A Port Coquitlam strata group may have been awarded over $8,000 in its legal fight over a fence, but no party came out on top.
The civil suit was advanced by Russell Patrick William Stump, owner of Mainland Fencing, who sought $10,700 in unpaid contract fees, plus court costs and interest.
Stump was being countersued by the strata for nearly $43,000. The strata asked for a complete refund, along with compensation for a damaged tree and time dealing with the litigation.
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“I find the claimant lost the right to make repairs and that the defendant did not fail to mitigate its losses by having the claimant make repairs,” wrote Justice Wilson Lee.
The contact in question involved replacing the fencing around a three-building townhouse complex located at 2957 Oxford St.
Work to replace the fence was supposed to begin on June 14, 2021 and take six weeks to complete for a sum of $35,700 paid in three installments.
The strata terminated the contract after eight months and refused to pay the balance, citing incomplete and deficient work.
Numerous issues occurred during construction, according to court documents.
Fence panels shrunk during a heatwave, and additional panels added to close gaps expanded during the rainy weather, causing portions of the fence to warp.
Stump was frequently given lists of deficiencies needing to be repaired before work could commence on other buildings.
An incident occurred between one of Stump’s employees and a strata council member, where the employee was told to leave the property and not return, causing further delays.
Another incident occurred involving a tree on the property which was interfering with the construction of the fence.
The same tree was discovered to have a notch cut into it, leading to concerns for its health among strata members.
Stump denied that he or his workers cut the notch in the tree.
The strata permitted the work to continue despite the deficiencies, allowing repairs to be made later.
Stump testified that work was largely complete by late October, aside from some wood staining.
When he requested final payment, he was told to wait on a report from a third-party inspector.
After continually requesting more meetings, Stump finally met with several strata members on Nov. 11, who insisted on more repairs and refused to make the payment until they were complete.
Stump said he sent three proposals to fix the deficiencies, but never received a response from the strata group.
He filed a builder’s lien against the property on Dec. 3, 2021.
The strata group responded expressing dissatisfaction with the work, and Stump sent multiple emails asking when he could carry out the repairs.
The strata group held a meeting on Jan. 9, 2022 and unanimously voted to terminate the contract.
A termination letter stated Stump had failed to complete the contract within the agreed upon timeline, and produced incomplete and substandard work.
The property owners also alleged a lack of friendly and professional customer service, including threats and harassments.
Stump filed suit on Jan. 20, 2022.
The decision
Both parties would end up in the red as a result of the legal battle.
Many of the delays were the fault of the strata, according to the judge, who noted several instances where work was halted to review construction and make decisions.
He said the firm deadline cited by the strata group to terminate the contract was not applicable.
The strata group was relying on a third-party inspector to claim only 60 percent of the fence was complete, and that the entire fence would need to be torn down and reconstructed.
But the judge disagreed with their assessment, and questioned the evidence they submitted.
Photo evidence showed the work was substantially complete and the final payment could not be excused, according to the judge.
The inspection report was conducted by a company that employed one of the strata council members and lacked proper qualifications for expert opinion.
“The nature of expert evidence is to provide an opinion to the court that is objective and independent,” Justice Lee wrote. “Partisan evidence is not acceptable.”
Another report issued by the strata group alleged the total replacement of the fence would cost upwards of $57,000.
The judge said this report also lacked any qualifications for this assessment; the author listed themselves as journeyman carpenter but did not include a business name or address.
The strata group also said a mature tree was killed during the work, which would also need to be replaced for a sum of $5,000.
No arborist report was submitted to the court, however.
Another claim made against the company was a lack of quality wood, but the judge did not find this credible.
The countersuit noted some deficiencies in the fence.
These defects included 31 fence posts starting to rot, portions starting to sag or warp, malfunctioning gates, gaps between fence boards and unfinished staining.
While Stump agreed there were deficiencies, he argued the company should have been given time to repair them to help mitigate costs.
The judge, however, said the property owners had clearly lost faith in the company to carry out the repair work, and it would be unreasonable to allow them to return.
The lack of evidence submitted regarding repair cost made it difficult to assess damages for the breach of contract, according to the judge.
The strata group was awarded $18,750 plus court fees, minus the $10,750 it owed to Stump.
