Cavenaile v. Frandsen Date:, 2012 BCPC 260

Citation: Cavenaile v. Frandsen Date: 20120718 2012 BCPC 0260 File No: 1037513 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DAN CAVENAILE CLAIMANT AND: MARGUERITE LINDA FRANDSEN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Appearing on their own behalf: D. Cavenaile Appearing on their own behalf: M. Frandsen Place of Hearing: Prince George , B.C. Date of Hearing: December 5, 2011 and January 25, 2012 Date of Judgment: July 18, 2012 INTRODUCTION

[ 1 ] The Claimant, Dan Cavenaile, claims in debt against the Defendant, Marguerite Linda Frandsen, alleging a balance of monies owing on a running account operating between late 2004 and early 2007. [ 2 ] The Defendant acknowledges the running account but disputes the amount outstanding on the basis that the Claimant's accounting is replete with errors and falsehoods. [ 3 ] The Defendant also counterclaims against the Claimant for items taken by the Claimant from the Defendant's home without her permission and for items and services provided by the Defendant to the Claimant for which she was never compensated.

The Claimant denies the allegations in the counterclaim. [ 4 ] Both the Claimant and the Defendant agree the issue to be resolved is to properly account for the monies advanced, the monies repaid, services rendered either gratuitously or for expected compensation, and the appropriate sharing of certain expenditures made in joint endeavours. THE PLEADINGS [ 5 ] In the Notice of Claim, the Claimant claims a debt of $10,483.19.

By the time of trial and having gone through two sets of revisions of his accounting, the Claimant claims $11,064.79 plus interest and filing fees, the difference being made up of various accounting adjustments and corrections and new claims with regard to benefits provided by the Claimant to the Defendant at various times or other allegations of benefits received by the Defendant for which the Claimant should be reimbursed. [ 6 ] In the counterclaim portion of the Reply, the Defendant claims that she provided clothing and food to the Claimant which he did not pay for and that the Claimant took items from her home during her absence.

However, she did not specify in the counterclaim what items were removed. In the documentation supplied at trial the Defendant made additional specific claims for such things as a missing gold bracelet, a skillet, a snow shovel, clothing, toolkits, videotapes, invoices and other miscellaneous documents pertaining to the case.

EVIDENCE General Observations [ 7 ] Throughout the trial of this matter there was very little that the Claimant and the Defendant agreed upon, either with regard to the nature of their personal and business relationships, the accuracy or truthfulness of their respective accounting methods or what might have been agreed upon between them with regard to their financial dealings from time to time. Personal and Financial Dealings [ 8 ] The parties met in 2004 and discovered they had a common interest in certain religious practices.

That common interest continued throughout the time they maintained their personal and business relationship [ 9 ] In late 2004, the Claimant's mother died and the Claimant became responsible for his elderly father's care. Given the nature of his father’s needs and the Claimant's inability to provide same due to his work commitments, the Defendant offered to provide the care and assistance the Claimant's father required starting in January 2005. This assistance was provided at the Claimant's residence and at other locations around Prince George.

The services provided included housekeeping, laundry, meal preparation, arranging and coordinating services, appointments and activities for the Claimant’s father. [ 10 ] Once it became clear that the Defendant would be providing services to the Claimant's father for an extended period of time, the Claimant and the Defendant discussed formalizing the relationship by having the Defendant pay for those services.

They agreed to a certain rate of pay but after she had been providing services to the Claimant's father for a few months, the Defendant became aware from other service providers that her hourly rate was far below what was generally being paid for such services in the Prince George area.

After discussions between the Claimant and the Defendant her rate of pay was raised from the initial $10.00 per hour to $15.00 per hour and eventually $17.50 per hour. [ 11 ] The Defendant issued invoices from time to time to the Claimant for the services she rendered to and for the disbursements she incurred on behalf of the Claimant's father.

In addition, she also issued invoices for other miscellaneous services she supplied to the Claimant for which she believed she should be paid. [ 12 ] The Claimant was able to seek reimbursement for many of the expenses incurred for his father either through Blue Cross or through Veterans Affairs Canada.

Those reimbursements included some or all of the Defendant's invoices and various disbursements incurred either directly by the Defendant or for other aspects of the Claimant’s father's care. [ 13 ] The Claimant said he agreed to the wage increases because he believed that Veterans Affairs Canada would pay the greater amounts billed but, as it turned out later, he was not fully reimbursed so in some cases he subsequently adjusted the Defendant’s invoices to reflect that situation by reducing the amount he would pay, without her knowledge or agreement. [ 14 ] The Defendant cared for the Claimant's father until the summer of 2006 when he was moved to a full-time care facility.

The Defendant provided very little in the way of further services to the Claimant after that date. [ 15 ] About the same time the Defendant began to provide services to the Claimant's father, she also began borrowing money from the Claimant to meet some of her expenditures. They orally agreed that the Defendant would make payments on the amounts advanced in the running account by direct payments or by permitting part of the money she invoiced to the Claimant for the services she provided to be applied against the outstanding balance. Documentary Evidence

[ 16 ] The main issue to be resolved between the parties centres on the interrelationship between how much money the Claimant advanced to the Defendant on the running account and how much money was repaid by the Defendant either by crediting amounts from invoices she supplied or by actual payments made. [ 17 ] The Defendant alleges that the Claimant improperly varied the Defendant’s invoices for the services she rendered or misallocated monies the Claimant gave to the Defendant to reimburse her for her disbursements, both of which would amount to credits against the amount outstanding. [ 18 ] The Claimant alleges that the Defendant submitted invoices for services that in some cases were not provided and in others were not agreed to by him, and if services were provided the amounts claimed were inflated. [ 19 ] Matters are further complicated by a lengthy list of disagreements between the parties with regard to who owed what to whom concerning such things as cell phone usage and damage, travel to and attendance at religious retreats, family vehicle use, wholesale store membership fees and expenditures, and the removal of items from the Defendant's home by the Claimant. [ 20 ] In support of his position, the Claimant presented several sets of documents and summaries which he said demonstrated the amount owing by the Defendant.

Those documents included annotated calendars, banking and credit card records, personal bookkeeping records, documentation from Blue Cross and Veterans Affairs Canada and accounting summaries with various revisions and adjustments. [ 21 ] The Claimant's documents also included copies of some of the invoices submitted to the Claimant by the Defendant concerning the services she provided to the Claimant for his father's care and for other miscellaneous matters.

In addition, there were copies of some handwritten documents exchanged between the Claimant and the Defendant. [ 22 ] On practically all of the documents presented by the Claimant there were various comments and annotations but because the documents presented were photocopies, it is practically impossible to determine when those comments or annotations were made, who made them and for what purpose. [ 23 ] The Claimant also said that the Defendant was often several months late in providing her invoices to him.

He also maintained that many of the invoices were no longer available to him because he had to forward them to Veterans Affairs Canada and they were not returned. He did not explain why he did not keep copies of what he provided to Veterans Affairs Canada given the detailed nature of his other accounting practices. [ 24 ] While being cross-examined by the Defendant, the Claimant acknowledged that he was reimbursed for most of the bus or taxi expenses incurred by the Defendant.

He further acknowledged that he would deduct some of the Defendant's wages as set out on her invoices against what he believe she owed on the running account and, that in some cases, he did not understand the Defendant's invoices so he wrote adjustments on them to more accurately reflect his view. [ 25 ] He also said that the Defendant was not entitled any retroactive pay for the months she provided services but was unpaid or was paid at a lesser rate than they eventually agreed upon. [ 26 ] The Claimant also stated that there were no discussions between him and the Defendant about repayment of the amounts she owed to him until after their financial relationship had ceased because he felt uncomfortable discussing those matters with the Defendant and on occasion when he did she would deflect the discussion. [ 27 ] In response to the Claimant's collections of documents, the Defendant presented a binder of documents which included:

a) her

summary of events and the errors in the Claimant's accounting;

b) her summaries of and detailed calculations concerning the monies lent and repaid and invoices that remained outstanding;

c) her copies of invoices to the Claimant and the comparison of them to the Claimant's ledgers and her corrections of those ledger amounts;

d) her "audit" of the Claimant's bookkeeping showing where he had made incorrect allocations of funds received or disbursed by him in relation to the running account and the invoices for services she provided. [ 28 ] In total, the evidence presented by both of the parties required the Court to review hundreds of pages of financial documents (many containing numerous detailed accounting entries), numerous annotated third-party documents, alterations to documents presented to the Court and various commentaries prepared by both the Claimant and the Defendant about the events at issue. [ 29 ] The Defendant included in several of her documents comments that her contact with the Claimant about their financial arrangements often occurred when he was highly agitated or confused and he often accused her of improper financial activities.

However, after she calmed him down he would acknowledge that his accounting was wrong and her understanding of their financial dealings was correct.

Other Invoiced Amounts [ 30 ] In addition to invoices for services provided to the Claimant's father, the Defendant also provided invoices to the Claimant for such things as assisting with his mother's funeral, unloading trucks containing the Claimant's father's possessions, phone monitoring, haircuts for the Claimant, carpet cleaning, boat washing and secretarial work for a lawsuit the Claimant was involved in. [ 31 ] The Claimant contended that the Defendant told him that she could do some of the paperwork with regard to the lawsuit he was

involved in but she did that work poorly. [ 32 ] The Claimant contested many of the other items indicating that the services were not provided or if provided were done inadequately.

In addition, he stated that over the years he had done favours for the Defendant and did not charge her for those services because that is what friends do for each other. [ 33 ] The Claimant alleged that the Defendant had used his brother’s car for several months without providing any compensation to his brother but provided no evidence of what fair compensation would be. [ 34 ] The Defendant maintained that the miscellaneous services she provided went beyond that of assisting a friend and was work she was asked to do and entitled to be compensated for.

Religious Retreats [ 35 ] The Claimant and the Defendant travelled together to Mount Shasta on religious retreats in July 2005 and August 2006. The Claimant said that they agreed to equally split the costs of the entire trip including fuel for his vehicle, accommodations and meals en route and the expenses of the retreat. [ 36 ] The Defendant said that she could not afford to travel to Mount Shasta but for the fact that the Claimant agreed to cover most of the transportation costs and that she would only have to pay the cost of an extra person in the hotel rooms en route.

She said that she also contributed by arranging for them to stay with her friends en route, by paying for some meals and by providing American cash to the Claimant. [ 37 ] There was also a dispute about the Defendant's responsibility for the fuel costs because the Claimant towed his large boat for part of each trip. [ 38 ] Based on the documents presented, the Claimant said that the Defendant’s share of the 2005 trip was $1,607.12 and the 2006 trip was $1,111.57. The Defendant said that her share for the 2005 trip was $1,102.55 and the 2006 trip was $611.47.

The difference between the two positions is $1,004.67. [ 39 ] There was also a dispute between the parties concerning the payment for the delivery of a religious icon (a crystal cup) and who that item was meant for. Costco [ 40 ] The parties disagreed over who paid what for such things as the Costco membership, various other expenditures made at Costco and who should receive the bonus rebate cheques from Costco. The Claimant received the bonus rebate cheque in 2005 and the Defendant received a similar cheque in 2006. The Cell Phone [ 41 ] In the summer of 2005, the Claimant borrowed the Defendant’s cell phone.

During the time he used it the Claimant paid the associated fees. While he had the cell phone in his possession it was damaged beyond repair. The Claimant returned a cell phone but refused the Defendant's request to compensate her for the remaining amount owing under the contract being $238.00. [ 42 ] The Claimant said that the Defendant forced him to borrow the phone and that he had no practical need for it. The Defendant’s response was that the cell phone was loaned to the Claimant so that he could contact her to check on the health of his father while he was away from Prince George on a boating holiday.

Other Advances [ 43 ] In addition to advances for which there is clear documentation, the Defendant also acknowledges that the Claimant provided payment of items which benefited her and for which she must repay the Claimant including such things as airfare and cheques provided as loans. However, with regard to those items of the Defendant said she has repaid some or all of those amounts. [ 44 ] The Claimant also said he paid for many other miscellaneous expenses of the Defendant from time to time.

As set out in her binder of documents, the Defendant rejects most, but not all, of those assertions. [ 45 ] The Claimant acknowledged that the Defendant told him not to lend money to her daughter but stated that she told him that only after the final advance was made and since the Defendant was present on many occasions when he lent money to her daughter she could have stopped the transaction. [ 46 ] The Defendant said she told the Claimant early on that he should not lend money to her daughter and she would not accept any responsibility if he did.

Claimant’s Entry of the Defendant’s Home [ 47 ] In February 2007, the Defendant returned to Manitoba for her mother's funeral. She asked the Claimant to obtain some recorded music and forward it to her in Manitoba. The Defendant said that the Claimant had that music in his possession. [ 48 ] The Claimant said that he had to enter the Defendant's home, with her permission, to obtain the recorded music. He did so with the assistance of a neighbour who unlocked the door and let him in.

The neighbour also helped the Claimant remove a washer and dryer and observed the Claimant remove some other miscellaneous items from the Defendant's home. The Defendant said that those items included a missing gold bracelet, a skillet, a snow shovel, clothing, toolkits, videotapes and invoices and other miscellaneous documents pertaining to the case.

[ 49 ] The Claimant denies removing copies of invoices from the Defendant's home and denies that he returned and invoices to her after the settlement conference. [ 50 ] The Defendant said that the missing invoices were returned to her by the Claimant after he was ordered to do so by the Settlement Conference Judge. [ 51 ] Both the Claimant and the Defendant obtained letters from the neighbour who confirmed that while the Claimant removed some items he could not specify what those items were aside from the washer and dryer he assisted the Claimant with. [ 52 ] The Defendant said that the washer and dryer was sold to her by the Claimant's daughter but not yet paid for.

In an email, the Claimant’s daughter denied that allegation and further denied that there was any claim by the Defendant for storage costs for the washer and dryer.

Documents Indicating Running Account Balances [ 53 ] At various points in time during their financial dealings there were some documents prepared indicating what was owed by the Defendant to the Claimant. [ 54 ] The first of these was dated February 18, 2005, at which time the Defendant executed two cheques totalling $2,200.00 payable to the Claimant and in addition prepared a document, signed by her and the Claimant, which reads : This is written confirmation as of the twelfth day of February 2005, that I, Marguerite Linda Nelson residing at 864 Blair Crescent, Prince George BC V2M 6K5, hereby has received and owes Dan Cavenaile $2200 ( two thousand two hundred dollars) and has enclosed two cheques as confirmation as well. [ 55 ] The two cheques were never cashed.

The Claimant said that those cheques indicate a further debt owing to him by the Defendant of $2,200.00 while the Defendant said that the cheques were merely indicative of the amount of money she owed the Claimant at that time. [ 56 ] The second was a cheque dated January 23, 2006, payable to the Defendant in the amount of $1,000.00 from the Claimant. The memo line of that cheque reads "IN GOD ‘I AM’ I TRUST LOAN: CAVENAILE ESTATE". The Claimant said that the cheque was a further amount provided to the Defendant on the running account.

The Defendant said that it was a payment of her wages borrowed from the Claimant's father's estate account. [ 57 ] The third was a document dated August 16, 2006, signed by both parties upon their return from Mount Shasta which reads: This is a written confirmation that: Marguerite Linda Nelson of 864 Blair Crescent Prince George BC V2M 6K5 owes: Dan Cavenaile the sum of $7000 (to be confirmed by records by Dan and Linda) plus $2000 (two thousand dollars) received this date of August 16, 2006.

We accept these funds owing to be paid prior to any other payment of debts either thru pending reverse mortgage or sale of the property of 864 Blair Crescent or other funds acquired by Marguerite Linda Nelson. Agreed and signed by both parties this August 16, 2006. [ 58 ] The Claimant made no mention of this document in his oral evidence.

Nor did the Defendant cross-examine him on the document which on its face appears to indicate that she owed the Claimant $9,000.00. [ 59 ] The Defendant referred to the document in her book of documents alleging that she was driven to sign the document because she was desperate for the money to pay for her land taxes ($2,000.00).

She indicated that she knew she owed the Claimant much less than the amount on the document and he repeated that they would adjust to the correct amounts later and that is why she had the words "to be confirmed by records of Dan and Linda" added to the document in hopes they would be of the sort things out later.

Unfortunately, that did not occur. [ 60 ] The Defendant led no evidence with regard to exactly what records were to be confirmed and what adjustments were to be made as a result of that review other than the documents in the binder of documents which do not refer to the August 16, 2006 document or the amount stated to be outstanding at that time namely $9,000.00 ($7,000.00 plus $2,000.00). The Claimant did not cross-examine the Defendant concerning the document.

SUBMISSIONS Claimant [ 61 ] Claimant submitted that he had done the best he could, given the documentation available to him, in coming to conclusions about how much money the Defendant owed him.

He stated that he made a lot of effort to pull the documents together but acknowledged that he had made errors in various places which required him to revise his Claim several times including an error pointed out during the course of the trial with regard to a Costco membership. [ 62 ] The Claimant submitted that he was an honest man, he did not want any money not due to him and that he trusted the Defendant to repay the amounts he had had provided to her as detailed in the running account.

[ 63 ] The Claimant said, despite the differing amounts set out in his various document collections, he is entitled to judgment in the amount of $11,064.79 plus interest, filing and service fees. Defendant [ 64 ] The Defendant submitted that the Claimant did not use any form of standard accounting methods so it is impossible to complete an audit to accurately indicate where his errors were made.

She did prepare an accounting based on the documents the Claimant provided and her own documents to calculate what she actually owns the Claimant. [ 65 ] Through that calculation she submitted that she only seeks credit for things she can prove by written documents and submitted that any amounts claimed by the Claimant without documentary proof or acknowledgment by her should not be accepted as proven. [ 66 ] The Defendant submitted that there was no discussion with regard interest owing on the outstanding amounts so no interest should be payable. [ 67 ] Utilizing some of the documentation supplied by the Claimant and her own documentation and calculations, the Defendant submitted that the most she owes the Claimant is $1,513.88 before taking into account the items removed from her residence by the Claimant.

DISCUSSION The Oral Evidence [ 68 ] Both the Claimant and the Defendant seemed quite unfamiliar with and confused by the Court's processes and procedures. This is not meant to be a criticism of the presentation of, or the validity of their respective positions, but it does somewhat explain the approach they took to the case.

They each spent considerable time canvassing evidence concerning the smaller miscellaneous issues but neither fully addressed the significance or importance of documents signed by both of them at various times indicating their then mutual understanding of their financial arrangements. [ 69 ] In particular, neither gave oral evidence themselves or cross-examined the other about the importance or relevance of the document signed by both of them near the end of their financial dealings indicating an amount owed by the Defendant to the Claimant.

Claimant’s Accounting [ 70 ] A review of the Claimant's many pages of financial records indicates that he was very detailed and meticulous in recording dates, amounts and who or what was involved with each transaction. There is little difficulty in following that aspect of his journal entries and summaries. [ 71 ] However, there were numerous problems encountered in determining the reason why certain payments were made or how those payments were categorized. That portion of the accounting was riddled with errors which was clearly demonstrated by:

a) the Claimant's own admission that he made errors in his accounting, revisions and adjustments both prior to and during the trial;

b) the numerous errors pointed out by the Defendant both in her cross-examination of the Claimant and in her binder of documents which reviewed the Claimant's documents; and

c) the many incorrect categorization of entries noted by the Court in the review of the Claimant’s documents in a variety of areas but particularly with regard to the many smaller transactions for such things as bus or taxi receipts, cash payments and miscellaneous purchases. [ 72 ] With regard to the many smaller transactions, the Claimant said they were amounts loaned to the Defendant. However, in many instances he was receiving reimbursement for monies spent by the Defendant.

In other cases, there was no documentation at all to verify monies were advanced by him to the Defendant or if advanced for what purpose. [ 73 ] In addition, there were several small amounts advanced to the Defendant's daughter but there was no evidence to indicate that the Defendant either knew about all of those expenditures or agreed to be responsible for them other than the Claimant's assertion in that regard and the Defendant’s denials. [ 74 ] In addition, there is very little in the way of original documentation presented by the Claimant.

Almost all of his documents were photocopies, many of which had annotations, deletions or changes made to them. It is impossible to ascertain in what circumstances those changes were made and whether or not they were agreed to by the Defendant. [ 75 ] The Claimant also alleged that the Defendant took advantage of his credit card on some occasions which he charged back to her on the running account. The Defendant denied ever utilizing the Claimant's credit cards unless specifically authorized by him.

Defendant’s Accounting [ 76 ] The Defendant's review of the Claimant's financial documents and her own invoices were based on the assumption that the Claimant agreed that her hourly rate would be $17.50 retroactive to the time she commenced work until her services were no longer required. She said that in many instances the Claimant changed her invoice amounts after she submitted them to reflect a number of changes, annotations or adjustments that either she did not know about at the time or that she did not agree to either at the time or subsequently.

[ 77 ] The Defendant also said that the Claimant often mixed up loan payments made by her with reimbursements she was to receive for expenditures she made or other expenses which the Claimant charged against the account as monies being advanced when in fact they were only reimbursements. [ 78 ] In addition, the Defendant, in her binder of documents, pointed to numerous instances where the Claimant reflected as advances to her amounts that she was to be paid for services rendered by her as documented in the invoices. [ 79 ] The Defendant acknowledged that there may be a few inaccuracies in her documentary evidence but claimed that the Claimant had in his possession for some time many of her invoices which she said he removed from her home and did not return to her until after the Settlement Conference in this matter. [ 80 ] The Defendant’s invoicing methods were not without some frailties as well.

Some of the invoices in evidence are handwritten and hand numbered, some are smaller sized invoices with two digit numbers indicated in the bottom left corner and some are larger sized invoices with six digit numbers in the top right corner. [ 81 ] That in it self might not seem unusual except that the dates on many of the invoices do not appear to correspond to the numbers on them in any sort of chronological fashion. Furthermore, different types of invoices appear to be rendered at the same time for different services on similar dates.

Additionally, it is clear that several of the invoices were prepared long after the events noted on them and in some cases were prepared after this case was commenced. All of this made it difficult to follow when services were actually provided by the Defendant to the Claimant and if, or when those services were paid for. [ 82 ] As was the case with the Claimant's documents most of the Defendant's documents were photocopies and many had annotations, deletions or changes made to them. The Defendant said that most of those were made by the Claimant but some of them clearly appear to be in her handwriting as well.

The Signed Documents [ 83 ] Despite the oral evidence and the self produced analyses of their financial relationship, neither the Claimant nor the Defendant adequately addressed the existence of documents signed by both of them indicating their mutual understanding of the status of the running account at two different points in time. [ 84 ] Given the disparate views held by each of the parties concerning their financial dealings, an examination of these signed documents is an appropriate starting point for the Court's analysis of their respective positions.

Based on the wording of the documents it appears that there was a mutual understanding of the general state of the running account when the February 18, 2005 and the August 16, 2006 documents were prepared and signed by the parties. [ 85 ] There was no evidence presented that at the time either of those documents were prepared that either party was under any pressure, duress or misapprehension concerning the general status of the running account. [ 86 ] Therefore, after considering all of the evidence presented both orally and in the documents I find the following:

a) on February 18, 2005, the Defendant acknowledged that she owed the Claimant $2,200.00. The cheques she issued on that day were an admission of the debt and not an addition to it;

b) on July 23, 2006, the cheque issued by the Claimant on his account (not his father'

s) for $1,000.00 was an additional advance to the Defendant on the running account and not a payment of wages to her;

c) on August 16, 2006, the document signed by both the Claimant and the Defendant was their best estimate at the time (subject to confirmation from their records) of what the Defendant owed on the running account and that amount was $9,000.00. [ 87 ] Starting from the $9,000.00 acknowledged on August 16, 2006, it is noteworthy that is an amount much less than that claimed on that date by the Claimant in his financial records and more than the amount acknowledged by the Defendant in her binder of documents.

This suggests that the document was some form of compromise or settlement; subject to confirmation from the records of the parties; but neither party addressed that issue either in their direct or cross-examination evidence. [ 88 ] By first examining the Claimant's records concerning matters after August 16, 2006, he has not proven by any oral or documentary evidence that any additional amounts were advanced by him or that he is entitled to claim as additional amounts owing by the Defendant activities he alleges he performed for her benefit. [ 89 ] Furthermore, I have conclude that the Claimant's accounting methods concerning much of what occurred prior to August 16, 2006 to be unreliable and inaccurate when examined on their own and even more so when compared to the Defendant's analysis contained in her binder of documents and the Court’s review of his materials. [ 90 ] Starting from the $9,000.00 amount on the August 16, 2006 document and after analyzing the Defendant's review of the Claimant’s and her documents, and the evidence of the arrangements between them, she has satisfied me that she is entitled to the following credits. [ 91 ] First, I accept the Defendant made direct payments to the Claimant on the running account from time to time in an amount totalling $1,451.27. [ 92 ] Second, I accept the Defendant's calculation that the Claimant improperly did not reimburse her for travel and other expenditures she made during the time she cared for his father in an amount totalling $415.50.

[ 93 ] Third, I accept the Claimant and the Defendant eventually agreed that her wages would be $17.50 per hour retroactive to when she started providing services to the Claimant's father. On that basis, I accept the Defendant's calculations that she is owed wages for 2005 and 2006 totalling $3,844.37. [ 94 ] Fourth, I accept the Claimant wrongfully refused to reimburse the Defendant for the remaining contract obligations on her cell phone contract after he damaged the cell phone beyond repair.

On that matter, the Defendant is entitled to a further credit of $238.00. [ 95 ] Fifth, given that the August 16, 2006 document was signed immediately after the second trip to Mount Shasta, I conclude that the parties had in their minds that the $9,000.00 amount was meant to capture all aspects of their agreed-upon interactions including the Defendant's contributions to the to Mount Shasta trips.

Although the parties have different views on how much the Defendant owed the Claimant for those trips, there is no need to further account for those figures given my conclusion that they are included in the $9,000.00 amount. [ 96 ] Sixth, I am unable to draw any conclusions from the oral and documentary evidence concerning the arrangements between the parties concerning the Costco membership dues or ongoing expenditures at that store.

There is no clear evidence that one party owes money to the other arising from the use of that account. [ 97 ] Seventh, I reject the Claimant's assertion that the Defendant is responsible for any cash amounts advanced to her daughter and even if she was, that amount would have been captured within the $9,000.00 figure. [ 98 ] Based on these findings, I calculate that the Defendant's outstanding indebtedness to the Claimant on the running account to be $3,050.86, prior to any consideration of the Defendants counterclaim. [ 99 ] The Defendant’s counterclaim is based on items she alleges the Claimant removed from her home.

She has not provided conclusive or convincing evidence that the Claimant removed items other than what he acknowledged and was observed by the neighbour. Therefore, there are no provable damages that can be awarded to the Defendant on the counterclaim. [ 100 ] The Defendant also contested the Claimant's claim of interest on the amounts he is due on the basis that no interest rate was stated when the monies were advanced. While that statement is factually correct the Claimant has been without the money he is owed and as such has missed out on the opportunity to utilize those funds.

It is reasonable that he should be compensated for that at the usual Court prejudgment interest rates from August 16, 2006 to the date of judgment. [ 101 ] The Claimant stated that he wanted the Court to order that the Defendant returned his documents. However, the Claimant presented no evidence indicating what those documents were and that the Defendant had them in her possession. As such, there is no basis to grant such an order. However, if either party has documents belonging to the other it would be appropriate to return them now that the case has been resolved.

DECISION [ 102 ] The Claimant is entitled to judgment against the Defendant in the following amounts arising from their financial dealings in the running account between 2004 and 2007:

a) balance outstanding after all credits and calculations $3,050.86

b) interest from August 16, 2006 to July 18, 2012 $356.54

c) filing and service fees $256.80

d) total due on judgment $3,664.20 [ 103 ] The amount due on the judgment shall be paid in full no later than September 30, 2012, unless the Defendant applies by September 15, 2012 for a payment hearing, in Form 13 pursuant to Rule 12(10) of the Small Claims Rules, to make payments on a scheduled basis. _________________________ M. J. Brecknell Associate Chief Judge Provincial Court of BC