Kuan v. Li Date:, 2011 BCPC 288

Citation: Kuan v. Li Date: 20111018 2011 BCPC 0288 File No: 1033796 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CHIA FANG KUAN aka DEBBIE KUAN CLAIMANT AND: YIN AI LI DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Counsel for the Claimant: Chia Fang Kuan , aka Debbie Kuan Counsel for the Defendant: Yin Ali Li Place of Hearing: Vancouver, B.C.

Date of Hearing: September 21, 2011 Date of Judgment: October 18, 2011 A corrigendum was released by the Court on November 1, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] This matter came before me on September 21, 2011 pursuant to the Simplified Trial Rules under the Small Claims Act . [ 2 ] The Claimant, Ms. Kuan , was concerned that her English skills were not satisfactory. I permitted her friend, Mr. David Beckett, to assist her. As it turned out, there were only a few instances that Mr. Beckett was required to assist her. [ 3 ] The Defendant, Ms.

Li, was not fluent in English. Ms. Linda Yu was sworn to interpret from Cantonese to English and English to Cantonese on behalf of Ms. Li. I commended Ms. Yu for her careful and professional manner in which she carried out her responsibilities. The Court is appreciative of her efforts.

[ 4 ] During the mediation phase of these proceedings: (

a) I told Ms. Kuan that she was not entitled to claim the time she spent in an arbitration hearing with Ms. Li about her services as damages. In my view, any costs for the arbitration proceedings are not part of this claim. (

b) I told Ms. Li that she could not claim the consulting expense that she required because of her lack of English skills, nor was her claim for stress a damage that can be claimed against Ms. Kuan . Background of Claim [ 5 ] Pursuant to a written contract entered into by the parties, the Claimant provided behavioural consultation services to the Defendant concerning her son, Edison. [ 6 ] The contract has 3 sections which concern this claim, which I have described for convenience as: (

a) Recital “If the parents attempt to control, abuse or in any way conflict with the consultant and the team (e.g., intervention plan and charges), the contract will be terminated IMMEDIATELY. (

b) Paragraph 6 The consultant agrees to terminate any part of the services or program that the client does not feel comfortable with after a one month period of notice. However, this may result in the termination of consultation services if the consultant feels it is a vital part of the program. There must be a one-month notice of termination or compensation equal to one month’s normal invoice amount if either the consultant or the client chooses to stop the service. (

c) Payment Charges: First consultation: $90 per visit Consultation/assessment/intervention: $90/per hour Program design & revision: $90/per hour Travel expenses: Depends on the distance travelled GST 5%: 5% of total (not including Autism Funds – Invoice to pay) Intervention fee: Vary over time (according to the experience of the interventionists) The Evidence [ 7 ] The parties swore that their Trial Statements were true and accurate, and they form part of the Court record. [ 8 ] Ms.

Kuan testified that the outstanding charges were as follows: Date of Service Type of service Hourly rate ($) Hours Amount ($) 8-Apr Consultation 90 2.5 225 8-Apr Travel time 90 0.5 45 2009 Dec – 2010 April Phone/email consultation 90 3.5 315 April 1, 3, 6, 8, 20, 24, 29 Behavioural intervention 15 14.5 217.50 Amount 802.50 2010 June 4 – 2010 Aug 18 Arbitration with ACT 90 15 1350 Total Amount 2152.50 [ 9 ] The sum of $2,152.50 above, and the average of the monthly charges to Ms. Li of $710.94, makes up Ms. Kuan’s claim. [ 10 ] Ms.

Li counterclaimed for an overpayment of 4 hours at $45 per hour for a total of $180. As well, she claimed $560 for consultation services to assist her with these proceedings, and perhaps the arbitration proceedings, although I am not entirely certain if that is so. Lastly, Ms. Li seeks $1,000 compensation for stress associated with these proceedings. [ 11 ] Ms. Li objected to the following charges: (

a) More than 2 hours charged for an individual session. For the April 8 th , she said that she was overcharged ½ hour, which formed part of her counterclaim, in any event. (

b) Travel time which exceeded an amount that was set out in the contract. (

c) Telephone and email consultation, as she was not given monthly invoices for December 2009 to April 2010 for these charges. Ms. Li said that she had no way to verify these charges, and that they should have been set out on a monthly invoice. [ 12 ] Ms. Kuan admitted that it was not until the contract was terminated by Ms. Li, which I will discuss below, that she invoiced for

the telephone and email charges. These were included in her final account. [ 13 ] The individual session charges for behavioural intervention were accepted by Ms. Li, except for April 3 rd , which she said did not take place. Ms. Kuan did not object to the deduction for April 3 rd . Therefore, Ms. Li owes Ms. Kuan for $187.50 for that undisputed portion of the April 2010 invoice. [ 14 ] The other portion of the claim concerns notice to terminate the contract. [ 15 ] On April 21, 2010, Ms. Li terminated the contract, but agreed for Ms.

Kuan to provide services for 30 days, that is, to May 21, 2010 pursuant to the notice provisions in the contract. However, when Ms. Li learned that Ms. Kuan sent the April 2010 account by email to Edison’s computer, she believed this was not professional and terminated the contract immediately. [ 16 ] For Ms. Li, this was the last straw, as she had concerns about Ms. Kuan’s billing practices, particularly, as Ms. Kuan had access to forms which did not require her signature, but were used to bill the autism organization for her professional services. [ 17 ] The contract provided that sessions were to be 2 hours.

However, Ms. Kuan testified that on occasion, the sessions went longer. She noted the time on her watch, rather than a clock in Ms. Li’s home. [ 18 ] It seems reasonable that a 2 hour session is not an exact time because counselling or behavioural services cannot be measured that precisely. Therefore, I reject Ms. Li’s objection to these charges and allow the claim for April 8, 2011 at $225. [ 19 ] Pursuant to the contract, Ms. Li was entitled to 5% of the total invoice for travel time. There was no evidence that the travel time was excessive.

Therefore, I allow travel time at $45. [ 20 ] Telephone and Email charges – Ms. Li was unable to challenge these charges each month because of the late billing. However, Ms. Li conceded that there were emails and other contact outside of the sessions with Edison. This is a relatively modest amount over a 5 month period. I am prepared to allow 50% of the charges, which is $157.50, as these charges could not be challenged by Ms.

Li, other than in the global context of this claim. [ 21 ] As noted above, the portion of the claim for behavioural intervention is admitted at $187.50 after deducting the April 3, 2010 charge. [ 22 ] Ms. Li was aware of the notice provision in the contract. I have difficulty accepting Ms. Li’s explanation for the termination of the services as of April 30, 2010. However, I am concerned about the wording in the clause set out below, because it apparently allowed Ms. Kuan to terminate her services, but still permitted her to charge for the notice period.

The consultant agrees to terminate any part of the services or program that the client does not feel comfortable with after a one month period of notice. However, this may result in the termination of consultation services if the consultant feels it is a vital part of the program. There must be a one-month notice of termination or compensation equal to one month’s normal invoice amount if either the consultant or the client chooses to stop the service. [ 23 ] This clause operates as a penalty. It does not represent liquidated damages to compensate for inadequate notice to terminate the contract. Nonetheless, Ms.

Kuan needs notice to arrange for new clients to fill the appointments that were booked and cancelled. Although it is rough justice to determine the appropriate damages, I allow $250 for this portion of the claim. [ 24 ] As I have noted above, counselling services cannot be set out in exact time frame. As Ms. Li did not provide any evidence to support her objection to the earlier charges for the 2½ hour session, I dismiss her Counterclaim.

Summary [ 25 ] Ms. Kuan is entitled to judgment, as follows: April 8 consultation $225.00 April 8 travel time $45.00 Telephone and email consultation $157.50 Behavioural intervention $187.50 Notice $250.00 Total: $865.00 [ 26 ] As well, Ms. Kuan is entitled to her costs of $100 for filing fees and $20 for service fees for a total of $985.00 . [ 27 ] Ms. Kuan is entitled to pre-judgment interest from April 30, 2010 to the date of judgment, namely, October 18, 2011; and post- judgment interest from October 18, 2011, which sums will be calculated by the Court Registry. ___________________ Lawrence A. Kahn

CORRIGENDUM – Released November 1, 2011 The Reasons for Judgment filed in the Provincial Court Registry in this matter on October 24, 2011 should reflect that Pre - judgment interest awarded should run from April 30, 2010 to the date of Judgment, namely, October 18, 2011. Post - judgment interest awarded is to be calculated from October 18, 2011. My Reasons for Judgment are amended accordingly.