Ciprani v. Pheifer Date:, 2012 BCPC 569

Citation: Ciprani v. Pheifer Date: 20120821 2012 BCPC 0569 File No: 11-1016 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TIZIANA CIPRANI CLAIMANT AND: CHRISTIANA PHEIFER AND CURT PHEIFER #0786422 B.C. LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing in person: T. Ciprani Appearing in person: C. and C. Pheifer Place of Hearing: Williams Lake , B.C. Dates of Hearing: April 17, 2012, April 30, 2012, May 1, 2012, July 20, 2012 Date of Judgment: August 21, 2012

[ 1 ] Tiziana Ciprani sues 0786422 B.C. Ltd. (“the Company”) and Christiana and Curt Pheifer, the principals of the Company, for the cost of renovation work done to part of a commercial building located at 240 Oliver Street in downtown Williams Lake (“the building”). The building is owned by the Company. [ 2 ] The Company and the Pheifers counterclaim for unpaid rent on unit 240C in the building (Ms. Ciprani ran a retail business out of this unit) and for the cost of replacing certain items which they say Ms. Ciprani removed from 240C when she vacated the premises at the end of December, 2010.

They also counterclaim for the cost of rectifying some of the renovations done by Ms. Ciprani. These renovations were done to another retail space in the building, 240B, which Ms. Ciprani was hoping to move her business into. The Pheifer’s position is that these renovations were never authorized by them and did not improve their building in any way. [ 3 ] Unfortunately there were never any agreements in writing between the parties. Everything was verbal and the parties have very different recollections of what was agreed to at various stages.

The court is called upon to try to determine, two years after the fact, just what it was that the parties actually agreed to – if they agreed to anything. The parties did exchange a number of e mails and they did save things like estimates and receipts. Both presented binders of these materials to the court at the start of the trial. I also heard evidence over several days from Ms. Ciprani, Ms.

Pheifer and a number of other people who were drawn into this matter in various ways. [ 4 ] As a way of organizing this material and in order to get the clearest view possible of the relationship of these parties as it evolved over time, I have prepared a chronology (attached as Appendix A to these reasons). I have also combined the documents submitted by each party into one binder which is organized more or less chronologically.

I hereby direct that this binder be marked as the next numbered Exhibit on the trial. [ 5 ] I will proceed now to give my decision on each of the items set out in the Notice of Claim and in the Counterclaim. 1 . “Outstanding debt”: $8,014.08 [ 6 ] This is the value Ms. Ciprani places on the renovation work she did on 240B. She has also included a sum for caretaker’s duties which she says she performed on behalf of the Pheifers in the building as a whole (the Pheifers do not reside in Williams Lake so they were in the practice of hiring a caretaker for the building).

The renovation work to 240B was done between late June and late July, 2010. The caretaking occurred over a longer period of time, dating back at least to early 2010. [ 7 ] Ms. Ciprani’s original “invoice” for $8,014.08 was prepared on approximately August 16 th , 2010 just after the break down in the relationship between the parties. The items on Ms. Ciprani’s “invoice” are as follows: (

a) Removing the existing flooring in 240B comprised of carpeting and Corilon flooring: $1,188; (

b) Cleaning the walls and bathrooms in preparation for painting: $1,120; (

c) Buying the paint and painting the space: $3,850 + HST $462; (

d) Removing a “half” wall located in one part of the space: $300; (

e) Rekeying doors in the space: $94.08; (

f) Caretaker’s work: $1,000. [ 8 ] Items (

a) through (

e) relate to the renovations in 240B. As a first point, I find that the evidence fails to establish that there was a verbal contract to do any or all of this work. For there to be an actual, enforceable verbal contract, the court must be satisfied that there was a “meeting of the minds” of the parties involved on all essential aspects of the agreement, such as what work would be done, when it would be done and approximately how much it would cost. I find that there was a lack of agreement on at least the following points: • Payment to Ms. Ciprani for her renovation work – how was Ms.

Ciprani to be paid for her work renovating 240B? [ 9 ] Several different ideas about this are apparent in the evidence. One idea is that Ms. Ciprani would be recompensed by way of “the new reduced rent at $500/month [for 240B]”. (See top of p. 8 of Ms. Ciprani’s written presentation to the court dated April 11 th , 2011 and referred to in her evidence in chief on April 17 th , 2012). Ms. Pheifer had wanted a much higher rent for 240B and the idea reflected here is that the Pheifers would allow Ms. Ciprani to have the space for a lower sum in exchange for Ms. Ciprani renovating the space.

However, by the summer of 2010, Ms. Ciprani seems to have had a different idea of how she would be “paid” for her work in 240B and that was by way of a credit towards rent on her existing shop space, 240C. On April 30 th , 2012 she testified that this is why she stopped paying rent on 240C, as of the 1 st of July, 2010. As for Ms. Pheifer’s understanding of how Ms. Ciprani was to be paid, she seems to have believed that it would be by way of credit towards rent on 240B once Ms. Ciprani moved into that space, rather than by way of rent credit on 240C. In this regard, see Ms.

Pheifer’s e mails of January 14 th and March 5 th (?), 2010 and the demands she made to Ms. Ciprani on July 21 st and August 6 th , 2010 to pay rent on 240C. • Disagreement about whether flooring should have been removed from 240B .

[ 10 ] By late June, 2010 Ms. Ciprani believed that she was entitled to go into 240B and pull up the flooring. But, the Pheifers do not seem to have had the same understanding. Ms. Pheifer testified that they were surprised when they arrived on July 8th to find that Ms. Ciprani had taken it on herself to do this. I do not think that they are just making this up after the fact given that on July 21 st , 2010, long before either party could have known of the 2 years of litigation which lay ahead, Ms.

Pheifer wrote that she and her husband were “surprised that you took out the carpet in the restaurant, without talking to us up front…you are doing whatever you want to do without asking us…”. • Lack of clarity around who would do the painting and pay for the paint. [ 11 ] As of July 11 th , 2010 Ms. Pheifer believed that her husband would paint 240B (see her message to Ms. Ciprani of that date). She seems also to have believed that her husband was the one who would purchase the paint and apparently he went ahead and did so (see her message to Ms. Ciprani of July 21 st ). However, Ms.

Ciprani’s understanding was that she was the one who was to purchase the paint and she went ahead and did so as of July 14 th . Ms. Ciprani also claims to have done much of the actual work of painting sometime between the 13 th and the 21 st despite having earlier expressed appreciation for, and agreement with, Ms. Pheifer’s plan to have Mr. Pheifer come up and do the painting sometime after the 20 th (e mail of July 13 th ). • No agreement about how much would be paid for the renovations. [ 12 ] Ms.

Ciprani obtained some quotes for painting 240B back in January, 2010 but there is no evidence that the Pheifers agreed to pay her or credit her any particular sum for any particular aspect of the renovations to 240B. Had their relationship not fallen apart as of late July they may well have been able to “work it out” as they had back in 2009 with renovations that were done to 240C and later to the banquet room.

However, as of late July, early August, 2010, which is when their relationship fell apart, they had not yet “worked out” this critical detail and this is yet another reason why I conclude that there was no contract between the parties concerning these renovations. [ 13 ] The fact that there was no contract between the parties does not end the matter because I do find that Ms. Ciprani’s work in 240B did impart some value to the Company and its principals, Mr. and Mrs. Pheifer. And, I find that they are required to pay Ms. Ciprani the reasonable value of services received from her.

In law this is termed “quantum meruit” or “as much as he has deserved”. I will now go through each of items (

a) to (

e) and assign a value to the work done. (

a) Removing the existing flooring in 240B comprised of carpeting and Corilon flooring: $1,188: [ 14 ] Although I find that Ms. Ciprani went ahead and did this work without getting clear authorization from the Pheifers to do so, I do find that it was work that was of value to the Pheifers. The flooring was old and it is more probable than not that any prospective tenant of the space was going to want to change the flooring in order to give the space a clean, updated look. I note that on July 14 th and 15 th , 2010, Ms.

Pheifer herself discussed changing the flooring to ceramic tile with Jason Mundeling, the prospective tenant the Pheifers were considering for the space in preference to Ms. Ciprani. (It was the Pheifers decision in mid July to offer the space to Mr. Mundeling which led to the break down in the relationship with Ms. Ciprani.) During the trial Ms. Pheifer made the point that by removing the flooring Ms. Ciprani did not benefit them (the Pheifers and the Company) in any way because most flooring companies include the cost of removing the old flooring in their price for installing new flooring.

Also the cost of changing the flooring and other improvements would have been borne by Jason Mundeling or any other new tenant for the space and not by the Pheifers. I acknowledge the validity of these points but still find it more probable than not that the removal of the old flooring imparted value to the building in that it was one less task that Mr. Mundeling or any other prospective tenant would have to take on and this, I find, was likely to have made the space somewhat more attractive to prospective tenants. [ 15 ] As for the amount $1,188, Ms.

Ciprani bases this on a quote she obtained from United Carpet on July 23 rd , 2010. I find this sum is a reasonable estimation of the value of this item to the Pheifers and to the Company. (

b) Cleaning the walls and bathrooms in preparation for painting: $1,120 [ 16 ] Ms. Ciprani testified that she, and particularly her mother, did many hours of cleaning in 240B in preparation for painting. In places, she said, the walls were very greasy as the space had been used as a restaurant for many years. Ms. Pheifer testified that she did not notice that the space had been cleaned when she made her visit to Williams Lake on July 8 th , 2010. Despite this I accept the evidence of Ms. Ciprani that extensive cleaning was done by her and those helping her in the first half of July, 2010.

I also find that such cleaning was a necessary first step to painting and updating 240B and further that it is a step any prospective tenant was going to want to do. The fact that Ms. Ciprani had already done this part of the task of renovation would, I find, benefit the Company and the Pheifers because it was likely to make the space somewhat more attractive to prospective tenants such as Jason Mundeling. [ 17 ] In her invoice, Ms. Ciprani claims the sum of $1,120 for cleaning.

She bases this sum on a quote she obtained from Classic Cleaning of Williams Lake on August 6 th , 2010. [ 18 ] I find that this is a reasonable estimation of the value of this item to the Pheifers and the Company. (

c) Buying the paint and painting the space: $3,850

[ 19 ] I am prepared to find that up until July 11 th , 2010, the expectation of both Ms. Pheifer and Ms. Ciprani was that Ms. Ciprani would be the one who would paint 240B. But then, on July 11 th in an e mail, Ms. Pheifer clearly states that Mr. Pheifer will drive up from their home in Armstrong on July 20 th or later and he will do the painting. It appears the timing (July 20 th or later) was chosen so that while Mr. Pheifer was doing the painting he could stay in the former caretaker’s apartment on the 2 nd floor of the building. The apartment would not be vacant until July 20 th .

On July 13 th , by e mail, Ms. Ciprani accepts this proposed change, with gratitude. She writes “wow…thanks that helps!!!” She also goes on to say that she is still working on cleaning the space and has not started painting it yet. She concludes by confirming that she will “expect Curt on the (sic) around those days”. Clearly, as of July 13 th , the agreement was that Mr. Pheifer would do the painting and that he would not start until around July 20 th . As for who would buy the paint Ms. Ciprani seems to have believed the agreement was that she would buy the paint. Ms.

Pheifer does not clearly contradict that in either her evidence or in the e mails prior to July 21 st and it would make sense that, as the prospective tenant, Ms. Ciprani would be the one to chose the paint for the space. [ 20 ] Despite this apparent agreement on at least two aspects of the job (that it would be Mr. Pheifer who did the painting and that it would be some time after July 20 th ), Ms. Ciprani claims that she went ahead and did the work of painting most, if not all, of 240B prior to July 20 th .

It would appear she did the work sometime between July 13 th (the day she said in an e mail that she had not started painting) and July 21 st (the day she wrote “…I have the back walls left to paint…” which suggests that the rest of the space has already been painted). [ 21 ] It was during this time period – about July 16 th to 21 st , 2010 – that the relationship between the Pheifers and Ms. Ciprani began to break down. The Pheifers were in the process of offering the space to Jason Mundeling to rent and they had told Ms. Ciprani quite abruptly, on July 16 th , to “ stop any activities in the restaurant”. Ms.

Ciprani began to suspect that she was being “used” by the Pheifers – used to get renovation work done on 240B with the promise that she would be able to move her shop in there, which promise the Pheifers did not intend to keep if they received a better offer for 240B. [ 22 ] Ms. Pheifer, I believe, suspects that Ms. Ciprani never actually did the painting in 240B or, if she did, it was only a small part of the job. Ms.

Ciprani insists that, not only did she buy the paint and supplies (see receipts from Home Hardware and other stores dated July 14 th to 16 th , 2010), she or her husband, Kevin, did the actual labour of prepping, taping and painting the majority of the space. She values this portion of her work at $3,850 which she supports by reference to quotes obtained from Doug’s Painting amongst others, on or about January 19 th , 2010. [ 23 ] I am prepared to award Ms. Ciprani a total of $1,500 for labour, paint and supplies associated with painting in 240B. In my view the Pheifers should reimburse Ms.

Ciprani for the paint and supplies because it was never clearly stated who would purchase them and it does make some sense that the prospective tenant would be the one to choose the paint. I value the paint and supplies at $1,000 based on receipts presented – most are dated around the July 13 th and 14 th , 2010 and are filed in Exhibit 1 accordingly. I value the preparation labour (taping and sealing), Ms. Ciprani says she did, at $500, for a total award under the “Painting and Labour” heading of $1,500. [ 24 ] The reason I have not allowed anything for the labour involved in painting 240B is that I find Ms.

Ciprani clearly went beyond the express instructions of Ms. Pheifer in proceeding to do the painting between July 13 th and 21 st . By July 11 th it was apparent that the Pheifer’s plan was that Curt Pheifer would come up to Williams Lake sometime after July 20 th and do the job. Ms. Ciprani agreed to this in her message of July 13 th . She therefore had no authority to proceed to do the painting herself in the days that followed. Given their agreement, she should, at a minimum, have waited until after July 20 th and then sought the authorization of Ms. Pheifer before doing the painting. (

d) Removing a “half” wall located in one part of the space: $300 [ 25 ] The parties completely disagree about whether or not Ms. Ciprani was supposed to move the partial wall in 240B. Ms. Pheifer insists that she and her husband did not authorize this during their visit on July 8 th or at any other time and further, that removing the wall did not improve 240B in any way. In fact, the Pheifers counterclaim for damages because of the removal of the wall. I have decided to resolve this by disallowing both Ms. Ciprani’s claim and Ms. Pheifer’s counterclaim as they concern the wall. (

e) Re-keying doors in the space: $94.08 [ 26 ] Ms. Ciprani has presented an invoice to support this portion of her claim. It is not exactly clear from the evidence why Ms. Ciprani felt it was necessary to re-key doors in 240B. In the end, after the breakdown of their relationship with Ms. Ciprani, the Pheifers changed all the locks and keys associated with the premises anyway. I am therefore not going to allow this portion of the claim because the evidence does not establish that the re-keying of the doors by Ms. Ciprani imparted any value to the Pheifers. (

f) Caretaker’s work: $,1000.00 [ 27 ] The parties had several e mail discussions between about February 13 th , and March 5 th , 2010 about Ms. Ciprani taking over as

the caretaker of the building (the former caretaker was very ill). Ms. Pheifer wanted Ms. Ciprani to enter into a written agreement so there would be no misunderstandings later. She offered to pay Ms. Ciprani $150/month for certain defined caretaking and cleaning tasks. Ms. Ciprani refused to enter into anything in writing saying that she “works on trust” (see March 3 rd e mail). Ms. Pheifer found this, along with Ms. Ciprani’s continued refusal to enter into any sort of written lease, to be very frustrating. By March 5 th Ms. Ciprani said in an e mail to Ms.

Pheifer that she does “not want to do” any cleaning in the building – though she offered to help out on an as needed basis. [ 28 ] Pastor Lendvoy’s evidence does provide some support for Ms. Ciprani’s claim for re-imbursement for caretaker’s work. He said that the premises were clean when he moved into the building in May, 2010 and it was Ms. Ciprani who was doing this work. He also said that Ms. Ciprani acted as Ms.

Pheifer’s agent when he first entered into his tenancy in the building and that she “collected rent” in the sense of picking up his cheque and sending it off along with her own to the Pheifers (this could only have been for the month of June, 2010 because Ms. Ciprani stopped paying rent on her shop space, 240C, as of July 1 st ). [ 29 ] On the evidence I have before me it is difficult to assign a value to the caretaking and cleaning duties performed by Ms. Ciprani on behalf of the Pheifers.

I find that the evidence falls short of establishing that her work was worth the $150/month originally offered by the Pheifers if, for no other reason, than Ms. Ciprani, herself, stated on March 5 th that she “did not want to do it” (referring to the cleaning) and would only help out as requested from time to time. On this uncertain body of evidence I have decided to value Ms. Ciprani’s caretaking work at $375 ($75 per month for the 5 months between March and July, 2010 inclusive). 2 .

Lawyer’s fees and Lien Registration Fee [ 30 ] I will not allow the total of $248 claimed under these headings. [ 31 ] I realize that Ms. Ciprani sees the fault as all being on the side of the Pheifers. She is convinced that they “used” her by allowing her to proceed with renovations to 240B until such time as they got a better offer. She is convinced they “used” her generous spirit and remarkable capacity for hard work in other ways as well.

For example, she feels they under paid her for her earlier renovation work in 240C and the banquet room and that they failed to give her credit for many instances where she volunteered her time to manage the building on their behalf because they lived far away, in Armstrong, B.C. [ 32 ] In my view the situation is not so clear cut. I cannot blame the Pheifers for wanting to document things in writing. In the absence of any sort of formal lease with Ms. Ciprani for 240B, I cannot blame them for trying to take advantage of a “better offer” once one came along in the form of Jason Mundeling.

The breakdown in the relationship between Ms. Ciprani and the Pheifers would probably never have occurred, let alone ended up in court, had Ms. Ciprani been willing to reduce her various agreements with the Pheifers to writing. In my view the lawyer’s fee and lien registration fee are simply unfortunate consequences of failing to clearly document business dealings in writing and each party must bear such costs themselves. 3 . Business Interruption [ 33 ] Ms.

Ciprani claims the sum of $5,000 for interruption of her business, Ciprani’s Formal Wear, a retail store which sells gowns and other formal wear for weddings, graduation ceremonies and other formal occasions. The gist of this aspect of her claim is that the Pheifers led her to believe that she would be able to move her business into 240B by mid to late August, 2010, as soon as she had renovated the space to her satisfaction.

Then, very abruptly, on or about July 16 th , the Pheifers changed their minds about renting the space to her when they realized that Jason Mundeling was interested and that they could get a better deal from him because he was willing to sign a lease and to assume the cost of renovations himself. [ 34 ] I believe part of Ms.

Ciprani’s claim under this heading may also refer to the fact that her business (which continued to operate in 240C) suffered during June and July 2010 because she was so busy with the renovations next door in 240B. [ 35 ] Once again, because of the lack of any sort of enforceable verbal or written contract to rent 240B I cannot find that this aspect of the claim is made out. As well, there is no evidence, or insufficient evidence, that the business of Ciprani’s Formal Wear suffered as a result of the derailing of the planned move to 240B or as a result of Ms. Ciprani’s work in 240B.

In this regard the court would have needed balance sheets or monthly till receipts to establish some sort of evidentiary basis for a claim for loss due to business interruption. 4 .

Summary – Ms. Ciprani’s Claim (not including filing and service fees) [ 36 ] In

summary, I allow Ms. Ciprani’s claim to a total of $4,183.00 (not including filing and service fees), calculated as follows: Removing existing flooring in 240B: $ 1,188.00 Cleaning walls and bathrooms 1,120.00 Allowance for paint and painting; 1,500.00 Caretaker’s work 375.00 Sub-total $ 4,183.00

5 . Counterclaim – Unpaid Rent on 240C: [ 37 ] The Pheifers counterclaim for 7 months of unpaid rent on unit 240C ($518/month x 7 months = $3,626.00). I find that they have made out this aspect of their counterclaim to a total of $3,108.00 which is rent for 6 months ( July through to December, 2010) rather than the 7 months claimed. [ 38 ] By way of background, Ms. Ciprani continued to occupy unit 240C and operate Ciprani’s Formal Wear out of that space until the end of December, 2010. However, she stopped paying rent on the space as of July 1 st of that year. [ 39 ] Ms.

Ciprani is adamant that she stopped paying rent on 240C, during the last 6 months of her tenancy, with the agreement of Ms. Pheifer’s agent , the realtor, Jeanette Rennie. She says that, had she not received such a “deal” from the Pheifers, she would have moved her business out of the building by the end of August, 2010 after her disappointment and anger over the fact that the Pheifers had decided to rent 240B to Jason Mundeling rather than to her. She says, and I accept, that she had located another space into which she could move her shop at a lower rent.

She asks “given that I had that choice, why would I stay on at higher rent in 240C”? The only reason she stayed on, she says, is because Ms. Rennie, who had taken over as Ms. Pheifer’s agent, told her that it was okay to stay in 240C rent free until the building sold. [ 40 ] I find that the evidence fails to establish any such agreement. What the evidence shows, in my view, is a fairly massive misunderstanding between the three persons involved, Ms. Ciprani, Ms. Rennie and Ms. Pheifer about just what “rent free” meant.

I will explain why I reach this conclusion. [ 41 ] As I said earlier in these reasons (see ¶ 9), I find there never was any clear agreement about how Ms. Ciprani was to be paid for the renovations in 240B. At least 3 distinct ideas (rent credit on 240C, rent credit on 240B and reduced rent on 240B) are discernable in the testimony of Ms. Ciprani and Ms. Pheifer and in the things they wrote or did at various times back in 2010. [ 42 ] I find that as of early July Ms.

Ciprani’s idea about how things would unfold is that she would be recompensed for her renovation work in 240B by way of a credit towards her rent on 240C . I can come up with no other explanation for why she would stop paying rent on 240C as of the 1 st of July, 2010 . This was before the breakdown in her relationship with the Pheifers, it was before she had sought out other premises for her store, and before any involvement by Ms. Rennie, so her decision to stop paying rent cannot be explained by any of these things.

And, it makes sense that she would think the Pheifers would recompense her by giving her credit towards rent on 240C because this is how matters had been settled between them at the time of the renovations to 240C in early 2009 and the renovations to the banquet room in the fall of 2009. [ 43 ] But, somehow or other, by mid August, 2010, Ms. Ciprani had developed the view that it would be fair that she continue to occupy 240C on an entirely rent-free basis rather than receiving a rent credit in exchange for her work on 240B.

The result of such an arrangement would be, in effect, that the Pheifers would pay her twice rather than just once for her work on 240B – they would pay her the sum she invoiced them (see item 1 of her claim set out at ¶ 7 above) and they would not charge her rent for 240C. [ 44 ] In my view there is simply no basis for this belief. It is not fair to the Pheifers, it is inconsistent with the parties’ previous dealings and it makes no sense from a business perspective. Ms. Ciprani is adamant that Ms. Pheifer’s agent, Ms. Rennie, agreed to this. But I think that Ms.

Rennie was, understandably, completely confused by whether the arrangement was “rent free” as Ms. Ciprani kept insisting in Ms. Rennie’s one ear, or a “rent credit” as the Pheifer’s would have been saying in her other ear. She probably thought that both sides were referring to the same thing when, in fact, it seems they were not. [ 45 ] I would add that I have considered the evidence about Jonsser Trucking, a potential buyer of the building in the fall of 2010, who requested that Ms. Ciprani remain in the building, as it would help him make a case to the bank for borrowing the money he needed to buy the building.

I believe Ms. Ciprani’s point is that Ms. Rennie and the Pheifers wanted her to stay on in the building whether or not she was paying rent so that it would look better for Jonsser Trucking when he sought financing. I cannot find that this proves that everyone agreed Ciprani’s Formal Wear should stay on in 240C rent free. I am convinced that Jonsser Trucking would have wanted to show 240C as producing some rent each month.

I doubt very much whether he would have been successful in obtaining financing if he had told the bank that one of the tenants was occupying space in the building rent free. (Jonsser Trucking’s purchase of the building did fall through but I understand it to be because it was subject to the sale of a property in Kamloops rather than because he could not get financing.) [ 46 ] In any case, as I say, there is simply no basis in fairness or rationality for the view that Ciprani’s Formal Wear would continue to occupy 240C rent free from July until December, 2010.

The most that could reasonably be said is that during this period Ciprani’s Formal Wear was not paying out cash each month for rent, because it was receiving rent credits as a result of renovation work done on 240B by Ms. Ciprani. I note that after seeking legal advice in December, 2010, Ms.

Ciprani was speaking more in terms of rent credit than rent-free; she seems to recognize that she had been occupying 240C without paying rent as a practical way of getting recompensed for the labour and supplies she had put into renovating 240B because the Pheifers had refused to pay the “invoice” for this work which she had issued in mid-August. (See December 27 th , 2010 e mail). [ 47 ] In the result, I allow the Pheifer’s counterclaim in the amount of $3,108.00 or 6 months (July to December, 2010) rent on 240C ($518/month x 6 months = $3,108). [ 48 ] The Pheifers claimed an extra month of rent for January, 2011 because of Ms.

Ciprani’s statement on December 27 th that a lawyer had advised her not to move out of the building. The Pheifers understood that to mean that she was refusing to vacate the building. Ms. Ciprani did actually move her store out of the building a few days later, on December 31 st , 2010 as per the Notice the Pheifers arranged to have personally served on her in late November. However, because the Pheifers do not live in Williams Lake they did not realize this until sometime in mid January when someone from a neighbouring business phoned to say there was a sign in the window of 240C indicating Ms.

Ciprani had moved her store elsewhere.

[ 49 ] In my view, Ms. Ciprani should not have to pay an extra month’s rent for 240C on this evidence. What she said in her December 27 th e mail is that she had been advised not to leave the building. This is a different thing than saying she was not leaving the building. The Pheifers had given her notice for December 31 st and she complied with 6 . Damages to 240B [ 50 ] I am not prepared to grant any portion of the counterclaim the Pheifers and the Company are advancing as it concerns damage done by Ms.

Ciprani to 240B. ( Exhibit 2 itemizes their counterclaim). [ 51 ] I understand the Pheifers’ concerns about the work done in 240B – that they discussed renovations there with Ms. Ciprani but never actually authorized her to do anything, that she went ahead on her own and did things to their building without their permission and then expected them to pay for it and that they should not have to do so. I understand as well that they found it very frustrating to deal with Ms. Ciprani. They tried to get things in writing but Ms. Ciprani always refused. They tried to get clear answers but Ms.

Ciprani would change her position. For example, early in 2010 she said she did not want to rent 240B and did not want to do the renovations there, but, by June and July of that year she had changed her mind on both points. Regarding the caretakers work, she said she did not want to do it but then, in the next sentence, offered to help out if Ms. Pheifer was stuck (see March 5 th e mail). The Pheifers tried to tell her to “stop” but she did not (July 16 th and following). I have taken these concerns into account in assessing Ms.

Ciprani’s claim concerning 240B (item # 1 of claim discussed in pages 6-29 above) and have disallowed some parts or, in other instances not permitted the full sum claimed by her. Beyond that, I am not prepared to allow any claim as it concerns 240B. [ 52 ] The reality was that 240B had served as a restaurant for about 20 years and had then stood vacant for some time. I find that it was more probable than not that any tenant the Pheifers got in to that space would want to replace the existing flooring just as they would wish to paint the premises and replace the lighting.

I find that these were simply necessary steps to update and freshen the premises. Ms. Pheifer testified that they had one prospective tenant who would have been happy with the existing carpeting as they were planning a restaurant with a dark colour scheme. Against that however is the evidence that two other prospective tenants, Ms. Ciprani and Jason Mundeling, would both have wanted to change the flooring. Further, there is the evidence that the Pheifers would have used their best efforts to get the tenant to pay for the flooring rather than pay for it themselves.

I am therefore not prepared to allow the counterclaim for carpeting, labour to remove the vinyl or labour for cleaning and repairs. I am also not prepared to allow the counterclaim for the lights. Though the light fixtures appear, in the photos, to be in good shape, they are clearly dated in style and for that reason it is more likely than not that any new tenant would wish to have them replaced. [ 53 ] As for the “middle wall” or “half wall” I earlier explained that I was disallowing both the claim and counterclaim on this point.

See ¶ 25 above. [ 54 ] I am disallowing the counterclaim for the fire alarm and fire extinguisher because the evidence fails to establish that Ms. Ciprani removed these or, if she did, that they were of any real value. It seems to me more probable than not that they too were in need of updating and replacement given the age of the building. [ 55 ] Finally, there is the claim for new locks and keys. I am not going to permit this because the evidence fails to establish that it is more probable than not that the Pheifers changed the locks solely because of Ms. Ciprani’s action.

I gather that there was some delay in the Pheifers retrieving the keys after Ms. Ciprani moved out of the building and I realize that they blame this on Ms. Ciprani and see this as a reason why it was necessary for them to install new locks and keys. However, it seems to me that a prudent landlord would be likely to take the step of changing locks and keys in between tenants even without this delay in retrieving a former tenant’s keys. Put another way, I cannot attribute this step entirely to Ms. Ciprani’s conduct, as frustrating as the Pheifers undoubtedly found it. 7 .

Damages to 240C [ 56 ] The final area of the Pheifers’ counterclaim concerns damages to the smaller unit, 240C that was occupied by Ciprani’s Formal Wear for 2 years from January 2009 to December 31 st , 2010. I have concluded that I must dismiss this aspect of the counterclaim as well. [ 57 ] The Pheifers say that over the course of Ms. Ciprani’s tenancy certain items disappeared, specifically the awning from in front of the store, the lights, the alarm system and the wall or peg boards used for displaying merchandise. [ 58 ] As it concerns the awning I find that Ms.

Ciprani owned the awning which she took away with her. Ms. Pheifer says there was an awning listed among the assets when she purchased the premises and she believes this is the one Ms. Ciprani took. However, Ms. Ciprani has presented an invoice dated May 21 st , 2009 documenting her purchase of the awning from Cool, Clear Water, another business in town. The Pheifers did pay her for certain things associated with 240C such as the window bars but there is no evidence that they purchased the awning from her. I therefore conclude that the awning displaying the logo “Ciprani’s Formal Wear” was the property of Ms.

Ciprani and was hers to remove once she left the premises. [ 59 ] As it concerns the lights that were in 240C when Ms. Ciprani moved in, Ms. Ciprani called an electrician, Don Tofsrud, to testify. He said that he had checked the fluorescent lighting in 240C during 2009 and discovered that some of the ballasts were leaking. He recommended they be changed as they were getting “dated”. Ms. Ciprani testified that the old light fixtures were taken down and stored in 240B and were still there when she left the building at the end of 2010.

The Pheifers’ position, as I understand it, is that the fixtures found in 240B were not the same ones that had been removed from 240C. [ 60 ] On the evidence adduced I conclude that the light fixtures in place in 240C when Ms. Ciprani took over early in 2009 had to be replaced, as Mr. Tofsrud said, because they were leaking. I find that it was the obligation of the Pheifers, as landlords, to do this because

lighting is a fixture – it is deemed to be part of the building. In this case the Pheifers’ obligation was postponed for 2 years as Ms. Ciprani put in her own, ornate lights suitable for use in her bridal shop. She took these with her when she left, which she was entitled to do as they belonged to her. Once she left, the obligation of the Pheifers, as landlords, to replace the damaged and outdated lights remained. Therefore, the Pheifers must bear the cost of replacing this fixture themselves and cannot claim this from Ms. Ciprani. [ 61 ] As it concerns the alarm, Ms.

Ciprani testified that the alarm system was installed in 240C by a previous tenant but was no longer operational when she took over the space. I have no other evidence on the point and therefore I find that it was inoperable and of no value. [ 62 ] Finally, the Pheifers counterclaim for the peg boards or wall boards that had been attached to the walls of 240C during Ms. Ciprani’s tenancy. Ms. Ciprani took these boards with her when she left. She testified that she acquired the peg boards from the former tenant and that they belonged to her (Ciprani).

In the absence of any clear evidence on whether the peg boards belonged to the building or were passed along from tenant to tenant as Ms. Ciprani says, I find that this aspect of the counterclaim is not made out. 8 .

Summary re: Pheifers’s Counterclaim [ 63 ] In

summary, I allow the Company (and the Pheifers’) Counter Claim in the amount of $3,108.00 (not including filing fees and interest) calculated as follows: Unpaid rent on 240C for July to December, 2010 $ 3,108.00 Sub-total: $ 3,108.00 9 . Filing and Service Fees [ 64 ] Success has been mixed in this case. It is appropriate that each party bear their own filing and service fees, with one exception. I will require the Pheifers to re-imburse Ms.

Ciprani in the amount of $50.00 because, for some reason, the binder of documents she sent to Curt Pheifer in February in preparation for the trial was never picked up, necessitating the preparation and mailing of another binder in early April of this year. Conclusion [ 65 ] The Company, 0786422 B.C. Ltd., and Curt and Christiana Pheifer are jointly and severally liable to pay Tiziana Ciprani the sum of $1,125.00 calculated as follows: Ms.

Ciprani’s claim as allowed: $ 4,183.00 Plus copying and shipping additional binder: $ 50.00 Sub-total $ 4,233.00 Less Pheifers’ counterclaim as allowed: $ 3,108.00 TOTAL $ 1,125.00 [ 66 ] I direct that the Pheifers or the Company pay this sum to Ms. Ciprani not later than 1 month from the date this judgment is filed. Given the divided success in this case pre-judgment interest is not payable.

Post judgment interest pursuant to the Court Order Interest Act of B.C. will begin to accrue one month from the date this judgment is filed until the amount of the judgment is paid in full. ____________________________ Bayliff, E.L. Provincial Court Judge

APPENDIX A CHRONOLOGY (emphasis added where indicated) 2009 January 4 E mail exchange between Pheifer and Ciprani about Ciprani moving in to 240C. Ciprani reports she has had a key cut and is working on getting the premises cleaned and decorated to her taste. Complains about condition of sink and toilet and damage to walls following a break in. Ciprani proposes laying the flooring herself in exchange for a credit of at least 2 months rent and comments that “if you agree to me getting the floor done as well I won’t need to pay you until June will be the first month of rent”. She says this will help her out.

January 5 Pheifer responds. Ciprani will rent the store month to month commencing February 1 st , 2009. Pheifer will pay for the flooring materials and up to $1,200 for the window bar materials, Ciprani will provide the labour to install same.

Pheifer will grant Ciprani credit towards rent for this labour but must know the total cost of the labour for the flooring and window bars before final agreement on this point because “I as well have my budget and cannot stretch it over.” Pheifer says she was not aware that the bathroom was in bad condition, that it was in good condition when rented out to the previous tenant and that it is up to the previous tenant to clean it. “Please let me know if I have to ask her [former tenant] for that”. January 5 Ciprani responds.

Asks Pheifer not to say anything to [former tenant] about the sink and bathroom and she, Ciprani, will fix it. Ciprani sends some pictures to demonstrate the problem which includes the toilet backing up and wetting the carpet. “I can show [D]ave if you like just please don’t hold me accountable for it later that is all.” Mid January Leaking ballasts in lighting in 240C. Ciprani had this fixed. She received no credit towards rent in exchange from Pheifer. (Ciprani, April 17 th , 2012) March 21 Pheifer to Mike Stinson about rental of office space in the building.

March 31 Ciprani e mails Pheifer attaching receipts for the flooring underlay and new lock at 240C along with the receipt for tiles put in at the front door.

Ciprani refers to having obtained two estimates for the labour to do the flooring “so you can figure out what amount of rent you can give me like we discussed before don’t want to be paid just in trade for rent that is ok as it is easier for me”. [Receipts and estimates not attached to document in file.] Ciprani emphasizes how much she likes the store and comments that her husband thought she should move in next door [240B] “as yes, we need the room” but she loves where she is at and is not up to doing any more renovations.

April 1 Pheifer responds, expressing some concern about total cost of renovation to 240C: “Before you started to renovate, I wrote to you what I’m willing and can afford to pay for that store, I hope the invoices you sent (attached) will not be more!?” Pheifer mentions that she is getting a new tenant for the restaurant space. April 1 Ciprani replies re-assuring Pheifer that “I didn’t spend anything more than we spoke about” and giving some details about tiling and underlay. “I did want to save you money and exchange for the labour was rent”.

Early April First face to face meeting between Ciprani and Pheifer. (Testimony of Ciprani, April 17, 2012) ~ Ciprani testified that her “caretaker” role for the whole building started fairly soon after she moved into the building as David Johansen, the official caretaker, who had an apartment upstairs, would not always answer the phone.

May 21 Invoice for 2 awnings issued to Ciprani by Cool Clear Water in the amount of $1,500. Summer 2009 Ciprani testified that during the summer of 2009 Pheifer approached her about renting the much larger space at 240B. “We talked of rent of $800/month.” (April 17 th , 2012) July 22 Letter from Cindy Walters, Planning Clerk, City of Williams Lake to Ciprani confirming the zoning at 240 Oliver Street. It permits “retail sales”. Informs Ciprani that a business license is required and renovations may require a building permit.

Later summer 2009 “Then our conversation expanded to cover the basement of 240B – that I could use it for free for my fashion shows and that I would then rent out the basement [Banquet Room] on her behalf for other functions. We discussed that it would need to be painted but it proved to be much more.” (Ciprani, April 17 th , 2012) September 24 Greyhound receipt with Ciprani’s notation “mailed me building keys”. Fall 2009 Various receipts (Ciprani). Fall 2009 Ciprani and others (9 in total) were involved in renovating the Banquet Room located in the basement of 240 B.

As to what, precisely, the arrangement was between herself and Pheifer concerning payment for the labour and materials for the renovation to the Banquet Room, Ciprani testified: “Based on our previous dealings I thought that as long as I could move into 240B I would have a bigger space for a favourable rent. …I wasn’t really thinking about it [how I would get my money back] that precisely.

I was thinking in terms of getting this whole big space cleaned and brightened for my fashion shows and that I would get a lower rent upstairs.” Later in her evidence she says “The plan was to create a reception space and I could use it for free but others would pay a fee. I would clean it if she wanted in place of $150” “It was even put in the Directory “Rent the Hall & Get the Dress” and my phone number.” (Ciprani, April 17 th , 2012).

Fall 2009 Pheifer paid for the new carpet in the Banquet Room and to have it laid. (Ciprani, April 17 th , 2012) Fall 2009 “I assumed she would reimburse me for the paint with credit towards rent and I and our friends did the labour for free” (Ciprani, April 17 th , 2012) Fall 2009 [Ciprani bought the paint and painted] Ciprani took all light fixtures down and washed them and put back up. All bathrooms cleaned. Dance floor polished. Ciprani paid for a fridge and stove and put them in Banquet Room kitchen and removed them when she left the building.

Took all mirrors down and polished, painted behind them and put them back up. Pheifer bought 80 chairs and some tables and Ciprani moved them downstairs. (Ciprani, April 17 th , 2012) December 10 to 11 E mail exchange between Bill Critchlow and Pheifer about electrical and plumbing work on the “kitchen” [240 B basement?] and ordering a door to be installed upon arrival. Pheifer questions “why are you charging me by the hr?? You gave me a total price (labour 200,-$) + material” and questions the type of door he ordered as “I can’t spend lots of money read (sic) now”.

Christmas 2009 Copies of cards received by Ciprani from David Johansen, tenant and official caretaker of building and Christiana and Curt Pheifer. Ms. Pheifer writes: “We also want to thank you very much for all the hard work and help you have done to get the Banquet Room renovated and all the other things. We hope that we both participate on the “pay back” and will get some results.”

2010 January 6 Ciprani e mails Pheifer in response to Pheifer’s request for an itemization of the work done by Ciprani renovating the Banquet Room. “…maybe leaving a few things out here and there but hopefully giving you some idea of all the work that was done at my end which I know you know but you wanted me to write it down so I am going to try that way I also can find out where I am at with rent .” Purchased paint and picked it up. Painted for a month rent month of October. Tore out carpet. Let carpet layers in and out on a Sunday.

Met numerous times with electricians and plumbers (bridal store shut down during these meetings.) Husband, Kevin, assisted electrician re-doing wiring in kitchen. Made many long distance calls for electricians, plumbers and carpet layers. Purchased cleaning supplies. Cleaned all the downstairs including kitchen and 3 bathrooms. Took garbage out. Waxed floor to get it to shine. Moved all tables downstairs. Bought some glasses for Banquet Room and some Christmas decorations…. Anyways off the top of my head that is all I can remember, again you wanted me to write it down for you not my nature .

I am aware that you know what the job intales so writing it down makes no sense to me …well let me know what you figure out, and when I need to start paying rent again … writing down is not necessary to do …Trust is important to me…” January 14 Pheifer to Bill Critchlow about $30 payment still outstanding.

January 14 Pheifer to Ciprani: “I don’t know why but for some reason you are not talking to me anymore …I’m not sure what happen on your end, but I have to know….I followed your recommendation to invest in to the Banquet Room, which gives you a (sic) additional income and I don’t want to get any penny out of it. You told us that it is not a problem to rent it out. You told me that you have two bookings already for January. I gave you all the keys and you started to organize many things including painting the basement and cleaning etc… You could pay it off against the rent for your store.

I thought it worked out for both parties . What is wrong? If you don’t tell me I don’t know.” Pheifer goes on to say that she urgently needs receipts and invoices for the work done on the Banquet Room. Concerning the caretaker job she says “… it is totally your decision what you want me to do with that caretaker job ”. Concerning whether Pheifer should deal with Kevin Shaw or with Ms. Ciprani, Pheifer notes that her dealings have always been with Ciprani to this point and besides she can never reach Kevin.

January 19 & 21 Quotes obtained by Ciprani from Doug’s Painting, Cariboo Friendship Society and Student Works agent (this one undated) to paint “Old Rendezvous” [240B] area. They are $3,500, $1,805, $3,800 respectively. February 2 Pheifer to Ciprani. “We will come on Thursday. The weather seams (sic) to be O.K. as the forecast says.” February 4 Curt and Christiana Pheifer drive to Williams Lake and meet with Ciprani’s husband Kevin Shaw. Ciprani did not attend the meeting.

She later explained that this was because she had to attend court concerning her ex husband and their daughter. ~ Kevin Shaw handed over some handwritten sheets prepared by Ciprani. This was in response to Pheifer’s request of January 14 th for “receipts and invoices for work done on the Banquet Room”. Many tasks are listed. $816.31 in expenses are listed. There is no dollar figure listed for labour and services.

~ Pheifer had prepared a written lease for Ciprani to sign concerning 240C. It documented a month to month tenancy at a total cost to Ciprani of $518.00/month ($431.67 in rent plus $64.75 towards municipal taxes and $21.58 towards GST). Not clear when this was actually presented to Ciprani. It may not have been until about March 1 st to 3 rd (see March 3 rd e mail from Pheifer to Ciprani “…I have seen you have received …the drafts of the lease…”). ~ Pheifer testified that she and her husband were becoming very frustrated by the fact that Ciprani refused to sign a long term lease for 240C.

February 6 Pheifer to Ciprani. “Last Thursday, after keeping us and Kevin waiting, for some reason you decided not to talk to us in person. To bad, because we were planning to discuss and calculate with you were you are standing with the rent payment and how to proceed regards the renovation and rental of the previous restaurant space [240B ] you told me you want to rent. In December I told you under what conditions we would rent it out to you. You never gave me an answer…this is not the way I’m used to do business… we must interpret that you are not longer interested to rent [240B ].

Refers to return of keys by Kevin “I guess this means you don’t want to look after the building and don’t want to rent the previous restaurant space in the future. Refers to having seen some items belonging to Ciprani which were stored in 240B “…though we did not agreed to any conditions. As you know we are planning to install new locks and we have to ask you to remove all your items…till Friday, February 13, 2010 ”. Pheifer then turns to the receipts and list of services contributed by Ciprani to the renovation of the banquet room in the fall.

Pheifer credits Ciprani with $2,034.31 worth of rent for 240C in exchange for the labour and materials on the banquet room (included in this is an allowance of $700 for Ciprani’s labour). Against this she sets off rent for 240C for October 2009 through to and including February, 2010 at $518/month which totals $2,590.00 leaving a sum owing by Ciprani of $555.69 . Pheifer urges Ciprani to advise if she does not agree with the $700 allowance for labour.

She emphasizes that in future all work done by Ciprani in lieu of rent must be documented with receipts. “For the future I’m not be able to pay any service without invoice….” Pheifer then discusses the issue of Ciprani becoming the caretaker of the building. She thanks her for her assistance to date but says it is obvious Ciprani does not have time to take on these duties and says she will look for someone else. Finally, Pheifer attaches a Lease Agreement for a one year lease [for 240C] and asks Ciprani to sign it and send it back no later than February 20 th .

She emphasizes that Ciprani is required to give 1 month written notice if she is vacating 240C. February 6 Ciprani to Pheifer. Long e mail in response. Difficult to read due to formatting problem and stream-of-consciousness style.

Topics touched on: a lot on my plate right now, didn’t come to meeting on Thursday because had to do something re: family court concerning ex husband, regarding rental of 240B “ I made it clear that it was too much for me, from the start …” and why she did not get back about this issue, as for Pheifer’s accounting of costs incurred by Ciprani on banquet room renovation set off against rent for 240C “I will just agree with whatever as I don’t have a time sheet of any kind as didn’t think I need it, didn’t think I need it at all till the last time you came up and asked me to write it down, yes through me off…”, difficulties between herself and her husband Kevin, failure of banquet hall to rent out not her fault, will get my stuff out of 240B, not much in there and has not been there for long, realizing that by doing all the work on the banquet hall will be benefiting you with no recompense for me because it will just help the building to sell faster, not in any position either emotionally or physically to move my bridal shop again, dreamed of being caretaker of building , didn’t keep records of work of that sort I did in the building, not going to argue with the number you have come up with [the $700 for labour], not worth it, something about snow clearing, will send a cheque on Monday no problem [rent cheque for 240C], being caretaker was no problem for me , can count on me 100%, something about renting the banquet room perhaps, not clear, have got to go to bed, have left Kevin so can only answer for myself, lots on my plate, don’t have the energy to argue.

February 11 Ciprani to Pheifer. Don’t feel like fighting with anyone right now, lots on my plate, brother in surgery, David [Johansen, the caretaker] is going into hospital for 10 days, I said I would look after things in his absence, let me know if you do not wish me to do this.

Will have everything out of 240B by Feb 13 th , [as for the $700 allocated by Pheifer for labour on banquet room reno, see Feb 6 th e mail] “ I will send you an invoice as I don’t feel that you really looked at all that was done .”… “ Writing down time was never talked about so writing these invoices was a little hard and not fair on your part .” Says David Johansen has told her that Pheifer does not appreciate the value of things and does not appreciate that if you don’t pay people much then you do not get much work out of them, criticisms of the building [hard to follow], am looking for another place to rent for my bridal store, loves the 240C space but it is too small, what I am paying for rent of 240C suits my budget, painting done in banquet room is worth $4,000 to $4,500 easy “and you and I both know it”, “I think you think I am just a kid or dumb, my own fault…that I do things for nothing which I do often as I believe what you put out you get back …”, not great for me to have a nightclub right outside my shop, hope it works out for you, “well I can’t print anything out as my computer is down on my lap top so your going to have to wait for me to sign anything and again not agreeing with some.

Month to month is good for me as well .”, getting busy, must end letter, will care for building while David is away, if you don’t want that, let me know. February 12 Ciprani to Pheifer. “all my things are gone from the restaurant, change the keys, everything is out…well if the locks are changed then I will carry on with my own business and assume it [caretaking the building?] is taken care and I don’t need to worry about anything with the building…” February 13 Pheifer to Ciprani. “Thanks for moving the things out.

I appreciate it.” …”I got your e mail but I have a hard time to understand it…” “…Otherwise, as requested in my previous E mail, I’m expecting you to send me the rental cheque for February ($518) till Feb. 13, 2010 . If you think the estimated $700 were not correct, please send me a bill for the other work/expenses you have done. I will send you a cheque for it or transfer to your bank account a.s.a.p.” “…For the future, if you are interested, I would offer you to clean the stairs and the bathrooms (upstairs) for $150 per month. This is not a caretaker job, only to clean minimum twice a week .” Is it

correct that you let Bill have a general key for the building? This is one of the reasons I must change all the locks in the building.

February 13 Ciprani to Pheifer. “no worries, I will get the key back from bill…he has only the kitchen key” “…with figuring out what you thought I should receive, I felt that it was a little low …[referring to the $700 figure for work in the banquet room]”. “… What do you mean when you say the Feb 13 th what are you trying to say are you try to say my rent is only up to Feb. 13 th ?” “…well I will fax you a statement for my work which never put myself in this position again. time docking and making a list is not my thing and should have told me from the start not months later…never will I ever do it again .

Please can you send me some receipts for rent as well as not received any from your end either…” “…Well I will clean for David tell me where I am to get the cleaning things so I am able to do it” “… I gave it all doing the best I could in your building …[ellipsis in original] 100% and you and I both know that I could have made a difference in your building …bottom line is your rental restaurant has to much work and my pocket book shouldn’t have to fix it as it your building and you benefit from in the long run .. never ever said didn’t want to be the care taker you assumed that and your husband…well love my store yet it small, for now until the grad is over it will do. when I ready yes I will let you know myself…” February 14 Pheifer to Ciprani.

Please do not fax items to Century 21 in Vernon as is a high chance I will not receive them. Send instead to my office in Enderby. February 14 Ciprani faxes 2 handwritten sheets to Pheifer objecting to the $700 allowance for labour for the renovations to the banquet room. “…Overall it took way longer than I am getting credit for… to write down things is not my style …making notes could go on and on. Your the one that wanted it written down. Terrible way of doing things. My opinion . All this work is part of being a caretaker in my eyes .

Not writing things down … [ellipsis in original] Very hard to do as lots was done and it’s hard to remember things. As a caretaker all the ideas I would have applied to your building such as painting the doors, stairs walls etc. Never can a person write time down.

It would have been hard to do… [ellipsis in original] because sometimes there are other things that come up such as filling holes, waiting for it to dry, sweep stairs etc… [ellipsis in original] things take time not so cut and dry especially when the place is old…[ellipsis in original] Well, I think I did a good job overall, to many cooks in the kitchen…[ellipsis in original] and all running around trying to do the same job…”.

An invoice is attached billing Pheifer $300. ~ Ciprani testified that she felt very “used” by Pheifer at this point in their relationship because Pheifer was demanding documentation concerning the amount of work she had done on the banquet room and because Pheifer had valued her (Ciprani’

s) work at only $700. As a result of her objections, Pheifer paid Ciprani an additional $300 for the work on the banquet room. (Note: Ms. Ciprani testified on April 17 th , 2012 that the sum was $400 but the photocopy of the cheque and account provided by Ms. Pheifer indicates it was $300.) In total Pheifer credited Ciprani $2,434.31 for work done on the banquet room. February 18 Ciprani to Pheifer. Where do I direct people who want information about the building including renting the hall/banquet room? February 18 Pheifer to Ciprani. Direct them to me – cell # given.

They may call me collect. ~ Pheifer writes a cheque to Ciprani for $300 re: balance owing for banquet room renovations. This cheque was cashed by Ciprani on February 27 th . Early March Ciprani testified that “We [Pheifer and Ciprani] were talking again by early March.” (April 17 th , 2012) March 1 Pheifer and Ciprani agreed that Ciprani would take on cleaning the public areas of the building for the sum of $150 per month with up to $20 extra allowed for purchase of supplies. Pheifer prepared a written “Agreement” to document this arrangement.

Not clear whether Ciprani ever signed this. ~ It appears that at this time Pheifer also faxed to Ciprani a lease document for 240C although the document is dated February 4 th , 2010. [See entry at February 4 th above for terms.] March 3 Pheifer to Ciprani. “As I have seen you did received the cheque [$300 additional payment for banquet room] and drafts of the lease and cleaning contracts . Did you signed them and mailed them back ? Please get back to me today or latest tomorrow morning!” March 3 Ciprani to Pheifer. Long e mail in response.

Touches on the many points. “ Yes I got the papers …I am not sure what to make out of all this…” Realize you want me to move out but I am going into my busy season, working with REMax to find another place for shop, “Well, I am not comfortable with all the lease signing, as I have been here over a year and did not sign one before, what difference would have made as I am doing month to month and still am doing it that way”. I will give you plenty of warning if I will be

moving. You already know the store is too small for my business. You know I am looking elsewhere. Back to the lease “I don’t want to have to fix and be responsible to fix the sink water that don’t go down since the start…tiles on the front of the door…[both problems pre-dated my tenancy] don’t want to be paying for something I didn’t do.” Regarding the cleaning agreement Ms. Ciprani appears to be saying that she does not want Pheifer to expect her to clean more than 2 x per week. Ciprani carries on apparently referring back to her disappointment over the Pheifer’s response to her work on the banquet room.

She says she will be careful in the future not to get involved where she does not belong (I believe this is the correct

interpretation of the “too many cooks in the kitchen” remark); her goal is “to stay away from that totally, don’t need the stress in my life”. There will be no hassles from her end from now on “just want to run the store and do what I can to make it easiest as possible.” However, she continues on saying she believes her work did make a difference in the Pheifer’s building and that she could have improved it in many other ways and that they (Pheifers) do not realize how much work was needed.

She returns to the subject of being hurt that the Pheifers asked her to document her work on the banquet room and how putting things in writing is not her style. “Putting things on paper after 4 month I didn’t feel you trusted me in anyway. And listing things for payment is not my style I hate that feeling. Sometimes it is just easier to leave it alone.

Easier to run.” Reverting back, apparently, to the lease document and also to the cleaning agreement she finally states: “I am not going to sign anything with you I work on trust and did if for the last 4 months and will continue …Not everyone will rip you off sometimes you got to try to trust.” She talks about loving Christiana Pheifer, that she is a “beautiful person” and that she misses chatting with her. She then moves, apparently, to the issue of her moving her shop into 240B and says “moving next door and having to do all the work was to much for me and my wallet and lots of time.

And then to have to sell the building and my rent goes up with the new owners and all that work for nothing couldn’t do that to myself and lots of work to do I don’t gain you would have gained wish you would have seen that.” Then appears to go back to the subject of the cleaning of the building – that there are some lights out in the upstairs hall, “if you want me to do let me know leave a message.” Ciprani concludes with a post script: “please can you send me receipts for my rent need for taxes as well.” March 4 Pheifer to Ciprani. Pheifer is clearly very frustrated. “I don’t know what you are talking about.

It is and never was my goal to get you to of the store! [emphasis in original] What kind of nonsense is that?? If I want you to leave, then I simply would give you notice. I really don’t know why you are making up this story. This is way too much drama for me. The reason why I want to have everything in writing from you now is very simple: I never ever get a clear answer from you, everything is drama and written in long letters, not answering the phone, running away when I’m coming to talk to you…etc., I guess you are doing it on purpose to be able to change things as you want them to be changed.

The relationship to the other tenants is very easy going. They sent me postdated cheques and we communication very clearly, when necessary. No drama and ongoing miscommunication at all.” Pheifer then goes on to make certain further comments specifically about 1. Tenancy and 2. Cleaning Job. In response to various comments in Ciprani’s e mail about how the building needs to be “improved” and better cleaning needs to be done Pheifer makes the point that there has to be some good prospect of economic return before she, as the owner of the building, is going to put a great deal of money into it.

As an example she refers to her disappointment over the lack of business generated by the renovated banquet room: “I did the reno in the basement, because you told me to do so and you told me you can rent it out easy, because there is a big need and you know all people in town, etc. Yes you are right, you have changed a lot in my house…, [ellipsis in original] but what is the result economically? My bank account is much lighter, but no more income.

Yes, I know your answer: more reno, more cleaning, much more time…” [ellipsis in original] She goes on to say that Ciprani’s business is another example of how you can clean and renovate and still not have a thriving business. She also adds that no real business person would try to hold down a full time, salaried job as Ciprani is doing as well as trying to run a business. Ciprani’s business is “maybe a hobby but not a business”. Pheifer reminds Ciprani that the only reasons he offered her the cleaning contract is because Ciprani wanted a way to reduce her rent.

She asks for a simple “YES or NO in your next e mail” on that issue. And later “Tiz this has to end. Give me a YES or NO regards the cleaning within the next two days.” March 5 Ciprani to Pheifer. “I will send you pictures of this perfect clean store, and that might make there reason people come into the store…” but complains of how small store is.

March 5 Ciprani to Pheifer. “ am not moving at this time as again going into busy season…like I stated I will give you plenty of notice. sorry, the cleaning job I would have not problem doing it but don’t want to ” “… If you don’t have anyone and are stuck let me know and will do it for you and no I don’t need any contract , I know what needs to be done. you can let me know I can not promise I will do it for 5 days a week but will be kept clean…[ellipsis in original] again love my store it is just not big enough moving next door is to much work for my pocket book . and a temporary move for 500.00 is scary for me and then have to move out as all my profits will have to go into rent, hydro, gas as it was a bigger spot…” March 5 ?

Pheifer to Ciprani. Undated and possibly incomplete message. “Tiz, this is too bad that you can’t move in to next door, doing the part Reno step by step and not paying rent … [ellipsis in original] but nothing I can do. You made your decision…” “To keep you safe there for the 500 even when I will find a buyer…wouldn’t be a problem…[ellipsis in original] that’s when lease agreements come in to place.

They are mostly a good way to clarify things for both parties, not only for landlords, often for tenants, like with a mortgage interest rate… [eio [1] ] long term often a good safe way to go .” Hoping to come up next week to see David [Johansen]. “He had a surgery.” Cancer. March 6 Ciprani to Pheifer. Long message. First page mostly deals with David Johansen’s situation and an uncomfortable visit Ms. Ciprani made to the hospital to see him recently.

Moving to discussion of 240B space, Ciprani writes: “ Christiana as for the next door I am going to think about it again I mentioned before it is not a good time for me as I am alone…lump on neck…not cancer thank god…got fashion shows and lots to do I will let you know .” “…does this key work still would like to look at it and think about by myself . deep think as not sure I can do it … [eio] maybe I will see if I can round up some help..hard as can only do it after 5:30 pm and I

have to work all night hard on me” March 7 Pheifer to Ciprani. Brief reference to David Johansen being “different”. Confirms she will be coming to Williams Lake next week to meet with various people. Regarding 240B she writes: “Yes, think about the room next door again.” March 7 Ciprani to Pheifer.

Continues discussion about behavior of David Johansen and how he came into Ciprani’s shop yesterday while customers were there wanting to talk about plugged sinks elsewhere in the building. “again I just told him I would clean the bathrooms as you had asked me as he [David] was not able to do them as he was in hospital.” Changing subject to 240B Ciprani writes: “ I have been thinking about the room next door, again . Love the room but not sure I can do it alone…does this key work still”. Reverting back to the topic of cleaning the building she says: “I will clean the bathroom tomorrow if that is what you need”.

March 8 Pheifer to Ciprani. “don’t clean the bathrooms yet – I will check it out first to see how everything looks… [eio] Maybe we will see you tomorrow… [eio] when are you there?” March 9 Ciprani to Pheifer. “Sorry missed you” [on visit to Williams Lake] “The sink problem [in 240C] has been there for awhile…” Frustrations with David Johansen. March 9 Pheifer to Ciprani. “Tiz, we were so busy dealing with the different people and problems…” Touches on the sink in 240C being plugged and needing to know what to tell a plumber in the morning. Wiring in 240B kitchen has not been done properly. Frustration.

Who moved some chairs from the banquet room to the upstairs office? So busy could not come by your store. March 10 Ciprani to Pheifer. “…bathroom is fixed…no worries.” As for the chairs in 240B “was not me” who moved them in there. March 11 Pheifer to Ciprani. “Tiz, I talked to the plumber last night. He said it was plugged up with hairs… [eio] Can you please make a sign in your bathroom that no hairs have to be put in to the zinc and no other women stuff can be flushed down to the toilet??

Please do me that fefer…” Concern about paying the plumber twice and about Bill the electrician and about the chairs being moved. “I probably have to move up there.” March 11 Exchange of e mails between Pheifer and Bill Critchlow concerning the wiring in 240B. March 12 and other dates. Deposit slips showing Ciprani paid rent of $518/month for 240C in October, 2009, and February, March, April, May and June, 2010. March 13 Exchange of e mails between Ciprani and Pheifer about the plugged sink in 240C. Ciprani says it is a longstanding problem and not due to anything (hair in sink) she or her customers have done.

Pheifer says “well it is done now and I just want to make sure that it will not get plugged up again that soon.” May 26 Receipt from Surplus Herby’s. Ciprani testified this was for an expense associated with renovating 240B. June 1 Ciprani pays rent on 240C of $518. Ciprani receives $100 from Pheifer as a commission for signing up Pastor Rick Lendvoy as a tenant in the upstairs portion of the building. June 29 Pheifer is at her home in Armstrong, B.C. e mailing someone about horses. This is offered as proof she was not up in Williams Lake on this date.

Late June, early July Ciprani begins renovations in 240B by pulling up the old carpeting and stacking it in rolls outside the building (or against the wall within the building). (Ciprani, April 17 th and 30 th , 2012)

July 8 Carl and Christiana Pheifer are present in Williams Lake. They tour 240B separately with at least 3 different prospective tenants – Ms. Ciprani and her daughter, Pastor Rick Lendvoy and Jason Mundeling. Ms. Ciprani testified that she entered into a verbal contract with the Pheifers on this date to renovate the premises sharing the costs and labour between them and she anticipated that she would pay no more than $500/month rent for the space once she moved into it. (Ciprani, April 17 th and 30 th , 2012) Ms. Pheifer is adamant that there was no such agreement, that she and her husband were considering Ms.

Ciprani along with other potential tenants but had made no final decision and that they had not authorized Ciprani to incur costs and do renovation work in the premises. (Pheifer, April 30 th and May 1 st , 2012) July 8 Handwritten note from Bernice Sheridan concerning name and address. Potential tenant located by Ms. Ciprani. July 11 Pheifer to Ciprani. “Hi Tiz, …I talked to Curt, he will come up and stay in the apartment …and he will paint the restaurant . This will take some pressure off your shoulder . … I would like to talk to you regards the painting , special the sealing. …PS.

You don’t have to measure the restaurant … [eio] I found the measurements .” July 13 Ciprani to Pheifer. “wow…thanks that helps!!! haven’t done any painting as been still clean here and there and [family commitments] …ok so will espect curt on the around those days …” July 13 Ciprani to Pheifer. “Christiana, found sample of a picture of the floor coloring if possible…just sent a picture for example as it is dark in there.” July 13 & 14 Various receipts for items Ciprani purchased for renovation of 240B. $782.18 in paint and $300 to $400 in painting supplies. ~ Pheifer testified that at around this time David Johansen called her to say he could hear sounds of work going on down in 240B. (Ciprani was preparing the space for painting and carrying out other renovations in the belief that she had an agreement with Pheifer to rent the space for her bridal shop.) Pheifer testified that until David called her she had no idea that Ciprani would have got started on renovation work in 240B on such a large scale. (Pheifer, April 30 th and May 1 st , 2012) July 14 Pheifer to Jason Mundeling. “Hi Jason, this is just a test E mail.

Please respond when you got it. I’m working on the draft all day , but got interrupted to many times… [eio] still not done. Sorry for the delay. I also stopped at the End of the Roll store… the cheapest flooring would be ceramic tiles …[eio] but they are more labor intensive and I don’t know if you could do them and if you would like it …[eio] I would definitely put a mat on each entrance door to dry the shoes off…[eio]” July 15 Mundeling to Pheifer. “Hi Christiana. Thank you for the mail.

I like the sound of tile. … I had even thought about tile in the front half being where the most traffic would be, and wood laminate in the rear dining area . Once I have a layout design I will pass a copy to you for approval . Thank you again and hope to hear from you soon… Jason” July 15 Receipt from Surplus Herby’s. Ciprani testified this was for an expense associated with renovating 240B. July 16 Pheifer to Jason Mundeling. “Hi Jason Please review the draft attached and let me know what you have in mind . … I did not talked to Tiz about it yet, because first I want to make sure we are in agreement .

Tiz doesn’t want to sign any lease and we prefer to have things set up in writing . …” ~ Attached letter to Jason Mundeling from 0786422 B.C. Ltd. “Offer to lease office space at 240 Oliver Street” with “Letter of Agreement” attached. In the cover letter it says: “ The space is available as you have seen it last week .” In this Letter of Agreement it says: “ Tenant is paying all improvements he has to do to run his business . In exchange landlord will not charge any lease for the first 12 month. Tenant will put new flooring in and will paint the rented space.

All installments and renovations have to be accepted by the landlord….” July 16 Pheifer to Ciprani. “Tiz don’t move the front door!! talked to the fire guys and they want to come to look at it… [eio] I also run in to some problems to change the use of the restaurant in to a retail …[eio] they now telling me the same they told Gail…[eio] to apply to change the zoning…[eio] Before I don’t have it all in place with the City, I won’t spend a penny . For now, please stop any activities in the restaurant. …”

~ Ciprani testified that she was shocked by this e mail because this was the first she had ever heard of a zoning problem. And, she would have expected an experienced commercial landlord and licensed realtor such as Ms. Pheifer to know the zoning of her own building. This was the first time Ciprani became suspicious that the Pheifer’s were reneging on their commitment to rent 240B to her. (Ciprani, April 17 & 30 th , 2012) July 16 & 18 Various receipts. Ciprani testified these were items she purchased to use in renovating the space at 240B. July 19 Jason Mundeling to Pheifer. “… go ahead with what you have here .

Please include noted point in a previous mail “… signing a lease over 3 years …”. July 20 Receipt from Ace Courier. Delivery of a “skid – 27 pcs lights” weighing 200 lbs. Ciprani testified that she had earlier gone to Kamloops and purchased lighting for the shop she planned to set up in the 240B space. This was based on her belief that she had a verbal agreement with Pheifer to renovate and then rent the 240B space for her bridal shop. July 21 Ciprani to Pheifer. Responding to July 16 th e mail about zoning. “… someone is misinforming you. This is what this space is able to be used for .

You can call this lady if you would like she is the licencing lady. I need to get this done as I have

[…]