IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Canadian Quality Stucco Ltd. (the “Claimant”) sues Mr. Sarabjeet Pangli and Ms. Sunbit Kaur Boparai (together the “Defendants”) for the balance due on an invoice for stuccowork done at a home located at 828 Crestwood Drive, Coquitlam B.C.

[2]         The Defendants, who are married, allege that the Claimant did the work negligently and the Defendants counterclaim for the costs of the repair work.

[3]         The following persons testified on behalf of Canadian Quality Stucco Ltd. through a Punjabi interpreter:

[4]         Sarabjeet Pangli testified on behalf of himself and Sunbir Kaur Boparai. The parties agreed that Ms. Boparai did not need to attend court because she did not have any involvement with the stuccowork.

[5]         The Defendants also called as a witness Jasbir Brink.

[6]         The owner of Canadian Quality Stucco Ltd. is Lakhvir Singh Dhaliwal. The Claimant has been in operation for 12 years installing stucco.

[7]         The defendant, Ms. Sunbir Kaur Boparai, was the registered owner of the house being constructed at 828 Crestwood Drive, Coquitlam B.C. Mr. Sarabjeet Pangli was overseeing the construction. He is a builder of residential homes, having constructed some 20 houses since 2011. The house at the centre of this dispute was to be the home of the Defendants. During the course of its construction, Mr. Pangli needed to have stucco applied to the exterior of the house.

[8]         Jasbir Brink is an acquaintance of both Mr. Dhaliwal and Mr. Pangli, and he referred Mr. Pangli to Mr. Dhaliwal for the stuccowork.

[9]         Before I describe the evidence. I need to set out my understanding of the stucco process.

[10]      In order to prepare a wood surface for stuccowork, a waterproof layer is laid onto the wood. In this case, the Claimant used waterproof building paper. Next, a rainscreen is applied on top of the paper to allow for water drainage. Stucco is then applied in layers. The first layer is called a scratch coat. At times in the evidence, this layer was referred to as a “scratch code” but I believe this was in error. A second layer of stucco is applied over the scratch coat and then the final exterior layer, which displays the exterior texture and stucco colouring.

[11]      Sometime in June or July 2018, Mr. Pangli met with Mr. Dhaliwal to discuss the stucco project. The circumstances of this meeting are in dispute and I will describe each parties’ version of how the agreement came to be.

[12]      In July 2018, Mr. Dhaliwal met with Mr. Pangli to discuss the stucco contract. Mr. Dhaliwal was accompanied by an employee, Japtesh Singh Sidhu.  Mr. Pangli and Mr. Dhaliwal came to an agreement regarding the work. At Mr. Dhaliwal’s directions, Mr.  Sidhu wrote out the contract terms. A portion of the contract read as follows:

[13]      Mr. Pangli made a first payment of $8,000 by a cheque dated August 8, 2018.

[14]      On October 10, 2018, Mr. Dhaliwal texted Mr. Pangli saying, “I need cheque today.”

[15]      On October 10, 2018, the parties met to discuss the work. At that time, Mr. Pangli made a second payment of $7,360 by cheque dated October 10, 2018. This brought the total payments up to $15,360. 

[16]      Mr. Pangli was dissatisfied with the quality of the work. Because of this, Mr. Pangli wrote additional terms onto the original contract document as follows:

[17]      The parties then signed the contract.

[18]      Mr. Pangli said he met with Mr. Dhaliwal in June 2018 to discuss the project and Mr. Dhaliwal provided a verbal quote for $26,500. The evidence of Jasbir Brink is that he used the Claimant for stuccowork on three to four projects and there was never a written contract.

[19]      Mr. Pangli made the initial payment of $8,000 by cheque dated August 8, 2018.

[20]      Sometime in the fall of 2018, there was a dispute about the quality of the work.  In October 2018, Mr. Dhaliwal requested a further payment. Mr. Pangli agreed to provide a second payment of $7,360 and Mr. Dhaliwal agreed to repair the deficiencies.

[21]      On October 10, 2018, Mr. Dhaliwal and Mr. Pangli met at the job site. Mr. Dhaliwal presented Mr. Pangli with a written contract. Mr. Pangli said there were no names on the contract and Mr. Dhaliwal asked Mr. Pangli to write in the names. Mr. Pangli also inserted the additional terms I referred to above, specifically confirmation of the payments of $8,000 and $7,360, and for the Claimant to repair the deficiencies before final payment was due.

[22]      Mr. Pangli also agreed to pay another $4,000 for additional work. He said this decision was made after the initial verbal agreement, and so could not have been part of an original written agreement as alleged by Mr. Dhaliwal.

[23]      Mr. Dhaliwal and Mr. Pangli then signed the contract, with each of them writing in the date of October 10, 2018, under their signatures.

[24]      It is clear that there was an initial contract price of $26,500, and a further agreement for additional work at a cost of $4,000. This brought the contract price up to $30,500.

[25]      Mr. Pangli also agreed to pay for a higher quality rainscreen, called a Keene Dri Wall Rainscreen. Mr. Pangli said he agreed to pay for the difference in price between the rainscreen that was part of the original quote and the higher priced Keene rainscreen only if it resulted in a better stucco finish. There is nothing in writing to confirm this was a term of the agreement between the parties.

[26]      The Claimant started the stuccowork in June or July 2018.

[27]      By late September 2018, Mr. Pangli expressed concern about the quality of the work.

[28]      On October 9, 2018, Mr. Dhaliwal texted Mr. Pangli to say:

[29]      Mr. Pangli responded that he will give the money for the “scratch code” and the rainscreen. As I indicated earlier in my Reasons, I think “scratch code” is supposed to refer to the “scratch coat.”

[30]      There followed text messages between the parties in October and November 2018, and then in March and May 2019.

[31]      On May 15, 2019, Mr. Pangli sent Mr. Dhaliwal a text message giving the Claimant one week to finish the job or he would get someone else to finish it.

[32]      On May 19, 2019, Mr. Dhaliwal texted Mr. Pangli to say Mr. Pangli had not yet chosen the stucco colour. Mr. Dhaliwal also said:

[33]      Mr. Pangli told Mr. Dhaliwal that he had already selected the colour. Mr. Pangli put into evidence a stucco colour sample that he signed and dated May 10, 2019. It was not clear when Mr. Pangli gave this signed sample to the Claimant.

[34]      Mr. Pangli did not respond to the text message about the additional $1,000 charge for covering the back posts in stucco. In his testimony, he denied agreeing to pay this charge. There is nothing in writing showing that Mr. Pangli confirmed or disputed this charge.

[35]      On May 30, 2019, Mr. Pangli texted Mr. Dhaliwal to say:

[36]      On June 5, 2019, Mr. Dhaliwal texted Mr. Pangli to say:

[37]      The text message does not refer to Mr. Pangli’s second payment of $7,360 made by cheque dated October 10, 2018, although there is an unexplained reference to the “rest of the money u paid…”

[38]      On June 14, 2019, Mr. Pangli texted Mr. Dhaliwal to say:

[39]      On July 9, 2019, Mr. Dhaliwal sent Mr. Pangli a text message to say Mr. Pangli had only paid $8,000, the contract price was $26,500 and the remaining amount owing was $18,500 plus GST. The written contract did not set out GST as an additional sum owing. Mr. Dhaliwal again referred to other money paid to him, stating:

[40]      Mr. Dhaliwal did not mention the second payment of $7,360 or the extra charge of $4,000.

[41]      In another message sent July 9, 2019, Mr. Dhaliwal told Mr. Pangli there was a further $1,200 owed for “stucco on posts on the back and the places on the corner where we installed extra stucco as u reduced stone work”. Mr. Dhaliwal said the amount owing was $21,025.

[42]      There is nothing in writing to show that Mr. Pangli confirmed or denied the obligation to pay the extra $1,200 charge. In his testimony, Mr. Pangli denied agreeing to this charge.

[43]      On September 19, 2019, Mr. Pangli texted Mr. Dhaliwal to say:

[44]      Mr. Dhaliwal replied that day:

[45]      Mr. Pangli responded:

[46]      On November 6, 2019, Mr. Dhaliwal sent to Mr. Pangli by text an invoice issued by the Claimant to “Sarab” dated October 25, 2019, totalling $38,325. This amount was arrived at using different prices for the six items listed in the written contract. The Claimant is not seeking payment based on this invoice.

[47]      Mr. Pangli responded by text to Mr. Dhaliwal to say the painter cleaned the stucco paint from the soffits and window trims. Mr. Pangli reiterated that the Claimant had to repair the deficiencies first before payment was made. Mr. Pangli acknowledged a threat by the Claimant to place a lien on the property. The message included the following comment:

[48]      On November 19, 2019, the Claimant filed a Claim of Builder’s Lien against the property, claiming $24,025. On March 31, 2020, the Defendants issued a Notice to Commence an Action to enforce the lien claim. The Claimant did not pursue the lien claim.

[49]      The Claimant put into evidence a number of invoices issued by Crown Building Supplies for materials relating to the project, dated from June 5, 2018 to December 16, 2019. The first invoice suggests that the work began in approximately June 2018. The last invoice of December 16, 2019, suggests the Claimant stopped work sometime around December 16, 2019. The Claimant did not put into evidence any work records or time sheets to show when they actually worked at the property.

[50]      Mr. Dhaliwal testified that the Claimant would do any touch-up work after completion of the work. He also said the touch-up work did not occur because the Defendants had not paid the full contract price.

[51]      In cross-examination, Mr. Dhaliwal agreed that the project required the application of fine texture stucco for the final coat. Invoice # IN120327 issued by Crown Building Supplies to the Claimant dated June 11, 2019, listed purchases of both Adex Elasticoat Fine Regular and Adex Elasticoat Medium Regular. Invoice # IN120851 issued by Crown Building Supplies to the Claimant dated June 17, 2019, also listed purchases of both Adex Elasticoat Fine Regular and Adex Elasticoat Medium Regular. Mr. Dhaliwal suggested the store invoices were incorrect and he denies using medium texture stucco.

[52]      Mr. Pangli testified that there were significant deficiencies and he referred to various pictures in support of his claim. Among other things, Mr. Pangli alleged as follows:

[53]      I asked Mr. Pangli if he had an expert evidence to support his claims about deficiencies. Mr. Pangli only had the inspection report from Stinger Home Inspections, which I will discuss later. Mr. Pangli said he would leave the question of whether deficiencies existed for me to decide.

[54]      The evidence of Mr. Dhaliwal and Mr. Pangli differed and I must assess their credibility and reliability.

[55]      I refer to the leading decision of Faryna v. Chorny, 1951 CanLII 252 (BC CA), where the Court stated:

[56]      I also refer to the decision Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640, where the Court stated:

[57]      For reasons that follow, I have concluded that I cannot rely on the evidence of Mr. Dhaliwal.

[58]      During cross-examination, Mr. Dhaliwal did not respond to many questions, even after I repeated the questions or re-phrased them. Taking into account any language difficulties, I found Mr. Dhaliwal was evasive when giving his answers.

[59]      Mr. Dhaliwal and Mr. Pangli disagreed on how the written contract came into being. Mr. Dhaliwal said he had a written version of the contract from July 2018 that did not include any of the additions he claimed Mr. Pangli inserted on October 10, 2018. However, he never produced this version of the contract, submitting into evidence only the complete contract signed by the parties on October 10, 2018. I have doubts whether this shortened version of the contract exists.

[60]      Mr. Dhaliwal said the initial written agreement from July 2018 contained the term “Extra for front ready for stone” at a cost of $4,000. It does not make sense to refer to an item as an extra unless that was a term agreed to after the initial agreement.

[61]      Mr. Dhaliwal said the Claimant only purchased and applied fine texture stucco coating to the home. Two Crown Building Supplies invoices show the purchase of both fine and medium texture stucco coating. Mr. Dhaliwal’s suggestion that Crown Building Supplies twice made an error in their invoices is neither likely nor convincing.

[62]      Taking into account the above, I do not find Mr. Dhaliwal’s evidence to be credible.

[63]      The amount claimed by Canadian Quality Stucco Ltd. also fluctuated over time.

[64]      Given Mr. Dhaliwal’s own uncertainty about the amount claimed, I do not find his evidence to be reliable.

[65]      The evidence of Japtesh Singh Sidhu did not help to support Mr. Dhaliwal. Mr. Sidhu testified that the stucco job only took 2 ½ weeks to complete. That made little sense given the invoices from Crown Building Supplies were dated from June 5, 2018 to December 16, 2019.

[66]      The evidence of Mr. Pangli did not have the degree of inconsistency found in Mr. Dhaliwal’s evidence, and overall I prefer his evidence.

[67]      The original contract was the verbal agreement for stuccowork at a cost of $26,500 plus a further $4,000 for listed extras.

[68]      Mr. Dhaliwal said Mr. Pangli agreed to pay for the costs of a rainscreen at the cost of $3,417.62. Mr. Pangli said he only agreed to pay for the difference in costs between the original rainscreen and the upgraded rainscreen, and only if the upgraded rainscreen resulted in a better finish.

[69]      The written contract makes two references to a rainscreen, with price amounts associated with both. This is consistent with Mr. Pangli’s evidence that he only agreed to pay for the cost difference between the original rainscreen and any upgraded version. I accept Mr. Pangli’s evidence in this regard.

[70]      I do not accept that the purchase of the upgraded rainscreen was contingent on there being a better stucco finish.  The written contract contains a typewritten clause that reads as follows:

[71]      As badly worded as this clause was, it remains clear that any agreement making payment for the upgraded rainscreen contingent on a better stucco finish had to be in writing. As the written agreement failed to include such a term, the Defendants’ obligation to pay for the rainscreen was not conditional.

[72]      Unfortunately, I received no evidence about the costs for the original rainscreen. The Crown Building Supplies invoices show payments for Dri Wall Rainscreen Keene for $2,250 (June 5, 2018 invoice) and $750 (August 7, 2018 invoice). This totals $3,000. There were added costs for staples. With taxes, the Claimant sought a total of $3,417.62. Since the claim is for the cost difference between the original rainscreen and the Keene rainscreen, I will fix that amount at $1,500.

[73]      I turn to the claim for extra work for what Mr. Dhaliwal described as the posts ($1,200) and the stone posts ($1,000). Mr. Dhaliwal provided limited details of this work and almost no information on how these charges were calculated. The only written evidence about these claims came from two text messages sent by Mr. Dhaliwal with no supporting documents or invoices to substantiate the claims. Mr. Pangli denied any agreement to pay these costs. Given my concerns about the credibility and reliability of Mr. Dhaliwal’s evidence, I find that the Claimant has not met the burden of proving these claims on the balance of probability and I do not accept them.

[74]      There is no dispute that Mr. Pangli paid the sum of $8,000 and $7,360, a total of $15,360.

[75]      I arrive at the balance owing under the contract as follows:

[76]      The parties’ original agreement was made verbally in approximately June or July 2018. The written contract was entered into on October 10, 2018. Mr. Pangli wrote in additional terms requiring completion of deficiencies before final payment was due. Were these additional terms to the agreement binding on the Claimant?

[77]      For a contract to be binding, the parties must exchange “consideration.” This refers to some right, interest, profit or benefit provided to a party, or for the other party to give something up.

[78]      In the decision Rosas v. Toca, 2018 BCCA 191 (CanLII), the Court stated at para. 183:

[79]      Mr. Dhaliwal agreed to the modification of the verbal agreement and to the terms set out in the written contract of October 10, 2018, as shown by his signature to the written contract. The contract is binding on the Claimant despite the lack of new consideration from the Defendants.

[80]      Was the payment of the balance owing under the contract, being $16,640, only due after the Claimant repaired all deficiencies?

[81]      In order for a contract term to be enforceable, it must be certain. I refer to the decision Babich v. Babich, 2015 BCPC 175 (CanLII), where the court set out at paragraph 16 the elements of a contract. One such element was described as follows:

[82]      The written contract states that the balance is payable “when job is done right.”

[83]      This condition is vague and unenforceable. There is no objective standard to determine “when the job is done right.” Mr. Dhaliwal felt the job was done right. Mr. Pangli disagreed. There were clearly deficiencies as referred to in the report by Glenn Duxbury, which I will discuss later. Because that report came out some 2.5 years after the written contract was signed, it does not explain “when the job is done right.”

[84]      Another term of the contract stated:

[85]      The reference to deficiencies is again vague. There was no listing of the deficiencies in the written contract. The Duxbury report found that deficiencies existed but it cannot be used to define what the parties meant by “deficiencies” in the written contract. I find that the contract term to fix unspecified deficiencies before final payment is too vague to be enforceable.

[86]      I conclude that the requirement for payment is not postponed until the Claimant has remedied all deficiencies.

[87]      I turn now to review the reports submitted by each party and to determine the admissibility of the reports into evidence.

[88]      The rules of evidence in Small Claims Court proceedings are somewhat relaxed. Section 16 of the Small Claims Act allows the court to admit as evidence any oral or written testimony, record or other thing so long as the court considers the evidence credible or trustworthy, and relevant. This is so even if that evidence is not admissible in another court under the laws of evidence.

[89]      Rule 10 of the Small Claims Rules deals with the giving of expert’s evidence. The purpose of expert evidence is to provide an opinion to the court on a matter that requires expertise. Otherwise, opinion evidence is generally not admissible as evidence.

[90]      Under the Small Claims Rules, a person qualified as an expert in a particular area of knowledge may give expert opinion evidence on that specific subject. Rule 10(5) refers to the requirement to provide an expert’s statement of qualifications.

[91]      Both parties submitted written reports. The Claimant provided the report of Glenn Duxbury, dated May 17, 2021. The Defendants submitted the report of Stinger Home Inspections, prepared by Brejesh Davda following an inspection on July 7, 2020.

[92]      The report of Mr. Duxbury is clearly admissible as evidence. The report attaches Mr. Duxbury’s Curriculum Vitae and satisfies the requirement for a statement of qualifications. I will discuss the contents of the report later in my decision.

[93]      The report of Stinger Home Inspections was written by “Brejesh Davda CPBC #62504.” “CPBC” likely refers to a licenced home inspector from Consumer Protection BC. The report also has a watermark referring to the International Association of Certified Home Inspectors - InterNACHI. However, there is no actual statement of qualifications. Mr. Davda was not called as a witness to the trial and there is no evidence of his qualifications.

[94]      Although s. 16 of the Small Claims Act gives me the discretion to allow evidence I consider to be credible and relevant, the Rules clearly set out a higher standard in the case of expert evidence. As there is no confirmation of Mr. Davda’s qualifications to give expert evidence, I do not accept his report for the purposes of providing expert opinion evidence. I believe Mr. Pangli was aware of this concern. During his evidence, Mr. Pangli said that he would leave it to me to assess whether deficiencies existed.

[95]      Notwithstanding my view that the Stinger Home Inspection report is not an expert opinion report, I will still refer to the report. As Mr. Davda is a certified home inspector, I accept his report as a written statement of an independent witness that sets out his observations.

[96]      The date of the inspection by Brejesh Davda of Stinger Home Inspections occurred on July 7, 2020. The “General Summary” of the report sets out the following observations:

[97]      The report summary said the value of the house may have depreciated but I do not accept this statement as evidence since it is only speculation. In any event, the Defendants have not counterclaimed for a loss in value of the home.

[98]      The Curriculum Vitae of Mr. Duxbury said he is a “professional Home & Building Consultant & Master Inspector.” He has over 30 years of experience documenting deficiencies and writing reports, and has provided expert evidence in past court proceedings.

[99]      Mr. Duxbury went to the house for a site visit on April 9, 2021. His report was printed on May 17, 2021. Mr. Duxbury set out the questions asked of him and his responses as follows:

[100]   Mr. Duxbury also noted “some unprofessional issues” compared to other stucco finishes he has observed and said this “finish lacks quality.”

[101]   Mr. Duxbury went on to say that viewing the stucco surface using artificial lighting, as was done for the Stinger Home Inspections report, was not an accepted standard for documenting surface defects. He said the recognized method is to view the surface under normal lighting conditions.

[102]   The next question asked of Mr. Duxbury was:

[103]   Mr. Duxbury said stucco is not meant as a complete water-barrier. He continued:

[104]   Mr. Duxbury went on to say the lack of a flexible connection between different materials would guarantee cracking of the stucco.

[105]   Mr. Duxbury disagreed with an opinion expressed in the Stinger Home Inspection report that vertical electrical conduits on the side walls should have been covered by stucco. Mr. Duxbury said the stucco should have been applied to the wall before the conduits were installed.

[106]   In review of the report, it was clear that Mr. Duxbury equated the performance of the stucco with waterproofing rather than appearance. Mr. Pangli’s evidence was that the appearance of the stucco was a primary concern for him.

[107]   Both the reports of Glenn Duxbury and Stinger Home Inspection, as well as the photographs submitted by Mr. Pangli, confirm that deficiencies existed in the stuccowork.

[108]   The observations set out in the Stinger Home Inspection report included the following:

[109]   The observations set out in the Glenn Duxbury report included the following:

[110]   There were disagreements between the report writers about whether the appearance of the stucco surface was deficient. The most notable was about the use of artificial lighting by Stinger Home Inspections to identify waviness in the wall surfaces. Mr. Davda of Stinger Home Inspections was not qualified to give expert evidence about how to assess the quality of a stucco surface. Mr. Duxbury said that stucco surfaces should only be assessed under normal lighting conditions. However, Mr. Duxbury went on to say the Residential Construction Performance Guide was silent on exterior stucco, and he did not cite any support for his view about how to examine stucco surfaces. I am left uncertain about how the quality of a stucco surface should be assessed.

[111]   Mr. Duxbury equated the performance of the stucco with waterproofing rather than appearance. I think this ignores the perspective of a homeowner who is also seeking a home with an appealing exterior. It seems to me that in any stucco contract, there is an implied term that the finished appearance of the stucco must be presentable from the perspective of a reasonable bystander. The difficulty is in determining what is reasonably presentable.

[112]   Contract terms could specify a standard by which to assess the quality of a stucco surface. In this case, the contract terms were vague in saying the job is to be “done right” or that unnamed deficiencies are to be fixed. The contract refers to “ruff surface (waves)” but I am uncertain if this applies to “waves” that are shown under artificial lighting.

[113]   Mr. Pangli drafted the terms of the written contract referring to deficiencies and he is responsible for the uncertainty of the wording.

[114]   Neither report described the home’s stucco texture as being a mix of fine and medium texture, even though Crown Building Supply invoices showed the Claimant purchased two different stucco textures.

[115]   Given the above, I am not satisfied on the balance of probabilities that the surface appearance of the stucco was a deficiency.

[116]   Regarding other deficiencies with the stucco, the Stinger Home Inspection report said that exterior pipes running along the walls should have been covered in stucco. This was an opinion that I cannot accept because Mr. Davda was not qualified to give an expert opinion. The Duxbury report said the pipes should have been left away from the wall to allow the stucco to be applied to the wall. However, this was not an option available to the Claimant. The Claimant was presented with a wall with pipes attached. In those circumstances, I find that the Claimant should have applied stucco to cover the pipes fully since a partial covering was unsightly as shown in the photographs.

[117]   I turn now to discuss the remedy for the deficiencies.

[118]   Any party that has suffered losses because of another party’s actions or inaction has a duty to take reasonable steps to prevent further harm or loss. This is known as a “duty to mitigate.” Canadian Quality Stucco says that the Defendants breached their duty to mitigate by preventing the Claimant from repairing the deficiencies, such that I should not allow any claims by the Defendants for repair costs.

[119]   In the decision Jozsa v. Charlwood-Sebazco, 2016 BCSC 78 (CanLII), the court stated:

[120]   In the decision Meszarics et al v. Hart Modular Homes et al, 2020 BCPC 234, the court said:

[121]   In the decision Lind v. Storey, 2021 BCPC 2, the court stated:

[122]   In the decision Bridgewater Tile Ltd. v Copa Development Corporation, 2022 BCSC 310, the court said:

[123]   In the decision Centura Building Systems (2013) Ltd. v 601 Main Partnership, 2022 BCSC 295, the court stated:

[124]   From these cases, I draw the following principles that apply to any claim or counterclaim against a contractor or builder:

[125]   I start with the presumption that there is an implied contractual term that Canadian Quality Stucco Ltd. had a right to repair any deficiencies. I turn now to consider whether the evidence rebuts this presumption. In other words, did the Defendants deny the Claimant the opportunity to correct the deficiencies?

[126]   The Claimant refers to the June 14, 2019 text where Mr. Pangli told Mr. Dhaliwal the Claimant was no longer welcome at the job site. Despite this, subsequent text messages show there were further requests by Mr. Pangli for the Claimant to repair the deficiencies. On September 19, 2019, Mr. Dhaliwal said they did not attend the work site as planned because of the weather. On November 6, 2019, Mr. Pangli texted Mr. Dhaliwal to say that the Claimant had to do repairs first before the Defendants would make payment.

[127]   The requests for repairs only stopped once Canadian Quality Stucco filed their Claim of Builder’s Lien on November 19, 2019.

[128]   The last of the Crown Building Supplies invoices is dated December 16, 2019, which is inconsistent with the Claimant’s submission they stopped working as of June 14, 2019.

[129]   I find that the Defendants did not prevent the Claimant from performing repair work. The Claimant refused to return to the work site and elected not to correct the deficiencies.

[130]   I turn now to consider the counterclaim and the damages for the repair of the deficiencies.

[131]   The Counterclaim is for the statutory maximum of $35,000 and is stated in the Defendants’ Reply and Counterclaim as follows:

[132]   Mr. Pangli obtained three quotes for the stucco repair work.

[133]   Choice Stucco Ltd. provided the highest quote at $79,800. This included the removal of the existing stucco. As I was not satisfied that the stucco surface was deficient, removal of the stucco was not justified. This solution is excessive in my view.

[134]   Gold Coast Stucco & Design Ltd. provided a quote of $58,900 for the following work:

[135]   Northwest Stucco Ltd. provided the lowest quote at $39,000 for the following work:

[136]   The quote set out a payment schedule as follows:

[137]   Mr. Pangli accepted the Northwest Stucco quote and to date has paid Northwest Stucco the first two payments totalling $26,000. Mr. Pangli intends to have the work completed and pay the balance owing of $14,950.

[138]   The Northwest Stucco quote did not involve removal of existing stucco but did include resurfacing the stucco. Because I am not satisfied the surface quality of the stuccowork was deficient, I will not award compensation for resurfacing the stucco. Nevertheless, there were deficiencies in the stuccowork as recognized by Mr. Duxbury, and which was also evident in the various photographs. I will fix the amount of compensation for repair of the stucco at $10,000.

[139]   Mr. Pangli testified that he paid $1,034.52 and a further $318.30, a total of $1,352.82, for the purchase of materials for the scaffolding constructed by the Claimant. Mr. Pangli said he purchased the materials at the request of Mr. Dhaliwal with the understanding that Mr. Dhaliwal would reimburse Mr. Pangli. Mr. Dhaliwal denied that there was any such agreement.

[140]   The written contract refers to the following items:

[141]   The contract does not say the scaffolding costs were just for its construction. Instead, the contract simply makes two references to “scaffold.” I find that a reasonable interpretation of these contract terms required the Claimant to supply the materials and construct the scaffolding. The Claimant wrote this part of the contract. If the Claimant intended to charge only for the construction of the scaffolding, it should have stated so in the contract.

[142]   I find that the contract required the Claimant to construct the scaffolding using their own materials. As such, the Defendants will be compensated for the sum of $1,352.82.

[143]   Mr. Pangli submitted a quote from A & N Woodworking dated May 15, 2021 for $6,500 to replace window and door trims, soffits, and for taking down and reinstalling the downpipes. Mr. Pangli was able to do much of the work himself and only paid A & N Woodworking $2,000 for cleanup of stucco splatter and the partially covered downpipes. I accept that this was to rectify deficiencies and I find that this is a proper claim against the Claimant.

[144]   Mr. Pangli also submitted a quote from Dominion Crown Mouldings dated May 19, 2021 for $2,434.60 for “Corner Quoins, CA2866 (12” x 12” x 2-1/2”)” plus additional charges for delivery and “touch-up mud.” Mr. Pangli said this was for replacement of moulding that the Claimant had covered in paint. 

[145]   Mr. Pangli did not say why paint on the moulding, which was more likely coloured stucco, could not have been cleaned off. The evidence showed that cleaning off paint or stucco had occurred before. In a text message sent November 6, 2019, Mr. Pangli told Mr. Dhaliwal the painter cleaned stucco paint from the soffits and window trim; although the window trims could not be cleaned properly. In another instance, during his evidence about the A & N Woodworking quote, Mr. Pangli said he did a cleanup of stucco splatter. These examples suggest that cleaning off paint or stucco was a possibility and likely a more reasonable alternative to replacing the moulding. In light of this, I fix the compensation at $1,000.

[146]   The claim and counterclaim will be set-off against each other. I summarize these amounts as follows:

[147]   The result is that the Defendants will pay to the Claimant the sum of $2,287.18. In addition, the Claimant is entitled to its filing fee of $156 and the service fee of $25, a total of $2,468.18.