West v. BCS Investigations and Gagnon Date:, 2011 BCPC 310

Citation: West v. BCS Investigations and Gagnon Date: 20111114 2011 BCPC 0310 File No: 10-21358 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CHANTELLE WEST CLAIMANT AND: BCS INVESTIGATIONS A DIVISION OF BCS GROUP BUSINESS SERVICES INC. AND DENIS GAGNON DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Appearing on their own behalf: C. West Appearing for the Defendants: D. Gagnon Place of Hearing: North Vancouver , B.C. Date of Hearing: November 3, 2011 Date of Judgment: November 14 2011 [ 1 ] This Claim is brought by Ms.

West against BCS Investigations, A Division of BCS Group Business Services Inc (hereinafter “BCS”) and the principal of the company, Denis Gagnon. [ 2 ] BCS carries on the business of providing private investigative services. Ms. West alleged that BCS failed to pay for work done by her at the request of BCS. In the Claim Ms. West also alleged that Mr. Gagnon was personally liable for the debt but this portion of the Claim was abandoned at trial. [ 3 ] On January 9, 2009, Ms. West and BCS entered into a written agreement (hereinafter “the Agreement”) wherein Ms.

West was described as “the Contractor” and BCS was described as “the Firm”. Paragraph 2 of the Agreement sets out that Ms. West would be paid $25.00 per hour for providing investigative services plus mileage at a rate of 50 cents per kilometre plus certain cellular telephone costs. Ms. West was required to provide invoices to BCS for the work which she did and the expenses which she incurred. BCS agreed to pay these invoices on the 30 th and 15 th day of the month after the invoices had been submitted. [ 4 ] Between January and July, 2009, Ms.

West was retained from time to time by BCS to provide investigative services. She submitted her invoices which were paid in full although sometimes there was a delay in payment being made by BCS. [ 5 ] In July and August 2009, Ms. West provided investigative services and submitted invoices for a total of $4,463.20. In addition she sought reimbursement for cellular telephone costs of $58.60. By the end of August 2009, Ms. West had not been paid and she began to ask Mr. Gagnon when payment could be expected. Ms. West introduced at trial copies of a number of emails she received from Mr.

Gagnon concerning the outstanding invoices. It is important to note that Mr. Gagnon did not raise any objection to the amount of the

invoices or to the quality of work which had been performed by Ms. West. The emails from Mr. Gagnon simply request an extension of time for BCS to pay the invoices. [ 6 ] At trial, Mr. Gagnon advanced two defences on behalf of BCS: firstly, it was submitted that Ms. West inflated the invoices which she submitted; secondly, it was alleged that Ms. West breached a term of the Agreement by contacting a client of BCS. [ 7 ] Mr. Gagnon submitted that Ms. West had inflated the number of hours which she had worked by 18.5 hours and therefore her claim should be reduced by (18.5 hours x $25.00 per hour) $462.50. Mr.

Gagnon also pointed to some inconsistencies between the dates on the daily time sheets submitted by Ms. West and the dates on her invoices. Ms. West denied that she had inflated the number of hours which she had worked and explained that any inconsistencies between the daily time sheets and the invoices were simply errors in transcription. [ 8 ] I reject the submission of BCS that Ms. West inflated or otherwise misstated the amount of work which she performed. There was no evidence that Ms. West, in fact, submitted invoices for work which she had not performed. Further, this submission by Mr.

Gagnon is inconsistent with the many emails which he sent to Ms. West after she submitted the invoices. [ 9 ] The second defense raised by BCS is that Ms. West breached a term of the Agreement by contacting a client of BCS after her employment had come to an end in August 2009. [ 10 ] Paragraph 7 of the Agreement states: “Confidentiality: the Contractor will not disclose any information to anyone unless advised of such disclosure by the Firm.

Any unauthorised disclosure of any confidential information will cancel this agreement without further notice.” [ 11 ] Paragraph 16 of the Agreement states: “Non Competition: the Contractor agrees that she will not perform her professional services for any organization known by the Firm and that she will refer any such request to the Firm. The Contractor will not approach any of the Firm’s clients for a period of two years and will not have any direct or indirect contacts with the Firm’s clients.” [ 12 ] Mr. Gagnon submits that Ms.

West breached paragraphs 7 and 16 of the Agreement by contacting a former client whom I shall refer to as AB. Mr. Gagnon testified that he learned from AB that Ms. West contacted AB in September or October of 2009 concerning a large invoice submitted to AB by BCS. [ 13 ] Ms. West denied she contacted AB in September or October of 2009. She testified that she contacted AB in March of 2010 to determine if AB would be a witness at this trial. Ms.

West testified that she did not solicit work from AB, did not perform any work for AB and did not discuss the invoices submitted to AB by BCS. [ 14 ] The burden of proof is upon BCS to prove on a balance of probabilities that Ms. West breached the terms of the Agreement. AB was not called as a witness at trial which is understandable as BCS wishes to maintain a good relationship with this client. However, in the absence of any evidence from AB or some other compelling evidence, I find that BCS has failed to prove that Ms. West breached the terms of the Agreement by contacting AB. In particular, I find that Ms.

West did not breach the Agreement by asking AB to testify at trial after BCS refused to pay the invoices submitted by Ms. West for work done in connection with AB. [ 15 ] There is a second reason for dismissing this portion of the defense of BCS. It was alleged by BCS that as a result of the breach of the Agreement, BCS had suffered a loss of reputation and financial harm. Apart from the testimony of Mr. Gagnon, there was no evidence to support this allegation.

There were no financial records submitted and no independent witnesses called to support the allegation. [ 16 ] BCS made two further allegations against Ms. West. Firstly, it was submitted that Ms. West discussed confidential information concerning the clients of BCS with her mother. This was denied by both Ms. West and her mother. I reject this submission. Secondly, it was submitted by BCS that Ms. West had refused to sign an affidavit required by a client of BCS who had retained legal counsel to assist with litigation. Ms.

West explained that she declined to sign the affidavit at first as her true identity, rather than her working alias, was revealed and she was concerned of possible repercussions. Upon reflection, Ms. West agreed to sign the affidavit. I do not find that this short delay caused any harm to the reputation of BCS or in any way amounted to a breach of the Agreement. Decision [ 17 ] I find that Ms. West is entitled to Judgment in the amount of $4,463.20 for services rendered plus $58.60 for cellular phone expenses for a total of $4,521.80.

Interest will accrue on that sum from the 15 th of August, 2009 to the 3 rd of November, 2011 pursuant to the Court Order Interest Act in the amount of $59.35. Ms. West is entitled to an award for out of pocket expenses of $348.39. [ 18 ] Ms.

West submitted that she should be awarded a sum for penalty costs pursuant to Rule 20(5) of the Small Claims Act which states: A Judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. [ 19 ] I find that there was no reasonable basis for the allegations of BCS and the defence of BCS was nothing more than a delaying tactic. I further note that Ms.

West was required to attend Court on the 18 th of June, 2010 in response to an application to set aside a Default Judgment; on the 22 nd of September, 2010 at a Settlement Conference; on the 29 th of March 2011 at a Pre-trial Conference and

on the 3 rd of November, 2011 for trial. Taking all of these factors into consideration I award the further sum of $452.00 to Ms. West for penalty costs pursuant to Rule 20(5). [ 20 ] Ms. West’s claim against Mr. Gagnon in his personal capacity was abandoned at trial and is dismissed without Costs. [ 21 ] In

summary Ms West is awarded Judgement against BCS Investigations, A Division of BCS Group Business Services Inc in the amount of $5381.54 calculated as follows: $ 4521.80 for services rendered and expenses; $ 59.35 for Court Order Interest $ 348.39 for out of pocket expenses $ 452.00 for Penalty Costs [ 22 ] The Judgement is payable forthwith. ________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia