to make changes to the type of the Replacement Windows. Specifically she wanted to change from the “full removal” procedure with some necessary cutting as specified in the Original Order Document and go to the “rebate” type whereby the new vinyl frame is inserted in the original window frame.

[241]   At that point, the Defendant then directed Sean Mcllveen to the Neighbour’s House as an example. However, I am also satisfied that at this point, given that the ordered Replacement Windows had been already been custom manufactured, the Order Modification Document was a satisfactory attempt on the part of the Claimant TKG to reasonably accommodate, financially and otherwise, the Defendant’s wishes to make a change in the type of the Replacement Windows.

[242]   I further accept that in doing so Sean Mcllveen would not have given the Defendant unqualified assurances nor was it part of the agreement reached and confirmed in the Order Modification Document that the Replacement Windows would be the same or identical to the windows in the Neighbour’s House.

[243]   Sean Mcllveen’s evidence explains that such could not be the case because of the differences in the original windows as between the Neighbour’s House and the Residence. Again, the Order Modification Document makes no provision for that to be a term of the modified agreement. I find that the Order Modification Document was in fact a modification of the Original Order Document but only to the extent as set out in the Order Modification Document.

[244]   There is no evidence that I accept about any functional deficiencies in the supplied Replacement Windows nor is there any evidence to support any contention that these were “reject” windows that were being foisted upon the Defendant. The evidence supports the conclusion that the Eurotwist Door which was supplied met the agreed requirements. It was a high quality door of the correct materials. However, the door handle and latching device required replacement or modification which was undertaken by the Manufacturer’s representatives.

[245]   This is not a situation where it can be said that there is anything approaching a total failure of consideration on the part of the Claimant TKG in the fulfilment of its contractual obligations to supply the Replacement Windows agreed to by the parties. By way of example, such a total failure of consideration for a replaced roof was found by court to have occurred in Chan v. Wong 2008 BCPC 24 ( see: paras 37 to 45).

[246]   It is noteworthy that the Defendant was present in her Residence observing the installation of the Replacement Windows by Jesse McIIveen and the installation crew. She raised no concerns at that time about the appearance of the Replacement Windows nor about any differences in appearance from those of the Neighbour’s House.

[247]   Based upon the foregoing, I accept that the Claimant TKG satisfied their contractual requirement to supply the new premium grade VINYLTEK Replacement Windows and also the Eurotwist Door as described in the Original Order Document and as modified by the Order Modification Document. The evidence of Mr. Kyle also supports this conclusion.

[248]   I must now turn to the other aspect as to whether or not the Claimant TKG satisfied its other contractual requirements within the scope of the work, namely the correct installation of the Replacement Windows and the Eurotwist Door.

[249]   In that regard the written contractual terms contained in the Original Order Document and the Order Modification Document are silent as to what the required standard must be. Therefore, is there an implied contractual term that answers that question?

[250]   I have previously dealt with such an issue in 0837829 B.C. Ltd. (c.o.b. Infinity Roofing) v. Bernhardt, 2018 BCPC 170 (hereinafter referred to as “Infinity Roofing”) and specifically at paragraph 146 to 148. In that decision I noted that in G.H.L. Friedman: The Law of Contract in Canada, 6^th edition (Toronto: Carswell) (“Friedman”) states as follows at pages 463 and 464:

[251]   In Infinity Roofing, I went onto to note that Howard M. Wise, Manual of Construction Law, (Toronto: Carswell) (“Wise”) at section 3.5 (b) (ii) describes how courts have held that building contracts contained an the implied term that the work was to be completed with “all proper skill and care”, or the implied term that work was to be “completed in a proper and workmanlike manner”. Wise further notes that in situations where courts have implied such contractual terms, the violation of such an implied term will constitute a breach of contract due to deficient work. Specific reference is made by Wise to Stavely Community Centre v. L. & D. Masonry Enterprises Ltd. [1983], A.L.R. 46 (Alta. Q.B.) in which the court adopted the following statement at page 50:

[252]   Wise, also at section 3.5(b)(ii) further suggests that:

[253]   Based upon all of the evidence in this case, it is clear that the Defendant sought an experienced firm that had the capabilities to both supply and install the Replacement Windows and the Eurotwist Door. The Claimant TKG impliedly or expressly indicated that they had that necessary experience. The evidence supports that the Claimant TKG in fact did have that necessary experience and used qualified and experienced employees to perform the required work.

[254]   Therefore, it is open to this court again based upon all of the evidence, to find that the contractual arrangements between the Complainant TKG and the Defendant contained an implied term that the installation of the Replacement Windows, the Eurotwist Door and the related work was to be done in a good and workmanlike manner and further that this implied warranty applied both to the functionality as well as the resulting appearance of the Replacement Windows and the Eurotwist Door.

[255]   The Defendant’s Reply and in the Counterclaim appear to assert that the Claimant TKG breached this required standard for installation of the Replacement Windows and the Eurotwist Door.

[256]   In McCrea v. Fournier, 2017 BCPC 30 Judge J.T. Doulis of this court references and reliance relies upon Goldsmith on Canadian Building Contracts, 4th ed. (Toronto, ON: Carswell 2009). Specifically, at paragraph 80, the court notes as follows:

[257]   Here, it is the Defendant who bears the burden in her counterclaim of proving this alleged breach with respect to the installation of the Replacement Windows and the Eurotwist Door.

[258]   There is no evidence that I accept to support any contention that there is a significant breach of the installation obligations by the Claimant TKG amounting to a total failure of consideration with respect to the installation of the Eurotwist Door.

[259]   The evidence of both Sean Mcllveen and Jesse Mcllveen indicates that there was a problem with the latching device on the Eurotwist Door due to the Manufacturer providing the incorrect hardware. I accept that this problem was repaired by the Manufacturer’s service representatives. Therefore, I conclude that the Defendant is not and was not in a position to reject the Eurotwist Door as not meeting the contractual requirements regarding its supply or installation.

[260]   The Kyle Concerns contained within the Kyle Summary and dealt with in Mr. Kyle’s viva voce evidence purportedly identify certain deficient aspects of the Replacement Window installation and particularly in connection with the cutting of the flanges.

[261]   However, on the whole of the evidence that I accept (but also having regard to Mr. Kyle’s opinion evidence) I still conclude that the Defendant has not established that any deficiencies in the installation of the Replacement Windows are so serious or are significant enough in nature or could not have been dealt with adequately as part of the Final Corrective Work. Hence, the Defendant is not able to rely upon a total failure of consideration with respect to the installation of Replacement Windows.

[262]   In particular, I am not satisfied that the Defendant has adequately established that the actual cutting of the flanges or the absence or loss of a bevelled or rounded edge on the flange is a breach of the required standard of the installation of the Replacement Windows. I also note that the trimming of the flanges was specifically provided for in the Order Modification Document. This solution was apparently derived from Sean McIIveen’s discussions with the Manufacturer about the available options to find a flange that could be used in order to accommodate changes sought by the Defendant and reflected in in the Order Modification Document.

[263]   Thus, I am of the view that the Replacement Windows have generally been installed to the applicable and required good and workmanlike standard.

[264]   However that said, I find that the Complainant TKG has not fully completed the required installation work to that required standard. This is based to some degree on the photographic evidence. There are also some admitted deficiencies in the overall installation work as confirmed by the evidence of Sean Mcllveen. Many appear to be aesthetic in nature and correctable as part of the Final Corrective Work which was planned and agreed to by the Claimant TKG.

[265]   Those outstanding aesthetics issues requiring correction do not include making the Replacement Windows appear consistent or identical with the windows in Neighbour’s House, which I have found was not part of the operative contractual terms.

[266]   In my view, the requirement to complete that Final Corrective Work falls within the “10 year installation warranty” referenced in the Original Order Document.

[267]   Accordingly, based on the evidence before me I have concluded that there is no basis for the Defendant either rejecting the Replacement Windows, or for her demanding they be removed and replaced by the Claimant TKG at its expense or for her refusing to pay the Invoice, but subject to an adjustment as explained below.

[268]   An appropriate remedy for the unfinished Final Corrective Work may be to award the Defendant damages for the value of that unfinished work which may be set off against what is owed to the Claimant TKG. The measure of those damages is discussed below.

[269]   It is noteworthy that the Defendant has through her actions continuously prevented the Claimant TKG from performing the required Final Corrective Work.

[270]   In my view that obstructive action of the Defendant and her failure to pay the Invoice does not the necessarily relieve the Claimant TKG of its financial responsibility for the Final Corrective Work that remains outstanding in the present case but it is relevant to the issue of the Defendant’s failure to mitigate her damages.

[271]   This conclusion about the continuing financial obligation of the Claimant TKG for the Final Corrective Work notwithstanding the Defendant’s breach of contract by failing to pay, is supported by both the Western Homes Trial Decision, supra, and by the Court of Appeal decision in the same case, being Western Homes & Management Ltd. v. Yusuf, 2011 BCCA 92. (“Western Homes Appeal Decision”).

[272]   In the Western Homes Trial Decision, the Supreme Court of British Columbia concluded that the defendant’s failure to pay a contractual instalment at the drywall stage, in the course of a construction contract, amounted to a breach of contract which discharged the plaintiff contractor from future obligations after the plaintiff’s acceptance of that repudiation of the contract by the defendant. Damages were awarded to the plaintiff but subject to a “set off” in favour of the defendant as nominal damages for “certain aesthetic deficiencies” for which the plaintiff was responsible. Those arose prior to the acceptance of the breach and were not extinguished by the acceptance of the breach. That set off amount was $5,000. It was increased in the Western Homes Appeal Decision to a total of $7,000 on the same basis used by the trial judge but a portion of the trial judge’s other awards of damages was reduced by the Court of Appeal.

[273]   In the present case, the Claimant’s responsibility for the Final Corrective Work preceded the Defendant’s breach by her failure to pay any portion of the outstanding balance on the Invoice. Accordingly, the Claimant’s obligation for the Final Corrective Work or the value of it is not extinguished.

[274]   The primary contractual remedy available in construction cases is an award of monetary damages.

[275]   In considering this remedy, I must instruct myself that the purpose of awarding damages is to put an innocent party in the same position as the final outcome of the contract if no breach had occurred. The three limitations on the recovery of damages are as follows:

[276]   According to Wise, at section 3.6(b), the standard measure of damages in building contract cases is the cost of performance being the cost of rectifying, repairing and/ or replacing the unsatisfactory work.

[277]   I have found the guidance provided by McCrea, supra, and the analysis in Sea-Bright Builders Inc. v. Graves, 2016 BCSC 709 to be helpful in assessing damages in this type of deficiency case.

[278]   Those cases found that there were three possible bases of assessing damages, namely:

[279]   Using the guidance of and based upon the analysis contained in those cases, I am of the view that the proper approach to assessing damages in this case should be the difference in cost to the Claimant TKG of the actual work done and the work specified as it relates to the installation of the Replacement Windows that remains subject to Final Corrective Work.

[280]   I find that the Defendant is entitled to a adjustment of the amounts due to the Claimant TKG as a deduction to represent the Financial Corrective Work that remains incomplete (the “Adjustment”) on the following basis.

[281]   The starting point for a determination of that Adjustment is based upon the evidence before the court about the financial value of the Final Corrective Work that remains outstanding. As noted above, that figure is estimated to be between $2,352 and $3,528. The average of those two figures is $2,940. I will use that figure for the purposes of my further analysis as the basis for valuing the Final Corrective Work.

[282]   Part of that analysis about the final amount of the Adjustment must have regard for the obstructive actions of the Defendant as they relate to the Final Corrective Work.

[283]   Those actions and her refusal to permit the Claimant TKG to return to the Residence to complete the Final Corrective Work, appears to be premised on her apparent belief that the employees of the Claimant TKG lacked the expertise or skill to complete what she viewed as an extensive amount of defective work relating to the installation of the Replacement Windows and the Eurotwist Door.

[284]   The Defendant testified that she has lost confidence in the Claimant TKG. However, on an objective basis, I am not satisfied that she has adequately demonstrated a basis for not permitting the Claimant TKG to undertake the Final Corrective Work nor for that matter any applicable warranty work for which the Claimant TKG may be responsible.

[285]   In Columbia Bitulithic Ltd. v. D.C. Masonry Construction Ltd., 1980 CanLII 474 our Court of Appeal held that: “where the builder has substantially complied with the contract, that is, where all the work to be done has been done, but where it has be done negligently or in an improper manner, the builder is entitled to recover with deductions necessary to complete the work specified in the contract”.

[286]   In McCrea, supra, Judge Doulis considered whether or not a customer (such as the Defendant) must afford a contractor or tradesperson (such as the Claimant TKG) the opportunity to return to the building structure to remedy a deficiency. Without citing a specific authority, Judge Doulis concluded that in the case before her the customer was obligated to give the tradesperson adequate notice of, and an opportunity to remedy the deficiencies.

[287]   Is the Defendant so required to permit the Claimant TKG the opportunity to complete the Final Corrective Work?

[288]   I suggest that the answer lies in the court’s assessment of whether or not such a requirement comes under the requirement of the Defendant’s duty to mitigate. In McGregor on Damages, 14th ed. at pp. 150 and 151 the author states:

[289]   It would seem that the operative word is “reasonable” and that it is a question of fact as to whether it would have been reasonable to require the home-owner customer to afford the tradesperson the opportunity to remedy the defect or not. In most cases where there is clearly defective work, it seems reasonable for the customer to seek an alternate tradesperson and to deduct the cost of these repairs from the contract price as the Columbia Bitulithic case suggests.

[290]   However, I am of the view that in this case before me and given the nature of the deficiencies, it was reasonable and part of the duty of the Defendant to mitigate her loss by permitting the Claimant TKG to complete the Final Corrective Work. It is noteworthy that she took no other steps to have anybody complete the Final Corrective Work nor address her concerns about the alleged deficiencies in the Replacement Windows.

[291]   In reaching this conclusion, I have therefore taken the Defendant’s refusal position and its correctness into consideration when assessing whether or not the Defendant has fulfilled her duty of mitigation. For the reasons noted above, the Defendant’s position was unreasonable.

[292]   Therefore, I have concluded that the Defendant has not satisfied me that she has taken sufficient steps to adequately mitigate her loss.

[293]   I must then determine what, if any, is the appropriate further financial discount that should be made to the Adjustment set off to reflect the Defendant’s failure to properly mitigate her loss (the “Discount”).

[294]   In the result, the Claimant TKG is entitled recover a significant portion of the outstanding Invoice amount originally billed to the Defendant but subject to the Adjustment, which itself must reflect a sizeable Discount of 65%, as set out below.

[295]   Therefore, I will take the estimated value of the Final Corrective figure of $2,942 inclusive of taxes and apply the Discount (which I set at 65%) being an amount of $1,912 ($2,942 x 65% = $1,912) to derive the discounted Adjustment figure (the “Discounted Adjustment Amount”).

[296]   On this basis the Discounted Adjustment Amount equals $1,030 (being calculated as $2,942 - $1,912 = $1,030). The Discounted Adjustment Amount of $1,030 will be deducted from the outstanding amount claimed by the Claimant TKG on the Invoice of $16,020. Therefore the Claimant TKG is entitled to receive a judgement of $14,990 for this portion of the Claimant TKG’s claim (calculated as $16,020 less $1,030 = $14,990).

[297]   The Claimant TKG is not entitled to recover contractual interest as claimed at the rate of 2.5% because interest is not part of the agreement evidenced in either the Original Order or the Order Modification Document. A right to charge interest cannot be based simply on a unilateral assertion in an invoice (See: N.B.C. Mechanical v. A.H. Lundberg Equipment Ltd., 1999 BCCA 775).

[298]   In the Claimants’ submissions it is asserted that interest entitlement of the Claimant TKG should be equal to what is apparently the Claimant TKG’s commercial loan with Business Development Bank of Canada stated to be an annual rate of 6.5%.

[299]   There is no evidence before the court about this annual commercial loan interest rate, nor the basis for this being the applicable interest rate that should be paid by the Defendant as damages or otherwise.

[300]   The applicable interest rate will be on the basis of the prescribed pre-judgment interest under the Court Order Interest Act, R.S.B.C. 1996, c. 79.

[301]   The Claimant TKG seeks compensation by way of damages for what I understand to be its alleged financial cost of “wasted management time” dealing with issues relating to the Defendant’s complaints and with this litigation.

[302]   As I understand it, the Claimants say that this flows from the Defendant’s breach of the contract by being overly difficult when the Claimant TKG sought to resolve her concerns and her complaints in a reasonable way and by the Defendant failing to pay the balance on the Invoice, thereby resulting in the commencement of his action and the resulting litigation.

[303]   I have concluded that the Defendant was a significantly difficult and demanding customer and required a lot of attention and received a lot of attention particularly when problems arose both preceding the making of the Order Modification Document and after the installation of the Replacement Windows and the Eurotwist Door.

[304]   Sean Mcllveen, in my view, was attentive to those needs as he should so have been. The Claimant Prpic became involved because of non-payment of the Invoice by the Defendant. I am mindful that one of the triggers (but not the only one) for the fast deterioration of the relationship was the administrative mishandling and the premature issuance of the Invoice to the Defendant, prior to Sean McIIveen’s walkthrough with the Defendant.

[305]   The Notice of Claim sought damages of $2,850 for 30 hours of time calculated at $95.00 per hour. In the Claimants’ written submissions it suggests that “the wasted management time” incurred “pre-testimony/examination” (which I take to be prior to trial and trial preparation) amounted to 55 hours calculated at $95 per hour resulting in a total value of $5,225. However, the Claimants’ written submissions also state the “wasted management time” incurred “post testimony/examination” (which I take to have included all preparation prior to trial and attendance at trial) was 200 hours. Therefore, I understand this 200 hours to be a cumulative amount of hours of “wasted management time”. It is then submitted that the amount of such damages is $2,000, which would only be at the rate of $10 per hour. Therefore, this quantification of damages is unexplained in the Claimants’ submissions. Using the earlier submitted rate of $95 per hour, that 200 hours would equate to a value of $19,000. That amount together with the other amounts claimed by the Claimants would exceed the $35,000 financial jurisdiction limit of this court. The Claimants could have stated, but did not, that they were waiving any amounts in excess of the financial jurisdiction limit.

[306]   There was little in the way of specific evidence placed before the court, upon which the Claimant TKG can rely to substantiate the time actually expended and for what purpose, in support of this claim for damages.

[307]   The Claimant appears to be relying not only on its Notice of Claim that there were some 30 hours of “wasted management time” attempting to address the unfounded complaints of the Defendant but then there were some additional 170 hours of “wasted management time” pursuing the collection of the outstanding amount of the Invoice from the Defendant, the commencement of this action and in attending and conducting the trial of this matter.

[308]   In the Student Tasty Biryani Inc. v. 8300844 Canada Inc. (Les Équipements Weststar), 2017 QCQC 2534, the Honourable Jeffrey Edward, of the Court of Quebec (Civil Division) District of Montreal determined that the plaintiff was entitled to claim for all damages suffered for what was determined to be the “conventional warranty set out in Article 1458 of the Quebec Civil Code”.

[309]   In the Tasty decision, the court concluded that the plaintiff was entitled among other heads of damages for “inconvenience and loss of time” dealing with the numerous problems arising from the defendant’s breaches of contract in the timely supply, delivery and installation of restaurant equipment.

[310]   At paragraph 76, the court concluded that a lump sum claim for trouble, inconvenience, loss of time and stress for a company may be dismissed as it is too general and may contain elements which are not claimable. Thus the court stated as follows:

[311]   In Tasty, there was sufficient evidence that the corporate plaintiff had been deprived of a minimum of 80 hours of its the sole owner, at a minimum hourly rate of $20, resulting in compensation by way of damages under this head of $1,600.

[312]   I find this to be a very helpful analytical approach for this case before me.

[313]   However, notwithstanding the Claimants’ written submission there is no such evidence of such direct and quantifying damages before me. Therefore, the Claimant cannot succeed for damages on the basis of “wasted management time”.

[314]   Part of the claim for wasted management time seems to relate to attending court and prosecuting the claim on behalf of the Claimant TKG.

[315]   A number of decisions of this court have denied claimants compensation for the their time for attending court for at least two reasons, that have been identified by the Honourable Judge Skilnick, namely:

[316]   Hence a party should not get compensated for prosecuting the claim themselves. To do so would be granting that party an indirect benefit for something that they are unable to recover directly.

[317]   As noted by the Honourable Judge Mrozinski in Brown v. RE/MAX Select Realty, 2020 BCPC 250 at paragraph 56, it is of “no moment” the fact that a claimant seeks legal fees by characterizing them as damages when such a claim or any such relief is prohibited by section 19 of the Small Claims Act.

[318]   That same approach is applicable to this head of damages being advanced by the Claimant TKG.

[319]   Based upon the foregoing this claim for damages is dismissed.

[320]   Although not specifically pleaded, it appears that the Claimant is seeking damages for something in the nature of “trouble and inconvenience” arising from the Defendant’s challenging behaviour.

[321]   The Honourable Judge Wilson Lee of this court has insightfully responded to various questions on these topics posed to him by his judicial colleagues and noted that there is case law that refers to damages for “inconvenience”. However, as Judge Lee further observes the facts of each of those cases have to be looked at carefully.

[322]   Those cases involve some contract to receive services or property and the resulting distress when the services or property were not properly or satisfactorily provided.

[323]   For example in Dunn v. Disc Jockey Unlimited Co. Ltd., 1978 CanLII 1618 (ON SC), the court said:

[324]   The court in Dunn went on to say that the inconvenience has to be physical inconvenience which in that case related to the efforts to replace a disc jockey who cancelled out of attending a wedding. Damages were nominal though and set at $175.

[325]   In Lethbridge Caterers Limited v. Vanden Berg, 2001 ABPC 132, the defendant was awarded damages of $200 for the inconvenience caused by the claimant providing an inadequately heated wedding hall.

[326]   In Wilson v. Sooter Studios Ltd., 1988 CanLII 3100 (BC CA) at para. 4, the British Columbia Court of Appeal indicated that there can be “damages for mental distress, inconvenience, upset, disappointment and frustration” but the amounts have been small. In that case, an award of damages for $1,000 was upheld for the bride’s “direct and inevitable” disappointment resulting from a breach of a contract for 102 wedding photos when the photographer arrived late and only ten photographs of acceptable quality were produced.

[327]   In Wharton v. Tom Harris Chevrolet Oldsmobile Cadillac Ltd., 2002 BCCA 78, the British Columbia Court of Appeal upheld an award of $5,000 for mental distress arising from the purchase of a car that required frequent repairs on the basis of a breach of the statutory warranty of fitness provided by s. 18(a) of the Sale of Goods Act. The court referred to the mental distress as “including anxiety, frustration and inconvenience.”

[328]   In coming to its decision, the Court of Appeal in Wharton noted that the law also permits recovery of damages for emotional distress resulting from the breach of a contract in limited circumstances. At paragraph 57 the Court of Appeal sets out these principles, concerning when a court can award damages for mental distress resulting from the breach of a contract as derived from the development of the law in England, which may be summarized as follows:

[329]   In this case the Claimant TKG is a corporation. Therefore it cannot suffer nor can it claim for stress, anxiety or frustration and cannot recover aggravated damages (see Walker v. CFTO Ltd. 1987 CanLII 126 (ON CA), [1987] O.J. No. 236 see also: Thomas Management Ltd. v. Alberta (Minister of Environmental Protection) 2006 ABCA 303).

[330]   As previously noted the Claimant Prpic was improperly joined in the Claimants’ Notice of Claim for recovery of the amount owing under the Invoice. The Notice of Claim does not seek recovery for stress, anxiety or frustration suffered by the Claimant Prpic nor for that matter his spouse. There is no evidence before this court to support such a claim on behalf the Claimant Prpic or his spouse.

[331]   In this case, the alleged trouble and inconvenience to the Claimant TKG in part relates to trying to keep a customer satisfied, rather than not receiving a service or property. In my view, as a general proposition dealing with client satisfaction and collecting outstanding accounts is a requirement of and a cost of doing business and thus should be expected, especially with individuals who prove to be difficult customers.

[332]   Based upon all of the forgoing, neither the Claimant TKG nor the Claimant Prpic are entitled to recover damages against the Defendant on this basis of trouble and inconvenience and that claim is dismissed.

[333]   I now turn to the Claimants’ claim for punitive damages, which was not claimed in the Notice of Claim but was raised in the Claimants’ written submissions as described above.

[334]   In the recent decision of this court in Rai v. Bal, 2021 BCPC 188 the Honourable Judge Chettiar canvassed a number of legal principles relating to claims for damages under a multiple number of headings. At paragraph 33 , in part, she states as follows with respect to punitive damages:

[335]   In Klaus v. Taylhardat, 2007 BCPC 21 ("Klaus"); the Honourable Judge Skilnick provided further guidance when he stated as follows:

[336]   The evidence that I accepts allows me to conclude that in the course of their dealings, the Claimant TKG and its representatives and employees found the Defendant to be a particularly frustrating and aggravating person.

[337]   However, as frustrating and aggravating as the Defendant’s conduct was, it fell considerably short of being harsh, vindictive, reprehensible and malicious or high handed and therefore to be deserving of punishment by way of an award of punitive damages.

[338]   In coming to this conclusion, I am mindful of the Criminal Allegations made by the Defendant against the Claimant Prpic and his spouse, Caroline Prpic, which is one of the Claimants’ submitted reasons for seeking punitive damages. The Claimant Prpic and Caroline Prpic and the Claimant TKG consider these to be defamatory in nature. However, under section 3 (2) of the Small Claims Act, the Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. Accordingly, in my view this court cannot make any award for punitive damages on that basis.

[339]   Therefore, the claim for punitive damages sought by the Claimant is dismissed.

[340]   Although I do not have any specific requests or submissions before me from the Claimants, I note the following provisions of Rule 20 of the Small Claims Rules:

[341]   Based upon all of the evidence before me, I cannot conclude that the Defendant’s Reply and Counterclaim had no reasonable basis for success. There were at least some triable issues. This is not a situation where I can consider the Defendant’s behaviour by defending the claim or even by counterclaiming to be shocking and reprehensible and therefore subject to a penalty under Rule 20(5).

[342]   Similarly, based upon what I have before me and having regard for my remarks under the headings relating to “Damages for Wasted Time Utilization” and “Damages for Trouble and Inconvenience”, I am not entirely satisfied that the Claimant TKG has sufficiently established a basis for compensation for unnecessary expenses under Rule 20(6). More importantly, the Claimant TKG did not make such a request in these proceedings or in the Claimants’ submissions, such as to permit the Defendant to respond to such a request.

[343]   In coming to this conclusion, I remain mindful about my introductory remarks concerning the Defendant’s lack of preparedness and her numerous failures in conducting her case.

[344]   Based on my analysis above, I find that there is no basis for the claim brought on behalf of the Claimant Prpic and similarly no basis for any claim by way of counterclaim against the Claimant Prpic.

[345]   Accordingly both are dismissed.

[346]   Based upon all of the foregoing, there is what I consider to be a minimal amount of divided success for the Defendant in this matter, as it relates to the claim for recovery of the amount outstanding on the Invoice.

[347]   The following is a summary of the orders made:

[348]   The Registry will prepare the necessary form of the resulting orders and any other related documents without any requirement for the signatures of the parties.