2016 BCPC 265, 2016 BCPC 265

Citation: Thinkspace v. Valoroso, Sr. Date: 20160721 2016 BCPC 265 File No: 108106 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: THINKSPACE ARCHITECTURE PLANNING INTERIOR DESIGN CLAIMANT AND: GIUSEPPE (JOE) VALOROSO, SR. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.V. HOGAN Appearing for the Claimant: Dust, T. Appearing for the Defendant: Hedges, M. Place of Hearing: Kelowna , B.C. Date of Hearing: March 31, 2016 Date of Judgment: July 21, 2016 [ 1 ] Joe Valoroso, the defendant, operates a retail food outlet and food distribution business in Kelowna. In about 2008 he wanted

[ 1 ] Joe Valoroso, the defendant, operates a retail food outlet and food distribution business in Kelowna. In about 2008 he wanted to expand his ‘family owned business’ as he describes it, by initially adding a cooler and freezer. He had two customers in his shop that he got to know, a husband and wife that I will call K and M. K and M had a company called Renaissance Architecture Planning Inc., and in 2008 they set up a cooler and freezer for Joe Valoroso. Although the cooler and freezer never worked to Joe Valoroso’s satisfaction, he and K had a good working relationship.

On July 1, 2010, K and M sold the assets of Renaissance Architecture Planning Inc. to Renaissance GHM Architecture Inc., and K went to work for this new company as an employee. On July 12, 2010, K sent a letter to “Dear Joe” outlining that Renaissance Architecture Planning Inc. has merged with GHM Architects and Renaissance GHM Architects is committed to phase two of his expansion plans, a new facade and changes to his building.

On October 22, 2010, Joe Valoroso and Renaissance GHM Architects Inc. entered into a signed contract for façade improvements and an addition at the rear of the existing building to form a new loading area. Work was commenced and completed but by December 2011 Joe Valoroso, having made partial payments on the account, stopped paying completely. [ 2 ] The claim is for $11,730.24 for accounts which were rendered by Renaissance GHM Architects Inc. prior to December 2011. At the trial Todd Durst, an architect, gave the court an account of the claimant’s name.

He said that Renaissance GHM Architects Inc. “rebranded” or “changed the name” to Thinkspace Architecture Planning Interior Design in 2014, almost three years later after the accounts were created. Mr. Durst told the court that there are five people who are the principal owners of “Thinkspace” which he described as an incorporated limited company. Mr. Durst also then contradictorily described “Thinkspace” as a partnership. [ 3 ] The work was done and the accounts have been proven in court. Mr. Valoroso disputes having to pay the accounts because K has been involved in both projects and with both design firms.

He believes that his complaint about the quality of the work done by Renaissance Architecture Planning Inc., under the 2008 contract, entitles him to some form of set off against work done by Renaissance GHM Architects Inc. after 2010. Mr. Valoroso has offered no evidence, other than his own opinion that the work was not done properly.

Without some expert evidence as to the quality of the work done he has no defence to this claim, even if he could somehow demonstrate the tenuous assertion that unsatisfactory completion of a contract with one limited company can be set off against the claim by another limited company. He has no defence in law on the accounts and his responsibility to pay. [ 4 ] Remarkably, however, I dismiss the claim. The common law rule is that to sue or be sued a claimant must be a person, a corporation, a partnership or a body given that capacity through legislation.

This very basic concept remains an ongoing and current part of our law (see Kwicksutaineuk First Nation v. Canada 2012 British Columbia Court of Appeal at paragraph 64.) Thinkspace Architecture Planning Interior Design does not in the style of cause reveal itself to be a corporation or limited company or a partnership which has the capacity to sue. The evidence is that Todd Durst says it is a limited company while also describing it as a partnership. The issue of whether Thinkspace Architecture Planning Interior Design could sue in that name was canvassed at the settlement conference on December 2, 2015.

In Judge Smith’s notes from the settlement conference, which are on view in the file, he wrote, “The claimant is a five person partnership and the claimant has leave to amend the claim to reflect it is the registered partnership doing business as Think Space Architecture Planning and Design.” [ 5 ] No amended statement of claim was ever filed making that change. For whatever reason the order granting leave to file an amended claim, a very simple procedure, was not complied with.

While the rules in Small Claims as to pleadings are often understandably forgiving, and the judges are often very tolerant of the procedural errors of lay litigants, the litigant should at least comply with the law and the direction of a Provincial Court Judge, particularly when it is made in their favour. No one gave the breath of life to Thinkspace Architecture Planning Interior Design; without legal personality this action is a nullity. [ 6 ] Both parties shall bear their own costs. THE HONOURABLE JUDGE P.V. HOGAN