



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Chapman 
          Sand & Gravel Ltd. v. Alvarez,






2006 
          BCCA 31



Date: 20060126





Docket: CA032965

Between:

Chapman 
    Sand & Gravel Ltd.

Respondent

(
Plaintiff
)

And

Marianne 
    Alvarez

Appellant

(
Defendant
)

And

Russell 
    N. Shortt

Respondent

(
Third Party
)








Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Low




The 
          Honourable Mr. Justice Lowry






Marianne Alvarez, appearing on her own behalf






M.J. Yawney


Counsel for the Respondent,
Chapman Sand & Gravel Ltd.




Place 
          and Date of Hearing:


Vancouver, British Columbia




21 November 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




26 January 2006











Written 
          Reasons by
:




The 
          Honourable Mr. Justice Hall

The Honourable 
          Mr. Justice Low

The Honourable Mr. Justice Lowry



Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an appeal from a judgment of Mr. Justice Metzger pronounced 
    after summary trial proceedings under Rule 18A on 13 April 2005.  
    Metzger J. granted judgment against the appellant in the amount of $85,990, 
    plus interest and costs.  The dispute between the parties originates from 
    a troubled development project undertaken by the appellant on lands owned 
    by her near Lumby, B.C.

[2]

Some background history of the matter is set out in an affidavit of 
    Mrs. Alvarez sworn in the proceedings on 24 February 2003, as follows:

3.         In 1995, I was the owner of agricultural property in Lumby, 
    British Columbia, which I had wanted to subdivide into residential lots.  
    This property is legally described in the pleadings herein (the "Property").

4.         In or about the summer of 1995, I entered into an agreement 
    with Mr. Russell Shortt, a member of the Corporation of Land Surveyors 
    of the Province of British Columbia, for the [
sic
] Mr. Shortt 
    to provide professional expertise for the design and surveying of a subdivision 
    of the Property and to act as the Defendant's agent for the development of 
    same (the "Shortt Agreement").

5.         Pursuant to the terms of the Shortt Agreement, Mr. Shortt 
    surveyed the Property and drew up plans for the proposed subdivision.  Now 
    produced and shown to me and marked as Exhibit "A" to this 
    my Affidavit is a true copy of the said plans.

6.         As part of the development of the Property, I needed to have 
    a road built on the Property to give access to the future subdivided lots 
    and to connect them to the neighbouring road system (the "Road").  
    I made some inquiries with the engineering firm Reid Crowther & Partners 
    Ltd. with respect to the costs for designing the Road.  On or about December 7, 
    1995, my husband received a letter from Reid Crowther setting out their fees 
    for designing the Road.  Now produced and shown to me and marked as Exhibit "B" 
    to this my affidavit is a true copy of the said letter.

7.         Upon reading the letter from Reid Crowther, Mr. Shortt 
    informed me that he would be able to design the Road much more cheaply.  Mr. Shortt 
    assured me that although he was not an engineer that he had the requisite 
    skills and experience to design the Road and I agreed to have him design it.

8.         Either I, or Mr. Shortt on my behalf, contacted a number 
    of contractors to solicit bids for the construction of the Road.  On April 10, 
    1997, Chapman Contracting Ltd. or Brad Chapman, on behalf of the Plaintiff, 
    wrote to me and agreed to construct the Road to Mr. Shortt's specifications 
    for $146,000.

[3]

At all material times, Mr. Shortt acted as the agent for Mrs. Alvarez 
    on this project.  A road to access the development was constructed by the 
    respondent contractor in the summer of 1997.  The Ministry of Highways required 
    certain additional work on the access road be performed before it was prepared 
    to grant approval in relation to the subdivision project.  What was required 
    by way of additional work is detailed in an affidavit of Chris Chekerda, a 
    retired Ministry of Highways Subdivision Approval Technician.  This affidavit 
    was sworn on 14 June 2004, and was filed in the proceedings.  Mr. Chekerda 
    deposed as follows:

2.         The subject road works were designed by Russell N. Shortt, 
    B.C. Land Surveyor.  These road works were part of the conditions as detailed 
    in a preliminary layout approval for subdivision works.  The Plaintiff was 
    the contractor for the above road works portion of the Alvarez Subdivision 
    Approval.

3.         As part of the subdivision approval process, I required Mr. Shortt, 
    who acted as a consultant/design engineer for the Albers Road works project, 
    to direct the contractor, the Plaintiff, to construct and build a number of 
    extra construction works to satisfy the Ministry of Highways subdivision approval 
    requirements.  A number of these changes or additional works were carried 
    out near project completion.  Those works are summarized as follows:

(a)        
    Installation of a culvert on Albers Road approximately one block away for 
    drainage to the natural discharge course;

(b)        
    Ditching of Mabel Lake Road from Albers Road to Bessette Creek;

(c)        
    Rip rapping ditches on the newly constructed road Right-of-Way;

(d)        
    Extension of flumes from culverts to below the toe of the slope;

(e)        
    Asphalt curbing portions of the newly constructed road Right-of-Way; and

(f)         
    Site grading the eastern most lot on the newly constructed road Right-of-Way 
    for drainage to the natural course.

[4]

It appears that one change that attracted extra costs was a change 
    related to a gas line location.  There was also a change related to a BC Tel 
    cable location.  In an affidavit of 27 February 2003, Leonard Chapman, 
    a principal of the respondent contractor, deposed as follows:

4.         In reply to the Affidavit of Marianne Alvarez #2, paragraph 27(a), 
    (b) and (c), the Defendant has been provided with time cards and backup for 
    all the Extra Work.  Also her consultant/agent was on site directing the work 
    needed.  Ms Alvarez left the construction supervision and details to 
    her consultant Mr. Shortt.  She does not appear to understand or know 
    the full scope of the work done to complete the subdivision and roadway.  
    This is shown in paragraph 27.  In specific response to 27(a), (b) and 
    (c), I state as follows:

(a)        
    Attached and marked as Exhibit "A" to this my Affidavit is 
    a copy of a Job Initiation Form from BC Gas for lowering of a gas main 
    within the road right of way.  This had to be done because the road design 
    was changed by Russell Shortt at the direction of the Ministry of Highways 
    staff to add larger than original design North and South accelerating lanes 
    on Mabel Lake Road as part of the subdivision roadway.  The gas main was not 
    shown on any drawings provided by the Defendant or her consultant.  In order 
    to make these changes the existing BC Gas gas main had to be moved out 
    into the shoulder and lowered in some areas to provide minimum bury so that 
    maintenance could be performed without asphalt restoration.  BC Gas came 
    out twice to deal with this issue.  The work done had nothing to do with connecting 
    gas to the Defendant's property.  She simply does not understand the scope 
    of the work that had to be done.

(b)        
    In terms of BC Tel works, there was a 50mm X 22mm toll cable 
    in Mabel Lake Road that had to be realigned due to the addition of the acceleration 
    lanes required by Ministry of Highways.  BC Tel had to attend to assist 
    with this.  Highways also requested additional off site work on Albers Road 
    as part of its subdivision requirements and BC Tel was on site assisting 
    on cable relocation and cable splicing.  These extra works were not part of 
    the original scope of the work, nor were they noted on the original drawings.

(c)        
    With respect to the extra work for rip rap and spillways, it was not part 
    of the original scope of the work as shown in the original drawings upon which 
    the Plaintiff based its original contract price.  Ministry of Highways required 
    culvert extensions and regrading of property for storm water containment, 
    which required extra rip rap and spillway work.  This work was done under 
    the supervision of Ministry of Highways staff and the Defendant's consultant, 
    Mr. Shortt.

[5]

The respondent contractor billed the appellant approximately $86,000 
    for this extra work required on the road construction project.  By the fall 
    of 1997, Mrs. Alvarez was having financial difficulty and this extra 
    amount of billing came as an unpleasant surprise to her.  The bill for this 
    work was not paid promptly and consequently the respondent filed a builder's 
    lien.  This, of course, tied up the property.  Throughout the course of the 
    project during 1997, Mrs. Alvarez had legal advice from her then solicitor, 
    Mr. Hardwick.  The respondent contractor was represented throughout by 
    Mr. Yawney of the Nixon Wenger firm.

[6]

When it appeared that Mrs. Alvarez was not going to be able to 
    pay in any timely way for the extras billed for by the contractor, discussions 
    ensued between the parties as to what was to be done.  Ultimately, a compromise 
    agreement was reached with the assistance of counsel whereby the bill for 
    extras was to be reduced somewhat and some cash was to be contributed by the 
    respondent contractor in exchange for a lot in the subdivision to be transferred 
    to the respondent.  It was a term of this compromise agreement entered into 
    on 9 December 1997 that failure to complete the transaction in a timely 
    way would result in the full amount of approximately $86,000 becoming due 
    and payable by the appellant to the respondent.

[7]

Mrs. Alvarez was out of the country for some time in early 1998 
    and the transfer did not complete as scheduled.  As a result, in March 1998, 
    the solicitor for the respondent contractor advised the solicitor for the 
    appellant that the compromise arrangement was at an end and that the full 
    amount owing for the extras was now due and payable.  The present lawsuit 
    followed.

[8]

The action did not move with any great dispatch and it appears that 
    as the years passed the subdivision project never did achieve success.  I 
    gather that the property may ultimately have been foreclosed on by a lender.  
    Although in the initial pleadings the defendant appellant agreed that there 
    was a contract between the parties for the construction for the road, she 
    apparently sought to withdraw this admission and there were proceedings taken 
    before Master Hyslop on 17 August 2004, 2004 BCSC 1163, wherein Mrs. Alvarez 
    sought to withdraw this admission.  In that proceeding, Mr. Lovell was 
    counsel for Mrs. Alvarez and Mr. Yawney acted on behalf of the contractor.  
    The Master refused the application to withdraw the admission.  Thereafter, 
    the Rule 18A proceedings brought by the contractor came on for hearing 
    before Metzger J. in April 2005.  Both parties were represented by counsel 
    in this proceeding before Metzger J.

[9]

Mrs. Alvarez sought to defend the proceedings on the basis that 
    she had never authorized the additional work in writing and that the agreed 
    contract price was $146,000.  She also asserted that the contractor had not 
    informed her of the extra work until after it was completed and she further 
    pleaded that she was under economic duress when she signed the agreement in 
    December 1997 that acknowledged the debt owing for extra work.

[10]

The trial judge rejected these defences.  He said as follows in the 
    course of his reasons for judgment:

[14]       [T]he evidence is that Mr. Shortt acted as her agent 
    throughout.  The extra work he authorized on her behalf was required in order 
    to obtain the approval of the Ministry of Transport.  She cannot now be heard 
    to say that the changes had to be in writing, as it was necessary for Ministry 
    approval that Mr. Shortt's errors be corrected.

[15]      Marianne Alvarez acknowledged in her examination for discovery 
    the "problem" was not between the plaintiff and herself, but between 
    herself and Mr. Shortt.

[16]      Thus, I find that the extra work was authorized by the defendant 
    throughout by her agent Mr. Shortt.

[17]      I dismiss the defendant's plea of economic duress.  The plaintiff 
    held a legal claim of builder's lien along with other consideration.  The 
    plaintiff gave that up when he signed the agreement drawn by the defendant's 
    solicitor.  The defendant's signature was witnessed by her lawyer.  There 
    was no improper pressure brought to bear on Marianne Alvarez by the plaintiff 
    so that she did anything against her interest.

[18]      The defendant was under financial pressure due to her lack of 
    funds.  As her solicitor drafted the agreement as a compromise, she entered 
    into this agreement after having obtained legal advice.  The agreement between 
    the parties is not voidable because of duress on the part of the plaintiff.

[19]      The agreement was entered into at the request of Marianne Alvarez.  
    The parties understood that if the conveyance failed the $85,990 was due and 
    payable to the plaintiff.  The parties understood the agreement was legally 
    enforceable.

[20]      The purchase and sale agreement is a binding agreement.  The 
    plaintiff is entitled to judgment in the agreed amount of $85,990.

[11]

Before this Court, Mrs. Alvarez also questioned the quantum of 
    the extra work.  She appeared to suggest in argument that much of the work 
    was not required and that it was over-charged.  The difficulty with these 
    submissions is that it is clear that on the basis of legal advice, Mrs. Alvarez 
    in December 1997 clearly acknowledged that the debt to the contractor for 
    extras was owing by her.  She agreed further that the sum of approximately 
    $86,000 would be owing to the respondent contractor in the event that the 
    compromise arrangement of the exchange of a lot for the indebtedness was not 
    completed.  When that arrangement did not complete, it seems clear that the 
    respondent contractor was entitled to demand the agreed amount owing on account 
    of the extra work performed on the road project.  There may exist issues between 
    Mrs. Alvarez and her agent, Mr. Shortt, relating to his approval 
    of the extra works, but it is in my opinion abundantly clear from the record 
    that on the advice of her counsel, Mrs. Alvarez was prepared to agree 
    in 1997 that the sum was properly due to the respondent contractor for extras.  
    I do not see how it is possible in law for her now to assert that it is somehow 
    permissible for her to seek to resile from that agreement.

[12]

I do not consider that the appellant has demonstrated any error in 
    the factual or legal conclusions of Metzger J., the judge who heard the 
    summary trial proceedings under Rule 18A.  This project proved to be 
    an unfortunate venture economically for Mrs. Alvarez, but I do not consider 
    that she has demonstrated any basis before this Court for us to interfere 
    with the decision of Metzger J. granting judgment in favour of the respondent 
    against her.

[13]

Accordingly, I would dismiss this appeal.

The 
    Honourable Mr. Justice Hall

I 
    Agree:

The 
    Honourable Mr. Justice Low

I 
    Agree:

The 
    Honourable Mr. Justice Lowry


