IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Barcelo v. Bogujevci,  
2022 BCSC 1079  
Date: 20220628  
Docket: S192770  
Registry: Victoria  
Between:  
And:  
Daniel Barcelo  
Plaintiff  
Sabedin Bogujevci and European Pro Painting & Flooring  
Defendants  
Before: The Honourable Mr. Justice Veenstra  
Reasons for Judgment  
Counsel for the Plaintiff:  
R. Fraser  
Appearing on his own behalf and as Agent  
for European Pro Painting & Flooring:  
S. Bogujevci  
Place and Dates of Trial:  
Victoria, B.C.  
September 21-24, 2021  
Place and Date of Judgment:  
Victoria, B.C.  
June 28, 2022  
Barcelo v. Bogujevci  
Page 2  
Table of Contents  
BACKGROUND FACTS............................................................................................ 3  
POSITIONS OF THE PARTIES............................................................................... 15  
ISSUES.................................................................................................................... 16  
RELIABILITY AND CREDIBILITY........................................................................... 16  
EXPERT EVIDENCE ............................................................................................... 19  
ANALYSIS............................................................................................................... 20  
What is the Contract............................................................................................. 20  
Did the Defendant Breach the Contract?.............................................................. 22  
Damages / Amount Owing Under Contract .......................................................... 23  
The Tort Claim...................................................................................................... 26  
CONCLUSION......................................................................................................... 28  
Barcelo v. Bogujevci  
[1] The plaintiff, Mr. Barcelo, claims damages arising from an alleged oral  
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contract with the defendant, Mr. Bogujevci, to perform certain construction services  
to the plaintiff’s home. The defendant counterclaims for amounts allegedly unpaid by  
the plaintiff in respect of the work he did perform.  
[2]  
There are differences between the parties both as to the nature and scope of  
the agreement between them and as to the extent of any deficiencies in the  
defendant’s work.  
Background Facts  
[3]  
The defendant was, at the material times, the sole proprietor of European Pro  
Painting & Flooring. He first registered that business name in 2012, having  
previously conducted business under the name European Painting Professionals.  
He testified that he has experience in a wide variety of construction-related work,  
including painting, renovation, various types of flooring and tiling.  
[4]  
The plaintiff was, at the material times, the owner of a home in the District of  
Highlands, which is northwest of Victoria. He and his wife had purchased the  
property in 1985 and raised their family there. They had initially lived in a mobile  
home on the property. Between 1991 and 1994, they built a house – hiring a variety  
of contractors over the years to perform various stages of construction as money  
became available.  
[5]  
The plaintiff and his wife actually moved into the house in 1993 or 1994,  
having obtained a temporary occupancy permit. The plaintiff was aware that he  
would have to correct or finish certain items that he had been advised of by  
inspectors from the then-municipal authority (at the time, the Capital Regional  
District). However, with a family to raise and being a single-income household, there  
were other priorities for their available funds and a final occupancy permit was not  
obtained.  
[6]  
By 2018, the plaintiff’s wife had passed away and his sons had moved out.  
He was considering selling the house and moving to a smaller place.  
 
Barcelo v. Bogujevci  
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[7] The house was, by then, some 25 years old. It was weathered and required,  
amongst other things, to be repainted on the outside. As well, the exterior decks that  
had been installed were weathered and worn. There were also things that had never  
been finished – including railings on a deck that went around three sides of the main  
floor, and a deck off a door from the upper floor that had never been constructed. As  
well, parts of the interior of the house required some finishing work.  
[8]  
I begin by noting that there was a significant amount of uncertainty in the  
evidence of the parties and of one of the witnesses, Ms. Marten, as to exactly when  
various events happened in the summer of 2018. There is a dearth of emails or  
other dated documents that would indicate what steps happened on what date.  
Instead of written communication, the parties appear to have dealt almost  
exclusively either by way of telephone or in person conversations. The following sets  
out the approximate times and sequence of events.  
[9]  
In about the latter part of July 2018, the plaintiff found one of the defendant’s  
business cards posted near the community mailboxes and called him to inquire  
about having some work performed.  
[10] The parties were ad idem that the specific tasks to be undertaken by the  
defendant evolved over time. They did not agree as to the exact sequence in which  
the tasks evolved.  
[11] The plaintiff’s evidence was that he initially asked the defendant for a  
quotation for the painting of the exterior of his house, then asked him to replace  
three downspouts, then asked him to supply and install a bathtub and a vanity, then  
asked him to perform work in respect of the decks, then asked him to install  
baseboards and window casings inside the house.  
[12] The defendant, on the other hand, said that he was initially asked to install  
baseboards and window casings, then to perform work in respect of the decks, then  
to paint the exterior of the house and downspouts, and then to supply and install the  
Barcelo v. Bogujevci  
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bathtub and vanity. As can be seen, the work is the same, but the sequence is  
different.  
[13] The parties had significantly different recollections as to what the plaintiff  
communicated about his plans to sell the house. The plaintiff was adamant that he  
told the defendant several times through August and September that all of the  
defendant’s work had to be “done to Code” because he was selling the house. The  
plaintiff’s reference to the “Code” refers to the British Columbia Building Code  
Regulation, B.C. Reg. 264/2012 (the “Code”).  
[14] The defendant was equally adamant that the plaintiff never mentioned the  
word “Code” to him, and never told him that the work was being done for the  
purpose of selling the house. The defendant’s evidence was that he did not learn the  
house was being sold until a sign was posted and he met the listing agent in mid-  
September.  
[15] The evidence does seem to be clear that the defendant was never told that  
the plaintiff had not previously obtained an occupancy permit. This was significant,  
as the District of Highlands had registered a bylaw contravention notice on title. The  
plaintiff’s understanding was that it would be necessary to obtain an occupancy  
permit and have the bylaw contravention notice removed from title before he could  
sell the property, as any purchaser would have difficulty obtaining conventional  
financing in the face of such a notice. Thus, the plaintiff understood that he would be  
required to have further inspections and establish to the satisfaction of the local  
municipality that he had resolved any of the outstanding issues before any sale  
could occur. This information was not shared with the defendant.  
[16] The plaintiff’s recollection was that his first conversation with the defendant  
about working on the decks was in about the second week of August 2018. The  
plaintiff said that the defendant gave him an estimate for the work. While the plaintiff  
could not recall the exact number, he recalled that it was in the range of $46,000 but  
he was quite uncertain about that. As will be noted below, the defendant ultimately  
Barcelo v. Bogujevci  
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billed $38,950 for the work on the various decks, which casts doubt on the $46,000  
amount.  
[17] Whether the first conversation was in mid-August or later that month, the  
evidence indicates that the defendant’s work on the deck did not actually begin until  
late in the month. The plaintiff said that he had plans to be out of town for five days  
around the Labour Day weekend, and that just before he left he had what was to be  
a key conversation with respect to the issues in this case. In 2018, Labour Day was  
September 3, so I infer that the conversation would have taken place on August 30  
or 31, 2018.  
[18] At that time, the defendant had begun to remove some of the old wood  
decking from a part of the deck. He discovered that there was substantially more rot  
in the joists supporting the decking than he had anticipated. His evidence was that  
the rot on the top of the joists (which was not apparent until the decking was  
removed) was worse than what he had been able to see by looking underneath the  
deck at the bottom of the joists.  
[19] The defendant’s evidence is that he told the plaintiff that, because there was  
so much rot, there was in many places nothing for him to attach the new decking to,  
and thus, he was going to have to add some new joists. He told the plaintiff that this  
would cost extra. His evidence was that the plaintiff told him to go ahead as  
suggested.  
[20] The plaintiff acknowledged having been shown an area where the defendant  
had removed five to eight decking boards, exposing the joists, and that the rot could  
be seen underneath. The plaintiff said that while the original plan was to have the  
surface material taken off and replaced with new material, he understood that the rot  
that was uncovered meant that additional work had to be done and that it would cost  
more. The plaintiff said that he instructed the defendant to “go ahead, build it to  
Code because I’m selling the house, but do what you have to do”. The plaintiff said  
that he anticipated that he would get a bill eventually for the extra lumber and the  
extra labour required for this additional work.  
Barcelo v. Bogujevci  
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[21] It appears that the defendant worked extensive hours over the course of the  
five days the plaintiff was away. The plaintiff returned late on the fifth day, but could  
not see the work that had been done because it was after dark. His evidence was  
that when he looked outside the next morning, he thought the main deck looked  
good. It had all brand new decking (although the handrails had not yet been  
installed) and he walked on it and thought it was great.  
[22] A number of photographs were put in evidence of the state of the main deck  
after the defendant had completed his work. With respect to work underneath the  
decking, the photographs indicate that the defendant added a number of joists by:  
a) Pairing them with, and attaching them to, existing joists that were  
weakened by age and rot;  
b) In some cases, placing additional joists where none had existed before;  
and  
c) In a few cases, replacing the existing joists.  
[23] In addition, the photographs show three posts added by the defendant to  
provide additional supports to the existing joists. These new posts were placed in  
pre-cast concrete bases that sat on top of the existing ground, and they were located  
about one fourth of the way from the wall of the house to the front of the deck.  
[24] In addition, the defendant placed painted two-by-six or two-by-eight boards in  
front of some of the existing posts, and placed fascia boards in front of the existing  
front joists. These additions gave the deck a fresh look from a distance, although  
anyone looking underneath would see that the old and weathered posts and joists  
were still actually providing support.  
[25] The defendant was insistent that he did not make any changes to the existing  
supporting posts and beams. As a result, in one area where the existing deck had a  
span between posts greater than permitted by Code, nothing was done to correct  
that issue.  
Barcelo v. Bogujevci  
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[26] Once the main deck was complete, the defendant proceeded to install railings  
around it, as well as two stairways – one at the front of the house, and one near the  
side door.  
[27] The defendant also performed work in respect of two smaller decks attached  
to the upper floor of the house. There was an existing deck located just off the  
kitchen, which had been installed many years ago but required significant work.  
There was also an exterior door from the living room for which a deck had never  
been built. These decks were much smaller than the deck on the main level. The  
evidence was not entirely consistent as to the timing of installation of the two upper  
decks. The plaintiff gave inconsistent evidence – at times saying that they were  
completed before work began on the main deck, and at times indicating it was later.  
The defendant says that he did the work on the upper decks after he had resurfaced  
the main deck. In any event, by about mid-September 2018 the defendant had  
constructed a new deck off the upstairs living room and substantially redone the  
deck off the upstairs kitchen.  
[28] In September 2018, once the bulk of the work had been completed, the  
plaintiff contacted a realtor – Ms. Marten – to discuss listing the property. Although  
Ms. Marten thought her initial listing meeting had been in August, both the plaintiff  
and defendant described their interactions with her as being in September and I  
conclude that is most likely accurate. The defendant recalled that he was working on  
the second small deck at the time he first met Ms. Marten.  
[29] The plaintiff signed a property disclosure statement on September 11, 2018; a  
“For Sale – Coming Soon” sign was posted on September 12, 2018, a title search  
performed by Ms. Marten’s office was done on September 19, 2018, and the  
property was formally listed for sale on September 20, 2018. I infer from this that the  
first meeting the defendant had with Ms. Marten was either on, or shortly before,  
September 11, 2018.  
Barcelo v. Bogujevci  
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[30] Both the defendant and Ms. Marten recalled a conversation during one of her  
visits to the property when they talked about her Tesla, the defendant told  
Ms. Marten that he was “a carpenter”, and they exchanged business cards.  
[31] On September 25, 2018, the plaintiff entered into a contract of purchase and  
sale to sell the property for $965,000. The property was subject to certain subject  
conditions, with a deadline for removal of October 18, 2018.  
[32] On October 4, 2018, a building inspector for the District of Highlands  
(Mr. Chris Leek) came to the property and inspected the house. He issued a report  
that stated as follows:  
Inspection Type: Site Visit for Completion of CRD 37685  
Deficiencies / Comments:  
Visual inspection only T.O. Permit.  
1) Strap HWT  
2) Upgrade S.A. – C.O. detectors  
3) Conform potable water / septic ?  
4) Front stairs – graspable hand-rails last step non-conforming  
5) Deck not to code joist hanger nails. Too much rot remaining. More  
support & mech fasteners req’d.  
“Inspection not based on current Code” 27 yr old building.  
6) Covenant issue to solve  
[33] Once the plaintiff saw the report, he phoned the defendant to express his  
anger at items (4) and (5) from this list, which he viewed as the defendant’s  
responsibility, and told him that he’d “better get out here to see that it’s done right”.  
The defendant responded by asking “who phoned the building inspector”. He  
advised the plaintiff that he would visit the building inspector and figure out what was  
wrong.  
[34] The plaintiff said that he was not the one who called the building inspector,  
and assumed that the inspector was called by one of the real estate agents.  
However, given his knowledge that an occupancy permit would be required before  
he could complete a sale of the house, it could not have been a surprise to him. The  
Barcelo v. Bogujevci  
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defendant, on the other hand, was unaware of the lack of an occupancy permit and  
had no reason to anticipate that there would be an inspection.  
[35] On about October 5, 2018, the defendant met with Mr. Leek at his office. He  
asked for and obtained details about Mr. Leek’s specific concerns, and also  
canvassed with him various suggestions as to what could be done to get the main  
deck approved. Mr. Leek told him that the main deck had not been built properly in  
the first place, with overspanned beams, and that with the extent of the rot on the  
joists (including the ledger joist by which the deck was supported at the wall of the  
house) there was nothing that could be done to get the existing deck to meet the  
Code. With respect to the upper two decks, the concerns identified by Mr. Leek were  
much simpler – the use of screws rather than joist hanger nails, the use of a spliced  
rather than a solid beam, and the incorrect placement of a post. The defendant  
advised Mr. Leek that he would take care of correcting the deficiencies on the upper  
decks, but that he had only been hired to resurface the main deck and accepted no  
responsibility for any deficiencies related to the pre-existing deck.  
[36] Either at this point, or some later time in the fall of 2018, a further minor  
deficiency was identified: the gap between the railings at the top of the stairs and the  
railings along the deck was greater than four inches.  
[37] The next day, the defendant met with the plaintiff at the property and advised  
the plaintiff that he would correct the issues on the upper decks but would not be  
replacing the main deck at his cost. He said that his work on the main deck was  
cosmetic and he was not responsible for rebuilding it to Code. The plaintiff was  
angered by this and told the defendant that he was responsible to do whatever it  
takes to get approval of the main deck. There was also a discussion as to money,  
with the defendant advising that he was owed just over $10,000. The defendant’s  
evidence was that this money was sought in respect of the work he had done; the  
plaintiff’s evidence was that the defendant was asking for this money so that he  
could take his family on vacation to Las Vegas.  
Barcelo v. Bogujevci  
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[38] The plaintiff recorded a part of this conversation on his phone. The recording  
is consistent with the position of each party as recounted in the previous paragraph  
(except that there is no mention of Las Vegas).  
[39] The plaintiff told the defendant to get off his property. Shortly thereafter, the  
plaintiff obtained chains and padlocks to secure the defendant’s scaffolding  
equipment. When the defendant returned a few days later to recover his equipment,  
the plaintiff refused to allow him on the property and threatened to call the police.  
The defendant never recovered the scaffolding. It is not clear what happened to it.  
[40] The defendant produced in this litigation an invoice showing an amount owing  
of $10,295. His evidence was that he prepared the invoice in October 2018 and  
gave it to the plaintiff, although it was not clear whether this was on October 6 or  
when he returned to attempt to collect his scaffolding. The plaintiff denies having  
been given an invoice by the defendant. The amount on the invoice matches the  
amount on a claim of builder’s lien filed by the defendant on October 22, 2018. The  
only date on the invoice is August 5, 2018, and I infer from the document that that is  
intended to show the date on which the work reflected in the invoice began.  
[41] The invoice lists a number of charges, including several not related to work on  
the decks:  
a) Balance leftover for baseboards installation of $2,250;  
b) Exterior house painting of $6,500 and gutter installation of $37;  
c) Siding fix of $400, and extra for side siding pieces installation of $350; and  
d) Vanity and tap installation of $695 and vessel hot tub installation of  
$1,600.  
These items total $11,832.  
[42] The remaining items all relate to deck work. They are:  
Barcelo v. Bogujevci  
a) Wood deck resurfacing of $8,200;  
Page 12  
b) Wood railing across the main deck of $6,800;  
c) Back deck build and railing of $6,500;  
d) Lakeside deck build and railing of $8,500;  
e) Deck extension of $3,800;  
f) Railing stain or paint on three decks of $4,500; and  
g) Extra for the thicker wood maim deck floor of $650.  
These items total $38,950.  
[43] The invoice shows a total charge for all of these items of $50,757. However,  
by my count, the actual total is $25 higher – a total of $50,782. That said, for  
purposes of this judgment, I will work with the lower of these two numbers.  
[44] The invoice then added GST of $2,548, for a total amount owing of $53,295.  
It records “payments made” of $25,000, $5,000, $4,000 and $9,000, for a total of  
$43,000. It then sets out the “Total Amount Owing” as $10,295.  
[45] The parties had slightly different evidence as to the amount the plaintiff had  
actually paid. The plaintiff believed it was $46,000, while the defendant said that it  
was $43,000. I note, however, that the defendant’s evidence had been that the  
baseboard installation work was $3,500, which suggests to me that he may have  
been paid a further $1,250 not reflected on this invoice. Both parties agreed that only  
one of the payments was by cheque – the remainder were paid in cash.  
[46] As noted above, the condition removal date in the plaintiff’s contract of  
purchase and sale was October 18, 2018. His agent, Ms. Marten, became involved  
with efforts to obtain an occupancy permit. Ultimately, she and the plaintiff concluded  
that the issues with the deck could not be easily or quickly resolved. There was a  
Barcelo v. Bogujevci  
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brief extension of the condition removal date, but ultimately the contract of purchase  
and sale lapsed.  
[47] On October 19, 2018, the plaintiff filed a complaint to the Better Business  
Bureau. The complaint, which was published on the Better Business Bureau website  
in connection with the defendant’s business, stated that:  
I had hired European Pro Painting to resurface my deck. After removing the  
old surface he discovered more damage and rot in the under structure. He  
told me some of it was reusable, and could save me some money, and some  
of it had to be replaced. I told him to reuse what he could as long as it was to  
code. … Now the deck must be torn down again and be rebuilt.  
[48] In December 2018, the plaintiff obtained some quotations for work on the  
deck. Only one quotation was in evidence: an estimate for $33,865 that was missing  
repairs to the kitchen deck and reflected a deck size based on the original house  
drawings – the deck that had actually been built was significantly larger. The plaintiff  
said that one other estimate that he obtained at the time was much larger. However,  
this other estimate was not in evidence.  
[49] Nothing appears to have happened for the first seven or eight months of 2019  
– other than this action being commenced on June 25, 2019.  
[50] In the summer or early fall of 2019, the plaintiff contacted Horizon  
Contracting. The principal of the company, Mr. Hofer, gave evidence as to his  
dealings with the plaintiff. Mr. Hofer said that his initial quote was to remove and  
replace the entire main deck, and was for about $80,000. The plaintiff advised that  
amount was too much. Mr. Hofer looked for a less expensive way to do the work,  
and eventually quoted approximately $40,000 to partially disassemble the deck and  
replace what had to be replaced to bring it up to Code. The plaintiff told him to  
proceed. Horizon retained a structural engineering firm which prepared drawings  
that were used to obtain a permit for the work.  
[51] The exact time of these dealings was not entirely clear. However, the  
evidence did include an invoice from Horizon to the plaintiff for a $10,000 deposit.  
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The invoice was dated September 24, 2019, and it was marked “Paid” as of  
September 25, 2019.  
[52] Horizon’s site superintendent, Mr. Purchase, described the work done. The  
new handrails and decking were removed, exposing the joists and the other  
structural elements of the deck. Once that was exposed, they realized that more  
work needed to be done than had been contemplated. Mr. Hofer negotiated with the  
plaintiff for an increase in the price. Ultimately, the photographs placed in evidence  
indicate that Horizon removed and replaced all, or nearly all, of the joists before  
reinstalling (or to some extent replacing) the decking and handrails. They also  
replaced a number of footings – the new footings, rather than sitting on top of  
existing soil, consisted of areas dug down to solid soil with cement footings created  
by the construction of forms with concrete poured into them, and the new posts  
installed on top of these footings.  
[53] The work included certain corrections to the two upper decks – specifically, to  
replace galvanized screws with joist hanger nails, to move a post to the end of the  
deck (it had wrongly been placed four feet in from the end) and to replace a beam  
made up of two pieces of wood spliced together with one piece of wood.  
Mr. Purchase indicated that the work on the upper decks was roughly two days’ work  
and no more than 5% of the project.  
[54] The evidence tendered at trial included no written estimates or contract with  
Horizon, although Mr. Hofer indicated that there was a contract for the originally  
contemplated work. The second and final invoice contained simply a lump-sum  
amount, with the following description:  
To supply and install materials for the exterior renovation as per quote  
[55] The total amount of Horizon’s second invoice was $44,366.91. The plaintiff  
sought and obtained a reduction from Horizon of that amount to $42,000. Thus, the  
total amount the plaintiff paid to Horizon was $52,000 (including GST). The final  
invoice was dated November 27, 2019 and the evidence indicated that the work was  
completed at about that time.  
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[56] Mr. Purchase gave evidence that Horizon reused certain amounts of the new  
wood installed by the defendant. His evidence was that approximately 80% of the  
wood used on the handrails and of the decking boards was re-used, but that only  
about 5% of the wood used by the defendant to supplement the joists was reused.  
He explained that the joists installed by the defendant were mostly not the right  
length for the design Horizon was working to, and ended up being used primarily for  
blocking.  
[57] In December 2019, the plaintiff was hit by a car. He suffered a head injury  
and his evidence was that his memory has been not quite the same since the  
accident.  
[58] In the spring of 2020, Mr. Leek did a final inspection. The final deficiency  
noted was that the handrail on the stairs was one inch too low. Horizon corrected  
that deficiency and the plaintiff obtained his occupancy permit.  
[59] The plaintiff then sold the property. In order to save money, he sold it without  
hiring a real estate agent. He entered into a contract dated April 7, 2020, to sell the  
property for $950,000.  
Positions of the Parties  
[60] The plaintiff says that the defendant agreed to build all three decks to Code,  
and that his failure to do so was a breach of the contract. Alternatively, the plaintiff  
says that the defendant’s actions in performing work on the contract in a manner that  
was not Code-compliant created a real and substantial danger to anyone who  
walked on the decks. He claims as damages the $52,000 he paid to Horizon, and  
suggests that the most that should be credited to the defendant for wood that was  
re-used is $5,332.50. In the alternative, he claims repayment of the amount paid to  
the defendant for the decks which he says is $39,500. He also claims $490 in  
respect of deficiencies in the installation of a bathtub.  
[61] The defendant on the other hand said that he was retained to resurface the  
deck, that he did what he was asked to do, and that any Code deficiencies were pre-  
 
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existing as his work was cosmetic. In any event, any work beyond simply putting on  
decking boards and handrails was to be extra work for which the plaintiff would have  
had to pay extra in any event. He counterclaims for the $10,295 owing pursuant to  
his final invoice. His counterclaim does not include a claim for conversion of the  
scaffolding that was seized by the plaintiff.  
Issues  
[62] The issues as they appear from the arguments made at trial include:  
a) What is the contract between the parties;  
b) Did the defendant breach the contract and if so how;  
c) If there was a breach, what are the damages; and  
d) Is any money owing to the defendant pursuant to the contract?  
[63] In addition, the plaintiff’s claim in tort will have to be dealt with.  
Reliability and Credibility  
[64] Credibility and reliability are related but distinct concepts. A concise  
explanation of the distinction can be found in R. v. Morrissey, [1995] O.J. No. 639,  
22 O.R. (3d) 514 (Ont. C.A.) at para. 33:  
[33]  
Testimonial evidence can raise veracity and accuracy concerns. The  
former relates to the witness's sincerity, that is, his or her willingness to speak  
the truth as the witness believes it to be. The latter concerns relate to the  
actual accuracy of the witness's testimony. The accuracy of a witness's  
testimony involves considerations of the witness's ability to accurately  
observe, recall and recount the events in issue. When one is concerned with  
a witness's veracity, one speaks of the witness's credibility. When one is  
concerned with the accuracy of a witness's testimony, one speaks of the  
reliability of that testimony. …  
[65] A frequently cited list of factors to be applied when assessing evidence as to  
both the veracity of a witness, and the accuracy of that witness’ evidence, is found  
in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296. It  
includes:  
   
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(a) The ability and opportunity of the witness to observe events;  
(b) The firmness of their memory;  
(c) Their ability to resist the influence of interest to modify their recollection;  
(d) Whether their evidence harmonizes with independent evidence that has been  
accepted;  
(e) Whether the witness changes their evidence during cross-examination (or  
between examination for discovery and trial) or is otherwise inconsistent in  
their recollection;  
(f) Whether their evidence seems generally unreasonable, impossible or  
unlikely;  
(g) Whether the witness has a motive to lie; and  
(h) The demeanour of the witness generally.  
[66] In considering credibility, the evidence of a witness must be assessed for “its  
harmony with the preponderance of the probabilities which a practical and informed  
person would readily recognize as reasonable in that place and in those conditions”:  
Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357, [1951] B.C.J. No. 152 (C.A.).  
[67] A trier of fact may accept none, part, or all of a witness’ evidence and may  
attach different weight to different parts of that evidence: Gill Tech Framing Ltd. v.  
Gill, 2012 BCSC 1913 at para. 28.  
[68] I mostly found the plaintiff believable. However, I had some concerns about  
his ability to recall details. He frankly acknowledged that his ability to do so has been  
impaired since the December 2019 accident, and there were several times during  
his testimony that his difficulty with details became evident. I was also concerned  
about the plaintiff’s obvious animus toward the defendant. He repeated on more than  
one occasion his assertion that the defendant asked for payment in October so that  
Barcelo v. Bogujevci  
Page 18  
he could take his family to Las Vegas. The plaintiff’s insistence that he repeatedly  
told the defendant that everything had to be done to Code became almost like a  
mantra during trial. Code compliance clearly became an issue after the October 4,  
2018 inspection. My assessment of the parties’ respective motivations at the time  
they contracted is that the plaintiff’s primary concern was to keep costs affordable.  
While I do not doubt that the plaintiff clearly believes now that he insisted on Code  
compliance every step of the way, I am left in doubt as to whether that is something  
that he has convinced himself of after the fact.  
[69] I found the defendant to be generally believable as well. He sincerely believed  
that he had done a lot of work at a very good price for the plaintiff and was trying his  
best to help the plaintiff improve his home in a cost-effective manner. He  
demonstrated more objectivity in his evidence than did the plaintiff. He frankly  
accepted responsibility for some of the deficiencies (including the upper decks). He  
accepted by the end of the trial that the main deck needed to be rebuilt – although  
he disputes any suggestion that he should be responsible for the cost of doing so.  
[70] I was struck by the plaintiff’s evidence as to the defendant’s initial reaction to  
hearing about Mr. Leek’s inspection report – to ask who called the inspector. That  
suggests to me that Code compliance and inspections were not a matter that had  
been discussed to the extent the plaintiff believed, if at all. I note as well that the  
major earlier work performed by the defendant – whether it be baseboards or  
painting – does not usually give rise to Code concerns. As well, it seems to be  
common ground that the initial scope of the defendant’s work on the main deck was  
simply resurfacing, which at least arguably does not give rise to Code issues.  
[71] The plaintiff gave evidence that the defendant had told him in one  
conversation, prior to contracting with respect to the deck, that he was “ticketed”.  
The defendant denied that this conversation occurred. He says that he does not  
have journeyman papers and has never represented that he does. He performs  
carpentry work based on experience, not based on formal training and certifications.  
I do not believe the defendant would have lied about having journeyman papers,  
Barcelo v. Bogujevci  
Page 19  
although I believe it likely that he would have told the plaintiff that he had experience  
with building decks.  
[72] Both Mr. Leek and Ms. Marten had brought files with them and did not appear  
to realize that they would not be able to refer to them. That left each of them at a bit  
of a disadvantage answering questions about timing. While Mr. Leek had strong  
impressions of events, I was not confident with his recollection of exactly what  
happened and when. His description of the state of the main deck at the time of his  
first inspection – which he said was on October 4, 2018 – was inconsistent with any  
work having been done yet. He described the worn and weathered state of the  
decking at length, and commented on the lack of handrails. I expect that he was  
confusing that inspection with a prior visit to the plaintiff’s property. However, his  
recollection of his discussion with the defendant after the October 4 inspection was  
clear, as was his detailed description of the deficiencies he identified.  
[73] Similarly, Ms. Marten initially attributed her initial visit to the property to  
August, but having reviewed the whole of the evidence it appears that it was most  
likely in September.  
[74] I found the two Horizon employees – Mr. Hofer and Mr. Purchase – to be  
believable and generally reliable. It was clear, however, that Mr. Hofer’s role in the  
actual project work was limited, and I found the evidence of Mr. Purchase as to the  
details of the work performed by Horizon to be the most reliable.  
Expert Evidence  
[75] The plaintiff tendered the report of Mr. Glenn Duxbury. Mr. Duxbury is an  
experienced home building inspector who obtained a certification in that area in  
2002 from the Applied Science Technologists and Technicians of British Columbia,  
after training at BCIT.  
[76] Mr. Duxbury was retained in the fall of 2020, after the property had been sold.  
He was given photographs to review and asked to answer certain questions based  
on assumed facts and his review of the photographs. In particular, he was instructed  
 
Barcelo v. Bogujevci  
Page 20  
to assume that the defendant “was to construct and finish the Work to the minimum  
Standard applicable to this province, such being the B.C. Building Code”. Although  
the “Work” is not defined in his report, as I read it he is referring to the entire main  
deck and appears to assume that the defendant had rebuilt the deck. Mr. Duxbury  
confirms his instructions as being that “it was made clear the work must be done to  
meet the B.C. Building Code, as this was critical to the homeowner”. To the extent  
these factual assumptions are not established in the evidence, they limit the value of  
Mr. Duxbury’s report. Before any weight can be given to an expert's opinion, the  
facts upon which the opinion is based must be found to exist: R. v. Abbey, [1982] 2  
S.C.R. 24, [1982] S.C.J. No. 59 at 42.  
[77] The deficiencies identified by Mr. Duxbury include the presence of rotted  
wood in the structural elements of the deck. He states that the Code would require  
construction using new, sound wood. Those portions of his report are not particularly  
helpful, as they appear to be premised on the understanding that the defendant’s  
contract was to rebuild the deck.  
[78] Mr. Duxbury does opine that “all compromised and rotting wood should have  
been completely removed”. That matches the conclusion of Mr. Leek as reflected in  
his inspection report and his discussions with the defendant in October 2018, and as  
explained in his evidence at trial. In fact, the defendant near the end of trial  
acknowledged that the deck should have been rebuilt – all the while insisting he  
never agreed to do so.  
[79] Mr. Duxbury also commented on safety issues. I will deal with those  
comments below in dealing with the tort claim.  
Analysis  
What is the Contract  
[80] I deal in this section with the contract as it relates to work on the various  
decks.  
   
Barcelo v. Bogujevci  
Page 21  
[81] It is clear on the evidence that the original contract between the parties was  
for the defendant to:  
a) Resurface the deck by replacing the old decking boards with new boards;  
and  
b) Install handrails around the deck.  
[82] I do not find that any specific term was agreed to with respect to the Code.  
The deck resurfacing project as originally contemplated was purely cosmetic, and  
the defendant took the view that it was not the sort of work that gave rise to Code  
issues or even required a permit. He was not aware that the original deck had not  
been approved, or that there would be any sort of inspection after he performed his  
work. The plaintiff did not communicate the need for such inspection to him.  
[83] The handrails were new work and the defendant acknowledged that he would  
have been responsible to correct the gap at the top of the stairs.  
[84] The contract was varied just before the Labour Day weekend when the  
defendant identified the extent of rot in the existing joists, which was problematic in  
that in some areas there were no solid joists for him to attach the new decking to.  
[85] In my view, the amendment the parties agreed to was that the defendant  
would exercise his judgment to determine the extent to which joists needed to be  
added to or replaced in order to enable him to complete the resurfacing project, and  
that all such work would be paid for on a time-and-materials basis. No specific  
amount or rate was agreed to; rather, the agreement was that the defendant would  
charge a reasonable amount for the work.  
[86] I do not conclude that there was a specific discussion at that time about Code  
compliance. The conversation the parties had about this change was brief. I  
conclude that the defendant at the time of the discussion was anticipating that the  
work he was to perform could still be considered a minor repair of an existing  
structure, and the care he took not to make any changes to the key structural parts  
Barcelo v. Bogujevci  
Page 22  
of the deck reflects that view. The plaintiff, on the other hand, was relying on the  
defendant to exercise good judgment as to the extent and nature of the work he was  
to perform in respect of the existing joists. The plaintiff, at the time of the  
conversation, had not communicated to the defendant that the original deck had not  
been approved.  
[87] The work on the two upper decks is different. In my view, the defendant  
agreed to install (in the case of the living room deck) or upgrade (in the case of the  
kitchen deck) those two decks in return for a fixed price fee for labour and materials.  
He did not dispute that the nature of this work – installation of a structure – is work  
for which Code compliance was expected whether or not it had been specifically  
discussed.  
Did the Defendant Breach the Contract?  
[88] In my view, with respect to the main deck, the defendant failed in his  
contractual obligation to exercise proper judgment with respect to the addition of  
extra joists. I conclude that the defendant should have advised the plaintiff that the  
existing deck was past its useful life, and that the extent of rot was such that most, if  
not all, of the existing deck should be torn down and replaced. Rather than the  
makeshift fix he attempted, the defendant should have stopped work on the deck  
until he could speak with the plaintiff. His advice to the plaintiff should have been  
that he needed to retain an engineer to review the deck and draft plans for its  
substantial repair or replacement, obtain a permit, and then proceed with the  
substantial renovation or replacement of the deck in accordance with those plans.  
[89] While the defendant was clearly motivated by a desire to extend the life of the  
deck in a cost-effective manner, to the plaintiff’s benefit, what he did was ultimately  
not a useful solution.  
[90] With respect to the two upper decks, the defendant did not dispute that there  
were three deficiencies in his work on the upper decks: the use of screws instead of  
joist hanger nails, the placement of the post four feet in from the end of the deck,  
and the use of a spliced rather than one solid beam.  
 
Barcelo v. Bogujevci  
Page 23  
[91] With respect to the work done to connect the drain pipe to the bathtub, the  
defendant does not dispute that there were minor deficiencies in his attachment of  
the piping. His evidence was that he completed that work late at night as a favour to  
the plaintiff and intended to come back when he had time and the proper parts to fix  
it.  
[92] The plaintiff, in his evidence, complained about certain other work done by  
the defendant. He expressed concern about the baseboards and casings installed  
by the defendant. The defendant, on the other hand, said that he recommended that  
the baseboards and casings be caulked and painted – which the plaintiff declined to  
do. No admissible opinion evidence was given, no evidence was tendered as to  
whether anything was done to change these items, and no damages were claimed in  
respect thereof. I assume that these allegations were advanced primarily to  
disparage the defendant.  
[93] Similarly, the plaintiff alleged that a drainpipe installed by the defendant slid  
down the wall, and that there were a couple of spots that were missed in the painting  
of the house. The defendant said he was never told about the drainpipe, and said  
any minor painting issues were a result of attempting to paint outdoors in September  
when the weather started to turn. He said that he had anticipated coming back to  
touch up the paint when the weather was better. Again, no claim for damages was  
advanced in respect of these matters.  
Damages / Amount Owing Under Contract  
[94] Damages for breach of contract are intended to place the plaintiff in the  
position he would have been in had the contract been properly performed: BG  
Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1  
S.C.R. 12, [1993] S.C.J. No. 1 at para. 12. The application of this basic principle to  
alleged breaches of construction contracts was summarized in the Ontario case of  
Cornelis Grey Construction Inc. v. Folz, 2018 ONSC 647 at para. 15:  
[15]  
In assessing the damages, the court must be fair. The objective of  
contractual damages is to put the innocent party homeowners into the  
position they would have been in had the contract been fulfilled. It is not to  
 
Barcelo v. Bogujevci  
Page 24  
put them in a better position or to effectively provide them with materials and  
labour free of charge. The court must be persuaded that the expenses  
incurred by the homeowners were reasonable and necessary to complete the  
contract and rectify the damage. The damages claimed by the homeowners  
must be recoverable at law and must flow unavoidably from the breach of  
contract.  
[95] The amount claimed by the plaintiff in this case, being the amount paid to  
Horizon, might be an appropriate remedy had the defendant contracted with the  
plaintiff to rebuild the main deck for a fixed price. Those are not the facts of this  
case. In this case, any work on the joists or other structural elements of the main  
deck was to be paid for on a time-and-materials basis.  
[96] In this case, had the defendant properly advised the plaintiff of the need to  
rebuild the deck, the plaintiff would have ceased to incur liabilities to the defendant  
for the work performed on the deck until plans were in place for the rebuild. That  
would have reduced the work he was paying the defendant for – both the time and  
materials work for the addition of joists, and the original fixed price contract work to  
replace the decking and install handrails. He would, however, still have incurred all  
of the costs he incurred with Horizon Construction – that work would still have been  
required. The bulk of that work involved replacing the structural elements of the deck  
– which work was never part of any fixed price contract with the plaintiff.  
[97] As a result, it is my view that the plaintiff’s actual loss in this case (as it relates  
to the main deck) is not the amount he paid to Horizon. That was a cost he was  
going to have to incur in any event. Rather, his loss in respect of the main deck is  
the amounts he paid the defendant for work that should not have been done, plus a  
small amount for the work done by Horizon to undo that work. Specifically, that  
would include:  
a) The amount charged by the defendant for the wood used for the joists,  
decking and handrails that were not re-used by Horizon – 20% in the case  
of the decking and handrails, and 95% in the case of the joists;  
Barcelo v. Bogujevci  
Page 25  
b) The amount charged by the defendant to install the decking and the  
railings – but not including the amount charged for bringing the materials  
to the site and cutting them to size, since they were largely reused; and  
c) A small amount to reflect the work done by Horizon to disassemble the  
handrails and remove the decking.  
[98] The evidence at trial contains little in the way of breakdown as to the various  
costs incurred. Although the plaintiff expressed doubt about the defendant’s invoice,  
in my view it is the best evidence available of the breakdown of the amounts  
charged by the defendant. It is also, in my view, the most reliable evidence as to the  
amounts the plaintiff paid to the defendant.  
[99] As well, Mr. Hofer testified that in preparing his estimates he allocated 50% to  
labour and 50% to materials. I will adopt that approach.  
[100] By my calculation, the amounts charged by the defendant for wood deck  
resurfacing, wood railing across the main deck and deck extension all relate to the  
installation of the main deck. They add up to $18,800. I would include just under  
50% of this as damages reflecting the unnecessary labour ($9,000), which I would  
increase it to $10,000 to reflect the wood that Horizon was unable to re-use. I would  
round this up to $10,125 to reflect a portion of the $650 charge for the thicker main  
wood deck floor (given that not all of that wood was reused), and increase it to  
$10,625 to reflect a portion of the charge for painting or staining the decks.  
[101] These damages are calculated based on the amounts charged by the  
defendant. However, the evidence indicates that not all of the amounts charged  
were actually paid. The evidence was that $10,295 of the amounts charged by the  
defendant were not paid by the plaintiff. The net amount payable by the defendant to  
the plaintiff, therefore, is $330 in respect of the main deck.  
[102] To this I would add a further $2,000 to reflect the amount paid to Horizon for  
its disassembly work, giving a total amount of damages of $2,330 in respect of the  
main deck.  
Barcelo v. Bogujevci  
Page 26  
[103] With respect to the deficiencies on the upper decks, in my view the  
appropriate way to place the plaintiff in the position he would have been in had the  
contract been properly performed is to award damages reflecting the amount  
charged by Horizon to correct that work. Mr. Purchase indicated that each of the two  
upper decks required about a day of work, and he roughly estimated that they were  
no more than 5% of the total project. 5% of $52,000 is $2,600. I would adopt that as  
the appropriate award of damages in respect of the identified deficiencies on the  
upper deck.  
[104] Finally, with respect to the bathtub drain pipe, the plaintiff testified that he had  
a friend (who is a plumber) fix that when he was at the house doing other work  
(unconnected to the defendant’s work), and that he paid the friend a total of $490. I  
would award damages of $245 for this deficiency, reflecting half of the total charge.  
The Tort Claim  
[105] The plaintiff relies on the principle established in Winnipeg Condominium  
Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, 1995 146 at  
para. 36:  
[36]  
In my view, the reasonable likelihood that a defect in a building will  
cause injury to its inhabitants is also sufficient to ground a contractor's duty in  
tort to subsequent purchasers of the building for the cost of repairing the  
defect if that defect is discovered prior to any injury and if it poses a real and  
substantial danger to the inhabitants of the building. In coming to this  
conclusion, I adopt the reasoning of Laskin J. in Rivtow, which I find highly  
persuasive. If a contractor can be held liable in tort where he or she  
constructs a building negligently and, as a result of that negligence, the  
building causes damage to persons or property, it follows that the contractor  
should also be held liable in cases where the dangerous defect is discovered  
and the owner of the building wishes to mitigate the danger by fixing the  
defect and putting the building back into a non-dangerous state. In both  
cases, the duty in tort serves to protect the bodily integrity and property  
interests of the inhabitants of the building. See Dutton, supra, at p. 396, per  
Lord Denning M.R.  
[106] This principle was applied in Chapman v. Stacey, 2016 BCSC 118. In that  
case, the builder of a house had failed to slope the deck, which caused rot in the  
 
Barcelo v. Bogujevci  
Page 27  
railing posts. The conclusions of the Court were based on the opinions of an  
engineer with expertise in building envelopes.  
[107] In this case, the plaintiff argues that the report of Mr. Duxbury establishes a  
“reasonable likelihood that a defect in [the deck] will cause injury to [the]  
inhabitants”, and that the deficiencies in the main deck pose “a real and substantial  
danger to the inhabitants of the building”.  
[108] Mr. Duxbury is not an engineer. He did not do any sort of calculation or  
analysis as to the likelihood of the deck collapsing – nor is it clear to me that he  
would have been qualified to do so in any event. His analysis seems to be  
predicated on the following logical sequence: the Building Code provides minimum  
safety standards, the deck failed to meet the Building Code, therefore the deck is  
unsafe.  
[109] In my view, Mr. Duxbury’s opinion does not go so far as to establish the sort  
of reasonable likelihood of injury or real and substantial danger to those using the  
deck that is required for liability in tort. While I agree that safety is a major purpose of  
the Code, in my view the authorities do not establish that any breach of the Code  
thereby gives rise to liability under the Winnipeg Condominiums line of cases.  
[110] The other difficulty with the tort claim in this case is that the concerns that  
arguably give rise to safety issues are the rot and the pre-existing Code concerns.  
Nothing in the evidence establishes that anything done by the defendant increased  
any safety risks. I was provided with no authority establishing a duty in tort to  
proactively correct safety risks created by others.  
[111] In any event, I do not see an award of damages in tort as going beyond the  
amount awarded for breach of contract in this case. The evidence seems clear that  
the deck was, at all times, going to have to be replaced. It appears to me that, at  
most, the defendant had a duty to warn the plaintiff of the need to rebuild the deck.  
However, I want to be clear that I should not be taken as deciding that such a duty  
exists in the circumstances of this case – no argument was made as to that issue.  
Barcelo v. Bogujevci  
Page 28  
Even if such a duty existed in this case, the only amounts incurred unnecessarily by  
the plaintiff in the absence of such warning would be those underlying the award for  
breach of contract set out above.  
Conclusion  
[112] I would award the plaintiff damages as follows:  
a) In respect of deficiencies in the main deck, $2,330;  
b) In respect of deficiencies in the two upper decks, $2,600; and  
c) In respect of plumbing deficiencies, $245.  
[113] The total award is thus $5,175.  
[114] The counterclaim is dismissed.  
[115] A successful plaintiff is ordinarily entitled to costs. However, it would appear  
that R. 14-1(10) of the Supreme Court Civil Rules may limit the plaintiff’s costs in this  
case. I would also be open to submissions as to whether the plaintiff should be  
entitled to costs in light of the self-help remedies exercised with respect to the  
defendant’s equipment.  
[116] If either party wishes to claim costs, they should do so by submissions in  
writing, submitted through Supreme Court scheduling. Any submission claiming  
costs should be submitted not later than July 29, 2022, with any submission in  
response to be received by August 22, 2022, and any reply submission by  
August 31, 2022.  
“Veenstra J.”  
 


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