If an invoiced amount for work done exceeds the original estimate, how much is the buyer obligated to pay?

That was an issue recently brought to court by environmental and engineering services consulting firm Golder Associates Ltd., which wanted payment even though its invoiced amount was almost double its original estimate.

Golder Associates was contracted to manage the environmental aspects of a commercial land-development project around Mill Creek and Duggan Brook in Kelowna. Golder submitted and received approval for an environmental-mitigation plan from B.C.’s Ministry of Environment, Lands and Parks (MELP), and negotiated with the MELP to reduce setbacks (areas in which no development could occur).

Because of late approval of the plan, Golder had only 10 days to undertake and complete the in-stream construction work outlined in the plan, but it did so, according to court documents.

Mill Creek Developments Ltd., 133147 Holdings Ltd. and Rene Dureault, who contracted Golder, refused to pay a substantial portion of Golder’s bill, which, at around $62,000, exceeded Golder’s original estimate by about $34,000.

Golder brought the issue to court, claiming the difference between the actual invoice and the estimate was due to additional work requested and reasonable error inherent in estimates. Mill Creek argued that the estimate should be binding, and countersued for $44,000.

In a recent trial in Kelowna, Justice D. Masuhara examined the invoice, and concluded that as long as the extra charges are reasonable, they are legally binding. As a result, Golder won the claim for most of its invoiced amount (less minor adjustments where the judge did not determine the extra work or supplies were necessary), and the counterclaim was dismissed.

Blackballed

A B.C. man who had been collecting and selling golf balls on a nearby course for most of his life has been instructed to stop, despite the fact he has come to depend on the money, according to court documents.

Freddy Jago, who court heard was a functionally illiterate 58-year-old Victoria man, has been supplementing his income for more than 44 years by finding and selling golf balls on the Gorge Vale Golf Club.

In a case heard recently in the Supreme Court of B.C. in Victoria, court was told Jago has not set up a kiosk and never approaches golfers, but instead, is frequently approached by members asking if he has any balls for sale. According to court documents, he can make up to $30 in sales a day.

In 1997, the golf club’s board of directors instructed management to advise Jago to stay off the property. The unemployed Jago, who had become economically dependent on the use of the club’s land, ignored the request, court heard.

The golf club initiated court action in 2002, contending Jago is a trespasser. Eighty-nine club members signed a petition supporting Jago.

B.C. Supreme Court Justice R.D. Wilson concluded that even though the golf club remained idle for four decades while Jago made use of its land, Jago cannot prove he has an irrevocable right to it.

Signature Justice

In 2002, the association of professional engineers in B.C. punished one of its members for signing plans that did not conform to building code. In a recent court case, the engineer tried to overturn the decision, but was denied.

Sirus Familamiri, a professional engineer with more than 20 years of experience, was hired as structural engineer and general contractor for the construction of a home in Coquitlam. Familamiri submitted an application to the city for a building permit, including signed drawings and the assurance that the plans met building codes.

Following standard procedure, the city had a different professional engineer review the plans. The engineer expressed concern about Familamiri’s calculations and filed a complaint to the Association of Professional Engineers and Geoscientists of the Province of British Columbia (APEGBC). Three more professional engineers reviewed the plans. Two agreed they met with code, but one did not. The APEGBC commenced an inquiry hearing.

In September 2002, an APEGBC panel found Familamiri had conducted himself unprofessionally by signing documents that did not conform to code. As punishment, Familamiri was prohibited from designing any structures without first undergoing a practice review (at his own expense) and was ordered to pay $33,720 (90 per cent of APEGBC’s hearing costs.)

Familamiri appealed to the Supreme Court of B.C. in Vancouver, claiming that “incomplete and deficient drawings are acceptable because they are not final.”

Justice D. Masuhara concluded that the panel is a better judge of acceptable engineering practices than he. The APEGBC decision was allowed to stand.

Road Rules

The district of Pitt Meadows recently won an appeal for road development costs against a newly built Toyota dealership in the district, even though the dealership only moved across a highway.

Ron Jones Ltd. developed a new Toyota auto dealership in Pitt Meadows. The new dealership is diagonally across the Lougheed Highway from the old dealership, which was officially in Maple Ridge.

The Corporation of the District of Pitt Meadows brought Jones to court, seeking $85,000 in road development costs that it claimed resulted from the new dealership.

The original trial judge concluded that since the dealerships were so close to each other, the district could not prove new capital-cost burdens were introduced.

In an appeal recently heard in the Court of Appeal for B.C. in Vancouver, Justice Rowles found differently. Rowles pointed out that the trial judge, when considering if new capital costs are introduced by a development, should have compared the lot from a vacant state to a developed one, not two different lots across the highway in different districts.

Pitt Meadows, the judge said, may incur greater capital costs, since customers of the new dealership will likely be using Pitt Meadows roads to enter and exit the dealership and to test-drive their vehicles.

Pitt Meadows was granted its claim.

(Cases taken from recent judgment records from the B.C. Supreme Court and Court of Appeal.)